                                                                                       10/10/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs August 1, 2019

                                  IN RE OMARI T.

              Appeal from the Juvenile Court for Montgomery County
                  No. 17-JV-1085      Timothy K. Barnes, Judge

                    ______________________________________

                          No. M2018-02227-COA-R3-JV
                    ______________________________________


This appeal results from a custody action. A Missouri court issued an initial custody
decision providing Cherita L. (“Mother”) with primary custody of Omari T. (“the
Child”). Both parents and the Child later moved out of that state. Both Mother and the
Child relocated to Tennessee. The father, Otis T. (“Father”), resided in Tennessee for a
time but more recently had been living and working in Germany. In response to a
petition to domesticate the foreign decree and modify custody, the Juvenile Court for
Montgomery County (“Juvenile Court”) subsequently entered in July 2017 an “agreed
order” reflecting that the parties resided in Tennessee and approving an agreed parenting
plan designating Father as the primary residential parent of the child. The agreed order
was signed only by the Juvenile Court Judge and Father’s counsel. Mother’s signature
was not included on the agreed order nor was a certificate of service included showing
that the order was provided to Mother. Approximately a year later, Father filed a
contempt petition when Mother refused to return the Child to Father’s custody. In
response, Mother filed a motion to set aside the agreed order modifying custody, pursuant
to Tennessee Rule of Civil Procedure 60.02(3), (4), and (5). The Juvenile Court denied
Mother’s Rule 60.02 motion and determined that Mother had violated the Juvenile
Court’s July 2017 order and held Mother in contempt. We hold that the Juvenile Court’s
July 2017 order had no effective entry date pursuant to Tennessee Rule of Civil
Procedure 58, and Mother, therefore, could not have been in contempt of that order. We
affirm the Juvenile Court’s order transferring venue to Shelby County, and we vacate the
July 2017 order and all other subsequent orders by the Juvenile Court concerning
Father’s contempt petition.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
             Affirmed, in Part, and Vacated, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

James Sanders, Memphis, Tennessee, for the appellant, Cherita L.

Jacob P. Mathis, Clarksville, Tennessee, for the appellee, Otis T.


                                        OPINION

                                       Background

       In 2011, Father and Mother lived in Missouri. The parties had one child, the
Child, during their relationship. In January 2011, the 19th Judicial Circuit Court of Cole
County, Missouri (“Missouri Court”) entered an order regarding custody and child
support. The Missouri Court ordered that the parents would have joint legal and physical
custody of the Child. Mother was to have primary physical custody of the Child during
the school year. Father was to have exclusive physical custody of the Child for ten weeks
each summer, beginning on June 1st and ending on August 1st. The Juvenile Court
ordered, in pertinent part, that Father was to pay to Mother $484 per month in child
support for the Child and provide health insurance for the Child.

        In their appellate briefs, both parties agree that Mother and the Child left Missouri
in 2012 and relocated to Memphis, Tennessee. Father states in his brief that he had been
living in Clarksville, Tennessee for more than six months as of June 2014. The record is
unclear as to exactly when Father left Missouri.

       Father filed a petition to modify child support in the Juvenile Court in June 2014.
A hearing was scheduled before the Juvenile Court in October 2014. However, the
Juvenile Court entered an agreed order in September 2014, modifying Father’s child
support obligation to $322 per month. Father’s attorney and Mother, as a pro se litigant,
signed the agreed order.

       It is undisputed that none of the parties lived in Missouri in July 2017. At the
time, Father was living in Germany, and Mother was living in Memphis, Tennessee. On
July 25, 2017, Father filed a petition in the Juvenile Court to domesticate the foreign
decree from the Missouri Court and to modify custody. The Child was eight years old at
that time. Also on July 25, 2017, the Juvenile Court entered an agreed order, which
began: “Comes now the parties, as evidenced by their signatures on the attached
Parenting Plan, and would agree as follows . . . .” The order identified Father as residing
in Clarksville, Tennessee and Mother residing in Memphis, Tennessee. The agreed order
stated that the parties agreed that a material change in circumstances had occurred since

                                            -2-
entry of the Missouri Court’s custody order, that it was in the Child’s best interest for
Father to be designated as primary residential parent, that the parties had entered into a
permanent parenting plan reflecting the parties’ agreement, and that the agreed parenting
plan is in the Child’s best interest. Based on the apparent agreement of the parties as
reflected in the order, the Juvenile Court approved the parties’ agreed parenting plan
modification. The agreed order was signed by the Juvenile Court Judge and Father’s
attorney. The agreed order was not signed by the parties and did not include a certificate
of service.

