P.E.K. v. J.M.

52 S.W.3d 653
CourtCourt of Appeals of Tennessee
DecidedApril 11, 2001
StatusPublished
Cited by19 cases

This text of 52 S.W.3d 653 (P.E.K. v. J.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.E.K. v. J.M., 52 S.W.3d 653 (Tenn. Ct. App. 2001).

Opinion

OPINION

CANTRELL, P.J., M.S.,

delivered the opinion of the court,

in which KOCH and COTTRELL, JJ., joined.

This case involves an interstate battle between never-married parties over the custody of a six year old child. This court granted an interlocutory appeal so that we could determine whether the Wayne County Chancery Court has jurisdiction over the paternity and custody of this child and whether the temporary emergency custody order is valid. We hold that the Wayne County court has subject matter jurisdiction over paternity and custody matters, but that the temporary emergency custody order was invalid because the child was not present in this state and the facts alleged were insufficient to obtain such an order. We remand for a hearing on paternity and custody.

I.

In 1991, C.Y.M. and her husband, J.M., separated but did not divorce. They have three children. Sometime later, Ms. M. began cohabiting with P.E.K. In 1994, while Ms. M. lived with Mr. K, she gave birth to a daughter at Tinker Air Force Base in Oklahoma. The birth certificate showed the child’s name as A.N.K.M., incorporating the last names of both Mr. K. and Mr. M. Mr. M., the husband, was listed as the father. Sometime after the child was born, Ms. M., Mr. K. and the child moved to Alabama. Ms. M. and Mr. K. separated in Alabama in February 1997 and apparently the child stayed with her mother. In 1998, Mr. K. sought to establish paternity and to obtain custody of the child. On March 15, 1999, the Alabama trial court, after hearing oral testimony, found Mr. K. to be the child’s father and awarded custody to him with visitation for the mother. Mr. K. immediately moved to Tennessee with the child.1

On January 28, 2000, the Alabama Court of Civil Appeals reversed the trial court, [655]*655stating that Mr. K. did not have standing to establish his paternity of the child. It explained:

We conclude that the boyfriend did not have standing to establish his paternity of the child.... It is undisputed that the child was born during the marriage of the mother and her husband, even though the recorid indicates that the child was conceived and born while the mother and the husband were separated. Therefore, the husband is the presumed father of the child. Ala.Code 1975, § 26-17-5(a)(l). Our supreme court has held that no one has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child. Ex parte C.A.P., 683 So.2d 1010 (Ala.1996); Ex parte Presse, 554 So.2d 406 (Ala. 1989). The husband is not a party to this action, and, also, there is no evidence as to whether he persists in or relinquishes his status as the presumed father.
The judgment of the trial court is reversed and the cause is remanded for the trial court to dismiss the boyfriend’s action.

G.Y.M. v. P.E.K., 776 So.2d 817 (Ala.Civ. App.2000). On March 17, 2000, Mr. K.’s application for a rehearing was denied, and he filed a petition for a writ of certiorari with the Alabama Supreme Court.

On June 1, 2000, Mr. K. filed a petition for temporary custody in Wayne County Juvenile Court, perhaps fearing that he would not prevail before the Alabama Supreme Court. In his petition he alleged that the child was “dependent and neglected,” and he listed Ms. M.’s address as a post office box in Nashville, Tennessee.

On June 30, 2000, the Alabama Supreme Court denied Mr. K.’s petition for the writ of certiorari, stating:

The petition for the writ of certiorari is denied. Our denial of the petition should not be taken as an approval of the reasoning stated in the Court of Civil Appeals’ opinion.

Ex parte P.E.K. (In re C.Y.M. v. P.E.K.), 776 So.2d 818 (Ala.2000).

On July 5, 2000, Ms. M. obtained custody of the child.2 Two days later, the Wayne County Juvenile Court dismissed Mr. K.’s petition for temporary custody “due to the fact that said child’s father already retained custody of said child in Alabama.”

On July 18, 2000, Mr. K. filed a petition for temporary emergency custody in Wayne County Chancery Court. He alleged that he was the biological father of the child, that he had had continuous custody of her since March 1999, that the child had been taken to California, that Ms. M. had “threatened that the petitioner would never see [the child] again,” and that “the actions of the respondent, C.Y.M., [have] caused the petitioner to fear for the safety of said minor child.” He asked the court to find that he was “the fit and proper person to have the permanent care and custody of said minor child and [that] a reasonable amount of child support be set, both temporary and permanent.” The same day, the chancery court awarded Mr. K “temporary emergency custody” pending further orders of the court.

Also on July 18, 2000, the Alabama trial court entered its order formally dismissing Mr. K’s petition for custody in that state.

[656]*656At some point Ms. M. seems to have reunited with her husband, J.M. On August 15, 2000, Mr. and Ms. M. together filed a pro se motion to dismiss in Wayne County Chancery Court. In their motion, they asked the court to dismiss Mr. K.’s petition for temporary emergency custody on “grounds that the court lacks jurisdiction of the subject matter of this controversy in that the minor child in question was not legally in the state.” The motion recounted the Alabama proceedings, noting that, under Alabama law, Mr. M. was the presumed father and “no one has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child.” The motion, signed by both Mr. and Ms. M., concluded with the statement, “J.M. has not and will not disclaim the minor child, A.N.M. as his daughter.” Mr. M.’s notarized affidavit, attached to the motion, stated, “A.N.M. was conceived and born during my marriage to my wife, C.M., and I do claim A. as my daughter. I have not and will not disclaim A. as my daughter.” The M.s contested only subject matter jurisdiction, not personal jurisdiction, in their motion.

On August 31, 2000, Ms. M., through counsel, filed a “Response” in which she again denied that the court had subject matter jurisdiction. For the first time, Ms. M. denied that the court had personal jurisdiction over herself, her husband or the child. She also claimed that “Petitioner previously brought this cause, and has fully and fairly litigated this cause for over a year, in the courts of the state of Alabama; that the Alabama courts have determined and ruled against Petitioner; and that the determination and ruling of the Alabama courts are entitled to enforcement by this Honorable Court, resulting in the dismissal of the Petition.”

On September 7, 2000, the Wayne County chancellor entered an order allowing Mr. K. to amend his petition to add an allegation, “That the defendant, J.M., has abandoned the said A.N.K.,” and the prayer for relief, “That the Plaintiff be declared to be the legitimate and biological father of A.N.K.”

On September 20, 2000, the M.s filed a petition for emergency custody in Chancery Court of Union County, Arkansas. They alleged that “the child is present in this state with her parents and her sisters and it is necessary to protect the health, safety and welfare of the child.

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Cite This Page — Counsel Stack

Bluebook (online)
52 S.W.3d 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pek-v-jm-tennctapp-2001.