       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                         FILED
                                         December 5, 1997
STATE OF TENNESSEE o/b/o        )
JUANITA WHITEHEAD,              )        Cecil W. Crowson
                                )       Appellate Court Clerk
      Plaintiff/Appellee,       )   Wayne Chancery
                                )   No. 8006
                                )
VS.                             )   Appeal No.
                                )   01A01-9511-CH-00538
                                )
MATTIE (WHITEHEAD) THOMPSON,    )
                                )
      Defendant/Appellant.      )




      APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY
                  AT WAYNESBORO, TENNESSEE

       THE HONORABLE JAMES L. WEATHERFORD, CHANCELLOR



For Plaintiff/Appellee:             For Defendant/Appellant:

John Knox Walkup                    David Kozlowski
Attorney General and Reporter       Columbia, Tennessee

James H. Tucker, Jr.
Assistant Attorney General




                   REVERSED AND REMANDED




                                WILLIAM C. KOCH, JR., JUDGE
                                      OPINION


       This appeal involves a trial court’s authority to enter and enforce a child
support award when proceedings involving the child were already pending in another
court. After the Wayne County Juvenile Court gave custody of the child to the State
in a dependent and neglect proceeding, the Department of Human Services filed
separate petitions in the Chancery Court for Wayne County seeking to require the
child’s divorced parents to pay child support. The trial court directed both parents
to pay child support to the State. After the State’s repeated efforts over five years to
require the mother to pay child support, she questioned the trial court’s subject matter
jurisdiction because the dependent and neglect proceeding was still pending in the
juvenile court. The trial court denied the mother’s motion to dismiss, and on this
appeal, the mother renews her claim that the trial court should have deferred to the
juvenile court. We agree and, therefore, reverse the order denying the mother’s
motion to dismiss.


                                                I.


       Mattie Ella Whitehead Thompson and Jerry Wayne Whitehead were married
in 1979. Their only child, a daughter, was born in October 1981. In April 1989, the
Chancery Court for Wayne County awarded Ms. Thompson a divorce, granted her
custody of her daughter, and directed Mr. Whitehead to pay child support. Ms.
Thompson later remarried for the fourth time.


       On October 2, 1990, Buddy R. Smith, Ms. Thompson’s son from an earlier
marriage, and his wife filed a petition for temporary custody in the Juvenile Court for
Wayne County alleging that Ms. Thompson was endangering his half-sister’s welfare
by not providing her with proper care.1 Three days later, the Smiths, Ms. Thompson,
and Mr. Whitehead executed and filed a consent order in the juvenile court permitting
the Smiths to take temporary custody of the child. Less than one year later, Ms.
Thompson filed her own petition in the juvenile court alleging that the Smiths were

       1
         The Smiths’ petition does not technically comply with Tenn. R. Juv. P. 9 because it does
not allege specifically that the child was “dependent and neglected.” However, the substance of the
petition indicates that the Smiths were asserting that the child was dependent and neglected because
Ms. Thompson was not providing proper care. See Tenn. Code Ann. § 37-1-102(b)(12)(C) (1996).

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neglecting her daughter. On November 1, 1991, the juvenile court entered an order
finding the child to be dependent and neglected and placing her in the custody of the
Department of Human Services. The child has been in foster care ever since.


       Soon after the juvenile court placed the child with her half-brother, the
Department filed separate petitions in the chancery court seeking to require both Ms.
Thompson and Mr. Whitehead to pay child support.2 On November 8, 1990, the
chancery court entered separate orders against Ms. Thompson and Mr. Whitehead
directing them to pay the Department $25 per week in child support. On at least four
occasions during the next four years, the Department returned to the chancery court
seeking orders directing Ms. Thompson to continue to pay her support and to make
up for arrearages. On each occasion, the chancery court entered an order resolving
the issues raised by the petition.


       On April 19, 1995, Ms. Thompson, now being represented by an attorney with
the Legal Services of South Central Tennessee, moved to dismiss the pending “child
support enforcement matter” in accordance with Tenn. R. Civ. P. 12.02(1) and 12.08
on the grounds that the chancery court did not have jurisdiction to address support
matters because the dependent and neglect proceeding was still pending in the
juvenile court. On June 12, 1995, the chancery court entered an order denying the
motion on the ground that it had authority to order Ms. Thompson to pay child
support “even while the dependent/neglect case is pending in the Juvenile Court for
Wayne County.” Ms. Thompson has appealed from this order.




                                                II.


       The sole question before us on this appeal is whether the chancery court has
authority to order Ms. Thompson to pay child support. While undoubtedly the

       2
         These petitions have not been included in the appellate record. Based on the representation
in the parties’ briefs, we presume that the Department had standing to assert these support claims
because the child had been receiving AFDC support and because Ms. Thompson had assigned her
support rights to the state as required by federal and state law. See 42 U.S.C. § 602(a)(26)(A)
(1988); Tenn. Code Ann. § 71-3-124(a) (Supp. 1997).

                                                -3-
chancery court has subject matter jurisdiction over child support claims in general,
it did not acquire jurisdiction in this case because the juvenile court, a court with
concurrent jurisdiction, had already acquired jurisdiction over the case.


                                          A.


      The concept of jurisdiction involves a court’s authority to adjudicate a
particular controversy. See Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). In
order to acquire jurisdiction, a court must have jurisdiction not only over the parties
but also over the subject matter of the proceeding. The concept of subject matter
jurisdiction concerns a particular court’s authority to hear a particular type of case.
See Meighan v. U.S. Sprint Comm. Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin
v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988). It relates to the
nature of the cause of action and the relief sought, see Landers v. Jones, 872 S.W.2d
674, 675 (Tenn. 1994), and can only be conferred by the Constitution of Tennessee
or by statute. See Kane v. Kane, 547 S.W.2d at 560; Brown v. Brown, 198 Tenn. 600,
618-19, 281 S.W.2d 492, 501 (1955).


