Marcus v. Marcus ( 1999 )

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FOR PUBLICATION
LORRAINE BURTON SPIERS ) Filed: May 24, 1999
MARCUS, )
)
Plaintiff/Appellee, ) SHELBY COUNTY
)
v. ) Hon. Floyd Peete
) Chancellor
TRENT WRIGHT MARCUS, )
) Supreme Court
Defendant/Appellant. ) No. 02S01-9804-CH-00036
FOR APPELLANT FOR APPELLEE
Daniel Loyd Taylor Caren B. Nichol
Craig B. Flood, II Memphis, TN
Memphis, TN
OPINION
COURT OF APPEALS REVERSED,
TRIAL COURT JUDGMENT REINSTATED. DROWOTA, J.
In this case, we consider whether the Chancery Court of Shelby County
abused its discretion in declining jurisdiction of a suit for the modification of child
custody. Apparently finding that the plaintiff was barred from filing suit in Tennessee
due to her violation of previous child custody orders entered in North Carolina, the
trial court dismissed the plaintiff’s complaint. The Court of Appeals reversed.
Because we find that the trial court acted within its discretion as set forth in Tenn.
Code Ann. § 36-6-209(b) (1996), we reverse the Court of Appeals and reinstate the
trial court’s order dismissing the plaintiff’s complaint.
PROCEDURAL HISTORY
Plaintiff/Appellee Lorraine Burton Spiers Marcus (“the Wife”) and
Defendant/Appellant Trent Wright Marcus (“the Husband”) were married in Memphis
in 1990. Shortly thereafter, the parties moved to Winston-Salem, North Carolina,
where the Husband was attending medical school. The parties’ only child, Natalie
Spiers Marcus, was born in November of 1991. The parties separated in the Fall of
1992.
In response to a petition filed by the Husband seeking custody of the child and
a counterpetition filed by the Wife seeking custody, child support, and alimony, a
North Carolina court entered an order on March 16, 1993. In this order, the North
Carolina court found:
That both the [Husband] and the [Wife] are fit and proper parents to
have the joint legal care, custody, and control of the minor child. That
it would be in the best interests of the minor child that her primary
physical care, custody, and control be awarded to the [Wife] subject to
secondary physical custody with the [Husband] as set out herein.
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The court set forth a visitation schedule and awarded alimony and child support to
the Wife.
Around January of 1993, shortly before this North Carolina order was entered,
the Wife and the child relocated to Memphis.1 In July of 1993, the Husband moved
to Arkansas, where he filed a suit for divorce, division of property, and a finding that
neither party was entitled to alimony. An Arkansas court granted the Wife’s motion
to dismiss all of the Husband’s requests for relief except for divorce. The Arkansas
court scheduled a hearing on the complaint for divorce in December of 1994.
While these proceedings were occurring in Arkansas, the Husband also filed
a petition in North Carolina to alter the March 1993 order. Following a hearing on this
motion in which both parties were represented by counsel, the North Carolina court,
on September 30, 1993, entered an order setting forth a more specific visitation
schedule. The order stated that all other aspects of the March 1993 order would
remain in effect and that “this cause is retained for further orders of this Court.”
In response to a show cause motion filed by the Husband, the North Carolina
court, on November 22, 1994, entered an order finding that the Wife was in civil and
criminal contempt for failure to adhere to the visitation schedule set forth in the
September 1993 order. The North Carolina court ordered that the Wife be
1
This relocation was ackno wledged by the North Carolina court in its March 1993 orde r:
That the [Wife] has testified and indicated that she is in the process of moving to
M e m phis, Tennessee along with the minor child . . . , and that the reason for her
relocation to Memphis, Tennessee is so that she can secure employment, since the
employment conditions are more favorable in Memphis, Tennessee, than in Winston-
Salem , North C arolina.
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incarcerated until she complied and that she pay for the Husband’s attorney’s fees.
Although the Wife was not present during this hearing, she was represented by
counsel. Interestingly, another order was also entered by a different North Carolina
judge on the same date, November 22, 1994. The order stated that it was in
response to the Husband’s “Motion for Review, requesting, among other things,
modification of [the Husband’s] secondary physical custody and termination of [the
Wife’s] alimony.” The order further stated that the W ife “appeared in Court
represented by her attorneys.” This order made no reference to the contempt order
or any allegation that the Wife had failed to comply with the visitation schedule. The
North Carolina court simply reaffirmed the existing joint custody arrangement,
increased the Husband’s alimony and child support obligation, and directed that he
pay the Wife’s attorney’s fees. The order noted that although both parties were living
out-of-state, they were residents of North Carolina six months prior to the filing of the
action.
