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Date: 06-27-2022
Case Style:
Maycee J. Stine v. Isaiah M. Jakes et al.
Case Number: M2021-00800-COA-R3-JV
Judge:
Kenny Armstrong
Sharon Guffee
Court:
COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
On appeal from The Juvenile Court for Williamson County
Plaintiff's Attorney:
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Defendant's Attorney: Gary Jakes, Isaiah Mason Jakes, and Naomi Jakes
Description:
Nashville, TN - Divorce lawyer represented Appellant with modifying the visitation provisions.
Appellant Maycee J. Stine (“Mother”) and Appellee Isaiah M. Jakes (“Father”) are
the parents of U.J., a non-marital child born in December 2016. Mother was a minor when
U.J. was born; Father serves in the United States Marine Corps and has been stationed
outside Tennessee since July 2016. In January 2017, Father filed a “Petition to Establish
Paternity, Parenting Plan and Child Support.” Father’s paternity was established, and
Mother was named primary residential parent in an agreed temporary parenting plan. The
January 2017 plan provided that Father would have parenting time as agreed by the parties
and set Father’s child support obligation at $316 per month. A child support worksheet
was attached to the order.
On July 13, 2017, Father’s parents, Naomi Jakes (“Grandmother”) and Gary Jakes
(“Grandfather”; collectively, “Grandparents”) filed a petition for grandparent visitation
rights pursuant to Tennessee Code Annotated section 36-6-306 (“section 36-6-306”).
Grandparents named Mother as the only respondent in their petition. Grandparents asserted
that Mother had not permitted them to see U.J. since March 2017. They also asserted that,
because Father was stationed out of state and unable to exercise parenting time except when
on leave, they were unable to visit with U.J. during Father’s parenting time. Grandparents
prayed for an award of visitation of at least two weekends per month, two weeks during
the summer, Christmas visitation, and at least six hours on U.J.’s birthday. On the same
day, Father filed a “Motion to enter a permanent parenting plan, for Grandparents to
exercise Father’s parenting time, and for other relief.”1
Mother filed a motion to dismiss Grandparents’ petition on September 11, 2017. In
her motion, Mother asserted Grandparents had failed to state a claim under section 36-6-
306. She asserted that the relief sought in Grandparents’ petition was for an assignment of
visitation rights pursuant to Tennessee Code Annotated section 36-6-308, which requires
the parent of a minor child to file a petition to modify and assign rights.2
She submitted
that there was no possible set of facts that would support Grandparents’ petition for
visitation under section 36-6-306.
The juvenile court heard Father’s and Grandparents’ July petitions on September
11, 2017, and Mother filed a notice to strike her motion to dismiss on September 12.
3
By
order entered September 26, 2017, the juvenile court awarded Father parenting time on
1
It appears that the record transmitted to this Court does not contain Father’s July 2017 petition.
However, the parties do not dispute that the petition was filed.
2 We observe that Tennessee Code Annotated section 36-6-308, which related to the temporary
assignment of visitation rights during active military service, was repealed by 2014 Tenn. Pub. Acts, ch.
798, § 2, eff. July 1, 2014.
3
It appears that the juvenile court heard Father’s petition and Grandparents’ petition at the same hearing.
- 3 -
September 11, 13, 14, and 15 and Facetime on Monday and Wednesday evenings. It
additionally awarded Grandparents “parenting time” every other Saturday and every other
Sunday on an alternating basis. The juvenile court ordered the parties to participate in
mediation, and the parties agree that the court stated at the hearing that Grandparents were
going to be awarded visitation rights.
4
However, it is undisputed that the juvenile court did
not engage in the analysis prescribed by sections 36-6-306 and 36-6-307 and that
Grandparents were not named as intervening parties in Father’s petition. Nevertheless, the
September 2017 order entered by the juvenile court recited Grandparents and Father as
joint petitioners and Mother as respondent. The juvenile court thereafter treated Father’s
and Grandparents’ separate petitions as one action.
Mediation was held on November 16, 2017, and Mother and Father agreed to a
permanent parenting plan. It appears that Mother and Grandparents attended the mediation
session and that Father participated remotely from Camp Pendleton (California). It also
appears that Mother’s mother attended as Mother’s guardian because Mother remained a
minor in November 2017.
The agreed parenting plan was approved and entered by the court as a new parenting
plan on December 7, 2017. The agreed plan named Mother as primary residential parent
with 285 days of parenting time and provided that Father would receive 80 days of
parenting time. It also provided:
If Father is not present for parenting time on this schedule, then he may
delegate his time to his parents on the following schedule: on the first of his
weekends, he can delegate his time from Friday at 6:00 p.m. until Sunday at
6:00 p.m.; on his next weekend, he can delegate his time from Sunday at 8:00
a.m. to 1:00 p.m.
