             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                MARCH 1997 SESSION
                                                        FILED
                                                           July 31, 1997
STATE OF TENNESSEE,                   )
                                      )                Cecil Crowson, Jr.
                    APPELLEE,         )                 Appellate C ourt Clerk

                                      )    No. 02-C-01-9609-CC-00314
                                      )
                                      )    Gibson County
v.                                    )
                                      )    Dick Jerman, Jr., Judge
                                      )
                                      )    (Custodial Interference)
BARRI GEORGE (GREEN)                  )
AND CHARLIE GREEN,                    )
                                      )
                   APPELLANTS.        )



FOR THE APPELLANTS:                        FOR THE APPELLEE:

Bobby A. McGee                             John Knox Walkup
Attorney at Law                            Attorney General & Reporter
P.O. Box 327                               500 Charlotte Avenue
Linden, TN 37096                           Nashville, TN 37243-0497

                                           Deborah A. Tullis
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           Clayburn L. Peeples
                                           District Attorney General
                                           109 East First Street
                                           Trenton, TN 38382

                                           Theodore H. Neumann
                                           Assistant District Attorney General
                                           109 East First Street
                                           Trenton, TN 38382




OPINION FILED:____________________________


REVERSED AND DISMISSED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellants, Barri George (Green) and Charlie Green (defendants), entered

pleas of guilty to the offense of custodial interference, a Class A misdemeanor. Two

issues have been certified for review pursuant to Tennessee Rules of Appellate Procedure

3(b) and Tennessee Rules of Criminal Procedure 37(b)(2)(iv):


              1. Whether the temporary restraining order issued by the
              Chancery Court of Gibson County on 9-15-95 at approximately
              12:00 noon is void or voidable?

              2. Whether or not at the time the temporary restraining order
              was issued by [the] Gibson County Chancery Court, the
              Gibson County Juvenile Court still retained exclusive
              jurisdiction over the custody of Samantha George?


       The defendants contend the Chancery Court of Gibson County did not have

jurisdiction to issue the temporary restraining order (TRO) which they allegedly violated.

They argue the Juvenile Court of Gibson County had exclusive jurisdiction after the filing

of a petition for dependency and neglect and the adjudication of the petition on the merits.

The State of Tennessee contends the defendants did not violate the TRO because the

TRO in question expired fifteen days after it was issued. Tenn. R. Civ. P. 65.03(5).

However, the state argues the certified issues raised by the defendants are moot given the

fact they did not violate the restraining order.

       After a thorough review of the record, the briefs of the parties, and the law governing

the certified issues, it is the opinion of this Court the defendants’ convictions and sentences

must be set aside and the prosecution against them dismissed. The Chancery Court of

Gibson County did not have jurisdiction in this case and, thus, the TRO issued by the court

was null and void.

                                              I.



       Temporary restraining orders in civil cases are governed by the Tennessee Rules

of Civil Procedure. Rule 65.03(5) states:

              Binding Effect and Duration. A restraining order becomes
              effective and binding on the party to be restrained at the time
              of service or when the party is informed of the order, whichever

                                              1
              is earlier. Every temporary restraining order granted without
              notice shall expire by its terms within such time after entry, not
              to exceed fifteen days, as the Court fixes, unless within the
              time so fixed the order, for good cause shown, is extended for
              a like period, or unless the party against whom the order is
              directed consents that it may be extended for a longer period.
              The reasons for the extension shall be entered of record.


This portion of the rule is subject to exceptions. Tennessee Rules of Civil Procedure 65.07

provides:

              Exceptions. The provisions of this Rule shall be subject to any
              contrary statutory provisions governing restraining orders or
              injunctions. In domestic relations cases, restraining orders or
              injunctions may be issued upon such terms and conditions and
              remain in force for such time as shall seem just and proper to
              the judge to whom application therefor is made, and the
              provisions of this Rule shall be followed only insofar as
              deemed appropriate by such judge.


       The TRO in question was issued in a domestic relations case.                It was the

continuation of the initial divorce and custody litigation. The specific purpose of the

pleadings filed by Lanny Dean George, the former husband of Barri George Green, was

the custody of the couple’s minor child. Thus, the TRO was in effect when the defendants

committed the offense in question. The TRO issued by the chancellor on September 15,

1995, states it is to remain in effect “pending a final hearing in this cause.” The parties

agree no hearing had been held in the chancery court prior to the commission of the

offense in question. Since the offense occurred in December of 1995, the TRO was still

in effect pursuant to the domestic relations exception contained in Tenn. R. Civ. P. 65.07

if the TRO was valid. In short, the state’s contention that the TRO had expired ignores the

exception in Rule 65.07 regarding the domestic relations exception to the time constraints

set forth in Rule 65.05.

