                                    FILED
       IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE         November 13, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk

TIMOTHY A. BALTZ,                )
                                 )
      Plaintiff/Appellant,       )
                                 )   Maury Juvenile
                                 )   No. 326-28-157
VS.                              )
                                 )   Appeal No.
                                 )   01A01-9606-JV-00263
PAM BALTZ KNIGHT,                )
                                 )
      Defendant/Appellee.        )




                   APPEAL FROM THE JUVENILE COURT
                         FOR MAURY COUNTY
                       AT COLUMBIA, TENNESSEE


                THE HONORABLE GEORGE LOVELL, JUDGE




For Plaintiff/Appellant:                  For Defendant/Appellee:

William S. Fleming                        Claudia S. Jack
Columbia, Tennessee                       Columbia, Tennessee




                   AFFIRMED AND REMANDED




                                     WILLIAM C. KOCH, JR., JUDGE
                                       OPINION

       This appeal involves the au thority of the Maury County Juvenile Court to modify an
Arkansas court’s decree involving the custody of two ch ildren. Five years after the children
and their moth er move d to Tenn essee, the fath er filed a petition in the Ma ury Cou nty
Juvenile Court seeking so le custody a nd child support. The juvenile court entered an agreed
order on September 8, 1995, granting each of the parents custody of one of their daughters.
Howeve r, approximately eight months later, the juvenile court determined that it lacked
subject matter jurisdiction to modify the Arkansas custody decree and vacated its September
8, 1995 o rder. The fa ther has appea led. We ag ree that the M aury Co unty Juve nile Court d id
not have subject ma tter jurisdiction over this matter and, therefore, affirm the juvenile court’s
decisio n invalid ating its o wn or der.


                                                I.


       Pam Baltz Knight and Timothy A. Baltz were married in Jefferson County, Arkansas,
in 1972. Their two daughters were born in 1981 and 1985. On January 13, 1989, the
Chancery Court for Jefferson County, Arkansas, granted Ms. Knight an absolute divorce and
awarded her custody of the parties’ c hildren . Mr. Baltz received re asonable v isitation rights
and was ordered to pay child su pport. In January 1990, Ms. Knight and her daughters moved
to Tennessee and have lived here ever since. In 1993, Mr. Baltz moved to Georgia. Thus,
Arkan sas has had no conne ction w ith either the parti es or the ir childre n since 1993.


       During the summe r of 1995, Ms. K night voluntarily entered a treatm ent center for
alcohol dependency. Before entering the center, sh e and M r. Baltz agree d that Mr. B altz
would care for the c hildren at his h ome in G eorgia w hile she was in treatment. In August
1995, the older da ughter return ed to Tennessee to live with her mother, but the younger
daughter remaine d in Geo rgia with Mr. Baltz . On Au gust 14, 19 95, Mr. B altz filed a petition
in the Maury County Juvenile Court seeking custody of the parties’ ch ildren and c hild
support. He alleged that there had been a material change of circumstances and that the
parties had agreed it would be in the children’s best interests to award him custody. On
September 8, 1995 , the juvenile court entered an agreed order granting the parties joint
custody of their children and awarding Ms. Knight primary physical custody of the older
child an d Mr. B altz prim ary phy sical cus tody of the you nger ch ild.




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       On March 8, 1996, Ms. Knight requested the juvenile court to declare its September
8, 1995 order void because it lacked subject matter jurisdiction.1 She also filed a petition in
the Chancery Court for Maury County seeking to enroll and enforce the Arkansas custody
decree2 as well as a petition for writ of habeas corpus to require Mr. Baltz to return the
younger child to Tennessee.3 On April 25, 1996, the juvenile court entered an order
declaring its September 8, 1995 order void. Mr. Baltz has appealed, arguing that the juven ile
court had subject matter jurisdiction under Tenness ee’s version of the Un iform Ch ild
Custo dy Juris diction A ct and its concu rrent juris diction w ith the pr obate c ourt.


                                                 II.


       Because this appeal in volves an interstate child c ustody disp ute, we m ust first
determine whether any Tennessee court may exercise jurisdiction. The answer to this
question requires us to consider bo th Tennessee’s 4 and Arkansa s’s5 version of the Uniform
Child Custody Jurisdiction Act and the federal Parental Kidnap ing Preve ntion Act. 6 The
common purpose of these statues is to avoid jurisdictional competition and conflict among
courts in matters of child custody and to assure that custody litigation takes place in the state
with which the child and the child’s family have the closest c onnec tion. See Tenn. Code
Ann. § 36-6-2 01(a)(1 ), -201(a )(3).


