                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 15, 2013 Session

        PAULA JEAN HOLLEY v. JAMES FRANKLIN HOLLEY, III

                    Appeal from the Circuit Court for Knox County
                          No. 110053     Bill Swann, Judge


                  No. E2012-01584-COA-R3-CV - Filed May 31, 2013


The issue in this appeal is whether the circuit court that had granted the divorce lost subject
matter jurisdiction to hear a later petition for change of custody. James Franklin Holley, III
(“Father”) and Paula Jean Holley (“Mother”) were divorced in the Fourth Circuit Court for
Knox County (“the Trial Court”). Mother was given primary custody of the parties’ two
minor children (“the Children”), with Father having co-parenting time. Later, Father filed
a petition (“the Petition”) to change custody based on Mother’s alleged neglect of the
Children’s psychological and educational issues. The Trial Court held that it lacked
jurisdiction to hear the Petition as juvenile court has exclusive jurisdiction to hear petitions
alleging dependency and neglect. Father appeals. We hold that the Petition did not allege
under the relevant statutes that the Children were dependent and neglected and, therefore, the
Trial Court did have jurisdiction to hear the Petition. We reverse the judgment of the Trial
Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Laura Jane Webb, Maryville, Tennessee, for the appellant, James Franklin Holley, III.

Margaret Beebe Held, Knoxville, Tennessee, for the appellee, Paula Jean Holley.
                                          OPINION

                                         Background

              Mother and Father divorced in July 2008 in the Trial Court. A permanent
parenting plan was incorporated. Mother was designated primary residential parent. Father
was to have 80 residential days per year of co-parenting time with the Children. Mother
moved to North Dakota, while Father remained in Knoxville, Tennessee. Due to
circumstances apparently in dispute, Mother and Father departed from the original plan. In
2009, the Children returned to be with Father in Knoxville for the school year.

              In June 2010, Father filed the Petition, wherein he sought a change of custody.
The Petition alleged that Father had taken the Children to see experts and determined that
they suffered from certain developmental issues. The parties’ younger child (“CH”), born
2005, was diagnosed with Oppositional Defiant Disorder, sensory perception disorder,
developmental delay, and a language processing disorder. Father alleged that Mother’s
response to CH’s behavioral problems was to say “he will grow out of it.” According to
Father, CH is undergoing “occupational therapy once a month, behavioral therapy once a
week, and speech and language therapy at least once a week.” The parties’ other child
(“PH”), born 2000, was diagnosed with Reading Disorder, Disorder of Written Expression,
and Attention Deficit/Hyperactivity Disorder. Father alleged that PH’s oral reading fluency
had worsened while in North Dakota. Father further alleged that Mother failed to give the
Children the proper treatment for their conditions. According to the Petition, in relevant part:

       17. Father avers that during the eight (8) months the minor children have been
       in his physical custody he has continued to pay his monthly child support
       obligation in the amount of $1750.00 per month. Father avers Mother would
       only agree to allow the minor children to remain in Knoxville for the school
       year if Father continued to pay her child support. Father further avers Mother
       refused to pay any portion of the psychological testing, educational testing,
       counseling, occupational therapy or any of the other necessary expenses for the
       minor children for the past eight (8) months.

       18. Father avers that Mother provides an unstable home for the minor children
       in North Dakota in that he learned the minor children were living with Mother
       and her boyfriend in North Dakota. Father further avers Mother is neglectful
       regarding the educational and behavioral needs of the minor children.

       19. Father avers that he is afraid for the welfare of the minor children and that
       the rights of the minor children will be violated by Mother and that the minor

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       children will suffer immediate harm and irreparable injury if Mother is allowed
       to keep the minor children in North Dakota and not return them to Knoxville
       for the 2010-2011 school year beginning September 1, 2010. Father avers the
       minor children will suffer immediate and irreparable injury if the
       recommendations of the experts are ignored and the minor children’s
       educational, psychological and behavioral needs continue to be ignored by
       Mother.