The plan established a detailed holiday visitation schedule dividing the holidays
between Mother and Father and also providing:
1. A holiday shall begin at 6:00 p.m. on the night preceding the holiday and
end at 6:00 p.m. the night of the holiday, unless otherwise noted here: (1) for
Martin Luther King Day, President’s Day, Memorial Day and Labor Day,
the Father’s parenting time, if he is present for the holiday, shall extend to
6:00 p.m. Monday; (2) July 4 shall run from 9:00 a.m. to 9:00 p.m. on the
day of the holiday, if Father is able to exercise this time.
2. If Father is not able to exercise his time on Father’s Day, Father may
4
In their June 2021 trial memorandum, Grandparents and Father asserted that the trial court stated, “these
grandparents are going to get some visits” and “I would like for the grandparents to have at least every
other weekend.”
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delegate his time on Father’s Day to his parents from 9:00 a.m. to 5:00 p.m.
All other times which Father is unable to exercise shall default to Mother,
except as specifically set forth herein.
3. If Father is unable to exercise Thanksgiving, Mother shall have that
holiday, except that Father shall have time from noon to 4:00 p.m. on the
Tuesday before every Thanksgiving, which he shall be permitted to delegate
to his parents.
4. If the Father is unable to exercise his time at Easter, Father may delegate
the following time to his parents: Noon to 4:00 p.m. on Easter Day.
The plan provided that Father would have parenting time during the fall and spring
vacation times in even years “if he is able to exercise it,” that Mother would have the time
if Father was unable to exercise it, and that Mother would have fall and spring vacation
time in odd years. It awarded both Mother and Father two “nonconsecutive
noninterrupted” summer vacation weeks and required Mother “to provide transportation
for the child to an airport near Father’s posting as long as he [was] posted in the lower 48
states.” It also awarded Father an additional week “at a time and place other than summer
in California, at his expense.” The plan required Father to “give Mother 40 days notice of
his chosen non-consecutive weeks each summer.”
The plan also set-forth a Christmas vacation schedule alternating between Mother
and Father and provided:
Other agreement of the parents: If the Father is unable to exercise time with
the child over the Christmas holiday, the father shall be permitted to delegate
Christmas Eve to his parents from 10:00 a.m. to 4:00 p.m. in odd years.
Section J of the plan provided, in relevant part:
3. If the Father moves his residence to Tennessee or leaves the military,
Father’s option to delegate parenting time to his parents shall automatically
terminate.
4. In the event Father is deployed, the parties shall each have rights and
obligations under the Tennessee Uniform Deployed Parents Custody and
Visitation Act (T.C.A. 36-7-101, et. seq), including the right of [F]ather to
delegate parenting time to his Parents.
5. Father’s parents shall be allowed to transport the child to Father, or
wherever he is stationed, for his parenting time, at his parent’s cost.
6. Father’s parents shall he deemed parties to this Parenting Plan for the
purpose of enforcement of parenting schedules and obligations other than
child support.
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The parenting plan provided that Mother would claim U.J. for federal income tax
purposes and required Mother and Father to provide each other with relevant IRS forms.
Father was required to maintain health insurance for U.J. and life insurance on his life until
his child support obligation terminated. The plan further provided that any disagreements
or modification would be submitted to mediation.
However, the December 2017 agreed parenting plan did not recite any child support
obligation, and it appears that no child support worksheet was attached to the plan. There
is nothing in the record transmitted to this Court to demonstrate that the parties’ child
support obligations had been established when Mother filed the 2020 petition that gave rise
to this appeal.
5
Nevertheless, the juvenile court entered the agreed parenting plan as an
order of the court in December 2017.
