                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs April 1, 2003

         PAUL EDDIE SEIBERS v. MELISSA SUSAN CUNNINGHAM

                       Appeal from the Circuit Court for DeKalb County
                            No. 8067    John A. Turnbull, Judge


                     No. M2002-02782-COA-R3-CV - Filed May 12, 2003


This appeal stems from a parental dispute over the custody of a 16-year-old boy and a 12-year-old
girl. Their father filed suit in the DeKalb County Juvenile Court seeking to remove the children from
their mother’s custody because they were dependent and neglected. The juvenile court granted the
father custody of his son but decided that his daughter should remain with her maternal grandmother
in the custody of the Department of Children’s Services. The father pursued a de novo appeal to the
Circuit Court for DeKalb County. After the children’s mother moved to dismiss the appeal on the
ground that it was untimely, the father filed a Tenn. R. Civ. P. 60.02(1) motion seeking relief from
his untimely notice of appeal. The circuit court granted the father the requested relief and, following
a bench trial, granted the father custody of both children. The mother asserts on this appeal that the
circuit court lacked authority to grant the father relief from his untimely notice of appeal and, in the
alternative, that the father was not entitled to Tenn. R. Civ. P. 60.02(1) relief for excusable neglect.
We have determined that the trial court lacked subject matter jurisdiction to consider the father’s
Tenn. R. Civ. P. 60.02(1) motion and, therefore, that the father’s appeal to the circuit court should
have been dismissed because it was untimely.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                       Remanded

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

J. Hilton Conger, Smithville, Tennessee, for the appellant, Melissa Susan Cunningham.

Paul Eddie Seibers, Tampa, Florida, Pro Se.

                                              OPINION

                                                   I.

       On July 27, 2001, Paul Eddie Seibers filed a petition in the DeKalb County Juvenile Court
seeking custody of his two children. He alleged that the children, who were then living with their
mother and her new husband, were dependent and neglected. Following hearings on December 3
and 6, 2001, the juvenile court entered a final order on December 21, 2001, granting Mr. Seibers
custody of his son but determining that his daughter should remain in the custody of the Department
of Children’s Services and should continue to live with her maternal grandmother. Mr. Seibers
disagreed with this decision because he desired his daughter and son to live with him in Florida.

        Mr. Seibers was represented by a lawyer from Sparta during the juvenile court proceedings.
On January 9, 2002 – eighteen days after the entry of the juvenile court’s order – Mr. Seibers’s
lawyer filed a notice of appeal on his behalf in the Circuit Court for DeKalb County seeking to
perfect a de novo appeal in accordance with Tenn. Code Ann. § 37-1-159(a) (2001) and Tenn. R.
Juv. P. 36(e). Ms. Cunningham moved to dismiss this appeal on the ground that it had not been
perfected prior to the deadline prescribed in Tenn. Code Ann. § 37-1-159(a) and Tenn. R. Juv. P.
36(e). Effectively conceding that his notice of appeal was late, Mr. Seibers responded with a Tenn.
R. Civ. P. 60.02(1) motion seeking “relief from the Juvenile Court’s Order of December 21, 2001,
on the basis of inadvertence, surprise or excusable neglect.”1 The circuit court entered an order
March 13, 2002 granting Mr. Seibers relief from the juvenile court’s order but failing to describe
what form the relief would take.

        The circuit court conducted a bench trial and entered its final order on July 10, 2002. For
some unexplained reason, the order dealt only with the custody of the parties’ daughter.2 The trial
court determined that Mr. Seibers should receive custody of the parties’ daughter on August 1, 2002,
and gave Mr. Seibers permission to move her to Florida. The circuit court also prescribed the
conditions for Ms. Cunningham’s visitation with her daughter. Ms. Cunningham has perfected an
appeal to this court.

                                                             II.

         There are two dispositive questions on this appeal. The first question is whether Mr. Seibers
filed a timely notice of appeal in the circuit court. If he did, then the circuit court acquired subject
matter jurisdiction over the case and was empowered to try it de novo. If he did not, the second
question is whether the circuit court had the authority to grant relief from the entry of the juvenile
court’s order. If the trial court lacked subject matter jurisdiction, there is no need to determine
whether Mr. Seibers presented grounds that would entitle him to Tenn. R. Civ. P. 60 relief.



         1
           In an affidavit accompanying the motion, Mr. Seibers’s lawyer stated that Ms. Cunningham’s lawyer told her
on December 21, 2001 that he had delivered the proposed o rder to the juvenile court but that the juvenile judge “wanted
to review it.” The lawyer also stated that “[b]ecause I took off five days the week of Christmas and the following week
to celebrate the holida ys, I did not learn that the Order had been filed until January 2nd or 3rd. I did not actually receive
a cop y of the filed Ord er until January 1 1, 20 01, after I requested the Clerk’s office to send me a copy.”

