Facts
- The Springdale Police Department called the Arkansas Department of Human Services to pick up M.C.1 due to his father's arrest for domestic violence [lines="22-23"].
- Marselina Ibarra was incarcerated at the time for a failure-to-appear charge, and both she and the father had a history of illegal substance use [lines="28-31"].
- Ibarra was released from jail and stipulated to probable cause, revealing she was pregnant with another child (M.C.2) [lines="38-39"].
- The court adjudicated M.C.1 as dependent-neglected due to severe methamphetamine use by the parents [lines="42-46"].
- The court set a goal of reunification while ordering Ibarra to complete various services, but found she had not achieved a stable and safe home [lines="54-58"], [lines="85-88"].
Issues
- Whether there was sufficient evidence to support the termination of Ibarra's parental rights regarding M.C.1 [lines="19-20"].
- Whether the grounds for termination based on failure to remedy issues were established [lines="90-94"].
Holdings
- The trial court's finding that Ibarra failed to remedy the circumstances leading to M.C.1’s removal was supported by clear and convincing evidence [lines="186-187"].
- The court determined that it was in M.C.1’s best interest to terminate Ibarra’s parental rights, given her inability to ensure a safe and stable environment [lines="188-189"].
OPINION
KARL RAYMOND DUFFY v. JENIFER MICHELE DUFFY
No. M2023-00747-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
November 25, 2024
August 20, 2024 Session; Appeal from the Circuit Court for Williamson County No. 2019CV-20 Deanna B. Johnson, Judge
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and KENNY ARMSTRONG, JJ., joined.
Christina Hammond Zettersten, Brentwood, Tennessee, for the appellant, Karl Raymond Duffy.
Jessica N. Borne and Aubrey M. Malchow, Franklin, Tennessee, for the appellee, Jenifer Michele Duffy.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff/Appellant Karl Raymond Duffy (“Husband“) and Defendant/Appellee Jenifer Michele Duffy (“Wife“) were married in June 2000. The parties share two sons,
Husband filed a complaint for divorce in the Williamson County Circuit Court (“the trial court“) in January 2019. Wife filed her answer and countercomplaint for divorce in February 2019. Both parties subsequently amended their respective complaints. Prior to trial, both parties submitted income and expense statements, asset and liability statements, and proposed parenting plans.2
The matter was heard over four days in April and May 2021. The parties’ proposed parenting plans were entered as individual exhibits at trial. The trial court entered its 76-page memorandum and order on August 19, 2021.3 Therein, the trial court provided a thorough review of the parties’ relationship, finances, and parenting dynamics. The order discussed the parties’ proposed parenting plans and specifically referenced Mother‘s plans by exhibit number.
Ultimately, the trial court granted Wife a divorce. The trial court classified, valued, and distributed the parties’ marital property. Wife was awarded $188,286.65 of the net marital estate and $66,190.68 of the marital debt; Husband was awarded $105,250.68 of the net marital estate and $108,674.33 of the marital debt. The trial court also awarded Wife a $46,237.67 judgment against Husband.4 The trial court declined to award attorney‘s fees to either party.
The trial court determined that Wife would be the primary residential parent for both children. The trial court further found that Wife‘s proposed parenting plans were in the best interests of the children. Specifically, the trial court stated: “For these reasons, and the numerous facts and factors outlined in the previous section, the Court finds that [Wife‘s] proposed permanent parenting plans for the children are in the best interests of the children and shall be and are hereby adopted by the Court.” The trial court directed Wife‘s attorney to prepare and file a Child Support Worksheet. In its conclusion, the trial court reiterated: “The Court hereby adopts in full both parenting plans [Wife] filed for trial[.]” Copies of the permanent parenting plans were neither attached to the order nor signed by the trial court judge.
Wife filed the Child Support Worksheet on August 31, 2021, and subsequently filed a motion for entry of an order setting child support on September 8, 2021.
In its November 10, 2021 order addressing both motions, the trial court stated that it would “amend its Memorandum and Order only to the extent that is necessary to resolve a conflict in exhibits.” The trial court clarified multiple aspects of its memorandum and order, which primarily included expressly stating that its conclusions were based on its credibility determinations. Several of Husband‘s arguments were found to be without merit. The trial court then set the amount of Husband‘s child support obligation. The trial court again averred that “[i]n its Memorandum and Order entered on August 19, 2021, the Court adopted the [Wife‘s] proposed Permanent Parenting Plans for both children in their entirety.” Thus, to calculate Husband‘s child support arrearage, the trial court used the date Husband‘s child support obligation was to begin as set out in the plans. The trial court awarded Wife partial attorney‘s fees associated with Husband‘s motion and all of her attorney‘s fees related to her own motion.
The trial court entered an order on December 13, 2021, correcting a numerical error in its November order.