Father married sometime prior to September 2018, exercised very little parenting
time with U.J., and the relationship between Mother and Grandparents deteriorated as
Grandparents assumed virtually all the parenting time “delegated” to them by Father. In
January 2020, Mother filed a “petition to modify visitation and set child support.” In her
petition, Mother named Father and Grandparents as respondents. She asserted that a
material change of circumstances had occurred that warranted a modification of parenting
time, visitation and child support.6
Mother asserted that Father had not established a
relationship with U.J., that he had not contacted him by Facetime since July 2018, and that
Father was preparing to deploy to Japan for a tour of a minimum of 36 months. She also
asserted that Grandmother had “consistently shown emotional instability” and that
visitation with Grandmother caused U.J. to become anxious and fearful. Mother contended
that she had regularly consulted with a counselor about U.J.’s behavior and that the
counselor and U.J.’s pediatrician had stated that it was not in U.J.’s best interests to
continue to visit Grandmother. Mother filed a proposed permanent parenting plan that
allocated 44 parenting days to Father. Mother’s proposed plan did not contain a provision
allowing Father to delegate his visitation time to Grandparents.7
On March 7, 2020, Father emailed Mother stating, in relevant part:
I would like to keep my parents out of the court petition, because they will
soon not be apart (sic) of the parenting plan, just like your parents aren’t apart
(sic) of the parenting plan either. This is an obvious issue that needs to be
discussed but it should be done so between the parents, not grandparents,
since I’m willing to change the way we have been doing things to strictly just
5
In their June 2021 trial memorandum in the juvenile court, Father and Grandparents submitted that no
order setting Father’s child support obligation was entered until after the final hearing before the
magistrate in March 2021.
6
It appears that Father paid child support in some amount notwithstanding the lack of a child support
order.
7 Mother also filed a petition for criminal contempt that she subsequently voluntarily dismissed.
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us and no other entities, I would highly respect the decision to do the same
and only contact myself or wife.
In March 2020, the matter was set for a status hearing before the juvenile court
magistrate on May 11, 2020. The notice of hearing named only Father as Defendant. On
May 1, Father and Grandparents (collectively, “Respondents”) filed a motion to stay
proceedings because Father had been deployed to Japan and could not be present. Acting
through military legal assistance, on May 27, 2020, Father requested a stay of proceedings
until June 2021 on the basis of unavailability due to his military service obligations. In her
response, Mother acknowledged Father’s right of a partial stay pursuant to 50 USC section
3932, but contended that the proceedings that were governed by statute, including child
support and a “temporary parenting plan” to reflect the “current factual custody” should go
forward.
The magistrate stayed Mother’s petition to modify the parenting plan with respect
to Father. However, the magistrate bifurcated the matter “[a]s it pertain[ed] to
[Grandparents’] parenting time” and set a hearing date of June 18, 2020. On May 20,
Mother filed a petition to restrict visitation with Grandparents unless supervised by Father.
In her petition, Mother relied on Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006), in
support of her argument that Father could not assign his rights to Grandparents and
Grandparents were not entitled to visitation rights absent a finding of the danger of
substantial harm if visitation is denied as required by section 36-6-306.8
Mother attached
8 Tennessee Code Annotated section 36-6-306 provides, in relevant part:
(b)(1) In considering a petition for grandparent visitation, the court shall first
determine the presence of a danger of substantial harm to the child. Such finding of
substantial harm may be based upon cessation or severe reduction of the relationship
between an unmarried minor child and the child’s grandparent if the court determines, upon
proper proof, that:
(A) The child had such a significant existing relationship with the grandparent that
loss or severe reduction of the relationship is likely to occasion severe emotional harm to
the child;
(B) The grandparent functioned as a primary caregiver such that cessation or
severe reduction of the relationship could interrupt provision of the daily needs of the child
and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss
or severe reduction of the relationship presents the danger of other direct and substantial
harm to the child.
(2) For purposes of this section, a grandparent shall be deemed to have a significant
existing relationship with a grandchild if:
(A) The child resided with the grandparent for at least six (6) consecutive months;
(B) The grandparent was a full-time caretaker of the child for a period of not less
than six (6) consecutive months; or
(C) The grandparent had frequent visitation with the child who is the subject of the
suit for a period of not less than one (1) year.
- 7 -
Father’s March 7 email to her petition. She also attached letters from two licensed
counselors stating that visitation with Grandmother was not in U.J.’s best interests.
Respondents responded to Mother’s petition to restrict visitation with Grandparents
on May 28. In their response, Respondents construed Mother’s reliance on Smallwood as
pertaining only to the jurisdiction of the juvenile court to adjudicate grandparent visitation
actions under a prior version of section 36-6-306, which was amended after the decision in
Smallwood. They also asserted that the 2017 parenting plan permitted Father to designate
his parenting time to Grandparents pursuant to the Tennessee Uniform Deployed Parents
Custody and Visitation Act codified at Tennessee Code Annotated section 36-7-101, et
seq. and that, because the matter was stayed as to Father, no changes to the parenting plan
should be made. They also relied on Tennessee Code Annotated section 36-7-305 and
asserted that Mother’s allegations were untrue.9
Mother responded to Respondents’ response on May 29. In her response, Mother
asserted that she did not question the juvenile court’s jurisdiction. She also asserted that,
because Father was accompanied in Japan by his wife and their child, Father was not
deployed as defined by the code, which requires service orders that are “designated as
unaccompanied; b) do not authorize dependent travel; c) otherwise do not permit the
movement of family members to the location to which the service member is deployed.”
