Turner v. Turner
| Decision Date | 07 July 2014 |
| Docket Number | No. W2013-01833-COA-R3-CV,W2013-01833-COA-R3-CV |
| Court | Court of Appeals of Tennessee |
| Parties | STEPHANIE D. TURNER v. KEVIN TURNER |
Appeal from the Chancery Court for Fayette County
Martha B. Brasfield, Chancellor
Father appeals the trial court's order setting aside its prior judgment terminating Mother's parental rights. After a hearing, the trial court ruled that Father's failure to comply with the statutory notice requirements rendered the termination judgment void. Discerning no error, we affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
Harriet S. Thompson, Bolivar, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellant, Kevin Turner.
Charles W. McGhee, Memphis, Tennessee, for the appellee, Stephanie D. Turner.
OPINIONThe Plaintiff/Appellant Kevin Turner ("Father") and the Defendant/Appellee Stephanie Daphne Turner ("Mother") married in July of 1996. Two children were born to the marriage. On June 7, 1999, Father filed a complaint for absolute divorce against Mother. In his complaint, Father alleged that Mother was addicted to drugs and had been violent toward him. Father sought custody of the parties' two children, with Mother to have visitation. Motherfiled an answer and counter-complaint for divorce on September 2, 1999. Mother also filed a motion seeking visitation with the children and asking that both parents be ordered to undergo a psychological evaluation. On September 17, 1999, the trial court entered an order requiring both parties to undergo a psychological evaluation. On September 25, 1999, the trial court entered an agreed order granting Father temporary custody of the children and awarding Mother every-other-weekend visitation.
Prior to the divorce trial, on May 3, 2000, Mother's attorney sought to withdraw as counsel of record from the case. In his motion, Mother's attorney stated that he had lost contact with Mother and, as such, had been "unable to secure response and cooperation in this case." Indeed, it appears that at this point, neither Father, the children, nor Mother's attorney had any contact with Mother. As discussed below, the trial court eventually granted Mother's attorney's motion to withdraw from the case.
Based on Mother's failure to exercise her visitation rights since January 3, 2000, Father filed a Motion to Terminate Mother's Parental Rights on May 19, 2000. In the alternative, Father sought to suspend Mother's visitation rights based upon both Mother's failure to visit and her failure to undergo court-ordered drug testing. The trial court conducted a hearing on the Motion to Suspend Visitation on August 10, 2000. The trial court subsequently suspended Mother's unsupervised visitation with the parties' children, pending a clear drug screening. The trial court, however, did not address Father's Motion to terminate Mother's parental rights.
On October 19, 2000, the court allowed Mother's attorney to withdraw from the case and conducted a trial on Father's divorce complaint. Mother did not appear at trial. Based upon the record and the testimony offered at the trial, the trial court entered a final decree of divorce, and awarded Father exclusive custody of the parties' two children, who at this time were ages two and four. The trial court found that Mother had not had contact with the children for over ten months and reserved the issue of visitation until such time as Mother demonstrated that she was no longer addicted to drugs. The final decree was mailed to Mother's last known address.
Father subsequently remarried and his new wife desired to adopt the parties' children. On July 16, 2001, Father filed a new Petition to Terminate Parental Rights, again alleging that Mother had willfully abandoned the children by failing to have any contact with them since January 3, 2000, and in failing to provide any financial support for the same time period. On the same day, a civil summons was issued for Mother at 65 Oak Court Cove, Oakland, Tennessee requiring Mother to answer the Petition within thirty days. The summons was returned unserved on July 23, 2001. The process server indicated on the summons that he failed to serve the summons because Mother had moved. On July 25, 2001, a Non-ResidentNotice was filed in the trial court. The Notice indicated that Mother's current location was unknown. Notice was subsequently published in the weekly newspaper for Fayette County, Tennessee for four (4) consecutive weeks. The record, however, contains no order in which the trial court explicitly allowed service by publication, nor any request by Father to make substituted service.