Husband‘s current counsel filed a notice of appearance on May 6, 2022. Husband then filed a “Motion to Enter Parenting Plan” on May 12, 2022. Therein, Husband argued:
2. That pursuant to said Memorandum and Order, this Court found that [Wife‘s] Proposed Parenting Plans (one for each child) were in the best interests of the children and were adopted by the Court;
3. That although the Court purported to adopt [Wife‘s] proposed plans, no plan was ever signed or filed in this matter;
4. That pursuant to the Memorandum and Order, [Wife‘s] attorney was directed to file a child support worksheet by August 31, 2021, consistent with the findings of the Memorandum;
5. That said worksheet was filed on August 31, 2021, however, no actual order of child support was ever entered, nor was a Parenting Plan including child support entered[.]
Husband requested that the trial court enter a permanent parenting plan and child support order. Husband attached a new parenting plan consolidating the arrangements set out in both of Wife‘s proposed plans and including the child support amount set by the trial court in its November 2021 order.
The trial court entered signed parenting plans for both children on April 27, 2023. The plans included the original arrangements set out in Wife‘s proposed parenting plans.
II. ISSUES PRESENTED
Husband raises two main issues in his appellate brief: (1) “Whether the trial court abused its discretion in making an inequitable division of the marital assets?“;5 and (2) “Whether Husband should be awarded his attorney‘s fees?”
In the posture of appellee, Wife denies that the trial court erred in its division of the marital estate and further asks (1) if this appeal is time-barred; and (2) which party is entitled to attorney‘s fees.
III. ANALYSIS
A.
Before considering Husband‘s issues regarding the trial court‘s distribution of assets, we must first address Wife‘s argument that this appeal is untimely.
In an appeal as of right to the Supreme Court, Court of Appeals or Court of Criminal Appeals, the notice of appeal required by
Rule 3 shall be filed with the clerk of the appellate court within 30 days after the date of entry of the judgment appealed from[.]
However, the time for filing a notice of appeal may be tolled by the timely filing of certain motions. See generally
Husband asserts, however, that the December 13, 2021 order was non-final and so did not trigger the thirty-day window for filing a notice of appeal. Husband is correct that this Court‘s jurisdiction in appeals as of right extends only to final judgments.
In arguing that his notice of appeal was timely, Husband asserts that no final order existed in this case until the parenting plans were signed by the trial court. The crux of Husband‘s argument is the requirement in
In our view, Husband offers a three-prong attack against the finality of the trial court‘s August 2021 memorandum and order: that the plans were not signed, that the plans were not expressly described as incorporated into the trial court‘s ruling, and that the plans were not attached to the trial court‘s order. Respectfully, these arguments are without merit.
First, we are aware of no requirement that courts sign the parenting plans they adopt. As previously discussed,
On appeal, this Court expressed its concern with “the juvenile court‘s apparent nonchalance about the signature and entry of its orders[,]” noting that “care should be taken to ensure that the orders entered in juvenile court accurately reflect the court‘s ruling and decisions with regard to the matters actually presented.” Id. at *4. In describing the confusion created by the juvenile court‘s lackadaisical manner of entering orders, the Court stated that “[b]oth parties apparently believed that the [order adopting the father‘s attached but unsigned proposed parenting plan] was the final order.” Id. According to Husband, “it‘s very clear that the Court did not think it was a final order.”
However, the In re C.R.D. Court specifically acknowledged that the father‘s
No such confusion exists here. From our review of the record, it appears that only one set of parenting plans was proposed by Wife during the pendency of the trial court proceedings; certainly, only one set of plans were entered as exhibits by Wife at trial. The trial court clearly and unequivocally adopted these parenting plans in its August 19, 2021 memorandum and order, including specific references to the exhibits. This adoption, and
Even if we were to agree with Husband‘s interpretation of that case, such a restrictive requirement would directly conflict with the dictates of the form Parenting Plan Order promulgated by the administrative office of the courts pursuant to statutory mandate.6 Indeed, the form Parenting Plan Order specifically notes above the signature line for the Judge or Chancellor that “[t]he judge or chancellor may sign below or, instead, sign a Final Decree or a separate Order incorporating this plan.”7 (Emphasis added).
In an apparent attempt to avoid the plain meaning of the form language, Husband points again to the mandate that the parenting plan be “incorporate[ed.]” According to Husband, this requirement was not satisfied by the trial court‘s use of the word “adopted” in its order. This argument of semantics is utterly unconvincing. Tennessee courts have consistently used both words to describe the ordering of parenting plans in this context. See, e.g., Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013); Freeman v. Freeman, 579 S.W.3d 1 (Tenn. Ct. App. 2018); Stricklin v. Stricklin, 490 S.W.3d 8 (Tenn. Ct. App. 2015); Rountree v. Rountree, 369 S.W.3d 122 (Tenn. Ct. App. 2012); Davidson v. Davidson, No. M2009-01990-COA-R3-CV, 2010 WL 4629470, at *4 (Tenn. Ct. App. Nov. 15, 2010); Massey-Holt v. Holt, 255 S.W.3d 603, 612 (Tenn. Ct. App. 2007). Notably, after requiring that a trial court incorporate a parenting plan into its divorce decree, the child custody statute provides alternative methods for the trial court to “approve a permanent parenting plan[.]”
