                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 November 14, 2006 Session

       STEVEN A. DAVIS, JR. v. APRIL DAWN (BLACKMON) DAVIS

                A Direct Appeal from the Chancery Court for Sumner County
                 No. 2004D-411     The Honorable Tom E. Gray, Chancellor



                 No. M2005-02620-COA-R3-CV - Filed on December 20, 2006


        Appellant appeals the denial of a Tenn. R. Civ. P. 60.02 motion for relief from a Final Decree
of Divorce as it relates to child custody. Appellant asserts that the judgment is void for lack of
jurisdiction under the UCCJEA due to the entry of a previous order of protection in the Alabama
family court. We affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HOLLY M. KIRBY ,
J. and WILLIAM C. KOCH , JR., J., joined.

Russell E. Edwards of Hendersonville, Tennessee for Appellant, April Dawn (Blackmon) Davis

John R. Phillips, Jr. of Gallatin Tennessee for Appellee, Steven A. Davis, Jr.

                                             OPINION

        April Dawn (Blackmon) Davis (“Appellant”) and Steven A. Davis (“Appellee”) were married
for approximately four years. One child, Hunter Allen Davis, was born to this marriage. On April
16, 2004, Ms. Davis left the marital home with the minor child and moved to Alabama. On August
17, 2004, Ms. Davis petitioned the Family Court of Jefferson County, Alabama for a Protection from
Abuse Order. In her petition, Ms. Davis alleged, inter alia, that Mr. Davis had punched her and
slapped the child, that Mr. Davis was involved with drugs and alcohol, and that Mr. Davis had been
stalking her and members of her family. Based upon Ms. Davis’s allegations, the Alabama court
granted an ex parte Temporary Order, which granted Ms. Davis custody of the minor child,
suspended Mr. Davis’s contact with the child, and restrained him from contacting Ms. Davis.

        On September 3, 2004, Mr. Davis filed a Complaint for Absolute Divorce against Ms. Davis
in the Chancery Court of Sumner County, Tennessee (the “trial court”). Attached as exhibits to the
Complaint were the Petition for Protection from Abuse and Temporary Order. Along with his
Complaint, Mr. Davis submitted a proposed Order ordering Ms. Davis to appear with the child at
a hearing in the trial court scheduled for September 27, 2004 to approve a temporary parenting plan.
This Order was approved and entered on September 3, 2004. The hearing was continued to October
4, 2004 and Ms. Davis was served with notice of this hearing.

         Ms. Davis did not appear at the October 4, 2004 hearing and, on October 6, 2004, the trial
court entered a temporary parenting plan giving Mr. Davis sole custody of the child with Ms. Davis’s
visitation reserved pending further hearing. In its October 6, 2004 Order, the trial court specifically
found that it had full jurisdiction over this matter because all parties were residents of Tennessee.

        On November 29, 2004, Mr. Davis filed a Motion for Default and Entry of Final Judgment
due to Ms. Davis’s failure to file any responsive pleadings. The motion was set for hearing on
December 13, 2004. Ms. Davis also failed to appear at this hearing and, on December 22, 2004, the
trial court entered a Final Decree of Divorce, in which Mr. Davis was awarded full custody of the
minor child in accord with the incorporated parenting plan.

       On November 19, 2004, Ms. Davis filed a Verified Complaint for Divorce in the Circuit
Court at Jefferson County, Alabama. On March 1, 2005, this Complaint was dismissed for lack of
prosecution. On March 29, 2005, an Order was entered in the Circuit Court at Cullman County,
Alabama enrolling, registering, and domesticating the Sumner County, Tennessee Final Decree of
Divorce, and further ordering Ms. Davis to return the child to Mr. Davis pursuant to that Decree.

        On October 5, 2005, Ms. Davis filed a Tenn. R. Civ. P. 60 motion in the trial court to set
aside the permanent parenting plan that had previously been entered by default pursuant to the Final
Decree of Divorce. On October 6, 2005, the Family Court of Jefferson County, Alabama dismissed
and expunged the Protection from Abuse Order it had entered on August 17, 2004. On October 19,
2005, Ms. Davis filed, in the trial court, a Petition to Transfer Jurisdiction to Alabama and a Motion
for Temporary Injunction to prevent Mr. Davis from removing the child from Ms. Davis in Alabama.

        On November 3, 2005, the trial court entered an Order denying Ms. Davis’s Tenn. R. Civ.
P. 60 motion to set aside the permanent parenting plan and motion for temporary injunction. On
November 17, 2005, Ms. Davis filed a voluntary non-suit seeking dismissal, without prejudice, of
her previously filed motion to transfer jurisdiction. On November 29, 2005, the trial court filed an
Order dismissing Ms. Davis’s petition to transfer jurisdiction without prejudice. On November 14,
2005, Ms. Davis filed a Notice of Appeal from the Order denying her Tenn. R. Civ. P. 60 motion.
She raises one issue for review as stated in her brief:

               Whether the trial court erred in denying Ms. Davis’s Rule 60 motion
               to set aside the permanent parenting plan.