       The attached parenting plan order is specified as “Agreed” and lists the State of
Tennessee and the Montgomery County Juvenile Court at the top of the document. The
plan states that it modifies an existing order dated January 2011. In this new plan, Father
is designated as the primary residential parent with 285 days to Father and 80 days to
Mother. The plan also states that Mother will have the Child each year from June 1st to
August 1st. As to child support, the parenting plan states that neither parent will pay
child support to the other due to the substantial transportation costs that will accompany
the Child residing overseas with Father.1 Mother signed the parenting plan on July 19,
2017. Father did not sign the permanent parenting plan, but his attorney signed it. The
Juvenile Court Judge signed the permanent parenting plan on July 25, 2017, the same day
the agreed order was entered.

       In August 2018, Father filed a petition for contempt by Mother as to the July 2017
order and requested immediate return of the Child to his custody. According to Father’s
petition, Mother had refused to allow the Child to speak with Father by telephone or
video chat. Father further stated that he had attempted to call the Child eleven times in
June 2018, twelve times in July 2018, and five times so far in August 2018. Father’s
petition stated that Mother only allowed Father to speak with the Child three times
throughout the summer. Father alleged that Mother was supposed to return the Child to
Father on August 1, 2018, but she had not placed the Child on his return flight back to
Father in Germany and had refused to return him to Father. According to Father, the
Child was missing school. Because Mother had refused to return the Child to Father per
the permanent parenting plan, Father requested that Mother be held in willful contempt of
court and sentenced to ten days in jail. As a consequence of Father’s petition, the
Juvenile Court entered an ex parte order and attachment ordering the return of the Child
to Father’s custody immediately. The Juvenile Court also ordered that Mother return the
Child’s passport to Father.



1
 Father’s attorney stated at oral arguments before the Juvenile Court that Father had already relocated
overseas when the permanent parenting plan was modified.


                                                 -3-
       Mother filed several pleadings in September 2018 requesting to suspend operation
of the Juvenile Court’s July 2017 agreed order modifying custody, pending a final
hearing in the matter; a limited appearance for purposes of contesting jurisdiction and
venue; and to set aside the agreed order pursuant to Tennessee Rule of Civil Procedure
60.02(3), (4), and (5), due to lack of jurisdiction, improper venue, and fraud.2 As to
jurisdiction, Mother contended in her pleadings that the July 2017 order should be set
aside because the Missouri Court had continuing jurisdiction over the matter; the
Missouri Court had not relinquished its original, continuing jurisdiction; and the Juvenile
Court’s July 2017 agreed order is void. Mother further alleged that the order was void
because despite the agreed order stating that the agreement was “evidenced by [the
parties’] signatures on the attached Parenting Plan,” both parties’ signatures were not
included on the plan. Specifically, the permanent parenting plan does not include
Father’s signature, although Father’s counsel signed the plan. Mother therefore argued
the agreed order should be set aside.

       Regarding venue, Mother argued that she had “never set foot in Montgomery
County, Tennessee” and that all witnesses in this matter are located in Shelby County,
Tennessee, which renders Montgomery County an inconvenient forum for this matter.
Mother further argued that Father did not actually live in Clarksville in July 2017 despite
using that address in the Juvenile Court’s order. As such, Mother contends that Shelby
County is a more appropriate venue. Concerning Mother’s allegations of fraud, she
averred that she had never entered into an agreed parenting plan that gave her only 80
days of parenting time and that she had allowed Father to have extended parenting time
with the Child from August 18, 2017, through June 19, 2018. Mother claimed that Father
“executed a fraud on [Mother] by inducing [her] to execute her signature on a different
Permanent Parenting Plan and after procuring her signature, [Father] changed the terms
contained within the Permanent Parenting Plan signed by [Mother].” As such, Mother
contended the July 2017 order should be set aside.

       Attached to her pleadings, Mother included an affidavit stating, in pertinent part,
that she only became aware of the July 2017 agreed order in August 2018 and that she
had no prior knowledge of the action being commenced in Montgomery County,
Tennessee. According to Mother’s affidavit, the permanent parenting plan she signed
was significantly different from the plan attached to the agreed order. Mother also

2
    Tennessee Rule of Civil Procedure 60.02 provides in pertinent part:

          On motion and upon such terms as are just, the court may relieve a party or the party’s
          legal representative from a final judgment, order or proceeding for the following reasons:
          . . . (3) the judgment is void; (4) the judgment has been satisfied, released or discharged,
          or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is
          no longer equitable that a judgment should have prospective application; or (5) any other
          reason justifying relief from the operation of the judgment.

                                                     -4-
included an affidavit from an attorney, Gail G. Washington. In her affidavit, Ms.
Washington stated, in relevant part, that Mother had provided her with documentation she
received from Father for Ms. Washington’s review. Although Ms. Washington could not
recall the details of the document, she stated that she had concluded that it was not in
Mother’s best interest and warned Mother not to sign the document. Ms. Washington
further provided that more than a year before her affidavit, which was executed in
September 2018, Mother had informed her that she had entered into what Mother called a
“‘short simple agreement’” that allowed the Child to spend time with Father in Germany
for a year and then the Child would return to Mother.

