Facts: Unmarried parents moved to Texas shortly after Child was born. When their relationship ended in 2010, a Texas court entered a parenting plan and set child support.
In August 2011, Father petitioned to enroll the Texas order in a Tennessee court, alleging that Child had lived in Tennessee for the six months preceding the petition. Father also filed a petition for an emergency modification of the parenting plan.
In 2012, the Tennessee court enrolled the Texas order, awarded custody to Father, and set Mother’s visitation.
In 2014, Mother filed a petition to modify custody.
The hearing took place in 2015. During the hearing, the trial court became aware of documents signed by Father indicating that Child resided in Texas during the six months in 2011 that Father had claimed Child lived in Tennessee. The following exchange took place between the trial court and Father:
THE COURT: August 2011, the child lived [in Memphis]? Remember, you’re under oath.
FATHER: Yeah, I know that.
THE COURT: Okay. Is the answer yes?
FATHER: I haven’t given you my answer yet. Give me a minute. Yeah, I’m going to give you the truth. You’re saying —
THE COURT: In August, did he live in Memphis?
FATHER: Yes, he was in Memphis.
THE COURT: Did he live in Memphis?
FATHER: Yes, he lived in — we were back and forth.
THE COURT: In July, did he live in Memphis?
FATHER: We were living in Memphis in July, going back and forth.
THE COURT: In June, did he live in Memphis?
FATHER: We were in Memphis, going back and forth.
THE COURT: In May, was he living in Memphis?
FATHER: I do not recall that because that was during the transition of getting employed, employment.
* * * * *
THE COURT: April, did he live in Memphis?
FATHER: No, sir, he did not.
THE COURT: Okay. I don’t — we don’t have jurisdiction.
Protip: When the judge asks you a question, be polite and respectful. Good grief.
The trial court found that Father fraudulently obtained the 2012 order granting him custody of Child, that all pending matters should be dismissed for lack of subject matter jurisdiction, and that all prior orders entered by the Tennessee court should be set aside as void.
On Appeal: The Court of Appeals affirmed the trial court.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified at Tennessee Code Annotated § 36-6-201, et seq., governs jurisdiction between Tennessee and other states over child custody proceedings. Among other things, the UCCJEA helps avoid jurisdictional conflict with courts of other states in matters of child custody, ensures that a custody order is rendered in the state that can best decide the case, and deters the abduction of children.
Under the UCCJEA, Tennessee will generally not acquire subject matter jurisdiction over a child custody dispute unless Tennessee is the child’s “home state.” Tennessee Code Annotated § 36-6-205(7) defines a child’s “home state” as the state where the child lived for at least six consecutive months immediately before the commencement of a child custody proceeding.
Father first argued that subject matter jurisdiction was not challenged by Mother after the 2012 order and, therefore, the issue was waived. The Court quickly rejected this argument because subject matter jurisdiction cannot be waived. It is the basis for a Tennessee court’s authority to act. It either exists or it doesn’t. If it doesn’t exist, then a Tennessee court has no authority to act.
Father then argued Tennessee had subject matter jurisdiction because he proved the Child lived in Tennessee when his petition was filed in August 2011. The Court dismissed this argument:
Whether or not Father realizes it, the Child’s “home state” for purposes of the UCCJEA and where the Child physically resided on the day the action commenced are legally distinct concepts. The proof in the record is abundantly clear; Tennessee was not the Child’s home state on the day of the proceeding or within the six months prior to Father’s initial petition. Accordingly, we conclude that the juvenile court did not err in finding that Tennessee does not have subject matter jurisdiction in this case.
The trial court was affirmed and, with the stroke of a pen, five years of legal proceedings in Tennessee litigation never happened.
K.O.’s Comment: The Court was clearly irritated with the soundness (or lack thereof) of Father’s arguments. The opinion refers to “Father’s perplexing argument,” notes “Father misquotes the [trial court order],” and says “[w]hether or not Father realizes it” before explaining the law.
But the Court’s frustration was not limited to Father. Commenting on the lack of an order appointing a special judge, the Court says: “As often seems to be the case with the Shelby County Juvenile Court, the special judge apparently appointed himself.”
One senses there was a bit of this going on in chambers:
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.