Rule 60.02 of the Tennessee Rules of Civil Procedure states, in relevant part:




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               On motion and upon such terms as are just, the court may relieve a
               party or the party's legal representative from a final judgment, order
               or proceeding for the following reasons: (1) mistake, inadvertence,
               surprise or excusable neglect; (2) fraud (whether heretofore
               denominated intrinsic or extrinsic), misrepresentation, or other
               misconduct of an adverse party; (3) the judgment is void; (4) the
               judgment has been satisfied, released or discharged, or a prior
               judgment upon which it is based has been reversed or otherwise
               vacated, or it is no longer equitable that a judgment should have
               prospective application; or (5) any other reason justifying relief from
               the operation of the judgment. The motion shall be made within a
               reasonable time, and for reasons (1) and (2) not more than one year
               after the judgment, order or proceeding was entered or taken....

       Relief under Tenn. R. Civ. P. 60.02 is considered “an exceptional remedy.” Nails v. Aetna
Ins. Co., 834 S.W.2d 289, 294 (Tenn.1992). The function of Rule 60.02 is “to strike a proper balance
between the competing principles of finality and justice.” Jerkins v. McKinney, 533 S.W.2d 275,
280 (Tenn.1976). Rule 60.02 operates as “an escape valve from possible inequity that might
otherwise arise from the unrelenting imposition of the principle of finality imbedded in our
procedural rules.” Thompson v. Fireman's Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn.1990).
However, “[b]ecause of the ‘principle of finality,’ the ‘escape valve’ should not be easily opened.”
Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.1991) (quoting Toney v. Mueller Co., 810
S.W.2d 145, 146 (Tenn.1991)).

        The disposition of motions under Rule 60.02 is best left to the discretion of the lower court,
and such decisions are reversed only if they constitute an abuse of that discretion. Spruce v. Spruce,
2 S.W.3d 192, 194 (Tenn.Ct.App.1998) (quoting Underwood v. Zurich Ins. Co., 854 S.W.2d 94
(Tenn.1993)). To set aside a judgment under Rule 60.02, the burden is upon the movant to prove that
he or she is entitled to relief, and there must be proof of the basis on which relief is sought. See
Brumlow v. Brumlow, 729 S.W.2d 103, 106 (Tenn.Ct.App.1986); Jefferson v. Pneumo Servs.
Corp., 699 S.W.2d 181, 186 (Tenn.Ct.App.1985). A motion for relief from a judgment pursuant to
Rule 60.02 addresses the sound discretion of the trial judge. Accordingly, the scope of review on
appeal is limited to whether the trial judge abused his or her discretion. See Toney v. Mueller Co.,
810 S.W.2d 145 (Tenn.1991); Travis v. City of Murfreesboro, 686 S.W.2d 68, 70 (Tenn.1985).

        On appeal, Ms. Davis argues that the trial court abused its discretion in denying her relief
under Tenn. R. Civ. P. 60.02. Specifically, Ms. Davis alleges that the trial court was without
jurisdiction to enter the permanent parenting plan because the temporary order entered by the
Alabama court removed jurisdiction from the trial court under the provisions of the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), as codified at T.C.A. § 36-6-201 et seq.
Ms. Davis argues that, without proper jurisdiction, the judgment of the trial court is void ab initio
and, consequently, relief should be granted under Tenn. R. Civ. P. 60.02(3). We disagree.



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        As a basis for her argument that the Tennessee court had no jurisdiction to enter the
permanent parenting plan in this case, Ms. Davis relies upon T.C.A. § 36-6-221 (2005), which reads,
in relevant part:
                (a) Except as otherwise provided in § 36-6-219, a court of this state
                may not exercise its jurisdiction under this part if, at the time of the
                commencement of the proceeding, a proceeding concerning the
                custody of the child has been commenced in a court of another state
                having jurisdiction substantially in conformity with this part, unless
                the proceeding has been terminated or is stayed by the court of the
                other state because a court of this state is a more convenient forum
                under § 36-6-222.

               (b) Except as otherwise provided in § 36-6-219, a court of this state,
               before hearing a child custody proceeding, shall examine the court
               documents and other information supplied by the parties pursuant to
               § 36-6-224. If the court determines that a child custody proceeding
               has been commenced in a court in another state having jurisdiction
               substantially in accordance with this part, the court of this state shall
               stay its proceeding and communicate with the court of the other state.
               If the court of the state having jurisdiction substantially in accordance
               with this part does not determine that the court of this state is a more
               appropriate forum, the court of this state shall dismiss the proceeding.