The record includes an additional contempt order entered by the North
Carolina court on December 16, 1994. Although the Wife was not present, she was
represented by counsel at the hearing. Asserting that it retained jurisdiction over the
matter, the North Carolina court found that the Wife had “willfully and intentionally
violated” the September 30, 1993 order relating to the visitation schedule and the
November 22, 1994 contempt order. The court again found the Wife to be in civil and
criminal contempt, ordered that she be incarcerated, and directed that she pay the
Husband’s attorney’s fees.
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A few days later, on December 21, 1994, the Arkansas court held a hearing
regarding the Husband’s petition for divorce. After finding that the Husband was a
resident of Arkansas and, thus, that the court had jurisdiction, the court granted the
Husband a divorce “on the ground of general indignities,” but refused to make a ruling
“on any other matter.” This order was entered January 11, 1995.
Meanwhile, on December 19, 1994, the Wife filed a complaint for divorce and
injunctive relief in the Chancery Court of Shelby County, Tennessee. The complaint
sought a divorce, a division of property, an award of child support and alimony, and
a finding that the Wife was entitled to custody of Natalie.2 The Wife’s complaint
includes the following statement:
Plaintiff is aware of, and calls this court’s attention to, a custody
order which was entered on March 16, 1993, by the General Court of
Justice, District Court Division, Forsyth County, North Carolina, Docket
number 92 CVD 6246. The Order awarded legal custody of the parties’
minor child jointly to the Plaintiff and Defendant. It further awarded
primary physical care, custody and control of the minor child to Plaintiff
and secondary physical custody to the Defendant. No divorce action
is pending in North Carolina.
Plaintiff avers that the North Carolina Court has continued to
exercise jurisdiction over the custody issue although it does not have
the authority to do so. Plaintiff further avers that pursuant to
Tennessee Code Annotated section 36-6-207(a) and the Federal
Parental Kidnapping Prevention Act, U.S.C. 1738A, the North Carolina
Court is not “exercising jurisdiction substantially in conformity with this
part” in that (1) neither of the parties is a domiciliary of the state of
North Carolina, (2) neither party continues to reside in North Carolina,
as the Plaintiff left the state on December 30, 1992 and the Defendant
left the state on July 1, 1993, and (3) Tennessee is the “home state” of
the parties’ child.
2
The com plaint also s ought to e njoin the H usban d from perm itting mem bers of th e oppo site
sex fro m sta ying overnig ht with him when th e child wa s prese nt.
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On April 18, 1995, the Wife filed in the Chancery Court a “Petition to Enroll and
Modify Foreign Decrees and for Injunctive Relief.” Attached as exhibits to the petition
were the North Carolina court orders dated March 16, 1993, September 30, 1993,
and November 22, 1994,3 as well as the Arkansas court orders dated November 10,
1993 and January 11, 1995. The petition alleged that these five orders “are entitled
to full faith and credit in the courts of the State of Tennessee.” The petition further
alleged that a material change of circumstances had occurred since the entry of
these out-of-state orders so as to warrant the Wife being awarded sole custody of the
child.
In response to a motion to dismiss filed by the Husband, the Chancery Court
of Shelby County held a hearing on this matter on August 31, 1995. At the hearing,
counsel for the Husband cited the contempt orders entered by the North Carolina
court and contended that the Shelby County trial court should refuse to exercise
jurisdiction due to the Wife’s “unclean hands.” The Wife responded that the
contempt orders were void because North Carolina did not have jurisdiction over the
out-of-state parties. On November 14, 1995, the Chancery Court of Shelby County
granted the Husband’s motion to dismiss in a non-specific order. Subsequently, the
Wife filed a motion to alter or amend, which was denied by the trial court.
While this action was being appealed to the Tennessee Court of Appeals,
another order was entered by the North Carolina court on January 9, 1997 pursuant
3
The petition only references the November 22, 1994 order increasing the Husband’s alimony
and child support obligations and not the Nov emb er 22, 19 94 orde r finding the W ife to be in con temp t.