She also asserted that Respondents acknowledged that the parenting plan could be modified
In Smallwood v. Mann, the father of a nonmarital child was stationed out of state with the United
States Navy. Smallwood, 205 S.W.3d 358, 360 (Tenn. 2006). The juvenile court denied the grandparents’
claim for visitation pursuant to section 36-6-306, but ruled: “In the event that the father is unable to exercise
personal visitation in any given calendar month, the paternal grandparents shall be entitled to exercise the
father’s shared parenting time the last full weekend of that calendar month commencing in April 2004.”
Id. at 360-61. Our supreme court held that the grandparents could not “obtain visitation by way of an
‘assignment’ of the father’s visitation rights.” Id. at 365. The Smallwood court stated: “Allowing a
grandparent to procure visitation without first requiring a showing of harm to the child if such visitation is
denied not only violates section 36–6–306(b)(1) which specifically requires such a showing, it also
constitutes an infringement on the fundamental rights of parents to raise their children as they see fit.” Id.
at 363 (citation omitted).
9Tennessee Code Annotated section 36-7-305 provides:
In a proceeding for a grant of custodial responsibility pursuant to this part, the
following rules apply:
(1) A prior judicial order designating custodial responsibility in the event of
deployment is binding on the court unless the circumstances meet the requirements of law
of this state other than this chapter for modifying a judicial order regarding custodial
responsibility; and
(2) The court shall enforce a prior written agreement between the parents for
designating custodial responsibility in the event of deployment, including an agreement or
modification executed under part 2 of this chapter, unless the court finds that the agreement
is contrary to the best interest of the child.
- 8 -
if it was contrary to the child’s best interests; that Father had expressed his agreement to
modifying the plan; and that the statutes require a showing of substantial harm if visitation
with Grandparents ended.
The magistrate heard Mother’s petition to restrict Grandparents’ visitation on June
4, 2020. The magistrate applied the provisions of Tennessee Code Annotated section 36-
6-405, which is applicable to the modification of permanent parenting plans. The
magistrate found that there was “not a real hazard or danger posed to the minor child by
[Grandmother]” but ordered Grandparents not to use corporal punishment on the child.
The magistrate heard Mother’s petition to modify Grandparents’ visitation over four
days in August 2020. By order entered on August 17, the magistrate determined that a
material change in circumstances had occurred and that the parenting plan was not in the
best interests of the child. The magistrate found:
The child has developed a fear of his paternal grandparents and has
demonstrated this in comparisons he makes of the paternal grandmother and
the Joker and the stories that go along with the comparison. The Court also
finds Mother and the maternal grandparents have witnessed and testified that
there is a fair amount of stress before, during and after the exchanges with
the paternal grandparents. This is also evident from the videos, what the child
says and the descriptions thereof.
The magistrate then considered the factors set forth in Tennessee Code Annotated
section 36-6-106, which governs child custody determinations, and Tennessee Code
Annotated section 36-6-307, which is applicable to a grandparent visitation petition filed
pursuant to section 36-6-306, and determined that it was not in the best interests of the
child to continue the parenting plan. The court amended the plan to provide:
The daytime visits shall continue every other Sunday from 8:00 AM until
1:00 PM with the following parameters to apply;
1) Only Mother and [Grandmother] will be present for the exchange;
2) The exchange shall occur at the parties’ houses, unless otherwise agreed
by the parties;
3) No videos will be taken;
4) No police will be present;
5) The first hour of visitation, [Mother] is to remain present at the visit;
6) During the first hour of visitation, Father shall make every effort to Skype
or Facetime during the first hour of visitation.
- 9 -
The magistrate also ordered Grandmother to participate in counseling with Mother,
to be paid for by Grandmother.10
The magistrate denied Mother’s oral motion for a directed
verdict on the basis that no findings had been made to support Grandparent visitation. The
magistrate found that “the parties entered into an agreed parenting plan in mediation
whereby Father’s parenting time could be delegated to the paternal grandparents by
agreement.”
Mother filed a motion to vacate the order or, in the alternative for an interlocutory
appeal in September 2020. In February 2021, she filed a motion to amend and/or clarify
the August 2020 order. Following a hearing via WebEx on February 18, which Father did
not attend, the magistrate reserved Mother’s September 2020 motion and set the matter for
trial on March 9, 2021.
