In re S.L.M.

• Decision Date: 24 July 2006
• Citation: 207 S.W.3d 288
• Parties: In re S.L.M. & T.J.M.
• Court: Tennessee Court of Appeals

207 S.W.3d 288

In re S.L.M. & T.J.M.

Court of Appeals of Tennessee, at Nashville.

April 25, 2006 Session.

July 24, 2006.

Permission to Appeal Denied by Supreme Court October 13, 2006.

Published in Accordance with Tenn. Ct. App. R. 11.

COPYRIGHT MATERIAL OMITTED

John E. Herbison, Nashville, Tennessee, for the appellant, Perry A. March.

Mark H. Levine, Los Angeles, California; and C.J. Gideon, Jr. and Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees, Lawrence E. Levine and Carolyn R. Levine.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves an acrimonious dispute over the custody of two adolescent children. The children's father and their maternal grandparents have litigated over custody in the courts of two states and the federal courts for the past nine years. The current proceeding began when the children and their father were expelled from Mexico following the father's indictment in Tennessee for murdering the children's mother. After the grandparents filed a petition in the Davidson County Juvenile Court seeking custody of their grandchildren, the father asserted that the juvenile court lacked jurisdiction to fashion custody arrangements for the children. Following a hearing, the juvenile court determined that it had the authority to decide the children's custody and that temporary custody of the children should be awarded to their maternal grandparents. We granted the father's application for an interlocutory appeal and now find that the juvenile court has jurisdiction to decide the children's custody and that the record supports the court's decision to place the children in their grandparents' custody.

I.

This custody dispute can be traced back to August 1996 when Janet L. March disappeared from her home in Nashville under mysterious circumstances. Ms. March left behind her husband, Perry A. March, and their two children, Samson March, then six years old, and Tzipora March, then two.¹ The Marches had been experiencing marital difficulties, and Ms. March's parents, Lawrence and Carolyn Levine, and the law enforcement authorities in Nashville quickly began to suspect that Mr. March had played a role in Ms. March's disappearance. In September 1996, Mr. March and the children moved to the Chicago area.²

The venomous animosity between Mr. March and the Levines became palpable soon after Ms. March's disappearance. After he moved to Chicago, Mr. March filed a petition in the Circuit Court for Davidson County that exercised probate jurisdiction seeking control over Ms. March's property. The Levines contested the petition based on their conviction that Mr. March had murdered their daughter.³ The Levines also obtained an order from a court in Illinois granting them bi-monthly visitation with their grandchildren in Illinois.⁴

Mr. March was aware of the Levines' attachment to their grandchildren and sought to exploit it in the legal wrangling over Ms. March's property and other matters. In May 1999, Mr. March moved with the children to the town of Ajijic in the Lake Chapala region of Mexico where his father, Arthur March, was already living. One of the reasons for the move was to frustrate the Levines' visitation with their grandchildren.⁵ After moving to Mexico, Mr. March repeatedly disregarded the Illinois court's visitation orders. In October 1999, the Illinois court granted the Levines visitation rights with their grandchildren in Mexico. Mr. March did not comply with this order, and the Illinois court eventually held him in both direct and indirect criminal contempt. In March 2000, Mr. March married a Mexican national, and his new wife began legal proceedings in Mexico to adopt the March children.⁶

In May 2000, the Illinois court granted the Levines thirty-nine days of "catch-up" visitation with their grandchildren. In June 2000, a Mexican court directed the Mexican authorities to take possession of the children and deliver them to the Levines in accordance with the Illinois court's order. On June 21, 2000, the Levines brought the children back to Nashville. Two weeks later, on July 3, 2000, they filed an "emergency petition" in the Davidson County Juvenile Court seeking custody of their grandchildren and the termination of Mr. March's parental rights. The juvenile court granted the Levines temporary custody of their grandchildren. When Mr. March sought relief from the Tennessee order in Illinois, the Illinois court invoked the doctrine of forum non conveniens and declined to act.