       20. That a material change in circumstances has occurred and that the current
       Permanent Parenting Plan [is] no longer in the best interests of the minor
       children. That it would be in the best interests of the minor children to award
       legal and physical custody of the minor children to Father and that Mother be
       awarded co-parenting time during the summer break and other holidays and
       breaks from school.

In a local rule 28B verified statement filed along with the Petition, Father stated, in part:

       I should be designated the primary caregiver of the children because it is in
       their best interest for the following reasons: For the past 8 months I have
       devoted a great deal of time and effort to addressing the serious educational,
       social, behavioral and psychological needs of the minor children. These needs
       have been ignored by Mother for the past two years. Both boys have made and
       are continuing to make progress. Mother is not supportive of the children
       seeing professionals to address these problems. Additionally, [PH]’s
       educational needs are critical and I do not believe the school system in North
       Dakota nor Mother will address his needs.

The Petition noted that this was the first application for “extraordinary relief.” The Trial
Court subsequently entered an ex parte order transferring custody of the Children to Father.

              In April 2012, Mother filed a motion to dismiss the Petition on the basis that
the Trial Court lacked subject matter jurisdiction. Specifically, Mother argued that the
Petition alleged dependency and neglect, which, pursuant to Tenn. Code Ann. § 37-1-
103(a)(1), would put it within the exclusive original jurisdiction of the juvenile court. In July
2012, the Trial Court granted Mother’s motion to dismiss, stating in relevant part:

       1. The original Petition alleges that the mother has neglected the children’s
       medical needs. Based on these allegations, this Court acted pursuant to
       T.R.C.P. 65.07 and Local Rule 28, and entered an ex parte Order transferring
       custody to the father.

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       2. The Juvenile Court has exclusive original jurisdiction over all cases
       alleging dependency and neglect; therefore, the original order issued by this
       Court is void.

Father filed a timely appeal to this Court.

                                         Discussion

              Though not stated exactly as such, Father raises one issue on appeal: whether
the Trial Court erred in dismissing his petition for change of custody for lack of subject
matter jurisdiction.

              We have previously discussed subject matter jurisdiction and its significance:

               A court must have jurisdiction over the subject matter of the proceeding
       as well as over the parties. State ex rel. Whitehead v. Thompson, No.
       01A01-9511-CH-00538, 1997 WL 749465 at *2 (Tenn. Ct. App. Dec. 5,
       1997). The question of subject matter jurisdiction relates to a court's power to
       adjudicate a particular type of controversy. Toms v. Toms, 98 S.W.3d 140, 143
       (Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
       Subject matter jurisdiction “relates to the nature of the cause of action and the
       relief sought” and “is generally defined by the constitution or statute and
       conferred by the authority that organizes the courts.” Meighan v. U.S. Sprint
       Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Kane v. Kane, 547
       S.W.2d 559, 560 (Tenn. 1977). The parties cannot confer subject matter
       jurisdiction on a court by either appearance, plea, consent, silence, or waiver.
       Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App.
       1999). A court cannot enter a valid, enforceable order without subject matter
       jurisdiction. Brown v. Brown, 198 Tenn. 600, 610, 281 S.W.2d 492, 497
       (1955); SunTrust Bank v. Johnson, 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000).
       Accordingly, when subject matter jurisdiction is questioned the court must first
       determine the nature of the case and then ascertain whether the Tennessee
       Constitution, the General Assembly, or the common law have conferred on it
       the power to adjudicate its cases. Staats v. McKinnon, 206 S.W.3d 541 at 542
       (Tenn. Ct. App. 2006). Subject matter jurisdiction may be raised at any time
       by the parties or by the appellate court sua sponte on appeal. County of Shelby
       v. City of Memphis, 211 Tenn. 410, 365 S.W.2d 291 (Tenn. 1963).

Graham v. Graham, No. E2008-00180-COA-R3-CV, 2009 WL 167071, at *6 (Tenn. Ct.
App. Jan. 26, 2009), no appl. perm. appeal filed.