The record contains an excerpt from the March 9, 2021, hearing demonstrating that
Father participated in the hearing remotely.11
Father testified that he had been stationed in
multiple locations since joining the Marine Corps, that he was currently stationed in Japan,
that he had contracted to remain in Japan for the next two years, and that he did not intend
to move back to Tennessee within the next three years. He also testified that he intended
to separate from the Marine Corps at some point and that it was “very likely” that he would
return to Tennessee. We cannot ascertain from the excerpted portion of the transcript
contained in the record whether Father was questioned regarding his preferences with
respect to the parenting plan and his option to delegate his parenting time to Grandparents.
On March 12, 2021, the magistrate ruled orally on Mother’s petition to modify the
parenting plan and set child support. The magistrate stated that it would enter “two separate
orders: one on grandparent visitation and the other on the permanent parenting plan
between [Mother] and [Father].” The magistrate then engaged in the analysis provided at
Tennessee Code Annotated section 36-6-307 with respect to Grandparents’ visitation. The
magistrate awarded Grandparents visitation every five weeks. The first three visits were
10 Counseling apparently was unsuccessful. The record contains a letter from the licensed counselor who
met with Grandmother dated February 12, 2021. The counselor stated that she had met with Grandmother
in September 2020 and that, when she broached the topic of corporal punishment of U.J., Grandmother
“raised her voice and became very upset and spent the rest of session telling me that I was unprofessional
and threatening towards me and then attempting to become charismatic and change my mind. After about
forty minutes I terminated session and encouraged [Grandmother] to speak with her attorney.” The
counselor described Grandmother’s behavior as “concerning” and “erratic.” She also stated that she had
received an email from Grandmother in response to an invoice and that Grandmother responded:
You violated the court order and then refused to see me. The thirty minutes of my time was
merely an act to extort money. I'll add this demand for payment to the pending ethics case
I have with the State of Tennessee. I did not receive what was court ordered, then you
insulted me and made a mockery of the justice system. Payment seems irrelevant at this
point.
11 It appears the hearing was held via WebEx.
- 10 -
to occur on Sunday from 11:00 AM to 5:00 PM. Beginning June 19, Grandparents’
visitation time was set at Friday after daycare until 5:00 PM on Sunday every five weeks.
The magistrate excepted Thanksgiving, Christmas, Mother’s birthday, and U.J.’s birthday
from the schedule. In fashioning this award, the magistrate acknowledged:
the Court of Appeals would find that the grandparent visitation probably
exceeds that which should be granted. The Court of Appeals and the
Tennessee Supreme Court have said in several cases that grandparent
visitation should not be in the place of a parent’s visitation and should be
limited in nature.
After ruling orally on Grandparents’ visitation, the magistrate utilized the factors
set forth in Tennessee Code Annotated section 36-6-106 to consider Mother’s petition
regarding Father’s visitation. The magistrate determined, inter alia, that Father had made
no effort to develop a relationship with U.J. and that “it appear[ed] he has had no desire to
develop a meaningful relationship with the child.” When asked by counsel whether the
magistrate intended a modified or new parenting plan, the magistrate replied: “Do a new
parenting plan order.”
By order entered March 22, 2021, the magistrate denied Mother’s motion for an
interlocutory appeal. The magistrate determined that the 2017 parenting plan was valid
and that Father was not a resident of Tennessee or domiciled in Tennessee. In a separate
order also entered on March 22, 2021, the magistrate reiterated its determination that a
material change in circumstances had occurred. Notwithstanding the absence of a petition
for grandparent visitation or any finding in conformance with section 36-6-306, the
magistrate analyzed the issue of Grandparents’ visitation under the factors set forth in
Tennessee Code Annotated section 36-6-307. The magistrate denied Mother’s petition to
end Grandparents’ visitation time and set Grandparent’s visitation in accordance with its
March 12 oral ruling. The amended visitation schedule awarded Grandparents visitation
rights separate and distinct from Father’s visitation.
The magistrate entered its order on Mother’s petition with respect to Father on April
1, 2021. The magistrate stated that its order was “a modification of the prior agreed order.”
The court-ordered permanent parenting plan entered by the magistrate recited Mother as
plaintiff and Father as Defendant. Mother was named primary residential parent and,
notwithstanding its determination that Father had made no attempt to establish a
relationship with U.J, the magistrate increased Father’s visitation time to the standard 82
days.12
The March 2021 plan provides:
12 At the March 12, 2021 hearing, the magistrate stated: “I just granted him standard days, which is 82
days, without knowing what --- how much he will exercise.”
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The Mother shall have responsibility for the care of the child or children
except at the following times when the other parent shall have responsibility:
The Mother shall have the minor child at all times except as provided for
herein. Father is currently in military service and is stationed in Japan. Father
may have up to five (5) consecutive days of parenting time per month with
the minor child as long as he maintains his Facetime/Video Call requirement
in Section J of this plan. Father shall give Mother at least thirty (30) days
notice in writing (by e-mail, text, fax, or other writing) prior to exercising his
parenting time.