      When more than one court has been given jurisdiction to adjudicate a particular
type of controversy, subject matter jurisdiction may also be influenced by matters of
comity and judicial efficiency. Thus, when two courts have concurrent subject matter
jurisdiction, the first court to acquire jurisdiction over a particular case takes
exclusive jurisdiction to end the matter. See American Lava Corp. v. Savena, 476
S.W.2d 639, 640 (Tenn. 1972); Robinson v. Easter, 208 Tenn. 147, 149, 344 S.W.2d
365, 366 (1961); Wilson v. Grantham, 739 S.W.2d 776, 777 (Tenn. Ct. App. 1986).
The actions of a court that attempts to exercise jurisdiction over a case after another
court with concurrent jurisdiction has already exercised jurisdiction are nullities. See
State v. Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App. 1987).


      These principles have been applied to situations where a court of record has
attempted to act after a juvenile court had already exercised jurisdiction. The
Tennessee Supreme Court has held that a juvenile court that finds a juvenile to be
dependent retains jurisdiction over the child until its majority, and no other court may
issue custody or any other type of order regarding the child without the consent of the


                                          -4-
juvenile court. See Kidd v. State ex. rel. Moore, 207 Tenn. 244, 251-252, 338 S.W.2d
621, 624-25 (1960). Using similar reasoning, this court has determined that a court
of record did not have jurisdiction to render custody orders with regard to children
that were already the subject of a dependent and neglect proceeding pending in the
juvenile court without the juvenile court’s consent. See Arnold v. Gouvitsa, 735
S.W.2d 458, 461-62 (Tenn. Ct. App. 1987). We perceive no reason preventing the
application of these precedents to child support proceedings.


                                         B.


      Both the chancery court and the juvenile court have subject matter jurisdiction
to render child support orders in the proper circumstances. Chancery courts derive
their authority from their divorce jurisdiction. See Tenn. Code Ann. §§ 36-4-102(b),
36-5-101(a)(2)(A) (1996 & Supp. 1997). Juvenile courts derive their authority from
their jurisdiction over dependent and neglect proceedings. See Tenn. Code Ann. §§
37-1-104(d)(1), -151(a) (Supp. 1997). However, a juvenile court’s authority to
require a parent to pay child support is limited to circumstances where another court
with concurrent jurisdiction has not previously ordered the parent to pay child
support. See Tenn. Code Ann. § 37-1-151(b)(2).


      The outcome of this appeal hinges on the answers to the following two
questions: did the juvenile court have jurisdiction to order Ms. Thompson to pay
child support as the result of the filing of the dependent and neglect proceeding and,
if the juvenile court acquired jurisdiction, did it authorize the chancery court to
proceed with the Department’s petition to require Ms. Thompson to pay child
support? Under the facts in this record, we find that the juvenile court acquired
jurisdiction to enter child support orders and that it has not authorized the chancery
court to take jurisdiction over the Department’s child support petition with regard to
Ms. Thompson.


      When the Smiths filed their dependent and neglect petition in October 1990,
no other court had entered an order directing Ms. Thompson to pay child support.
The only extant order was the chancery court’s order in the divorce proceeding
directing Mr. Whitehead to pay child support to Ms. Thompson. That order did not


                                         -5-
involve Ms. Thompson, and the facts that later gave rise to the Smiths’ dependent and
neglect proceeding were not at issue in the divorce proceeding. Thus, once the
juvenile court acquired subject matter jurisdiction over the dependent and neglect
petition, it had the jurisdiction and duty to enter child support orders in accordance
with Tenn. Code Ann. § 37-1-151(b)(2).


       Once the juvenile court acquired jurisdiction in the dependent and neglect
proceeding, it retained jurisdiction over all related matters involving the child until
the child’s majority. Since the record contains no indication that the juvenile court
authorized the chancery court to entertain the Department’s petition to require Ms.
Thompson to pay child support, we conclude that the chancery court should not have
entertained this petition.3 Because the chancery court did not have subject matter
jurisdiction over the Department’s request for child support from Ms. Thompson, all
of its orders with regard to her child support are void.


       Our determination that the chancery court did not have subject matter
jurisdiction to order Ms. Thompson to pay child support does not necessarily mean
that Ms. Thompson is entitled to recover the child support payments she has already
made. Parents have a common-law obligation to support their minor children. See
Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987); Hall v. Jordan, 190 Tenn. 1, 11,
227 S.W.2d 35, 39 (1950). The payments that Ms. Thompson has already made
fulfill this common-law obligation, and therefore, she is not entitled to recover them.
However, as a prospective matter, the Department may no longer rely on the chancery
court’s November 8, 1990 order as a basis to demand child support from Ms.
Thompson. It must either seek an award for child support from the juvenile court or
it must obtain the juvenile court’s authorization to proceed against Ms. Thompson for
child support in the chancery court.


                                               III.




       3
        Of course, the chancery court had jurisdiction to consider the Department’s petition to
require Mr. Whitehead to pay child support because the chancery court was the first court to require
Mr. Whitehead to pay child support and because the juvenile court did not have jurisdiction over Mr.
Whitehead’s child support obligation.

                                                -6-
      We vacate the order denying Ms. Thompson’s motion to dismiss and remand
the case to the trial court for further proceedings consistent with this opinion. We
also tax the costs of this appeal to the State of Tennessee.


                                               ______________________________
                                               WILLIAM C. KOCH, JR., JUDGE


CONCUR:


_______________________________
SAMUEL L. LEWIS, JUDGE



_______________________________
BEN H. CANTRELL, JUDGE




                                         -7-
