New v. Dumitrache

• Citation: 604 S.W.3d 1
• Decision Date: 29 June 2020
• Docket Number: No. W2017-00776-SC-R11-CV,W2017-00776-SC-R11-CV
• Parties: David NEW v. Lavinia DUMITRACHE et al.
• Court: Supreme Court of Tennessee

604 S.W.3d 1

David NEW

v.Lavinia DUMITRACHE et al.

No. W2017-00776-SC-R11-CV

Supreme Court of Tennessee, AT JACKSON.

Assigned on Briefs April 1, 2020

FILED June 29, 2020

Valerie T. Corder, Memphis, Tennessee, for the appellants, Lavinia Dumitrache and A.N., a minor.

Robert Alan Wampler, Memphis, Tennessee, for the appellee, David New.

Cornelia A. Clark, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

Cornelia A. Clark, J.

A general sessions court entered a one-year order of protection prohibiting the plaintiff from having contact with the defendants, who are the plaintiff's ex-wife and the couple's minor child. The plaintiff failed to appeal the order within ten days as required by statute. Forty-two days later, he filed a document in the chancery court titled "Petition to Enroll and Certify A Foreign Judgment and Appeal in Nature of Writ of Error." The plaintiff attached to his pleading an incomplete copy of the couple's 2008 Texas divorce decree that granted him parenting time with the minor child and asked the chancery court to hold a new hearing and determine whether the general sessions court erred by issuing the order of protection. The plaintiff later filed a motion asking for interim parenting time with the child. The defendants filed a notice of limited appearance, and among other things, asked the chancery court to dismiss the action for lack of personal and subject matter jurisdiction. They also requested attorney's fees and costs incurred in defending the action, relying on statutes to support these requests. The chancery court dismissed the action for lack of subject matter jurisdiction, finding the appeal untimely and the method of appeal obsolete, and also determining that the petition for enrollment was defective on its face because the defendant had attached an incomplete copy of the Texas decree. The chancery court initially denied the defendants’ request for attorney's fees and costs but granted their motion to alter or amend and ultimately awarded attorney's fees and costs totaling $25,398.21. The plaintiff appealed, challenging only the award of attorney's fees. The defendants asked for an award of attorney's fees incurred on appeal. Before reaching these issues, however, the Court of Appeals sua sponte held that the chancery court erred by dismissing the appeal for lack of subject matter jurisdiction, ruling that the "writ of error remains an avenue for review of judgments of general sessions courts." Rather than remanding the matter to the chancery court for consideration of the merits of the plaintiff's writ of error appeal, however, the Court of Appeals also addressed the defendants’ challenge to the award of attorney's fees. The intermediate appellate court ruled that a statute authorized the chancery court to award the defendants’ attorney's fees for defending against the plaintiff's writ of error appeal but not for fees incurred defending against the plaintiff's petition to enroll the Texas divorce decree. As a result, the Court of Appeals vacated the award of attorney's fees and remanded to the chancery court for a hearing and a determination of the fees incurred solely in defense of the plaintiff's writ of error appeal. The Court of Appeals denied the defendants’ request for attorney's fees on appeal. This Court granted the defendants’ application for permission to appeal. We hold that the chancery court correctly concluded that the writ of error is no longer a viable method of appeal in this State and dismissed the untimely appeal for lack of subject matter jurisdiction. We also hold that the chancery court correctly dismissed the plaintiff's request to enroll the Texas decree because he provided an incomplete copy of the decree. Finally, we hold that the chancery court correctly awarded the defendants’ attorney's fees for defending against the plaintiff's pleading and did not err by failing to limit the award to the writ of error appeal. For these reasons, we reverse the judgment of the Court of Appeals, reinstate the judgment of the chancery court in its entirety, and remand to the chancery court for a determination of the reasonable attorney's fees the defendants have incurred and should be awarded for this appeal.

I. Factual and Procedural Background

On October 7, 2008, David New ("Father") and Lavinia Dumitrache ("Mother") were divorced in Texas.¹ Among other things, the final decree approved an agreed parenting plan for the parties’ minor child, who was born September 16, 2006. After the divorce, Mother and the minor child moved to Tennessee, and Father moved to Mississippi.

