                                                                                        12/05/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs October 1, 2018

                   STEPHANIE SOLIMA v. DAVID SOLIMA

                Appeal from the Circuit Court for Williamson County
                    No. 2004-04229      Joseph Woodruff, Judge
                     ___________________________________

                           No. M2017-01924-COA-R3-CV
                       ___________________________________

This appeal involves a post-divorce custody dispute between David Solima (father) and
Stephanie Solima (mother) with respect to their only child, A.J.S. Father filed a petition
in the trial court seeking a modification of the then-existing permanent parenting plan.
Finding that there had been a material change in circumstances, the court entered an order
modifying the parenting plan. Father then filed a motion to alter or amend, which the
trial court denied. Father now appeals the court’s order denying his motion. We hold
that the order appealed from is not a final judgment because the trial court has not fully
adjudicated the issue of child support. Accordingly, we dismiss this appeal for lack of
subject matter jurisdiction and remand for further proceedings.

     Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY ARMSTRONG, JJ., joined.

Jonathan Jackson Pledger, Franklin, Tennessee, for the appellant, David John Solima.

Stephanie Solima, appellee, pro se.

                                       OPINION

                                            I.

        The parties divorced in 2006. The permanent parenting plan was revised on April
8, 2013, and again on June 6, 2014. Under the June 6, 2014 parenting plan, mother was
designated as the primary residential parent. The plan also adjusted the parties’ child
support obligations based, in part, on the trial court’s determination that father was
voluntarily underemployed. Father appealed. In Solima v. Solima, this Court affirmed
the trial court’s designation of mother as the primary residential parent but we reversed

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the court’s imputation of additional income to father because “[f]ather was not on notice
that the issue of voluntary underemployment would be tried.” No. M2014-01452-COA-
R3-CV, 2015 WL 4594134, at *8 (Tenn. Ct. App., filed July 30, 2015) (hereinafter,
“Solima I”). We remanded the case to the trial court with instructions to “calculate the
parties’ respective child support obligations pursuant to the federal guidelines and
applicable statutes, rules and regulations.” Id. at *10.

       In January 2017, father filed a petition to modify the June 6, 2014 parenting plan.
After a hearing, the trial court determined that there had been a material change in
circumstances. As a result, the court ordered substantial revisions to the parenting plan.
For example, the court ordered a week on/week off residential schedule, which
significantly increased father’s residential parenting time. The court also ordered that the
parents would have joint decision-making authority. However, the revised parenting plan
also stated that “[n]either party shall drink while the minor child is in their custody.”1 In
addition, the court allowed mother to retain her status as the primary residential parent
because the court believed that it was “[t]he only way” to ensure that the child would not
have to change schools. Father filed a motion to alter or amend pursuant to Tenn. R. Civ.
P. 59.04. Father argued that he should be designated as the primary residential parent due
to newly discovered evidence relating to Williamson County Schools’ zoning policies.
Father also argued that he should not be prohibited from drinking alcohol in front of the
child because there is no evidence in the record that father has previously abused alcohol.
The trial court denied father’s motion. Father appealed.

                                                  II.

        Father raises two issues for our review:

                Whether the trial court erred in denying father’s motion to
                alter or amend its order by making father the primary
                residential parent.

                Whether the trial court erred in denying father’s motion to
                alter or amend its order by removing the prohibition of father
                consuming alcohol in the presence of the child.

                                                 III.

       We begin by considering whether this Court has subject matter jurisdiction over
this case. See Tenn. R. App. P. 13(b) (“The appellate court shall also consider whether
the trial and appellate court have jurisdiction over the subject matter, whether or not

        1
          The previous parenting plan only prohibited the parents from drinking “in excess” during their
residential parenting time.
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presented for review . . . .”). “Subject matter jurisdiction concerns the authority of the
court to hear a matter.” In re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct. App.
2008). Generally, “[w]ithout a final judgment, this Court does not have subject matter
jurisdiction.” White v. Johnson, 522 S.W.3d 417, 421 n.1 (Tenn. Ct. App. 2016) (citing
Tenn. R. App. P. 3(a)). Pursuant to Tenn. R. App. 3(a),

              any order that adjudicates fewer than all the claims or the
              rights and liabilities of fewer than all the parties is not
              enforceable or appealable and is subject to revision at any
              time before entry of a final judgment adjudicating all the
              claims, rights, and liabilities of all parties.