         2
           Mr. Seibers’s notice of appeal was not limited to the juvenile court’s disposition of his daughter. It stated that
he was appealing from “the C ourt’s O rder entered D ecem ber 2 1, 20 01.” Had Mr. Seibers’s appeal been properly
perfected, the entire case would have been tried de novo unless Ms. Cunningham had stipulated or agreed th at M r.
Seibers could have custody of their son. No such stipulation o r agreement app ears in the record. Ac cord ingly, on the
face of this record, the circuit court’s July 10, 2002 order is not final because it does not adjudicate all the claims between
all the parties. In light of our disposition of the subject matter jurisdiction issue, we ne ed no t address the fina lity
question.

                                                             -2-
        Tenn. Code Ann. § 37-1-159(a) and Tenn. R. Juv. P. 36(e) prescribe the time for filing a
notice of appeal from a juvenile court’s final judgment in a dependent neglect proceeding in simple
and direct language. It states that “[t]he appeal shall be perfected within ten (10) days, excluding
nonjudicial days, following the juvenile court’s disposition.” Tenn. Code Ann. § 37-1-102(b)(17)
(2001) defines “nonjudicial days” as “Saturdays, Sundays and legal holidays.” The term “legal
holiday” is, in turn, defined in Tenn. Code Ann. § 15-1-101 (1999).

       The only “legal holidays” occurring between December 21, 2001 and January 9, 2002 were
Christmas Day and New Years Day.3 Accordingly, taking into account the legal holidays and the
three weekends occurring between December 21, 2001 and January 9, 2002, the deadline for filing
Mr. Seibers’s notice of appeal was Tuesday, January 8, 2002. Therefore, Mr. Seibers’s notice of
appeal filed on January 9, 2002 was one day late.

        In this proceeding, the circuit court was functioning as a reviewing court. It could only have
acquired subject matter jurisdiction to adjudicate the dispute if either Mr. Seibers or Ms.
Cunningham perfected a de novo appeal in a timely manner. Ms. Cunningham did not attempt to
perfect a de novo appeal from the juvenile court’s order, and Mr. Seibers perfected his de novo
appeal one day late. Therefore, the circuit court never acquired subject matter jurisdiction over this
case for any purpose. Not only did it lack the power to adjudicate the merits of the dispute, it lacked
the authority to grant Tenn. R. Civ. P. 60 relief.4

        Mr. Seibers was not without relief from the morass created by his lawyer’s failure to perfect
his de novo appeal in a timely manner. He was just not entitled to obtain this relief from the circuit
court. Tenn. R. Juv. P. 34(b) empowers juvenile courts to grant extraordinary post-judgment relief
similar to the relief trial courts can grant under Tenn. R. Civ. P. 60. Thus, Mr. Seibers could have
filed a petition in the juvenile court seeking to vacate and re-enter its December 21, 2001 order,
thereby providing him with a second opportunity to file a timely notice of appeal. Regrettably, Mr.
Seibers pursued his extraordinary relief in the wrong court and must now live with the consequences.
Because the circuit court lacked subject matter jurisdiction over this appeal, its March 13, 2002 order
granting Mr. Seibers Tenn. R. Civ. P. 60.02(1) relief from the juvenile court’s December 21, 2001
order is void. Likewise, its July 10, 2002 order addressing the merits of the parties’s dispute
regarding the custody of their daughter must also be vacated and set aside because it is void on its
face.


         3
          Mr. Seibers states in his pro se brief that the DeKalb County Courthouse was closed on December 24, 2001.
There is nothing in the record to corroborate this assertion, and whether or not the DeKalb County Courthouse was open
on December 2 4, 20 01 is not the sort of information tha t is prop erly the sub ject of judicial notice. E ven if the D eKalb
County Courthouse might have been closed for the convenience of the employees, Decembe r 24, 2001 co uld not have
been considered as a legal holiday unless the President of the United States or the Governor of Tennessee ha d officially
declared it as a day of “fasting or thanksgiving.” Tenn. Code Ann. § 15-1-101.

         4
          Tenn. R. Civ. P. 60 empowers trial courts to grant relief to parties who file an untimely notice of appeal by
vacating and re-entering their own final order. See, e.g., McCracken v. Brentwood United Methodist Church, 958
S.W.2d 792 , 795 (Te nn. Ct. App . 1997 ). Howe ver, it does not, as a general matter, empower trial courts to grant relief
from ano ther court’s orders. 11 C HARLES A. W RIGHT ET AL., F ED ERA L P R A C TIC E AN D P ROCEDURE § 2865, at 377 (2d
ed. 1995) (po inting out that Rule 60 motions are typically filed in the court that rendered the judgment at issue).

                                                             -3-
                                                 III.

         We vacate the circuit court’s March 13, 2002 and July 10, 2002 orders and remand the case
to the circuit court with directions to dismiss Mr. Seibers’s de novo appeal from the juvenile court’s
December 21, 2001 judgment. We tax the costs of this appeal to Paul Eddie Seibers for which
execution, if necessary, may issue.



                                                        _____________________________
                                                        WILLIAM C. KOCH, JR., JUDGE




                                                 -4-