Mr. March then turned to the federal courts for assistance. In August 2000, he filed a complaint in the United States District Court for the Middle District of Tennessee asserting that the Levines had violated the Hague Convention on the Civil Aspects of International Child Abduction as implemented in the International Child Abduction Remedies Act. On October 4, 2000, the district court granted Mr. March's petition and ordered the Levines to return the children to Mr. March.⁷ The United States Court of Appeals stayed the district court's order pending appeal. However, it dissolved the stay on April 19, 2001, when it issued its opinion affirming the district court.⁸ The children were transported back to Mexico two days later on April 21, 2001.

The litigation involving Mr. March and the Levines continued unabated after the children were returned to Mexico. On May 20, 2004, the Circuit Court for Davidson County entered a revised order declaring that Ms. March was deceased and terminating the absentee receivership that had been commenced in 1996.⁹ One month later, on June 21, 2004, another circuit court granted a default judgment against Mr. March on the Levines' claim that he was civilly liable for the intentional and wrongful death of Ms. March. Following a trial on September 7, 2004, the circuit court entered a judgment awarding the Levines and the March children $6,000,000 in actual and punitive damages against Mr. March.¹⁰

In December 2004, a grand jury in Davidson County indicted Mr. March on one count of second degree murder for the death of Ms. March, one count of abuse of a corpse, and one count of tampering with evidence. Seven months later, on July 27, 2005, the Mexican government issued an order expelling Mr. March and the children from Mexico based on Mr. March's "irregular" conduct in Mexico. On August 3, 2005, the Mexican authorities detained Mr. March and then handed him over to law enforcement authorities from the United States who took him into custody and transported him to Los Angeles.

The expulsion order also directed the Mexican authorities to turn over the March children to the United States Consul in Guadalajara. However, the authorities were unable to locate the children. As it turned out, Mr. March's father had made his own arrangements for the children to leave the country. He placed the children on an airplane to Chicago where they were met by Mr. March's brother, Ron March, and his wife, Amy March, who live in Wilmette, Illinois, a suburb of Chicago. On August 8, 2005, Mr. March, while in custody in Los Angeles, drafted and signed a handwritten "Custodial Rights and Guardianship document," naming Ron March and his sister, Kathy March Breitowich, as joint guardians of the children.¹¹ On the same day, Ron and Amy March filed a petition in the Illinois court asking to be named guardians of his brother's children.

Mr. March waived extradition and was transported from Los Angeles to Nashville on August 12, 2005. He has remained in custody in Nashville ever since.

On August 15, 2005, the Levines returned to the Davidson County Juvenile Court, again seeking custody of their grandchildren. The trial court entered an ex parte order granting the Levines emergency, temporary custody of their grandchildren and directing law enforcement agencies in Tennessee and elsewhere to assist the Levines "in immediately retrieving the minor children" from Mr. March and Ron and Amy March. The Levines then domesticated the juvenile court's order in Illinois on the same day it was entered in Tennessee.

On the following day, August 16, 2005, Mr. March prepared an affidavit objecting to placing the children in the Levines' custody.¹² Armed with this affidavit, Ron and Amy March requested an emergency hearing in the Illinois court seeking a stay of the execution of the August 15, 2005 order of the Davidson County Juvenile Court. The Levines moved to dismiss the guardianship petition filed by Ron and Amy March. The Illinois court conducted a hearing and declined to grant the stay. Thus, the Levines brought their grandchildren back to Nashville on the evening of August 16, 2005.¹³

The Davidson County Juvenile Court conducted a hearing regarding its jurisdiction on August 17, 2005. Mr. March was present at the hearing, but neither Ron nor Amy March was present even though they had been served with the Levines' petition and had notice of the hearing. On August 22, 2005, the court filed an order concluding that it had jurisdiction "over this matter and the parties." Accordingly, it determined that the Levines should retain temporary custody of their grandchildren. The court also appointed D. Scott Parsley, a lawyer practicing in Nashville, as the children's guardian ad litem, notwithstanding the Levines' objections.

In the meantime, the other civil and criminal proceedings involving Mr. March proceeded apace. On September 22, 2005, following a three-day trial, a jury empaneled by another Circuit Court for Davidson County returned a $222,449.10 verdict against Ron March, Ms. Breitowich, and her husband for fraudulently misappropriating and converting property belonging to Ms. March's estate and to the March children. The circuit court filed its judgment on this verdict on September 26, 2005.¹⁴ In October 2005, a grand jury in Davidson County indicted Mr. March and his father for conspiracy and...