Tenn. R. App. P. 3(a).

       The notice of appeal in this case states that father is appealing the trial court’s
August 21, 2017 order denying father’s Rule 59.04 motion to alter or amend. However,
the order denying father’s motion to alter or amend is not a final order because the
underlying order modifying the parenting plan did not fully adjudicate the issue of child
support. Specifically, the parenting plan attached to the trial court’s order stated that

              The Father shall file a Petition in the IV-D Court to have
              child support calculated. The Court acknowledged that
              Father has filed a Motion to Correct Child Support in
              compliance with the Court of Appeals opinion filed in this
              matter. The Mother was unable to verify or give adequate
              testimony of her income during the hearing on July 25, 2017
              and Father is ordered to file the Motion to correct Child
              Support in the IV-D Court.

              Child Support will not be modified until modified by the
              Court.

       Thus, at the time of the trial court’s order, the child support obligations set forth in
the June 6, 2014 parenting plan had still not been modified pursuant to this Court’s
directive in Solima I. In addition, child support had not been recalculated to account for
the recent modifications to the residential parenting schedule. The trial court’s
subsequent order denying father’s motion to alter or amend also left the issue of child
support unresolved.

       In Leonardo v. Leonardo, this Court held “that a petition to modify visitation time
or the primary residential parent necessitates a recalculation of child support so long as
the opposing party received adequate notice of the petition and so long as there is a
significant variance in accordance with the Tennessee Child Support Guidelines.” No.
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M2014-00372-COA-R3-CV, 2015 WL 3852802, at *7 (Tenn. Ct. App., filed June 18,
2015), perm. app. granted (Tenn. Nov. 24, 2015).2 Consistent with that determination,
this Court has held that a trial court’s order modifying a parenting plan is not a final
judgment when “the trial court did not revisit the child support issue incident to its
modification of the parenting plan . . . as it does not adjudicate all issues.” In re
Gabrielle R., No. W2015–00388–COA–R3–JV, 2016 WL 1084220, at *3 (Tenn. Ct.
App., filed Mar. 17, 2016); see also Hensley v. Hensley, No. E2017–00354–COA–R3–
CV, 2017 WL 5485320, at *7 (Tenn. Ct. App., filed Nov. 15, 2017) (“Determining In re
Gabrielle R. to be on point with the instant action, we conclude that because the trial
court in its judgment has modified the residential co-parenting schedule but failed to
address the issue of a corresponding modification in child support, the judgment is not
final.”).

        We find the aforementioned cases controlling in this matter. As explained above,
the trial court’s order modifying the parenting plan failed to fully adjudicate the issue of
child support, despite a previous order from this Court directing the recalculation of child
support and despite a recent change in the residential parenting schedule. The court’s
order denying father’s motion to alter or amend also left the issue of child support
unresolved. “This Court would have jurisdiction to hear this appeal only if permission to
appeal had been granted or if the order appealed had been made final pursuant to Rule
54.02 of the Tennessee Rules of Civil Procedure.” Waters v. Tennessee Dept. of
Correction, No. W2007-01397-COA-R3-CV, 2008 WL 4253897, at *3-4 (Tenn. Ct.
App., filed Sept. 18, 2008) (holding that an order denying a motion to alter or amend was
not a final judgment because it did not fully adjudicate all claims of the parties); see also
State ex rel. Com'r of Tenn. Dept. of Transp. v. West Coast, LLC, No. M2009-00140-
COA-R3-CV, 2009 WL 4801713, at *3-4 (Tenn. Ct. App., filed Dec. 14, 2009). Here,
the trial court did not certify its order as final pursuant to Tenn. R. Civ. P. 54.02 and
father did not seek permission to file an interlocutory appeal pursuant to Tenn. R. App. P.
9. Accordingly, this Court lacks subject matter jurisdiction over the case.




        2
          Although the Supreme Court granted permission to appeal and vacated certain portions of our
opinion, “we do not interpret the Supreme Court’s action in Leonardo as a reversal of our holding that a
change in a child’s residential schedule is sufficient to require a trial court to revisit child support and
modify support if a significant variance exists.” In re Gabrielle R., 2016 WL 1084220, at *3.
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                                           IV.

       This appeal is dismissed for lack of jurisdiction. Costs on appeal are taxed against
the appellant, David Solima. The case is remanded to the trial court, pursuant to
applicable law, for further proceedings consistent with this opinion.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




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