A similar conclusion was reached in Brewer v. Brewer, 869 S.W.2d 928 (Tenn. Ct. App. 1993). There, the initial question on appeal was whether the provisions of the parties’ property settlement agreement were incorporated into the trial court‘s divorce decree. Id.
Upon review of the record, we determine that the final decree of divorce explicitly ‘approved’ portions of the parties’ Agreement, specifically incorporated ‘major portions’ and failed to expressly incorporate by reference all remaining provisions. The rights and liabilities of the parties are clearly set forth in the provisions specifically included; thus, we find that these were incorporated and merged into the decree.
Id. at 932. Those provisions that were not referred to in the decree and those provisions that were neither approved nor disapproved were determined to not have been incorporated into the trial court‘s decree. Id. Thus, the trial court‘s failure to explicitly deem certain provisions “incorporated” was not dispositive of the application of those provisions. Like there, the trial court in the instant case was explicit in its adoption of Wife‘s parenting plans in full. That the trial court did not use the precise language included in the statute is of no consequence in the face of this clarity.
We also decline to establish a blanket requirement that for an order to effectively incorporate a document, said document must be directly attached to the order. Such a definite stipulation is simply not contemplated by the word “incorporate.” See Incorporate, Black‘s Law Dictionary (12th ed. 2024) (defining the verb “incorporate” as, inter alia, “2. To combine with something else <incorporate the exhibits into the agreement>. 3. To make the terms of another (esp. earlier) document part of a document by specific reference <the codicil incorporated the terms of the will>” (emphasis added)); Incorporation by reference, Black‘s Law Dictionary (12th ed. 2024) (defining “incorporation by reference” as, inter alia, “1. A method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one. . . Often shortened to incorporation. Also termed adoption by reference.“). While in some cases the better practice may be to attach the incorporated document for the sake of clarity, e.g., where there could be some misunderstanding about which specific version of a document was being referenced, in this case no such misunderstanding is conceivable.
Again, there is and was no confusion in this case about which parenting plans the
Moreover, the entire merits of the case were decided, at the latest, with the filing of the trial court‘s December 13, 2021 order. The trial court granted a divorce, distributed the marital estate, and established the parenting schedule and child support obligation for the children. And here, the trial court expressly stated that Wife‘s proposed parenting plans were adopted in full. Unlike in Brewer, no provisions were excluded from the trial court‘s adoption of the plans, nor were any provisions neither approved nor disapproved. As such, the referenced parenting plans set forth “the rights and liabilities of the parties” in relation to the parenting of the parties’ children clearly and completely. Brewer, 869 S.W.2d at 932; see also Richardson, 913 S.W.2d at 460; Mengle Box Co., 144 Tenn. 266, 230 S.W. at 966.
In summary, the trial court effectively incorporated the terms of Wife‘s proposed parenting plans into its August 19, 2021 memorandum and order. Accordingly, nothing was left for future determination at the time the trial court entered its December 13, 2021 corrective order, and the thirty-day period for filing a notice of appeal of the trial court‘s substantive rulings began to run. Husband‘s notice of appeal, filed on May 15, 2023, was therefore untimely. Consequently, this Court lacks subject matter jurisdiction over this appeal, and the appeal must be dismissed.
B.
Both parties have requested their appellate attorney‘s fees. This Court has the discretion to award attorney‘s fees to a party faced with a frivolous appeal:
When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal.
We note that while Husband argued the need for signed parenting plans in the trial court, and obviously relied on the purported significance of the signed plans in filing his notice of appeal, Husband failed to offer any such argument in his appellate brief. And although Wife argued in her appellate brief that this reliance was misplaced and the appeal was time-barred, Husband did not address the issue in a reply brief. Instead, Husband‘s appellate brief focused solely on issues related to the distribution of the marital estate, raising many of the same arguments contained in his motion to alter or amend.
Clearly, the issues Husband attempts to raise on appeal are wholly unrelated to the adoption of the parenting plans. Indeed, the parties’ older son had reached the age of maturity and the parties’ younger son was almost seventeen at the time Husband filed his motion to enter the parenting plans. The motion was simply a last-minute, hail-Mary effort by Husband to get a second bite of the apple and re-litigate the trial court‘s distribution of marital assets after his motion to alter or amend was not successful. Rather than serving any substantive appellate purpose, Husband‘s focus on the minutia of the trial court‘s August 19, 2021 order is an obvious attempt to avoid the implications of the thirty-day period for filing an appeal under
Wife is accordingly awarded her appellate attorney‘s fees for this frivolous appeal.
IV. CONCLUSION
This appeal is dismissed for failure to file a timely notice of appeal. The matter is remanded to the trial court for a determination of Appellee Jenifer Duffy‘s appellate attorney‘s fees. Costs of this appeal are taxed to Appellant Karl Raymond Duffy, for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE