Hines v Tilimon
| Decision Date | 19 January 2001 |
| Docket Number | 00-00912 |
| Parties | JANINE S. TAYLOR HINES v. RICHARD MICHAEL TILIMONIN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Knox County: No. 82554
This is an interstate custody dispute. Janine S. Taylor Hines ("Mother") filed this action seeking a declaratory judgment pertaining to the custody of the parties' minor child. She also sought to modify certain foreign orders pertaining to the visitation rights of the defendant, Richard Michael Tilimon ("Father"). The trial court (a) entered a default judgment against Father, (b) declared Tennessee to be the child's home state, (c) decreed that custody would remain with Mother, and (d) limited Father's visitation to supervised visits in the state of Tennessee. The court later denied Father's motion to set aside the default judgment. Father appeals, raising issues as to subject matter jurisdiction, in personam jurisdiction, venue, and service of process. He also argues that the trial court erred (1) in denying his request for a continuance of the hearing on the plaintiff's motion for default judgment; (2) in not allowing him to participate by telephone in the hearing on his motion to set aside the default judgment; (3) in denying his motion to set aside the default judgment; (4) in ordering supervised visitation; and (5) in awarding Mother her attorney's fees. By a separate issue, Mother seeks attorney's fees for this appeal. We affirm and remand for a hearing to set Mother's fees on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded with Instructions
Charles D. Susano, Jr., J., delivered the opinion of the court, in which Herschel P. Franks and D. Michael Swiney, JJ., joined.
Laura Rule, Knoxville, Tennessee, for the appellant, Richard Michael Tilimon.
Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Janine S. Taylor Hines.
Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney General, for the State of Tennessee.
Mother and Father lived together for a period of time in California. They never married. When Mother was seven months pregnant with Father's child, she moved by herself to Ohio. The minor child, Steven Michael Tilimon, was born in Ohio on October 7, 1985. In January, 1986, Father filed an action in an Ohio juvenile court, seeking to establish paternity and obtain custody of the child. Father's paternity was subsequently established, but the juvenile court awarded Mother custody. In later orders, the Ohio juvenile court addressed the issues of child support and visitation.
In February, 1993, Mother and the child moved to Oklahoma, where she eventually married. While Mother was living in Oklahoma, Father filed a petition for change of custody in California. Prior to that filing, the Ohio juvenile court had ordered the parties' case transferred to Oklahoma. The Ohio court had also ordered Mother to file a motion in the appropriate Oklahoma court to accomplish this transfer. Mother delayed filing such a motion until May, 1995. Her filing was apparently prompted by Father's filing in California. After the judges of the California and Oklahoma courts conferred, the California court deferred to the Oklahoma court.
In July, 1996, Mother moved with her child and new husband to Tennessee. Shortly thereafter, a trial was held in Oklahoma on Father's petition to change custody and on the petitions for contempt filed by both parties. By later order, the Oklahoma court denied Father's petition to modify and ordered that custody remain with Mother. That court found Mother in contempt for willfully violating the visitation orders of the Ohio court and found Father in contempt for willfully failing to pay child support. Father was found to be $5,903 in arrears. The court reserved the issue of whether Social Security payments made to Mother for the benefit of the child should be credited against Father's child support obligation. The parties were ordered to return for sentencing on the findings of contempt. When the sentencing hearing was held, Father failed to appear. In an order entered December 30, 1996, the court dismissed the contempt citation against Mother, finding that she had purged herself of contempt. The court issued a bench warrant for Father's arrest and suspended his visitation privileges.
On January 21, 1999, an order was entered by the Oklahoma court, which order purported to be the result of a hearing conducted on July 24, 1998, ostensibly on a motion filed by Father to clarify the court's January 3, 1997, order. In this January 21, 1999, order, the Oklahoma court addressed the issue it had previously reserved, i.e., whether Father was entitled to a credit for Social Security payments made to Mother for the benefit of the child. The court found that Father was entitled to "full credit" against his child support obligation for these payments, a finding which appears to have absolved Father of any child support arrearage as of the date of that hearing.
