Judgment Changing Child Custody Reversed in Clarksville, Tennessee: In re Omari T.

FactsMother and Father are the never-married parents of Child. A Missouri court awarded primary custody to Mother and visitation to Father. Both parents and Child later moved out of Missouri. Mother and Child relocated to Memphis, Tennessee. After a brief stint in Clarksville, Tennessee, Father relocated to Germany.

Several years later, Father petitioned a Tennessee court to domesticate the Missouri order and change custody. That same day, the Tennessee court entered an agreed order changing custody to Father and awarding Mother 80 days of parenting time. While Mother signed the parenting plan, the agreed order was only signed by the judge and Father’s attorney. Notably, the agreed order was not signed by the parties and did not include a certificate of service.

Fourteen months later, Father petitioned to hold Mother in contempt for failing to return Child to Father after her summer parenting time.

Tennessee parenting planMother responded by denying that she ever entered into an agreed parenting plan that gave her only 80 days of parenting time. She claims Father induced her to sign a different parenting plan and, after obtaining her signature, changed the terms, so the parenting plan submitted to the trial court was substantially different from the one she signed.

The trial court concluded the agreed order was valid. Because Father lived in Germany and Mother in Memphis, the trial court transferred the case to a Memphis court.

Mother appealed.

On AppealThe Court of Appeals reversed the trial court.

Tennessee Rule of Civil Procedure 58 requires that a final order contain:

  • the signature of the judge and all parties or counsel,
  • the signatures of the judge and one party or counsel with a certificate of service that a copy of the proposed order has been served on all other parties or counsel, or
  • he signature of the judge and a certificate of the clerk that a copy has been served on all parties or counsel.

Compliance with Rule 58 is mandatory. The purpose of Rule 58 is to ensure that a party knows the existence of a final, appealable judgment in a lawsuit in which he or she is involved. Failing to adhere to the requirements of Rule 58 prevents a court order or judgment from becoming effective.

The Court found that Father had not complied with Rule 58:

The [] 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. . . . 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 [agreed] order did not comply with Tennessee Rule of Civil Procedure 58, and therefore, had no effective date.

Because the [] agreed order did not comply with Rule 58, it has no effective date of entry and is not a final judgment. Thus, the [agreed] order cannot be relied upon in [Father’s] subsequent contempt action.

The trial court’s judgment was vacated except for the transfer of venue to Memphis, which was affirmed.

In re Omari T. (Tennessee Court of Appeals, Middle Section, October 10, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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