                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      July 11, 2001 Session

           JAMES ROBERT FERGUSON v. DEBBIE DEE WARREN

                     An Appeal from the Chancery Court for Lake County
                        No. 4243-A    J. Steven Stafford, Chancellor



                        No. W2001-00217-COA-R3-CV - March 26, 2002


This case involves child visitation with a prison inmate. The child's father has been incarcerated
since 1994 at the Northwest Correctional Facility in Lake County, Tennessee. The child resides with
his mother in Weakley County, Tennessee. In 1997, the father filed a petition in the Lake County
Chancery Court seeking an order requiring the child's mother to allow the father to communicate
with his child. The mother failed to respond to the petition. In April 1999, the Lake County
Chancery Court sua sponte dismissed the petition, finding that it should have been filed in Weakley
County. This Court reversed, holding that lack of venue was a defensewhich was waived when the
mother failed to respond. After the case was remanded, the mother sent a letter to the Lake County
Chancery Court, advising that a paternity petition had been filed in the Weakley County Juvenile
Court. Thereafter, the Lake County Chancery Court transferred the father's petition to the Weakley
County Juvenile Court to be determined in conjunction with the paternity petition. The father now
appeals the transfer of his petition. We affirm, finding that the trial court acted within its authority
in transferring the case to a court with concurrent jurisdiction.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

James R. Ferguson, Tiptonville, Tennessee, pro se appellant.

Debbie D. Warren, Martin, Tennessee, pro se appellee.
                                MEMORANDUM OPINION1
       This case involves child visitation with a prison inmate. Petitioner/Appellant James
Ferguson (“Father”) and Respondent/Appellee Debbie Warren (“Mother”) are the unwed parents of
two minor children. Father and Mother lived together until shortly before Father was convicted of
two counts of aggravated sexual battery committed against his daughter, the oldest of the parties’
two minor children. Since his conviction in 1994, Father has been incarcerated at the Northwest
Correctional Facility in Lake County, Tennessee. His incarceration is expected to end in August
2006. Mother continues to live with the two minor children in Weakley County, Tennessee.

         This case arises out of a petition filed by Father in September 1997 with the Lake County
Chancery Court. In his petition, Father requested that the chancery court issue an order allowing him
written and verbal communication with his minor son without Mother’s interference. In January
1998 the chancery court issued an order which raised the issue of whether Lake County was the
proper venue to hear the petition. At that time, Mother had not yet filed an answer to the petition.
Consequently, the order also instructed Mother to answer the petition within thirty days of the date
of the order. In a supplemental pleading, Father asserted that Lake County was the proper venue and
that Mother’s failure to file a response effectively waived the defense of improper venue. The
chancery court disagreed and, sua sponte, dismissed the case for lack of proper venue by order dated
April 16, 1999. On appeal this Court reversed, finding that, while Weakley County was the proper
venue to hear the petition, Mother had waived the privilege of being sued in Weakley County by her
failure to assert the privilege in a timely manner. Ferguson v. Warren, No. 02A01-9906-CH-00149,
1999 Tenn. App. LEXIS 851, at *4-5 (Tenn. Ct. App. Dec. 15, 1999).

        After the case was remanded, the Lake County Chancery Court received Mother’s response
in the form of a letter asking that the court deny Father’s petition and indicating that a petition to
establish paternity of the child with whom Father sought to communicate had been filed in the
Weakley County Juvenile Court (“juvenile court”).2 Thereafter, the chancery court, sua sponte,


         1
              Rule 10 of the Ru les of the Co urt of A ppeals of Tennessee States:

              This Court, with the concurrence of all judges participating in the case may affirm, reverse or
              mod ify the actions of the trial court by mem orandum opinion when a formal opin ion w ould have
              no p reced ential v alue. W hen a case is decided by memorandum opinion it shall be designated
              “MEMORANDUM OPINION ”, shall not be published, and shall not be cited or relied on for any
              reason in any unrelated case.

          2
             The paternity petition was actually filed by the State of Tennessee on M other’s behalf in order to allow the
State to collect current and retrosp ective child supp ort. See State o f Ten nessee ex rel. W arren v. Ferguso n, No.
W2000-02027-COA-R3-CV, 2001 Tenn. App. LEXIS 637 at * 2, (Tenn. Ct. App. Aug. 20 , 2001). DN A tests were
conducted which conclusively established Father’s paternity and the juvenile court entered a default judgment ordering
him to pay retro spective ch ild supp ort in the am oun t of $8 623 . Id. at *4. Father has not disputed his paternity; however,
he did appeal that part of the juvenile court’s order requiring him to pay retrospective child support argu ing th at the
juvenile court erred in failing to consider his mo tion for the appointmen t of council or, alternatively, for an abeyance
until his release from prison. Id. at *5-6. Father’s appeal w as successfu l and the case has been rem and ed to the juv enile
                                                                                                                   (con tinued...)

                                                               -2-
issued an order transferring Father’s petition to the Weakley County Juvenile Court so that the issues
raised in Father’s petition could be determined in conjunction with the pending paternity matter.
From this order transferring his petition to the juvenile court, Father now appeals.