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to a change of custody motion filed by the Husband.4 Prior to a hearing on the
matter, the court granted a motion to withdraw filed by counsel for the Wife and
signed by the Wife. The W ife did not appear at the hearing on this motion and, thus,
neither the Wife nor her counsel were present. The order refers to the litigation
history as well as the Chancery Court of Shelby County’s action “deferring this matter
to the North Carolina Court which has retained jurisdiction over the parties’ minor
child, Natalie.” Finding that a “substantial and material change of circumstances
justifying a modification” of the North Carolina court’s previous orders exists, the
North Carolina court awarded custody of the child to the Husband.5 The court also
ordered that the Husband’s child support obligations should be stayed. Despite
insisting that the North Carolina court’s actions were void, the Wife agreed to turn
over physical custody of the child to the Husband.6
On July 1, 1997, the Tennessee Court of Appeals reversed the Chancery
Court of Shelby County’s dismissal of the Wife’s complaint. Despite labeling the
Wife’s defiance of the North Carolina orders as “clearly reprehensible,” the Court of
Appeals found as follows:
But she cannot now be repelled because of the offense she offered to
the North Carolina Court, see, Haynes v. Haynes, 904 S.W.2d 1184
The Husband filed a copy of this order as part of a motion for consideration of post-judgment
facts, wh ich we gr ant.
5
Among reasons articulated by the court include the finding that “the [Wife] has demonstrated
a pattern of violations of the decrees of this Court adversely affecting the relationship between the
minor child and her father. Specifically, the [Wife] has denied access of the m inor child to the
[Husband] and of the [H usb and ] to the min or ch ild on a ppro xim ately h alf of the [Husband’s] scheduled
visits.”
6
The Wife also filed a motion for consideration of post-ju dgm ent facts in which she states that
an August 27, 1997 No rth Carolina order exists requiring th e W ife to have superv ised visitation with
Natalie. Although a copy of this alleged order is not attached, the Husband does not dis pute its
existence.
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(Tenn. Ct. App. 1995), since our primary concern is for the best
interests of the child. It is at this juncture that we emphasize that the
child and Wife have been residents of Tennessee since January 1993,
and Husband a resident of Arkansas since July, 1993. North Carolina
has no vested jurisdictional interest, and neither Wife nor Husband nor
the child has a 'significant connection' with that State. N.C. Gen. Stat.
50 A-3(2) (1989). Moreover, the custody of the child is not an issue
before us; rather, whether or not the North Carolina Orders may be
filed in Tennessee is the sole issue. State ex rel. Cooper v. Hamilton,
688 S.W.2d 821 (Tenn.1985) is the authority for the conclusion that
where all persons involved have moved away, jurisdiction to modify
custodial decrees will shift elsewhere.
Given the record before us we are not aware of any reason why
the North Carolina Orders are not entitled to full faith and credit in
Tennessee, T.C.A. 36-6-214; Brown v. Brown, 847 S.W.2d 496 (Tenn.
1993), and thus eligible for filing in the Chancery Court of Shelby
County, Tennessee pursuant to T.C.A. 36-6-216.
The sole purpose of this legal exercise by the Wife appears to
be an effort to salvage the issue of permanent alimony, since the
divorce judgment rendered by the Arkansas Court has become final,
and the issue of custody may be litigated in the child's home state in
accordance with the laws of Tennessee. As to the efficacy of this
stratagem we express no opinion and offer no critique. Suffice to state
that a judgment which cannot be enforced is worthless, and that the
North Carolina judgments, when filed in Tennessee at the behest of
Wife are amenable to enforcement ab initio.
DISCUSSION
On appeal, the Husband contends that the Chancery Court of Shelby County
acted within its discretion in dismissing the Wife’s complaint. Adopted by the General
Assembly in 1979, Tennessee’s version of the Uniform Child Custody Jurisdictional
Act (“UCCJA”), Tenn. Code Ann. §§ 36-6-201 et seq. (1996 & Supp. 1998), when
construed in conjunction with the federal Parental Kidnapping Prevention Act
(“PKPA”), 28 U.S.C.A. §§ 1738A et seq. (1994 & Supp. 1999), is designed to avoid
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jurisdictional controversies between other states when considering child custody
disputes. See Tenn. Code Ann. § 36-6-201(a) (1996). 7
Under Tennessee’s version of the UCCJA, a trial court may exercise
jurisdiction to enforce an initial child custody decree or modify an existing child
custody decree in the event that Tennessee “is the home state of the child at the time
of commencement of the proceeding.” Tenn. Code Ann. § 36-6-203(a)(1)(A) (1996).