       A Tennessee cou rt has jurisdiction to render an initial custody decision or to m odify
a custody decision of a court of another state if Tennessee is the child’s home state at the
time of the commencement of the proceeding. See Tenn. Code Ann. § 36-6-20 3(a)(1)(A).
Even though both the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping
Prevention Act strongly favor continuing jurisdiction in the court that rendered the initial
custody decision, they recognize that courts of other states m ay mod ify these dec rees in
carefully controlled circumstances. See Brown v. Brown, 847 S.W.2d 4 96, 505 (Tenn. 19 93).




       1
         Tenn. R. Civ. P. 12.08 permits defenses challenging a court’s subject matter jurisdiction to
be raised at any time. See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.
1996); Boyd v. Boyd, 653 S.W.2d 732, 737 (Tenn. Ct. App. 1983).
       2
        The federal Parental Kidnaping Prevention Act permits the enrollment and enforcement of
foreign custody decrees. See 28 U.S.C.A. § 1738A(a) (West 1994); Young v. Smith, 939 S.W.2d
576, 577 (Tenn. Ct. App. 1996).
       3
           The proceedings in chancery court have been continued.
       4
           See Tenn. Code Ann. §§ 36-6-201, -225 (1996).
       5
           See Ark. Code Ann, §§ 9-13-201, -228 (1998).
       6
           See 28 U.S.C.A. § 1738A (West 1994).

                                                -3-
In order for a c ourt in this state to have jurisdiction to mod ify the custody decree o f a court
of another state, the court must first find:
       (1)     that the court that rendered the initial custody decree no longer has
               jurisdiction over the case under the laws of that state or has decline d to
               assert jurisdiction;

       (2)     that the children and the parents do not reside in th e state that rendered
               the initial custody decree; and

       (3)     that the courts of this state have jurisdiction.
See 28 U.S .C.A. § 1738A (d); Ten n. Cod e Ann . § 36-6 -215(a ).


       The Arkansas version of th e Uniform Child Cu stody Jurisd iction Act p ermits
Arkansas courts to exercise c ustody jurisd iction if Arka nsas is the ch ild’s hom e state or if
Arkansas has a significant connection to the child and either or both parents. See Ark. Code
Ann. § 9-13-20 3; Young v . Smith, 939 S.W.2d at 578. The statute specifically permits
Arkansa s courts to m odify a cus tody decisio n if
                       It is in the best interest of the child that a court o f this
               state assume jurisdiction because (I) the child and his parents, or
               the child and at least one (1) contestant, have a significant
               connection with this state and (ii) the re is available in this state
               substantial evidence concerning the child’s presen t or future
               care, protection, housing, and personal relationships.

See Ark. Code Ann. § 9-13-203(a)(2). The Arkansas Supreme Court has construed this
section to provide that the courts that entered an initial custody order do not retain continuing
modification jurisdiction if the parties and the children are living in another state. See Da vis
v. Davis, 687 S .W.2d 843, 84 6 (Ark . 1985) .


       There is little question under the facts of this case that Tennessee’s courts have the
jurisdiction to modify the initial custody decree entered by the Arkansas chancery court on
January 13, 1989. Arkansas is no longe r the residenc e of Ms. K night, Mr. B altz or their
children, and the record contains no evidence that the children have maintained any sort of
connection with Arkansas since they moved to Tennessee with their mother in January 1990.
Under Arkansas law, the Arkansas courts no longer have jurisdiction over custody issues.
Howeve r, the Tennessee courts have jurisdiction over these issues by virtue of the fact that
Tennessee became the children’s home state.7 Accordingly, we conclude that Ten nessee’s



       7
         Mr. Baltz appears to have recognized that Tennessee was both children’s home state when
he filed his custody petition in August 1995. At that time, the parties’ younger daughter had not
been living in Georgia for six months; therefore, Georgia was not yet the child’s home state. Even
if Georgia is now the younger daughter’s home state, the Uniform Child Custody Jurisdiction Act
and the Parental Kidnaping Prevention Act would require Georgia courts to defer to the Tennessee
proceeding. See Tenn. Code Ann. § 36-6-207.

                                               -4-
courts may properly assert subject matter jurisdiction over the custody dispute betw een Mr.
Baltz and Ms. Kn ight.