        T.C.A. § 36-6-202 sets out the purposes and policies of the UCCJEA. That section provides
that the UCCJEA is enacted, inter alia, to “avoid jurisdictional competition and conflict with courts
of other states in matters of child custody,” and to “deter abductions of children.” T.C.A. § 36-6-
202(1) and § 36-6-202(4). In order to achieve the stated goals, both the Alabama and Tennessee
versions of the UCCJEA favor “Home State” jurisdiction. T.C.A. § 36-6-216 states, in pertinent
part:

               (a) Except as otherwise provided in § 36-6-219, a court of this state
               has jurisdiction to make an initial child custody determination only if:

               (1) this state is the home state of the child on the date of the
               commencement of the proceeding, or was the home state of the child
               within six (6) months before the commencement of the proceeding
               and the child is absent from this state but a parent or person acting as
               a parent continues to live in this state....

Ala. Code § 30-3B-201 reads, in pertinent part, as follows:




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                (a) Except as otherwise provided in Section 30-3B-204, a court of this
                state has jurisdiction to make an initial child custody determination
                only if:

                (1) This state is the home state of the child on the date of the
                commencement of the proceeding, or was the home state of the child
                within six months before the commencement of the proceeding and
                the child is absent from this state but a parent or person acting as a
                parent continues to live in this state;

Both the Alabama version of the UCCJEA and the Tennessee version define “home state” as “the
state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive
months immediately before the commencement of a child custody proceeding....” T.C.A. § 36-6-
205(7) and Ala. Code § 30-3B-102(7). From the record, there is no dispute that the home state in
this case is Tennessee. Here, the child lived with both parents in Tennessee until Ms. Davis left
Tennessee for Alabama on August 16, 2004. Because the Alabama court was not the home state in
this case, when it entered the temporary order of protection on August 17, 2004, it could only have
acted under the “exception” contained in Ala. Code § 30-3B-201, which allows a state other than the
home state to exercise temporary emergency jurisdiction. The Alabama and Tennessee Temporary
Emergency Jurisdiction statutes are identical and provide, in pertinent part, as follows:

                (a) A court of this state has temporary emergency jurisdiction if the
                child is present in this state and the child has been abandoned or it is
                necessary in an emergency to protect the child because the child, or
                a sibling or parent of the child, is subjected to or threatened with
                mistreatment or abuse.

                (b) If there is no previous child custody determination that is entitled
                to be enforced under this part and a child custody proceeding has not
                been commenced in a court of a state having jurisdiction under §§
                36-6-216--36-6-218, a child-custody determination made under this
                section remains in effect until an order is obtained from a court of a
                state having jurisdiction under §§ 36-6- 216--36-6-218. If a child
                custody proceeding has not been or is not commenced in a court of a
                state having jurisdiction under §§ 36-6-216-- 36-6-218, a child
                custody determination made under this section becomes a final
                determination, if it so provides and this state becomes the home state
                of the child.

                (c) If there is a previous child custody determination that is entitled
                to be enforced under this part, or a child-custody proceeding has been
                commenced in a court of a state having jurisdiction under §§
                36-6-216--36-6-218, any order issued by a court of this state under


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               this section must specify in the order a period that the court considers
               adequate to allow the person seeking an order to obtain an order from
               the state having jurisdiction under §§ 36-6- 216--36-6-218. The order
               issued in this state remains in effect until an order is obtained from
               the other state within the period specified or the period expires.

T.C.A. § 36-6-219; Ala. Code § 30-3B-204 (emphasis added).

       The emergency jurisdiction provisions of the UCCJEA, supra, clearly state that where a
temporary emergency order is entered by a state other than the (in this case) home state, that order
remains in effect only “until an order is obtained from the [home state].” The official comments to
Ala. Code § 30-3B-204 (which, as noted above, is identical to T.C.A. § 36-6-219) more fully explain
the temporary nature of orders entered pursuant to emergency jurisdiction, to wit:

                       The provisions of this section are an elaboration of what was
               formerly Section 3(a)(3) of the UCCJA. It remains, as Professor
               Bodenheimer's comments to that section noted, "an extraordinary
               jurisdiction reserved for extraordinary circumstances."

                       This section codifies and clarifies several aspects of what has
               become common practice in emergency jurisdiction cases under the
               UCCJA and PKPA. First, a court may take jurisdiction to protect the
               child even though it can claim neither home state nor significant
               connection jurisdiction. Second, the duties of states to recognize,
               enforce and not modify a custody determination of another state do
               not take precedence over the need to enter a temporary emergency
               order to protect the child.