There is little dispute that at the time the order was entered by the Chancery Court
of Shelby County in November of 1995, Tennessee was the child’s “home state,” as
defined by Tenn. Code Ann. § 36-6-202(5) (1996). 8 The UCCJA, however, also
provides that a trial court that would otherwise retain jurisdiction under Tenn. Code
Ann. § 36-6-203 may, nevertheless, decline jurisdiction under certain circumstances.
Thus, Tenn. Code Ann. § 36-6-209 (1996), provides as follows:
(a) If the petitioner for an initial decree has wrongfully taken the child
from another state or has engaged in similar reprehensible conduct, the
court may decline to exercise jurisdiction if this is just and proper under
the circumstances.
(b) Unless required in the interest of the child and subject to §
36-6-215(a), the court shall not exercise its jurisdiction to modify a
custody decree of another state if the petitioner, without consent of the
person entitled to custody, has improperly removed the child from the
physical custody of the person entitled to custody or has improperly
retained the child after a visit or other temporary relinquishment of
7
For a thorou gh discu ssion of the objec tive of the U CCJ A and its inte rplay with the PKPA , see
Brown v. Brown, 847 S.W.2d 496, 498-503 (Tenn. 1993); Kimberly H. Harris, N ote, Inter state Child
Custody Dispute s: A Practical Guide for Tennessee Attorneys on the Law of Jurisdiction, 24 Me m. St.
U. L. Rev. 533 (1994).
8
" Ho m e state ” is de fined as “th e sta te in w hich the c hild im me diate ly prec eding the tim e
involved lived with such child's parents, a parent or a person acting as parent, for at least six (6)
consecutive months, and in the case of a child less than six (6) months old the state in whic h the child
lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named
persons are coun ted as part of the six (6) months or other period.” Ten n. Code Ann. § 36-6-20 2(5).
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physical custody. If the petitioner has violated any other provision of
a custody decree of another state, the court, subject to § 36-6-215(a),
may decline to exercise its jurisdiction if this is just and proper under
the circumstances.
With the exception of the analytical framework in the first sentence of
subsection (b), the statutory language is permissive. It provides that a trial court
“may decline” to exercise its jurisdiction if “just and proper under the circumstances.”
Id. (emphasis added). The trial court is authorized to determine what is the “just and
proper” course in the consideration of the totality of the circumstances, and the
appropriate standard of review for an appellate court of a trial court’s declination of
jurisdiction is whether the trial court abused its discretion. See Falco Adkins v. Falco
Antapara, 850 S.W.2d 148, 153 (Tenn. App. 1992). Under this standard, “[a]n
appellate court should not reverse for ‘abuse of discretion’ a discretionary judgment
of a trial court unless it affirmatively appears that the trial court's decision was against
logic or reasoning, and caused an injustice or injury to the party complaining.” Ballard
v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998); Douglas v. Estate of Robertson, 876 S.W.2d 95, 97
(Tenn.1994).
The Husband contends that the Court of Appeals erred in finding an abuse of
discretion and argues that the trial court acted within its discretion in declining
jurisdiction due to the Wife’s “unclean hands.” Emphasizing that North Carolina has
repeatedly held the Wife in contempt for violating custody orders, the Husband
argues that the UCCJA authorized the trial court to decline jurisdiction because: (1)
the Wife has “engaged in similar reprehensible conduct,” Tenn. Code Ann. § 36-6-
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209(a); and (2) the Wife “has violated any other provision of a custody decree of
another state,” Tenn. Code Ann. § 36-6-209(b). The Wife responds that the North
Carolina contempt orders cited by the Husband found her in contempt of void orders
and, thus, her violation of void orders does not constitute “reprehensible conduct” or
a “violat[ion] . . . of a custody decree of another state,” in accordance with Tenn.
Code Ann. § 36-6-209.
We initially note that the Husband’s reliance on Tenn. Code Ann. § 36-6-
209(a) is misplaced. This provision involves petitions for an “initial decree” of child
custody. Id. (emphasis added); see also Tenn. Code Ann. § 36-6-202(6). Because
it is uncontroverted that North Carolina entered an “initial decree” in March of 1993,
Tenn. Code Ann. § 36-6-209(a) is inapplicable. Since the Wife’s complaint in the
present case seeks to modify an out-of-state decree, our analysis must proceed
under Tenn. Code Ann. § 36-6-209(b).