        On appeal, Father argues that the Lake County Chancery Court erred in transferring the case
to the Weakley County Juvenile Court. Father argues that the Lake County Chancery Court retained
jurisdiction over Father’s petition to the exclusion of other courts of concurrent jurisdiction, and that
the Lake County Chancery Court did not have the authority to transfer Father’s petition in the
absence of statutory authority. In the alternative, even if the Lake County Chancery Court had the
authority to transfer Father’s petition, Father argues that it erred in finding that the parties would
suffer no prejudice by the transfer and that a transfer would be the best and most economical use of
judicial resources.

        The first two issues raised by Father are questions of law and, therefore, will be reviewed de
novo with no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35
(Tenn. 1996). Father first argues that the Lake County Chancery Court first obtained jurisdiction
and therefore retained it throughout the resolution of the case. See Wilson v. Grantham, 739 S.W.2d
776, 777 (Tenn. Ct. App. 1986). Under the rule of “priority and retention of jurisdiction,” the Lake
County Chancery Court could retain jurisdiction. See 21 C.J.S. Courts § 188 (1990). However,
Father points to no authority prohibiting the court which has priority of jurisdiction from transferring
the case to a court which also has jurisdiction. This argument is without merit.

        Father also argues that the Lake County Chancery Court lacked statutory authority to transfer
the case. In support of his argument, Father relies on the Tennessee Supreme Court’s holding that
“trial courts do not possess the inherent authority to transfer cases in the absence of statutory
authority.” Norton v. Everhart, 895 S.W.2d 317, 320 (Tenn. 1995). However, in Norton, the Court
addressed the issue of whether a trial court which lacks subject matter jurisdiction over a case may
transfer the case to the correct court rather than dismiss it for lack of jurisdiction. The Court stated
that “[t]he general rule governing transfer is that a court lacking subject matter jurisdiction over a
case has no authority to transfer it, unless that authority is specifically conferred by statute, rule, or
constitutional provision.” Id. at 319 (citing 21 C.J.S. Courts § 195 (1990)). Thus, the holding in
Norton, is applicable only where the transferring court lacked subject matter jurisdiction over the
case. In this case, the Lake County Chancery Court clearly had jurisdiction to hear Father’s petition.
The chancery court has jurisdiction “to act in relation to the property and the other interests of
minors.” Stambaugh v. Price, 532 S.W.2d 929, 932 (Tenn. 1976); Tenn. Code Ann. § 16-11-109
(1994). Again, Father cites no authority preventing a transferring court with subject matter
jurisdiction over the case from transferring the case to another court with jurisdiction. Therefore,
this issue is without merit.



          2
            (...continued)
cou rt for co nside ration of his p re-trial m otion s.

                                                          -3-
        Finally, Father argues that the Lake County Chancery Court erred in finding that the parties
would not be prejudiced by the transfer of the case and that a transfer would be the most economical
use of judicial resources. As noted above, the chancery court has jurisdiction over the persons and
estates of minors. However, the juvenile court has exclusive jurisdiction to establish the paternity
of a minor child born out of lawful wedlock and to provide for support and the education of the
child. Tenn. Code Ann. § 37-1-103(a)(2) (2001). Moreover, in establishing paternity in such cases,
the juvenile court is required to make determinations regarding visitation and parental access. Tenn.
Code Ann. § 36-2-311(a)(10) (2001).3 Therefore, in this case, the juvenile court was clearly in the
better, if not exclusive, position to determine all issues related to Father’s paternity, including
support and visitation. See 21 C.J.S. Courts § 188 (1990) (finding that it is necessary that a court
with priority jurisdiction be in a position to determine the whole controversy and to settle all the
rights of the parties; otherwise another court which does have jurisdiction over the entire case may
take jurisdiction). Father points to no prejudice to him caused by transferring the case to another
court with jurisdiction. Therefore, even though the Lake County Chancery Court was the first to
take jurisdiction of the case, it was within its discretion to transfer the case to the Weakley County
Juvenile Court where the Weakley County Juvenile Court had exclusive jurisdiction over the
paternity and support issues, and also has jurisdiction over the visitation issues. Accordingly, we
find no error in the Lake County Chancery Court’s order transferring the case to the Weakley County
Juvenile Court.

        The decision of the trial court is affirmed. Costs are taxed to the appellant, James Ferguson,
and his surety for which execution may issue if necessary.




                                                                  ___________________________________
                                                                  HOLLY KIRBY LILLARD, JUDGE




         3
             Although an argument might be mad e that visitation is within the exclusive jurisdiction of the juvenile court
as a corollary to its exclusive jurisdiction to establish parentage, See Hearne v. Hearne, No. 151, 1988 Tenn. App.
LEX IS 582, at *7 (Tenn. Ct. App. Sep. 26, 1988) (finding that “becau se the Juvenile Court had taken jurisdiction of the
minor child all orders relative to the child, including support, were within the exclusive jurisdiction o f the Ju ven ile
Court”), neither the parties nor the courts involved have raised the issue of whether the chancery court was deprived
of its sub ject m atter jurisd iction o nce the parentage p etition w as filed in the ju ven ile cou rt.

                                                           -4-
