Jeanette Rae Jackson v. Bradley Kent Smith

This is a grandparent visitation case. Following the death of her daughter (the minor child’s mother), the Appellant grandmother petitioned the trial court for visitation rights with her granddaughter pursuant to Tennessee Code Annotated Section 36-6-306. The trial court denied visitation based upon its finding that Appellant had not carried her burden to demonstrate a danger of substantial harm to the child. No appeal was taken from this order. Subsequently, the Legislature amended Tennessee Code Annotated Section 36-6-306 to create a rebuttable presumption of substantial harm based upon the cessation of the relationship between the child and grandparent. After the law was changed, Appellant filed a second petition for visitation with her granddaughter, citing the amended statute as grounds for re-visiting the issue of visitation. The trial court granted Appellee father’s Tennessee Rule of Civil Procedure 12.02 motion to dismiss the second petition on the ground of res judicata. We conclude that the doctrine of res judicata may apply even though there has been an intervening change in the substantive law. However, because the prior order, upon which the trial court based its res judicata finding, is not in the appellate record, this Court cannot review the question of whether the motion to dismiss was properly granted. Affirmed.