McElhaney v. Chipman
| Decision Date | 19 October 1982 |
| Citation | 647 S.W.2d 643 |
| Parties | R.L. McELHANEY and Marjorie McElhaney, Appellants, v. Hershel B. CHIPMAN and Irene S. Chipman, Appellees. In re Custody of Chad Jason CHIPMAN and Gannon Sanford Chipman. 647 S.W.2d 643 |
| Court | Tennessee Court of Appeals |
James E. Causey, Memphis, for appellants.
Roger G. Millar, Ripley, for appellees.
This case involves the sensitive issue of the award of custody to the paternal grandparents of two minor children whose parents were killed in an automobile accident. The children's maternal grandparents have appealed the Trial Court's dismissal of their motion to dismiss for lack of jurisdiction.
Charles S. Chipman and Vicki McElhaney Chipman, husband and wife, were residents of Memphis, Shelby County, Tennessee and died as a result of injuries received in an automobile accident which occurred on July 21, 1980. The Chipmans were survived by two minor children, Chad Jason Chipman and Gannon Sanford Chipman, who were six and nine years old respectively at the time of the accident. Mr. and Mrs. Chipman were also survived by their respective parents, the grandparents of the two minor children. The paternal grandparents, the Chipmans, are residents of Ripley, Lauderdale County, Tennessee, and the maternal grandparents, the McElhaneys, are residents of Memphis, Shelby County, Tennessee.
On August 12, 1980, the Chipmans filed a "Petition for Temporary Custody and for a Hearing for Permanent Custody" concerning the two children in the Chancery Court of Lauderdale County, Tennessee. While the petition prayed, among other things, "that all proper process issue to those persons who may be interested in this case," no summons was issued, no service was obtained, and no appearance was made by anyone other than the original petitioners. On this same date, an order was entered appointing an attorney [sic] ad-litem, but no pleading was ever filed by this appointee. Also, on the same day, an order was entered awarding temporary custody of both of said minor children to the petitioners.
On September 29, 1980, the maternal grandparents, the McElhaneys, filed a motion to dismiss in which they asked the Court to set aside the previous order granting custody of the children to the Chipmans. The affidavit of R.L. McElhaney and Marjorie McElhaney was filed in support of the motion, and it supplies the essential facts concerning the residences of the deceased and the various parties involved.
The affidavit asserted: that the deceased Chipmans were residents of Shelby County, Tennessee, and were purchasing a home in Shelby County, Tennessee; that both children resided with the parents; that Mr. Chipman was engaged in business in Shelby County, Tennessee; that both children were injured in the accident which resulted in the deaths of their parents; that Chad, the youngest child, was released from LeBonheur Hospital on or about July 31, 1980; and that Gannon, at the time of the filing of the motion, was still confined to LeBonheur Hospital in Memphis, Tennessee.
The affidavit further asserted that there was an agreement among all the grandparents concerning the care, custody and control of the minors and that the petition was filed in violation of the agreement and without any knowledge on the part of the McElhaneys that such action was going to be taken. The affidavit further claimed that the estates of both of the deceased were being administered in the Probate Court of Shelby County, Tennessee.
Although this petition was filed September 29, 1980, the record indicates that a hearing on the motion was probably held on November 16, 1981. However, the order of the court overruling the motion was not entered until April 19, 1982, and the Notice of Appeal was timely filed on May 4, 1982, by the McElhaneys.
The appellants, the McElhaneys, rely on certain sections of Tennessee's Child Custody Jurisdiction Act, Tenn.Code Ann. Sec. 36-1301 et seq. (Cum.Supp.1982). This reliance is misplaced...
To continue reading
Request your trial
-
Conservatorship of Clayton, In re
...or legal residence without first abandoning another. Denny v. Sumner County, 134 Tenn. at 474, 184 S.W. at 16; McElhaney v. Chipman, 647 S.W.2d 643, 644 (Tenn.Ct.App.1982). Accordingly, to change domicile or legal residence, a person must: (1) actually change his or her residence to a new p......
-
D.R. v. Grant
...and federal cases that carry no precedential value in this Georgia matter ( see, e.g., Doc. 26 at 4 (discussing McElhaney v. Chipman, 647 S.W.2d 643, 644 (Tenn.Ct.App.1982))), the Court construes Plaintiffs' strongest argument to be as follows. Plaintiffs assert that the change in the minor......
-
Parrott v. Abraham
...of Clayton, 914 S.W.2d 84, 89 (Tenn.Ct.App.1995). A minor child lacks the capacity to change his own domicile. See McElhaney v. Chipman, 647 S.W.2d 643 (Tenn.Ct.App.1982); see also Allen v. Thomason, 30 Tenn. 536, 537 (1851). The domicile of a minor child residing with its mother follows th......
-
In re Estate
...91, 93 (1964). A person cannot acquire a new domicile or legal residence without first abandoning another. McElhaney v. Chipman , 647 S.W.2d 643, 644 (Tenn. Ct. App. 1982). To change domicile or legal residence, a person must: (1) actually change his or her residence to a new place; (2) int......