Button v. Waite
| Decision Date | 12 December 2006 |
| Citation | 208 S.W.3d 366 |
| Parties | Diane BUTTON v. Mitchell WAITE. |
| Court | Tennessee Supreme Court |
P. Edward Schell, Franklin, Tennessee, for the appellant, Diane Button.
Marlene Eskind Moses, Nashville, Tennessee, and Lorie S. Nachlis, San Francisco, California, for the appellee, Mitchell Waite.
JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and CORNELIA A. CLARK, JJ., joined.
This appeal arises out of a petition filed in the Chancery Court for Williamson County requesting that the Chancery Court exercise temporary emergency jurisdiction and overturn a Hawaii trial court's order relating to the selection of a therapist for the child in this case. We hold that the Court of Appeals properly concluded that the Tennessee trial court erred in exercising temporary emergency jurisdiction pursuant to Tennessee Code Annotated section 36-6-219 (2001). We further hold, however, that the Court of Appeals erred in remanding this case to the trial court with instructions to dismiss the case for lack of jurisdiction.
This appeal involves a child, Carly, who was born to unmarried parents, Diane Button and Mitchell Waite. Carly has lived in three different jurisdictions: California, Hawaii, and Tennessee. Each of these three jurisdictions has addressed custody-related matters concerning Carly. The heart of the controversy relates to the Hawaii trial court's finding that Mr. Waite inappropriately touched Carly and its order terminating the services of Carly's Tennessee therapist and providing an alternate therapist for her.
On January 27, 2005, Ms. Button filed in the Chancery Court of Williamson County, Tennessee, a petition to register and enforce a foreign decree and to transfer jurisdiction. In this petition, Ms. Button contested the Hawaii court's decision to remove Carly's therapist. One day later, on January 28, 2005, Ms. Button filed in the Hawaii court a motion for reconsideration of the oral ruling made on January 11, 2005, which terminated the services of Carly's Tennessee therapist and provided for the appointment of an alternate therapist. After filing the motion for reconsideration in Hawaii, Ms. Button continued to take Carly to see the therapist whose services the Hawaii court had terminated. When Mr. Waite learned of these visits, he filed a petition for contempt against Ms. Button in the Hawaii court in which he disclosed Ms. Button's filings in Williamson County, Tennessee. On March 30, 2005, the Hawaii court contacted the Williamson County chancellor for a conference on the issue of jurisdiction.1 On April 1, 2005, the parties stipulated to the registration of certain orders of the Hawaii court in Tennessee, but no hearing on the petition to transfer jurisdiction was held at that time. On April 18 and 19, 2005, the Hawaii court held hearings and ultimately denied Ms. Button's motion for reconsideration of its oral order terminating the services of Carly's therapist.
In an April 26, 2005 order, the Williamson County chancellor sua sponte appointed a guardian ad litem ("GAL") in Tennessee. On April 29, 2005, Ms. Button filed ex parte a motion requesting that the Williamson County Chancery Court assume temporary emergency jurisdiction. Ms. Button asserted that compliance with the Hawaii court's order to terminate Carly's therapist constituted mistreatment or abuse and thus served as grounds for temporary emergency jurisdiction under Tennessee Code Annotated section 36-6-219 (2005). Ms. Button's motion was supported by an affidavit of Carly's current therapist, the therapist's notes of her sessions with Carly, and a response of the Tennessee GAL stating that the services of Carly's current therapist should not be terminated in favor of a new therapist. The Chancery Court for Williamson County, Tennessee, exercised temporary emergency jurisdiction and declined to enforce the Hawaii trial court's order relating to the selection of the child's therapist.2
Mr. Waite filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, and the Court of Appeals granted permission to appeal. The Court of Appeals vacated the trial court's order exercising temporary emergency jurisdiction and remanded the case with instructions to the trial court to dismiss the case for lack of jurisdiction.