More than four months later, Mother had not responded to Father's petition. Accordingly, on December 5, 2001, Father filed a Motion for Default Judgment. Father's attorney filed an affidavit stating that personal service upon Mother had failed because Mother had moved with no forwarding address. At this time, it is undisputed that it had been two years since Father had any contact with Mother or since Mother had contacted her children. A hearing was held on December 7, 2001, and a default judgment was entered against Mother on December 17, 2001, thereby terminating her parental rights. Father's wife subsequently sought to adopt the children in another court.
Nearly nine years later, on July 29, 2010, Mother filed a Petition to Set Aside the Order of Termination of Parental Rights. Mother alleged that Father knew that she did not reside at the address set forth on the summons and knew of her family contact information, but failed to make any efforts to learn her whereabouts to accomplish personal service. Mother offered no explanation for the passage of nine years before filing her motion to set aside the termination of her parental rights. A hearing was held, but not completed, on December 16, 2010. On or about August 8, 2011, Mother's attorney notified the Tennessee Attorney General that Mother intended to challenge the constitutionality of the statute of repose codified in Tennessee Code Annotated Section 36-1-113(q).1 The final hearing was conducted on March 18, 2012.2
At the hearings, Father admitted that he was aware that Mother did not live at her last known address. Instead, Father admitted that at the time the summons was sent to that address, Father owned the home and Father's sister resided there. However, he testified that he had no information about Mother's whereabouts at the time he filed his termination petition, nor did he have the contact information of any friends or family who may have known Mother'slocation. Father further testified that he had no knowledge of Mother's out-of-town family, as he had only visited them once, for less than two weeks, in 1997. Further, Mother's own sister testified that she was not aware of where Mother was residing at that time, and the sister admitted that she had moved multiple times since Father's visit in 1997. Testimony also showed that another sister did not have a phone of any kind until 2003. In addition, the testimony showed that while Mother allegedly recovered from her drug addiction in 2004, she failed to make any effort to see her children until 2010.
Mother maintained, however, that Father could have located her if he had only attempted to do so, but that his failure to show that he made diligent inquiry into her location was fatal to his case. Father admitted that he declined to hire a detective to locate Mother, and that he knew that another resident was living at the home that he gave his counsel as the Mother's last known address. Father further admitted that he was aware that Mother had not lived at that address for more than a year at the time he filed his renewed Termination of Parental Rights Petition. Mother testified that her sisters were able to locate her during the time in question and in fact did contact her in 2000 when her mother passed away. Further, a former babysitter testified that both Father and Mother were well-acquainted with her and that she knew Mother's whereabouts during the time in question. Father admitted that at no time did he or his counsel ever file an Affidavit of Diligent Search or Inquiry with the trial court, pursuant to Tennessee Code Annotated Section 36-1-117(m)(3).
On July 18, 2012, the trial court entered an order setting aside the order terminating Mother's parental rights on the basis of improper service of process. The court first noted that Father knew that Mother did not reside at the address listed on the summons, and that the attempt to serve her at that address was futile at best and bad faith at worst. The court further found that Mother had no permanent address during the time at issue and that Father did not know the names or addresses of the people with whom Mother was living. The trial court ruled that while Father need not search drug houses for the Mother, he was required to attempt to ascertain Mother's whereabouts by trying to locate her family. The trial court did not rule on Father's argument that Mother's petition was barred by the applicable statute of repose, or Mother's argument that such statute of repose is unconstitutional.
Father filed a Notice of Appeal on August 14, 2012. Pending appeal, this Court determined that the order appealed was not final because it did not adjudicate the statute of repose issue, and dismissed the appeal without prejudice. The trial court subsequently ordered briefing on the issue. On July 17, 2013, the trial court ultimately ruled: (1) the initial order terminating Mother's rights was void; and (2) because the order was void, the statute of repose was inapplicable. Father filed a second notice of appeal on August 12, 2013, and this Court entered an order consolidating the two appeals.II. Analysis
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