In the event Father does not comply with Section J, he shall not be allowed
overnight parenting time and visits shall occur at Mother's discretion.
Father may exercise his parenting time in a state other than Tennessee but he
shall be responsible for transportation costs as provided for herein.
The magistrate set holiday and vacation visitation based on “the regular schedule.”
However, it provided: “For Grandparents’ visitation pertaining to [holidays and vacation],
see the Court’s separate order.” Thus, the magistrate assigned Father’s holiday visitation
to Grandparents, removed Father’s option to delegate his time to Grandparents, and
segregated Grandparents’ visitation rights from Father’s parenting time under the new
parenting plan. The magistrate imputed income to Mother in the amount of $2,080 per
month. The magistrate stated that he was “unaware” of whether Father was receiving
overseas pay, found Father’s gross income to be $2,987.10 per month based on his BAH
and E-5 pay, and set Father’s child support obligation at $299.50 to be paid twice per
month. A child support worksheet was attached to the parenting plan.
On March 22, 2021, Mother requested a hearing before the juvenile court judge
pursuant to Tennessee Code Annotated section 37-1-107. Following a hearing on April
19, the juvenile court entered an order finding that counsel for the parties had agreed that
the matter would be reheard “by way of oral arguments.” The court instructed the parties
to file briefs and set oral argument to be heard on June 17, 2021. Following the hearing on
June 17, the juvenile court judge determined that the matter was timely “appealed” from
the magistrate pursuant to Tennessee Code Annotated section 37-1-107(d) and that, in lieu
of “retrying the case,” the parties agreed to submit the matter on briefs. In its June 21,
2021 order, the court stated:
The Court, having not heard the testimony and evidence presented at the
underlying trial, cannot make factual findings without conducting a de novo
trial of the case and considering the merits of the parties’ arguments. The
Court advised the parties a Rehearing is not mandatory and a direct appeal to
the Tennessee Court of Appeals is a remedy for either party.
- 12 -
The court further stated:
The Court offered to set this matter for a de novo hearing on the merits or,
alternatively, for Mother to be allowed to appeal this matter to the Tennessee
Court of Appeals. Mother declined to set the case for a de novo hearing.
Therefore, the Court AFFIRMS in full the findings and conclusions of law
made by Magistrate Cabell on March 9, 2021 and on March 12, 2021. This
is a FINAL ORDER.
Mother filed a timely notice of appeal to this Court. Mother’s brief was submitted in March
2022. Neither Father nor Grandparents filed a brief in this Court, and the matter was
docketed on briefs on May 2, 2022.
II. ISSUES
Mother raised the following issues for review, as stated in her brief:
(1) Whether subject matter jurisdiction existed to grant Paternal
Grandparents “Parenting Time” without the Williamson County Juvenile
Court making any findings of fact or conclusions of law
(2) Whether the Williamson County Juvenile Court erred when ruling that
the Paternal Grandparents had established rights pursuant to T.C.A § 36-6-
306 and § 36-6-307 when there was no pending petition for Grandparent’s
Visitation
(3)Whether the juvenile court erred in granting Grandparent’s Visitation
without addressing the issue of substantial harm
(4)Whether the trial court erred in finding Father was a resident of Japan
while Father’s permanent residence was in Tennessee.
III. STANDARD OF REVIEW
This case was tried without a jury. Accordingly, under Rule 13(d) of the Tennessee
Rules of Appellate Procedure, our review of the trial court’s findings of fact is de novo
upon the record with a presumption of correctness unless the evidence preponderates
otherwise. Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 512 (Tenn. 2012). The evidence
preponderates against the trial court’s findings of fact when it supports another finding
“with greater convincing effect.” Hardeman Cnty. v. McIntyre, 420 S.W.3d 742, 749
(Tenn. Ct. App. 2013) (citation omitted). The trial court’s findings of fact must therefore
contain sufficient underlying facts to clearly disclose the basis of the trial court’s
determinations. Lovelace v. Coley, 418 S.W.3d 1, 34 (Tenn. 2013) (citations omitted). We
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review the trial court’s conclusions of law de novo with no presumption of correctness.
Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012).
IV. ANALYSIS
We begin our discussion by observing that Mother, who is represented by counsel,
fails to cite to the record in her brief to this Court. Rule 27(a)(6) of the Tennessee Rules
of Appellate Procedure provides that the appellant’s brief must contain “a statement of
facts, setting forth the facts relevant to the issues presented for review with appropriate
references to the record[.]” We are under no obligation to search a record to verify
statements made in a party’s brief, and the failure to cite to the record as required by Rule
27 “constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App.
