Article IV. Post-Hearing Procedures; Miscellaneous Provisions

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Rule 34: Relief from Judgments or Orders - Modification and Vacation of Orders

Except in cases where the petition has been heard upon the merits and dismissed, the procedures herein shall be followed to obtain appropriate relief under this rule.

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of any party, after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court and thereafter, while the appeal is pending, may be so corrected with leave of the appellate court.

(b) Extraordinary Relief.  An order of the court shall be vacated if it appears that it was obtained by fraud or mistake sufficient therefor in a civil action, or the court lacked jurisdiction over a necessary party or of the subject matter, or newly discovered evidence so requires.

(c) Modification for Best Interest of Child.  An order of the court may also be modified or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department of Children's Services, or an institution for delinquent children, an order terminating parental rights or an order of dismissal. An order granting probation to a child found to be delinquent or unruly may be revoked, according to the provisions of Rule 35, on the ground that the conditions of probation have not been observed. Placements after a child has been committed to the Department of Children's Services shall be reviewed as provided in T.C.A. § 37-1-137, and, in the case of termination of home placement, Rule 35.

(d) Petitions to Modify or Vacate Orders.  Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in subsections (b) and (c) of this rule. The petition shall be styled “Petition to Vacate Order”or “Petition to Modify Order,”as the case may be, shall set forth in concise language the grounds upon which the relief is requested, and shall include:

(1) The name of the court to which the application is addressed;

(2) The title and action number of the original proceeding;

(3) The name, age, and address, if any, of the child upon whose behalf the application is brought;

(4) The name and residence address, if known, of the parent, guardian or legal custodian or, if not known or if there is no parent, guardian or legal custodian residing within the state, the name and residence address, if known, of any adult relative residing within the county, or if there is none, the name and residence address of the adult relative residing nearest the court;

(5) The date and general nature of the order sought to be modified or vacated;

(6) A concise statement as to the grounds alleged to require the modification or vacation of the order, including any change of circumstance or new evidence;

(7) A concise statement as to relief requested; and

(8) A statement as to the petitioner's relationship or interest in the child, if the petition is brought by a person other than the child.

 A petition to modify or vacate an order under this section shall be liberally construed in favor of its sufficiency.

(e) Procedures. If the petition sets forth proper grounds as provided in subsection (b) above for vacating an order of the court, and if the evidence warrants, the court shall vacate the order after following the procedures set forth below. Except in proceedings to revoke probation or to terminate home placement, which are governed by Rule 35, if the petition sets forth a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed modification or vacation of order under subsection (c) above, the court may grant the relief petitioned for after following the procedures set forth below.

(1) After the petition is filed, the court shall set a hearing, which shall be within thirty (30) calendar days after the filing of the petition, except as provided in subsection (5) below.

(2) The clerk shall give notice to all necessary parties.

(3) If the child is temporarily placed in a secure facility pending a change in placement, the child, unless sooner released, shall be brought before the juvenile court for a detention hearing as provided in these rules.

(4) If a change of circumstance or new evidence relates to the adjudicatory portion of the previous hearing, the procedures relating to adjudicatory hearings prescribed in these rules shall apply to the determination of that issue. In all other cases, the procedures relating to dispositional hearings prescribed in these rules shall apply.

(5) If any petition to modify or vacate an order is agreed to by all parties entitled to notice under section (e)(2) above, and their attorneys, if any, the court may in its discretion modify or vacate a previous order without a formal hearing.

(6) Where a modification of an order is sought under subsection (c) of this rule, the court may, after reviewing a dispositional order pursuant to this rule, order any disposition which would be permissible at the original dispositional hearing under the Tennessee Juvenile Code and these rules; however, the court may not increase the severity of the disposition without the consent of the necessary parties, except pursuant to a hearing held in accordance with Rule 35, or, if the child is in foster care, in accordance with T.C.A. Title 37, Chapter 15 [title 37, chapter 2, part 4].

[As amended by order filed January 13, 2012, effective July 1, 2012.]

Advisory Commission Comments.

Although T.C.A. § 37-1-139, on which this rule is largely based, refers to the setting aside and vacation of orders, and to the modification and change of orders, the committee deemed it unnecessary in the rule to use more than two terms to refer to only two possible actions by the court under this rule and under the statute. Therefore, the terms “vacation” and  “modification” are used solely throughout, for the sake of simplicity and clarity.

 Aside from the correction of clerical mistakes, which may be handled by motion, this rule requires petitions for any modification or vacation of orders. While in adult cases motions are used to initiate such action, the juvenile code at § 37-1-139 requires petitions. As is the case generally with these rules, this rule is intended merely to supplement the code by specifying procedures which will implement the statutory requirements in a manner consistent with the purposes set forth in T.C.A. § 37-1-101 and in Rule 1 of these rules.

 This rule overlaps somewhat with Rule 35, regarding revocation of probation and termination of home placement. Although parties are referred to Rule 35 for procedures in revocation of probation cases, the committee intends that in cases where it is alleged that probation as opposed to a harsher disposition was ordered because of false information, the proper procedure would be to file a petition to set aside the order because of fraud, and then to bring the case back up for a rehearing on the disposition. As only the grounds for relief set forth in subsection (c) of the rule are affected by the limitation expressed in subsection (e)(6), the court would be authorized in such a rehearing to order a more restrictive disposition in such cases.

Advisory Commission Comments [2012].

The 2012 amendment substitutes the term “Department of Children’s Services” for the term “Department of Corrections,” consistent with statutory changes enacted by the General Assembly.

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