Facts: Husband and Wife are the parents of two children. After their four-day divorce trial, the trial court entered a 76-page memorandum and order on August 19, 2021. The trial court designated Wife as the primary residential parent and adopted her proposed parenting plan as being in the children’s best interest.

Husband filed a motion to alter or amend on September 14, 2021.

On November 10, 2021, the trial court addressed Husband’s motion by amending its memorandum and order to resolve a conflict in exhibits.

On December 13, 2021, the trial court entered an order correcting a numerical error in its November order.

Husband’s new counsel filed a notice of appearance on May 6, 2022, and a motion to enter a parenting plan on May 12, 2022.

The trial court signed the parenting plan on April 27, 2023.

Husband filed his notice of appeal on May 16, 2023.

On appeal, Wife argued that Husband’s appeal was time-barred.

On Appeal: The Court of Appeals dismissed Husband’s appeal as untimely.

A “final judgment” is one that “decides and disposes of the whole merits of the case, leaving nothing for the further judgment of the court.”

Tennessee law requires that an appeal be filed within 30 days of the entry of the judgment being appealed. This 30-day time limit is mandatory and jurisdictional in civil cases, meaning an appellate court lacks subject-matter jurisdiction to hear an untimely appeal.

The time for filing a notice of appeal may be tolled by the timely filing of certain motions under Rules 50, 52, and 59.

Husband argued no final order existed until the trial court signed the parenting plan. TCA § 36-6-404(a) requires that any final judgment in a divorce action “shall incorporate a permanent parenting plan.” While the trial court’s memorandum opinion repeatedly said it “adopted” Wife’s parenting plan, Husband argued the trial court’s failure to attach a signed copy of the parenting plan or otherwise expressly incorporate the plan into its ruling rendered its ruling nonfinal. Husband argued that signing the parenting plan on April 27, 2023, rendered the trial court’s order final such that his May 15, 2023 notice of appeal was timely.

The Court disagreed:

First, we are aware of no requirement that courts sign the parenting plans they adopt…. TCA § 36-6-406(a) merely states that an order pertaining to the parenting time of a child “shall incorporate a permanent parenting plan.” Nothing in § 36-6-406(a) or any other statute cited by Husband requires a signed parenting plan for purposes of finality.

*     *     *     *     *

The trial court clearly and unequivocally adopted [Wife’s] parenting plan in its August 19, 2021, memorandum and order, including specific references to the exhibits. This adoption, and the ongoing effectiveness of the plans, was reiterated without contention at the hearing on Husband’s motion to alter or amend.

*     *     *     *     *

The form Parenting Plan Order specifically notes above the signature line for the Judge or Chancellor that “[t]he judge or chancellor may sign below or, instead, sign a Final Decree or a separate Order incorporating this plan.”

In an apparent attempt to avoid the plain meaning of the form language, Husband points again to the mandate that the parenting plan be “incorporated.” According to Husband, this requirement was not satisfied by the trial court’s use of the word “adopted” in its order. This argument of semantics is utterly unconvincing. Tennessee courts have consistently used both words to describe the ordering of parenting plans in this context. Notably, after requiring that a trial court incorporate a parenting plan into its divorce decree, the child custody statute provides alternative methods for the trial court to “approve a permanent parenting plan.” We decline to insert a hyper-technical, prescriptivist requirement into a statute where none exists.

Having made its point, the Court proceeded to reiterate that singular point repeatedly:

We also decline to establish a blanket requirement that for an order to effectively incorporate a document, said document must be directly attached to the order…. While in some cases, the better practice may be to attach the incorporated document for the sake of clarity, e.g., where there could be some misunderstanding about which specific version of a document was being referenced, in this case, no such misunderstanding is conceivable.

Again, there is and was no confusion in this case about which parenting plan the trial court adopted or where to find the plan in the record…. That all parties knew which plan was included as part of the trial court’s memorandum and order is manifest.

Moreover, the entire merits of the case were decided, at the latest, with the filing of the trial court’s December 13, 2021, order. The trial court granted a divorce, distributed the marital estate, and established the parenting schedule and child support obligation for the children. And here, the trial court expressly stated that Wife’s proposed parenting plan was adopted in full….

In summary, the trial court effectively incorporated the terms of Wife’s proposed parenting plan into its August 19, 2021, memorandum and order. Accordingly, nothing was left for future determination at the time the trial court entered its December 13, 2021, corrective order, and the 30-day period for filing a notice of appeal of the trial court’s substantive rulings began to run. Husband’s notice of appeal, filed on May 15, 2023, was therefore untimely. Consequently, this Court lacks subject-matter jurisdiction over this appeal, and the appeal must be dismissed.

The Court dismissed Husband’s appeal as untimely.

Source: Duffy v. Duffy (Tennessee Court of Appeals, Middle Section, November 25, 2024).

If you find this helpful, please share it using the buttons below.