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              The juvenile court has exclusive original jurisdiction over “[p]roceedings in
which a child is alleged to be delinquent, unruly or dependent and neglected, or to have
committed a juvenile traffic offense . . . .” Tenn. Code Ann. § 37-1-103(a)(1) (2010). The
pertinent definition of a dependent and neglected child is one “[w]hose parent, guardian or
custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital
care for such child.” Tenn. Code Ann. § 37-1-102 (b)(12)(D) (2010).1

               A petition alleging dependency and neglect, either expressly or in substance,
implicates the exclusive original jurisdiction of the juvenile court. J.W.G v. T.L.H.G., No.
M2002-02656-COA-R3-JV, 2003 WL 22794537, at *4 (Tenn. Ct. App. Nov. 25, 2003),
Rule 11 appl. perm. appeal denied May 10, 2004. In the present case, the Petition never
expressly alleges ‘dependency and neglect.’ We, however, must look to the substance of the
Petition to see if what it alleges is tantamount to alleging dependency and neglect under the
statute.

              The Petition does contain rather urgent rhetoric at places, such as warnings of
“irreparable injury,” “immediate harm,” and “immediate and irreparable injury.” Also,
Father alleged that “Mother is neglectful regarding the educational and behavioral needs of
the minor children.” The Petition warned of “immediate and irreparable injury if the
recommendations of the experts are ignored and the minor children’s educational,
psychological and behavioral needs continue to be ignored by Mother.”

                We note that in domestic and family controversies such as the present case,
rhetoric often can be intemperate. This heated rhetoric sometimes may manifest itself in the
pleadings of these cases. However, we ultimately must look to the substance of what has
been alleged. In spite of the tone of urgency and severe language, we believe the allegations
in the Petition are not tantamount to allegations of dependency and neglect under the statute.
The allegations are more in the nature of a disagreement over the long-term manner of
addressing the Children’s psychological, behavioral, and educational issues.

               Nothing in our Opinion should be construed to diminish the importance of
psychological, behavioral, or educational problems relative to what may be regarded
traditionally as medical problems. We, however, do not believe our General Assembly
contemplated facts such as those alleged in this case when it vested the juvenile court with
exclusive original jurisdiction over dependency and neglect. We find nothing in the statutes
to support a determination that our General Assembly intended by enacting Tenn. Code Ann.
§ 37-1-103(a)(1) to strip jurisdiction from a court that has handled a divorce and post-divorce


        1
        The Trial Court specifically invoked this definition of dependency and neglect in its oral ruling, and,
although the law contains several other definitions, this is the most relevant for the instant appeal.

                                                     -5-
matters solely because the parents disagree on how to address their child’s medical needs.
Such an intention by our General Assembly would have resulted in a wholesale shifting of
custody cases to the juvenile court from the specific courts vested by our General Assembly
with the jurisdiction to make custody decisions in divorce cases and post-divorce matters
solely because the parents disagree on how best to address their child’s medical needs. We
are not holding that a dispute between parents concerning their child’s medical care never
can be sufficient to trigger the dependency and neglect provision of Tenn. Code Ann. § 37-1-
103(a)(1). We instead hold here only that the Petition did not do so.

               The Trial Court is vested with the subject matter jurisdiction to hear divorce
cases. Tenn. Code Ann. § 16-10-108 (2009). These parties were divorced in the Trial Court.
Divorce decrees remain within the control of courts, and child custody arrangements may be
modified as appropriate under the law and the facts of the case. Tenn. Code Ann. § 36-6-101
(a)(1) (2010). We hold that the Trial Court had subject matter jurisdiction to hear the Petition
because Tenn. Code Ann. § 37-1-103(a)(1) (2010) is not applicable here.2 We reverse the
judgment of the Trial Court.

                                              Conclusion

               The July 6, 2012 Final Order of the Trial Court is reversed, and this cause is
remanded to the Trial Court for further proceedings consistent with this Opinion and for
collection of the costs below. The costs on appeal are assessed against the appellee, Paula
Jean Holley.


                                                          _________________________________
                                                          D. MICHAEL SWINEY, JUDGE




        2
         Father also argued that the Trial Court erred in declining his oral motion to amend the Petition to
remove certain language that fueled the jurisdictional issue. In light of our decision, we need not address
this argument.

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