2000). However, under Rule 2 of the Tennessee Rules of Appellate Procedure, we may
suspend the briefing requirements at our discretion. We will exercise this discretion on
occasion, particularly in cases involving the interests of children. Chiozza v. Chiozza, 315
S.W.3d 482, 489 (Tenn. Ct. App. 2009). We accordingly will exercise our discretion under
Rule 2 in this case.
Before turning to the issues presented for review by Mother, we observe that the
juvenile court initially sought to adjudicate this matter on the parties’ briefs and statements
of counsel.13
As noted above, upon determining that the parties’ briefs and statements of
counsel were not adequate for findings of fact, the juvenile court offered Mother a full
evidentiary hearing de novo and also instructed her that she could waive a hearing and
appeal directly to this Court. Mother declined to set the matter for a full hearing, and the
juvenile court then affirmed the findings and conclusions of the magistrate without
conducting an evidentiary hearing. This appeal ensued.
Tennessee Code Annotated section 37-1-107 (“section 37-1-107”) governs juvenile
court magistrates. Section 37-1-107(d) provides, in relevant part:
(d) Any party may, within ten (10) days after entry of the magistrate’s order,
file a request with the court for a de novo hearing by the judge of the juvenile
13 In her brief to this Court, Mother states:
On a rehearing of the matter, the [juvenile court judge] opted to hear the case via oral
argument upon agreement of both counsel in an effort to minimize costs to the parties, and
both parties submitted informal briefs prior to the hearing. At the hearing, [the judge]
upheld the prior ruling of [the magistrate] because, in her words, she had not heard any
testimony and believed Mother was not under duress when entering into the Permanent
Parenting Plan at mediation.
However, the record before us does not include transcripts of the proceedings before the juvenile court,
and it does not appear that the juvenile court made any written findings.
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court. The judge shall allow a hearing if a request for hearing is filed. No
later than ten (10) days after the entry of the magistrate’s order, the judge
may, on the judge’s own initiative, order a hearing of any matter heard before
a magistrate. . . .
Section 37-1-107(e) governs direct appeals from the magistrate’s judgment to this Court.
The section provides:
(e) If no hearing before the judge is requested, or if the right to the hearing is
expressly waived by all parties within the specified time period, the
magistrate’s order becomes the order of the court. A party may appeal the
order pursuant to § 37-1-159.
Under section 37-1-107, a magistrate’s order becomes the final order of the juvenile
court in ten days unless a hearing before the juvenile court judge is requested within the
ten-day period provided by section 37-1-107(d).14
In re Kendall R., No. M2020-01226-
COA-R3-JV, 2002 WL 609602, at *3 (Tenn. Ct. App. Mar. 2, 2022). When the
magistrate’s order becomes the final order of the juvenile court, appeal to this Court is
governed by the Tennessee Rules of Appellate Procedure unless otherwise provided by
Tennessee Code Annotated section 37-1-159. Tenn. Code Ann. § 37-1-159(g). Under the
Tennessee Rules of Appellate Procedure, a notice of appeal must be filed within 30 days
of entry of the trial court’s judgment. Tenn. R. App. P. 4(a). Accordingly, absent
proceedings before the juvenile court judge, any direct appeal of the magistrate’s order in
this case would have been untimely when Mother filed her notice of appeal in this Court
on July 19, 2021.
In this case, however, Mother exercised her right under section 37-1-107(d) to
request a de novo hearing before the juvenile court judge. A hearing under the section is
not an “appeal.” Rather, the section requires “a traditional de novo hearing.” Kelly v.
Evans, 43 S.W. 3d 514, 515 (Tenn. Ct. App. 2000). A de novo hearing requires “a new
trial on both issues of law and fact as if no other trial had occurred.” In re Piper H., No.
W2015-01943-COA-R3-JV, 2016 WL 5819211, at *6 (Tenn. Ct. App. Oct. 5, 2016). The
juvenile court judge must “decide the issues without deference to the magistrate’s actions.”
Id. The de novo hearing is not a review of the record or proceedings before the magistrate.
14Tennessee Code Annotated section 37-1-107 was significantly amended in 2016. Prior to the 2016
amendments, section 37-1-107(f) provided that, if no hearing before the judge was requested within 5 days
of transmission of the magistrate’s written findings and recommendations to the court, or when the right to
a hearing was waived, the findings and recommendations of the magistrate became the decree of the court
when confirmed by an order of the judge. The current version of the statute provides that the magistrate’s
order becomes the order of the court if no hearing before the judge is requested within 10 days, or if the
right to the hearing is expressly waived by the parties within the specified time period. Tenn. Code Ann. §
37-1-107(d)-(e).