                                               III.


       We now turn to the question of the Maury County Juvenile Court’s jurisdiction to
modify the Arkansas custody decree. Mr. Baltz asserts that Tenn. Code Ann. § 37-1-
104(a)(2) (Supp. 1998) gives the juvenile court subject matter jurisdiction over custody
issues such as this one. We have determined that Mr. Baltz has read too much into Tenn.
Code Ann. § 37-1-1 04(a)(2 ).


                                               A.


       The concept of subject matter jurisdiction involves a court’s power to adjudicate a
particular type of cont roversy . See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d
at 639; Turpin v. Conner Bros. Excavating Co., 761 S.W .2d 296, 29 7 (Tenn. 1 988); Standard
Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). Courts derive
their subject matter jurisdiction from the Constitution of Tennessee or from legisla tive act,
see Kane v. Kane, 547 S.W .2d 559, 56 0 (Tenn. 1 977); Brown v. Brown, 198 Tenn. 600, 618-
19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers that have not
been conferred directly on them e xpress ly or by necess ary im plication . See Hicks v. Hicks,
No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn. Ct. App. Mar. 30, 1994) (No
Tenn . R. Ap p. P. 11 applica tion filed ).


       A court’s subject matter jurisdiction in a particular circumstance depends on the
nature of the cau se of ac tion and the relief sough t. See Landers v. Jones, 872 S.W.2d 674,
675 (Tenn. 1994). It does not depend on the conduct or agreement of the parties. See Shelby
County v. City of Memphis, 211 Tenn. 410, 413, 3 65 S.W .2d 291, 29 2 (1963); James v.
Kennedy, 174 Tenn. 591, 595, 129 S.W.2d 215, 216 (1939). Jud gments or orders entered by
courts without subject ma tter jurisdiction are void, see Brown v. Brown, 198 Tenn. at 610,
281 S.W.2d at 497; Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991), and the
lack of subject m atter jurisdiction is so fundamental that it requires d ismissal w henever it is
raised a nd dem onstrate d. See Tenn . R. Civ . P. 12.0 8.
                                               B.


       Juvenile courts are co urts of limite d jurisdi ction, see Stambaugh v. Price, 532 S.W.2d
929, 932 (Tenn. 197 6), whose subject matter jurisdiction is defined by statute. The General
Assem bly has given juvenile co urts exclusiv e subject m atter jurisdiction o ver ten spec ific

                                               -5-
types of proceedings, including delinquency proceedings, dependency and neglect
proceedings, and pa ternity p roceed ings. See Tenn. Code Ann. § 37-1-10 3 (Supp. 1998).
Howeve r, this statute doe s not, either ex plicitly or by ne cessary im plication, give juvenile
courts subject matter jurisdiction over custody matters independent of one of the proceedings
listed therein.


       The General Assembly has also given juvenile courts concurrent jurisdiction with the
general sessions courts over one type of proceeding,8 and concurrent jurisdiction with the
circuit and chancery courts over three types of proceedings.9 It has also giv en juvenile courts
concurrent jurisdiction with probate courts over three types of proceedings.10 None of these
statutes explicitly give juvenile courts conc urrent jurisdiction to modify cu stody orders
entered in the context of a divorce proceeding.


       Mr. Baltz, however, asserts that the juvenile court’s concurrent jurisdiction with the
probate courts “to determine custody or appoint a guardian of the person of a child” under
Tenn. Code Ann. § 37-1-104(a)(2) empowers juvenile courts to modify custody decrees
entered by courts of other states . We disa gree. A juv enile court’s subject matter jurisdiction
under Tenn. Code Ann. § 37-1-10 4(a)(2) derives directly from the probate court’s
jurisdiction under Tenn. Code Ann. §§ 34-12-101 , -106 (1996) to appo int a guardian for a
child. Custo dy is an integral p art of a guard ianship proceeding because the purpose of the
proceeding is to appoint a person who will become legally responsible for the care and
management of a child during his or her minority. Persons appointed as guardians cannot
carry out their responsibilities without being given legal custody of their ward . Since Mr.
Baltz did n ot initiate a guardian ship proce eding in this c ase, he can not rely on Tenn. Code
Ann. § 37-1-104(a)(2) to provide the juvenile court subject matter jurisdiction to modify the
Arkan sas cus tody de cision.