In November 2015, Mother and the minor child petitioned the General Sessions Court for Shelby County, Tennessee, for orders of protection against Father.² On March 30, 2016, after a ten-hour hearing at which several witnesses testified and several exhibits were introduced, the general sessions court issued an order of protection for Mother and the minor child prohibiting Father from having contact with them.³ On April 6, 2016, the general sessions court entered a supplemental order awarding Mother and the minor child⁴ attorney's fees and discretionary costs totaling $8,109.50.

A statute provides that "[a]ny appeal from a final ruling on an order of protection by a general sessions court ... shall be to the circuit or chancery court of the county. Such appeal shall be filed within ten (10) days and shall be heard de novo[.]" Tenn. Code Ann. § 36-3-601(3)(F) (Supp. 2019).⁵ Father did not file an appeal within ten days. However, on May 12, 2016, forty-two days after the issuance of the order of protection and thirty-six days after issuance of the order awarding Mother attorney's fees, Father filed in the Chancery Court for Shelby County a document titled "Petition to Enroll and Certify a Foreign Judgment and Appeal in Nature of Writ of Error" (hereinafter "Petition and Writ of Error"). Father asked the chancery court to "certify and enroll" the Texas divorce decree under the Uniform Enforcement of Foreign Judgments Act. See id. §§ 26-6-101 to -109 (2017 & Supp. 2019). Father also sought an appeal "in the nature of a Writ of Error, pursuant to T.C.A. 27-6-101 et seq." Father alleged that he had "requested of his counsel that the judgment of the [g]eneral [s]essions [m]agistrate be appealed within the time prescribed by law, however the appeal was never filed." Father asked the chancery court to "make a determination after a full hearing, as to whether in fact a Protection Order should have issued, and if so, the duration of same and to resolve the conflict with the Texas decree ... as to how, when, and where [Father] should have parenting time with his minor child." Father contended that the order of protection

effectively completely curtail[ed] [Father from] any parenting time ... with his minor child and conflict[ed] with the prior orders of the Texas Court regarding [Father's] parenting time with the minor child, although the [general sessions court] did not adjudicate parenting time or custody in the [order of protection] ... nor did the [general sessions court] make any exceptions in the [order of protection] for [Father's] parenting time.

Father also urged the chancery court to set aside the general sessions court's order awarding Mother's attorney's fees. Father asserted that Mother's counsel "should be ordered to file her affidavit for attorney fees and expenses along with a copy of her client's contract of employment[,] and[,] thereafter, [Father] should be afforded the opportunity to file countervailing affidavits as to the reasonableness and necessity of the hourly rate charged and the time expended" so that the chancery court could "determine reasonable counsel fees and expenses."

In his prayers for relief, Father asked the chancery court to conduct "a hearing de novo" on Mother's "application for a [p]ermanent [o]rder of [p]rotection[ ]" and "after such hearing dismiss said [p]etition." Alternatively, Father asked the chancery court to

set the parameters for [Father's] parenting time with this minor child consistent with the Texas Decree and the best interests of the minor child including, but not limited to the costs, if any, for the exercise of [Father's] parenting time and any fees and/or expenses for any court ordered counseling or therapy for the minor child or for the parties.

On June 16, 2016, more than a month after Father filed the Petition and Writ of Error in the chancery court, a summons was issued to Mother. About two months later, on August 4, 2016, Father filed a motion asking the chancery court to award him interim parenting time with the minor child.

Eight days after that, on August 12, 2016, Mother filed a notice of limited appearance to object to lack of service of process and to the chancery court's jurisdiction. Mother asserted that, as of August 11, 2016, she had not been served with Father's Petition and Writ of Error or with his motion for interim parenting time. Additionally, Mother asserted that Father had set his motion for interim parenting time for a hearing on August 12, 2016, and that this setting was inappropriate in light of the final order of protection prohibiting Father from having contact with Mother and the fact that Mother had not been served with the motion.

On September 16, 2016, Mother filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6), alleging that the chancery court lacked subject matter jurisdiction and personal jurisdiction. As grounds for her assertion of lack of subject matter jurisdiction, Mother argued that Father had failed to appeal within ten days of the general sessions court's order and that he had no other basis for his untimely appeal. Mother assumed Father meant "writ of error coram nobis" when he referenced "appeal in the nature of a writ of error," and she pointed out that the writ of error coram nobis was obsolete as a means of...