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Kissick v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3 (Tenn. Ct.
App. May 18, 2006). The hearing before the judge requires a full evidentiary trial,
including the testimony of witnesses. Id. Further, briefs and unsworn statement of counsel
“constitute neither testimony nor trial.” Id. (internal quotation marks omitted).
Accordingly, the juvenile court in this case erred in attempting to decide this matter
on briefs and oral argument of counsel. When Mother requested a de novo hearing under
section 37-1-107(d), it was incumbent on the juvenile court judge to conduct an evidentiary
trial. Although it appears the juvenile court offered Mother the opportunity to set the matter
for a de novo hearing after unsuccessfully attempting to decide the matter on the argument
of counsel, it also informed her that she could waive a hearing and appeal the magistrate’s
order to this Court. The juvenile court then affirmed the magistrate’s order without a
hearing.
Section 37-1-107(e) permits a direct appeal of the magistrate’s order to this Court
in two instances. First, a direct appeal may be filed in this Court within the time permitted
by Rule 4 of the Tennessee Rules of Appellate Procedure “if no hearing before the judge
is requested[]” within 10 days of entry of the magistrate’s order. Second, a direct appeal
to this Court without a de novo hearing before the juvenile court judge may be maintained
“if the right to the hearing is expressly waived by all parties within the specified time
period[.]” The time period specified by section 37-1-107(d) is 10 days.
We consistently have held that when a party requests a de novo hearing under
Section 107(d) and the juvenile court fails to conduct an evidentiary trial, the judgement of
the juvenile court will be vacated and the matter remanded for a de novo hearing as
contemplated by the statute. State ex. Rel. Groesse v. Sumner, 582 S.W.3d 241, 257
(Tenn. Ct. App. 2019); Kelly v. Evans, 43 S.W.3d 514, 515 (Tenn. Ct. App. 2001). We
accordingly vacate the order of the juvenile court and remand this matter for a de novo
hearing before the juvenile court judge.
We turn next to the procedural posture of this case in the juvenile court. As noted
above, although Father sought an order setting child support in his January 2017 petition,
it appears the December 2017 parenting plan did not include a child support provision. A
valid parenting plan must provide for child support pursuant to the child support guidelines,
and any deviation from the guidelines must be stated on the record. E.g., State ex rel Flatt
v. Flatt, No. W2007-01376-COA-R3-CV, 2008 WL 794521, at * 5 (Tenn. Ct. App. Mar.
27, 2008). Further, when a trial court modifies an award of parenting time, it must also
revisit the parties’ child support obligations. E.g., In re Gabrielle R., No. W2015-00388-
COA-R3-JV, 2016 WL 1084220, at *3 (Tenn. Ct. App. Mar. 17, 2016).
In this case, Respondents acknowledged in their June 2021 trial memorandum that
the December 2017 mediated agreed parenting plan entered by the juvenile court did not
establish Father’s child support obligations. Therefore, it appears from the record that the
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December 2017 agreed parenting plan was not a valid plan and that the juvenile court’s
December 2017 order was not a final order. See id. Accordingly, the court-ordered 2021
permanent parenting plan was not a modified plan, but an initial permanent parenting plan.
We further observe that the magistrate stated in its 2021 order that it was “unaware” of
whether Father receives overseas pay. Therefore, the magistrate neither established
Father’s income with certainty nor determined that a deviation from the child support
guidelines was warranted. See, Wade v. Wade, 115 S.W.3d 917, 923 (Tenn. Ct. App. 2002)
(discussing imputed income from the value of military fringe benefits for purpose of
calculating child support). Upon remand, the juvenile court must fashion a valid permanent
parenting plan. Because it appears the December 2017 agreed parenting plan was not a
final judgment, Grandparents’ visitation rights, if any, must be determined in conformance
with the statutory requisites if a petition is filed under Tennessee Code Annotated section
36-6-306 or Tennessee Code Annotated section 36-7-101, et. seq., if applicable.
Outcome: In light of the foregoing, the order of the juvenile court is vacated, and the issues raised by Mother on appeal are pretermitted. This matter is remanded to the juvenile court for further proceedings consistent with this Opinion. In the meantime, we urge the parties to work together to further the best interests of the child who is at the center of these contentious proceedings. Costs on appeal are taxed one-half to Appellees, Isaiah M. Jakes, Naomi Jakes, and Gary Jakes, and one-half to Appellant, Maycee J. Stine, for all of which execution may issue if necessary
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