       Mother also filed a motion “by special appearance” requesting, inter alia, that the
Juvenile Court allow Mother to participate in the hearing telephonically to contest
jurisdiction and venue. The Juvenile Court entered an order on September 26, 2018, in
response to Mother’s motion and granted her motion to appear via telephone for the
hearing. However, the Juvenile Court ruled that Mother could proceed on her pending
motions only if the Child was physically present in court.

       Father later filed an ex parte motion, declaring that he now had physical custody
of the Child but that Mother would not provide him with the Child’s passport, preventing
Father and the Child from returning to Germany. Father requested in his motion that the
Juvenile Court allow Father to obtain a passport for the Child. The Juvenile Court
entered an ex parte order granting Father’s request to obtain a passport for the Child.

      The Juvenile Court conducted a hearing in October 2018 regarding Father’s
contempt petition and Mother’s responsive pleadings. During this hearing, the Juvenile
Court heard oral arguments of counsel and announced its ruling as follows:

             I heard the proof. Frankly, I do not find it credible that these are not
      her signatures. They certainly appear to be her signatures. I do not find
      any evidence that would support anyone forging her signature. As a matter
      of fact, one of them is notarized. That’s what a notary does. They make
      you prove who you are. And that was the one dated July 19, 2017. The
      Court does not find any grounds to set aside the orders of this Court.

              And I’m going to tell you, this Court went through a lot of effort to
      get this child back and enforce the Court’s orders. Court’s order[s] are not
      to be flouted. I can bring out somebody I threw in jail yesterday to tell you
      this Court will not put up with orders being flouted.

                                          ***

             What I’m interested in is what this Court ordered.

                                           -5-
                                          ***

             And this Court properly ordered that this Court had jurisdiction.
       Your jurisdiction was established when they submitted to this jurisdiction
       and the petition to modify child support, mother having signed the agreed
       order. This Court had jurisdiction. That was a valid court order. The
       mother has violated that valid court order.

              Even if I were to subsequently set it aside, there would be questions
       as to whether or not she would still be in contempt, but I will transfer the
       venue to Shelby County.

              But on the contempt, I’m not going to throw you in jail today, young
       lady, but I want you to understand the importance of abiding by a Court’s
       orders. I am going to award attorney fees.

        The Juvenile Court therefore entered an order on November 13, 2018, declining to
set aside the prior orders of the Court and finding that Mother had violated the Juvenile
Court’s prior order. The Juvenile Court transferred venue to Shelby County, Tennessee
for all future proceedings. Additionally, the Juvenile Court awarded Father an award of
attorney’s fees in the amount of $2,830. Mother timely appealed.

                                       Discussion

        Although not stated exactly as such, Mother raises the following issues for our
review: (1) whether the Juvenile Court had jurisdiction to modify custody without first
domesticating the foreign decree; (2) whether the Juvenile Court had jurisdiction upon
the filing of Father’s petition when the foreign decree was not domesticated, Mother was
not served with the petition, and the matter was not adjudicated by the Juvenile Court; (3)
whether the Juvenile Court violated Mother’s due process rights by requiring Mother to
have the Child present in court before it would consider Mother’s jurisdictional motions;
(4) whether the Juvenile Court erred by entering the July 2017 agreed order when neither
the agreed order or the attached agreed permanent parenting plan contained both parties’
signatures; (5) whether the Juvenile Court violated Mother’s due process rights in
granting Father’s petition for criminal contempt against Mother; and (6) whether the
Juvenile Court’s order of attachment was invalid and statutorily deficient such that it
should be set aside for failure to comply with statutory requirements. Neither party raises
an issue as to the Juvenile Court’s transferring the case to Shelby County.

      Although Mother does not cite to Tennessee Rule of Civil Procedure 58, she raises
an issue, among others, with the Juvenile Court’s agreed order that it lacked the

                                           -6-
signatures of both parties. Although we do not agree with Mother that the Juvenile
Court’s July 2017 agreed order is void based on the lack of signatures, we do find that the
order did not comply with Rule 58 and, therefore, has no effective date of entry.
Tennessee Rule of Civil Procedure 58 provides in pertinent part:

       Entry of a judgment or an order of final disposition is effective when a
       judgment containing one of the following is marked on the face by the clerk
       as filed for entry:

       (1) the signatures of the judge and all parties or counsel, or

       (2) the signatures of the judge and one party or counsel with a certificate of
       counsel that a copy of the proposed order has been served on all other
       parties or counsel, or

       (3) the signature of the judge and a certificate of the clerk that a copy has
       been served on all other parties or counsel.