       The question this Court must now determine is whether the chancellor had

jurisdiction to issue a TRO in this case after the filing and adjudication in juvenile court of

a petition for dependency and neglect concerning the couple’s child.



                                              II.



       The record reflects Lanny Dean George and the defendant, Barri Jo George Green,

                                              2
litigated the dissolution of their marriage, the custody of their child, and the distribution of

the marital assets in the Chancery Court of Gibson County. Subsequently, a decree was

entered dissolving the marriage, awarding the defendant custody of the minor child, and

distributing the marital assets.

       In 1993, Lanny Dean George obtained a TRO which placed the child in protective

custody. Shortly thereafter, a petition to declare the child dependent and neglected was

filed in the Gibson County juvenile court. The juvenile court granted the Department of

Human Services legal custody of the child. However, the judge awarded Lanny Dean

George physical custody of his daughter pending final resolution of the petition.

       On May 8, 1995, the juvenile court judge heard evidence and decided the child was

dependent and neglected within the meaning of the statute. On September 11, 1995, the

juvenile court entered an order granting custody of the child to the defendant, Barri Jo

George Green. The judge further ordered that Lanny Dean George would have the same

visitation rights granted by the chancellor.

       George, aggrieved that he did not receive custody of his daughter, filed a motion

to (a) stay the judgment of the juvenile court and (b) modify the judgment of the juvenile

court on September 15, 1995. He also filed a petition for change of custody and sought

the granting of the TRO which the defendants were accused of later violating. The TRO

was issued September 15, 1995 shortly after the petition was filed.

       A juvenile court has exclusive original jurisdiction of proceedings “in which a child

is alleged to be. . .dependent and neglected.” Tenn. Code Ann. § 37-1-103(a)(1). Once

the juvenile court has assumed jurisdiction in such matters, the juvenile court’s “jurisdiction

[in dependent and neglect cases] shall continue until [the child] reaches the age of

eighteen (18).” Tenn. Code Ann. § 37-1-103(c). Thus, the appellate courts have held that

neither a chancery court nor a circuit court has jurisdiction to enter a decree or judgment

regarding custody of a minor child after a petition to declare the child in question

dependent and neglected has been filed in the juvenile court or after the juvenile court has

found the child to be dependent and neglected and awarded custody of the child. See

Kidd v. State ex rel. Moore, 207 Tenn. 244, 338 S.W.2d 621 (1960); Arnold v. Gouvitsa,

735 S.W.2d 452 (Tenn. Ct. App.), per. app. denied (Tenn.1987); Department of Human



                                               3
Serv. v. Gouvitsa, 735 S.W.2d 452 (Tenn. Ct. App.), per. app. denied (Tenn. 1987);

Marmino v. Marmino, 34 Tenn. App. 352, 238 S.W.2d 105 (1950), cert. denied (Tenn.

1951).

         The juvenile court attempted to transfer the proceedings to the chancery court after

adjudicating the child was dependent and neglected. The appellate courts have held

jurisdiction cannot be conferred to a chancery court or circuit court sua sponte or by

consent of the parties. Hicks v. Hicks, Sumner County No. 01-A-01-9309-CH-00417

(Tenn. Ct. App., Nashville, March 30, 1994); Simpkins v. Greer, Cheatham County No. 01-

A-01-9202-CH-00060 (Tenn. Ct. App., Nashville, January 29, 1993).

         In the context of this case, the chancellor did not have jurisdiction to adjudicate the

merits of the petition for a change of custody since this issue had been adjudicated by the

juvenile court in the dependent and neglect proceedings. Consequently, the TRO which

was issued based on the strength of the petition for change of custody was void.

Department of Human Serv. v. Gouvitsa, 735 S.W.2d at 457. It follows the defendants

could not be convicted of custodial interference of the TRO issued by the chancellor.

         The convictions of the defendants and their respective sentences must be set aside.

The prosecution against the defendants is dismissed.




                                     _____________________________________________
                                            JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
         GARY R. WADE, JUDGE




______________________________________
       CURWOOD WITT, JUDGE




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