       Courts with subje ct matter jurisd iction over su its for annulm ent, divorce, or separate
maintenance have jurisdiction to decide the custody issues arising during these proceedings.
See Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998). Only circuit courts, chancery courts,
and courts whose jurisdiction has been otherwise conferred by gener al or local act h ave this



       8
        See Tenn. Code Ann. § 37-1-104(b) (Supp. 1998) (contributing to the delinquency or unruly
conduct of a minor).
       9
        See Tenn. Code Ann. § 37-1-104(c), (d), (e) (termination of parental or guardianship rights,
orders of support for minor children, and proceedings arising from the 1980 Hague Convention on
the Civil Aspects of International Child Abduction).
       10
        See Tenn. Code Ann. § 37-1-104(a) (treatment of mentally ill or retarded children,
guardianships, and judicial consent for marriage).

                                                -6-
jurisdiction. See Tenn. Code Ann. §§, 16-10 -108, 16-11-110 (1 994). Unless a juven ile court
is exercising exclusive jurisdiction under Tenn. Code Ann. § 37-1-103, it cannot interfere
with a custody decision made in the co ntext of a divor ce proc eeding . See In re Maddron, No.
77, 1991 WL 135467, at *4 (Tenn. Ct. App. July 25, 1991) (No Tenn. R. App. P. 11
application filed).11 Just as juvenile courts may not modify a custody decision of a Tennessee
court unless they are exercising their authority pursuant to Tenn. Code Ann. § 37-1-103, we
hold that they have no sub ject matter jurisdiction to modify a foreign custody determination
under Tenn . Code Ann. § 36-6-215 unless they are also proceeding under a provision of
Tenn. Code Ann. § 37-1-103.




                                                IV.


       The judgment of the Maury County Juvenile Court dismissing Mr. Baltz’s petition for
lack of subject matter jurisdiction is affirmed and the case is remanded for whatever further
proceedings may be required. We tax the costs of this appeal to Timo thy A. Ba ltz and his
surety for which execution, if necessary, may issue.



       11
          Mr. Baltz cites two unreported opinions for the proposition that Tenn. Code Ann. § 37-1-
104(a)(2) gives juvenile courts subject matter jurisdiction to modify custody decrees entered by
courts of other states. Neither of these cases hold that Tenn. Code Ann. § 37-1-104(a)(2) vests this
jurisdiction in juvenile courts, and therefore, we do not view them as controlling.

        The first case, Carpenter v. Carpenter, No. 133, 1989 WL 139721 (Tenn Ct. App. Nov. 16,
1989) (No Tenn. R. App. P. 11 application filed), involves the jurisdiction of the Chancery Court
for Hamblen County to place a child in the custody of one of two couples seeking to adopt it after
the other couple had been awarded temporary custody in an earlier proceeding in the Hamblen
County Juvenile Court. The couple who had been awarded custody by the juvenile court argued that
the chancery court could not assume jurisdiction because the juvenile court retained exclusive
jurisdiction under Tenn. Code Ann. § 37-1-103(a)(1). A panel of this court disagreed because the
juvenile court had determined that the children were not dependent and neglected, abandoned, or
abused. The panel speculated that the juvenile court must have been exercising jurisdiction under
Tenn. Code Ann. § 37-1-104(a)(2). See Carpenter v. Carpenter, 1989 WL 139721, at *2. Because
the children were apparently abandoned by their natural parents, it is understandable that the panel
could have concluded that the juvenile court’s custody decision was, in effect, a guardianship
proceeding.

        The second case is more factually akin to the present tone. A mother filed a petition in the
Juvenile Court of Memphis and Shelby County requesting the court to modify an Arkansas court’s
custody decree. The issue on appeal involved the juvenile court’s decision to decline jurisdiction
because the Arkansas court had refused to waive jurisdiction over the case. A panel of this court
held that a Tennessee court could take jurisdiction over the petition because Tennessee had become
the children’s home state and because the Arkansas proceeding failed to comply with the Parental
Kidnaping Prevention Act. See In re Bilsky, No. 02A01-9407-JV-00155, 1994 WL 699035, at *4
(Tenn. Ct. App. Dec. 15, 1994) (No Tenn. R. App. P. 11 application filed). There is no indication
in the opinion that either the parties or the panel addressed the specific question of the Shelby
County Juvenile Court’s subject matter jurisdiction.

                                                -7-
                                           ______________________________
                                           WILLIAM C. KOCH, JR., JUDGE

CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
SAMUEL L. LEWIS, JUDGE




                                     -8-