In February, 1999, Mother filed a motion in Oklahoma to vacate the January 21, 1999, order, arguing (1) that the records of the Oklahoma court did not reflect that a hearing actually occurred on July 24, 1998, and (2) that the January 21, 1999, order was entered without notice to her. In March, 1999, Father domesticated the challenged January 21, 1999, Oklahoma order in California. In April, 1999, Father filed a petition to change custody in California. Mother filed a pro se response challenging California's jurisdiction and requesting an order recognizing Tennessee as the child's home state. While the California proceeding was pending, in May, 1999, Mother filed the subject petition in the Knox County Circuit Court ("the trial court"), seeking the following relief: (1) a declaratory judgment that Tennessee was the home state of the child; (2) a declaratory judgment that the Oklahoma court's order of January 21, 1999, was not entitled to full faith and credit; (3) a declaratory judgment that California lacked subject matter jurisdiction to adjudicate the custody of the child; (4) domestication of foreign judgments relating to the custody, visitation, and support of the minor child1; (5) modification of the foreign orders so as to limit Father's visitation with the child to supervised visits in the state of Tennessee; (6) a temporary injunction prohibiting Father from exercising visitation with the child except with supervision and within the state of Tennessee; (7) an order requiring Father to undergo an alcohol assessment; and (8) an award of attorney's fees. Mother's petition was sent to Father's address in California by registered mail, return receipt requested. It was returned to Mother's attorney, marked "refused."
On June 17, 1999, the Oklahoma court vacated its earlier January 21, 1999, order. It found that Tennessee was the child's home state and transferred all matters pertaining to custody and visitation to the trial court. Meanwhile, in an order entered July 2, 1999, the California court awarded joint custody of the child to the parties, with physical custody to Father. Mother was ordered to pay child support. There is no indication that the California court was ever notified that the Oklahoma court had vacated its January 21, 1999, order. The vacated order was the one that Father had sought to domesticate in California, the proceeding that led to the California order awarding Father physical custody.
Mother filed a motion for default judgment in the trial court on August 3, 1999. On September 8, 1999, two days before the scheduled date of the default judgment hearing, Father filed in Knox County Juvenile Court a motion for domestication, registration, and enforcement of an order from the California court directing the Knox County Sheriff's Department to take the child and hand him over to Father.2 The California order was domesticated by the Juvenile Court the same day. Based upon that order, officers from the Knox County Sheriff's Department and a private investigator arrived at the child's school. Before they could retrieve the child, however, an attorney for the school system advised the Juvenile Court that the subject action was pending in the trial court, and the Juvenile Court immediately set aside its domestication order.
At approximately 10 p.m. on September 9, 1999, Father sent a facsimile to the trial court,
requesting a continuance of the default judgment hearing in order that he might have additional time to retain an attorney. The hearing proceeded as scheduled the next day, and a default judgment against Father was entered. In its order, the trial court: (1) found that Tennessee was the home state of the child; (2) found that the Oklahoma court's order of June 17, 1999, vacating its January 21, 1999, order rendered moot the issue of whether the latter order was entitled to full faith and credit; (3) found that the California court lacked subject matter jurisdiction to adjudicate issues pertaining to the child's custody and visitation; (4) domesticated the foreign judgments from Ohio and Oklahoma; (5) held that custody of the child should remain with Mother; (6) limited Father's visitation with the child to supervised visits in the state of Tennessee; (7) ordered Father to undergo an alcohol assessment as a condition precedent to more expanded visitation; and (8) awarded Mother $7,390.58 in attorney's fees "[a]s an incident of child support."
Within 30 days of the entry of the default judgment, Father's attorney filed a notice of appearance "for the purpose of contesting jurisdiction" and a motion to set aside the default judgment. The motion also sought the dismissal of Mother's complaint. Following a hearing, at which Father's attorney unsuccessfully made an oral motion to allow Father to participate by telephone, the trial court denie...
To continue reading
Request your trial