Ms. Button appealed the ruling of the Court of Appeals and filed a motion requesting that this Court stay the issuance of the mandate. We granted Ms. Button's motion to stay the issuance of the mandate and also granted permission to appeal.3
The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") is codified at Tennessee Code Annotated sections 36-6-201 to -243 (2001) and governs jurisdiction between Tennessee and other states over child custody proceedings. Whether a court has jurisdiction is a question of law over which our review is de novo with no presumption of the correctness of the ruling of the lower courts. State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2004). Moreover, we review questions of statutory interpretation de novo, with no presumption of correctness given to the courts below. State v. Collins, 166 S.W.3d 721, 725 (Tenn. 2005).
Temporary emergency jurisdiction is addressed in Tennessee Code Annotated section 36-6-219(a), which provides:
A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
Subsections (b) and (c) of Tennessee Code Annotated section 36-6-219 indicate that the exercise of emergency jurisdiction is a temporary measure that "remains in effect until an order is obtained from a court of a state having jurisdiction under §§ 36-6-216-36-6-218." Tenn.Code Ann. § 36-6-219(b) (2005); see also Tenn.Code Ann. § 36-6-219(c) (2005) (). We are unaware of any Tennessee case that defines or discusses in detail the terms "mistreatment or abuse" as used in Tennessee Code Annotated section 36-6-219(a). However, in P.E.K. v. J.M., 52 S.W.3d 653, 658 (Tenn. Ct.App. 2001), the Court of Appeals observed that "[w]ithout some factual allegation of specific threats to the child's well-being, the court did not have any basis on which to enter a temporary emergency award."
Courts in other jurisdictions have construed the UCCJEA to require an "immediate" threat of mistreatment or abuse before a court may exercise temporary emergency jurisdiction. In re Nada R., 89 Cal.App.4th 1166, 108 Cal.Rptr.2d 493, 499 (2001); Anderson v. Deas, 273 Ga.App. 770, 615 S.E.2d 859, 860 (2005); see also In re Marriage of Anderson, 25 Kan.App.2d 754, 969 P.2d 913, 916 (1998) (). We agree that Tennessee Code Annotated section 36-6-219(a) contemplates a threat of immediate mistreatment or abuse to the child, and we now adopt this standard. We conclude that the selection of an alternate therapist for Carly does not pose an immediate threat of mistreatment or abuse. Therefore, we hold that the circumstances of this case do not involve the type of compelling emergency that justifies the exercise of temporary emergency jurisdiction. Furthermore, the Tennessee trial court's indefinite continuation of its exercise of emergency jurisdiction "for all purposes" clearly contravenes Tennessee Code Annotated subsections 36-6-219(b) and (c), which authorize the exercise of emergency jurisdiction on a temporary basis only. Temporary emergency jurisdiction is not intended to provide a state with modification jurisdiction for an indefinite period of time. Thus, the Court of Appeals properly vacated the trial court's order that continued its temporary emergency jurisdiction indefinitely and "for all purposes."
Ms. Button argues that the Court of Appeals erred in remanding this case to the trial court with instructions to dismiss it for lack of jurisdiction. We agree.
The modification of child custody determinations made by out-of-state courts is governed by Tennessee Code Annotated section 36-6-218 (2005). That section provides:
[A] court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under § 36-6-216(a)(1) or (2), and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under § 36-6-217 or that a court of this state would be a more convenient forum under § 36-6-221; or
(2) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
Tenn.Code Ann. § 36-6-218. Subsection (2) has been satisfied in this case. It is undisputed that neither Ms. Button, nor Mr. Waite, nor Carly presently reside in Hawaii. Thus, whether Tennessee may exercise jurisdiction and modify the Hawaii court's order pursuant to Tennessee Code Annotated section 36-6-218 turns upon whether Tennessee has jurisdiction to make an initial determination under Tennessee Code Annotated section 36-6-216(a)(1) or (2).
Tennessee Code Annotated subsections 36-6-216(a)(1) and (2) provide that the home state receive priority with regard to...
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