                       Third, a custody determination made under the emergency
               jurisdiction provisions of this section is a temporary order. The
               purpose of the order is to protect the child until the state that has
               jurisdiction under Sections 201-203 enters an order.

               *                                *                                 *

                        Subsection (c) is concerned with the temporary nature of the
               order when there exists a prior custody order that is entitled to be
               enforced under this Act or when a subsequent custody proceeding is
               filed in a state with jurisdiction under Sections 201-203. Subsection
               (c) allows the temporary order to remain in effect only so long as is
               necessary for the person who obtained the determination under this
               section to present a case and obtain an order from the state with
               jurisdiction under Sections 201-203. That time period must be


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               specified in the order. If there is an existing order by a state with
               jurisdiction under Sections 201-203, that order need not be
               reconfirmed. The temporary emergency determination would lapse
               by its own terms at the end of the specified period or when an order
               is obtained from the court with jurisdiction under Sections 202-203.
               The court with appropriate jurisdiction also may decide, under the
               provisions of 207, that the court that entered the emergency order is
               in a better position to address the safety of the person who obtained
               the emergency order, or the child, and decline jurisdiction under
               Section 207.

Ala. Code § 30-3B-204 Official Comments (emphasis added).

        In the instant case, Ms. Davis made no effort to obtain an order from the Tennessee court
(which is the home state court) as required by the statute. Despite having notice of the proceedings
in the trial court, Ms. Davis willfully failed to participate in same. A temporary order from the
Alabama court does not confer full jurisdiction to that court. Tennessee, as the home state, properly
exercised its jurisdiction in issuing orders defining the parties’ parental rights. Any authority
conferred to Alabama via to emergency jurisdiction statute expired upon the entry of an order by the
home state, Tennessee. Because Alabama exercised only emergency jurisdiction in this case and
because the home state of Tennessee later entered an order (which negated the Alabama order), Ms.
Davis’s reliance upon the previously commenced proceedings provisions of the UCCJEA, T.C.A.
§ 36-6-221 as set out above, is misplaced. The scenario discussed in the official comments to T.C.A.
§ 36-6-223 (which addressed unjustifiable conduct of a party) clearly supports Mr. Davis’s position
that the Tennessee order should stand, to wit:

               For example, if a parent takes the child from the home state and seeks
               an original custody determination elsewhere, the stay-at-home parent
               has six (6) months to file a custody petition under the extended home
               state jurisdictional provisions of section 17 [§ 36-6-216], which will
               ensure that the case is retained in the home state.

        Ms. Davis also alleges that the judgment of the trial court must be set aside because the trial
court allegedly did not communicate with the Alabama court as required by T.C.A. § 36-6-219(d).
However, there is nothing in the record as to whether the trial court communicated with Alabama
or not. Consequently, we cannot assign error on this ground.

        In addition, we note that Ms. Davis has continually snubbed the orders of the trial court and
has failed to appear with the child as required thereby. As ancient as equity itself is the maxim “he
who seeks equity must do equity.” As this court has stated:

               The maxim that he who seeks equity must do equity is fundamental,
               and no principle is better settled than that a court of chancery in


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               granting equitable relief to a complainant will require of him
               whatever the defendant may, in good reason and good conscience, be
               entitled to in reference to the subject matter of the suit. The condition
               thus imposed upon the complainant is, as it were, the price of the
               decree which the court gives him.

East Tenn. and Western N.C. Ry. Co. v. Robinson, 86 S.W.2d 433, 439 (Tenn. Ct. App.1935).
Because Ms. Davis has failed to comply with the mandates of the trial court, that court would have
been well within its power to deny her relief on that basis alone. See Order denying appeal in Pfister
v. Searle, No. M2001-01757-COA-R3-JV (Tenn. Ct. App. Nov. 8, 2001) (“The appellant cannot
seek relief from the judicial system while at the same time she refuses to abide by its decision.”).

        We further note that Tenn. R. Civ. P. 60.02 requires these motions to be made “within a
reasonable time.” While the determination of what constitutes a reasonable time is based on the facts
and circumstances of each case, the fact that Ms. Davis waited from December 22, 2004 (the date
of the entry of the Final Decree of Divorce) until October 5, 2005 to file her petition for relief under
Tenn. R. Civ. P. 60.02 seems overtly long under the circumstances of this case. It is the opinion of
this Court that the trial court could have denied relief based solely upon Ms. Davis’s failure to file
her motion “within a reasonable time” as required by Tenn. R. Civ. P. 60.02.

       For the foregoing reasons, we affirm the Order of the trial court denying Ms. Davis’s motion
for Tenn. R. Civ. P. 60.02 relief. Costs of this appeal are assessed to the Appellant, April Dawn
(Blackmon) Davis, and her surety.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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