Our Supreme Court has explained regarding Tennessee Rule of Civil Procedure 58:

       The purpose of Rule 58 “is to insure that a party is aware of the existence of
       a final, appealable judgment in a lawsuit in which he is involved.” DeLong
       v. Vanderbilt Univ., 186 S.W.3d 506, 510 (Tenn. Ct. App. 2005), app.
       perm. appeal denied (Tenn. Dec. 19, 2005); see Tenn. R. Civ. P. 58,
       advisory comm’n cmt. (stating that Rule 58 “is designed to make uniform
       across the State the procedure for the entry of judgment and to make certain
       the effective date of the judgment”). The failure to adhere to the
       requirements set forth in Rule 58 prevents a court’s order or judgment from
       becoming effective. DeLong, 186 S.W.3d at 509. Under certain
       circumstances however, remedies are available to effectuate a defective
       order or judgment.

Blackburn v. Blackburn, 270 S.W.3d 42, 49 (Tenn. 2008).

       This Court has held that compliance with Tennessee Rule of Civil Procedure 58 is
mandatory. See McCurry Expeditions, LLC v. Roberts, 461 S.W.3d 912, 916 n.2 (Tenn.
Ct. App. 2014) (quoting Steppach v. Thomas, No. W2008-02549-COA-R3-CV, 2009 WL
3832724, at *4 (Tenn. Ct. App. Nov. 17, 2009) (other internal citations omitted).
Although a failure to comply with Rule 58 “prevents a court’s order or judgment from
becoming effective” and impedes the finality and appealability of the judgment, it does
not invalidate the court’s judgment. State ex rel. Cartwright v. Holloway, No. M2009-
00928-COA-R3-JV, 2010 WL 199409, at *2 (Tenn. Ct. App. Jan. 20, 2010); Clark v.

                                            -7-
Wayne Med. Ctr., No. M2005-00699-COA-R3-CV, 2007 WL 1585166, at *4 (Tenn. Ct.
App. May 31, 2007) (“[T]he remedy for a failure to comply with Tenn. R. Civ. P. 58 is
not an invalidation of the judgment but rather a Rule 60 motion.”).

       The July 2017 agreed order contained only the signatures of the Juvenile Court
Judge and Father’s counsel. Although Mother apparently signed the agreed permanent
parenting plan, she did not sign the agreed order that adopted the plan. The agreed order
also did not include a certificate of service to Mother. Mother had signed the permanent
parenting plan six days prior to entry of the agreed order. There is no evidence
demonstrating that Mother ever received a copy of the agreed order or that she was
present during the hearing when the agreed order was entered. Based on the foregoing,
we conclude that the July 2017 order did not comply with Tennessee Rule of Civil
Procedure 58, and therefore, had no effective date.

       Because the July 2017 agreed order did not comply with Rule 58, it has no
effective date of entry and is not a final judgment. See Wallace v. City of Lewisburg, No.
M2018-01572-COA-R3-CV, 2019 WL 2184981, at *3 (Tenn. Ct. App. May 21, 2019).
Thus, the July 2017 order cannot be relied upon in Husband’s subsequent contempt
action. See McCurry Expeditions, LLC, 461 S.W.3d at 916 n.2 (“[A]n order that does not
comply with Rule 58 ‘is not a final judgment and is ineffective as the basis for any action
for which a final judgment is a condition precedent.’” (quoting Steppach, 2009 WL
3832724, at *4; Citizens Bank of Blount County v. Myers, No. 03A01-9111-CH-422,
1992 WL 60883, at *3 (Tenn. Ct. App. Mar. 30, 1992))).

       Except for the Juvenile Court’s order transferring the case to Shelby County, we
vacate the July 2017 order and all other subsequent orders relevant to Father’s contempt
action. Because there is no final order regarding Father’s custody petition properly
entered and we have vacated the Juvenile Court’s orders relevant to Father’s contempt
petition and affirmed the Juvenile Court’s order transferring venue to Shelby County,
Mother’s remaining issues on appeal are pretermitted as moot. On remand and after
transfer to an appropriate Shelby County Court, Mother and Father can file any such
motions she or he may deem necessary to address any issues in the custody proceeding
related to Father’s petition to domesticate a foreign decree and to modify custody of the
Child. See Wallace, 2019 WL 2184981, at *3.

                                       Conclusion

       We hold that the Juvenile Court’s July 2017 agreed order has no effective date of
entry and cannot be relied upon as a basis for Father’s contempt action. We vacate the
July 2017 order and all other subsequent orders related to Father’s contempt action. We
affirm the Juvenile Court’s order transferring venue to Shelby County. This cause is
remanded to the Juvenile Court to enter an order transferring venue to an appropriate

                                           -8-
court in Shelby County, Tennessee and maintaining the status quo until the transfer is
effective. The costs on appeal are assessed against the appellee, Otis T., and his surety, if
any.

                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




                                            -9-