Clearly on its face, the record indicates that the Wife has violated an out-of-
state custody decree. Tenn. Code Ann. § 36-6-209(b). One of the North Carolina
contempt orders dated November 22, 1994 finds the Wife to be in contempt of the
September 1993 North Carolina order. In addition, the December 1994 North
Carolina order found the Wife to be in contempt of the September 1993 order as well
as the November 22, 1994 contempt order. The Wife was represented by counsel
at these contempt proceedings. During oral argument before this Court, however,
counsel for the Wife argued that these orders were void because, under the terms
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of the PKPA, the North Carolina court did not have subject matter jurisdiction at the
times the orders subsequent to the March 1993 order were entered.9
The Husband responds that the Wife is judicially estopped from contending
that the North Carolina orders are void because she attempted to “enroll” two of these
orders in her April 18, 1995 “Petition to Enroll and Modify Foreign Decrees and for
Injunctive Relief” filed in the Chancery Court of Shelby County.10 This petition, sworn
to under oath by the Wife, referenced the North Carolina orders dated March 16,
9
The Wife cites 28 U.S.C.A. § 1738A(d) (Supp. 1999), which provides that “[t]he jurisdiction of
a court of a State which has made a child cus tody o r visitation determination consistently with the
provisions of this section continues as long as [such State continues to have jurisdiction under the laws
of that State] . . . and suc h State re main s the res idence o f the child or any conte stant.” No rth Caro lina’s
version of the UCCJA provides that North Carolina retains jurisdiction over child custody so long as:
(1) This State (i) is the h ome state of the child at the time of commencement
of the proceeding, or (ii) had been the child's home state within six months before
commencem ent of the proceeding and the child is absent from this State because of
the child's removal or retention by a person claiming the child's custody or for other
reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interest of the child that a court of this State assume
jurisdiction beca use (i) the ch ild and th e child's parents, or the child and at least one
con testa nt, ha ve a s ignific ant c onn ectio n with this S tate, a nd (ii) there is ava ilable in
this State substantial evidence relevant to the child's present or future care, protection,
training, and personal relationships; or
(3) The c hild is physica lly present in this State and (i) the child has been
abandoned or (ii) it is necessary in an emergency to protect the child because the c hild
has been s ubjecte d to or threa tened w ith mistre atme nt or abuse or is otherwise
neglected or dependent; or
(4) (i) It appears that no other state would have jurisdiction under prerequisites
substantia lly in accordance with paragraphs (1), (2), or (3), or another state has
declined to exercise jurisdiction on the ground that th is State is the more approp riate
forum to determine the custody of the child, and (ii) it is in the best interest of the child
that this court assume jurisdiction.
N.C. Gen. Stat. § 50A-3 (1989 ).
10
In the course of his rebuttal argument during oral argument before this Court, the Husband
also asserted that the Wife may not argue this contention because she did not assert the voidness
argument in her brief. Although the Wife drafted her brief pro se, during oral argument she was
represented by coun sel, w ho co nce ded that th e W ife did not c om plete ly and c ohe rently a rticula te this
argument in her brief. While it is true that issues not included in a party’s brief may not be considered
on appea l, Tenn. R . App. P. 13 (b); Fite v. State, Bd. of Paroles, 925 S.W .2d 543, 545 (Tenn. App.
1996), we construe the Wife’s brief to su fficie ntly alleg e this argu me nt. W e fur ther n ote th at this
argum ent has been c onsisten tly made by the W ife during th e cours e of this litigation.
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1993, September 30, 1993, and November 22, 1994,11 as well as two Arkansas
orders, and sought the “enforcement” of such orders in the Chancery Court of Shelby
County. We agree that judicial estoppel applies in this case.
Under the doctrine of judicial estoppel “a party will not be permitted to occupy
inconsistent positions or to take a position in regard to a matter which is directly
contrary to, or inconsistent with, one previously assumed by him, at least where he
had, or was chargeable with, full knowledge of the facts, and another will be
prejudiced by this action.” Obion County v. McKinnis, 364 S.W.2d 356, 357 (Tenn.
1962); see also Layhew v. Dixon, 527 S.W.2d 739, 741 (Tenn. 1975); Werne v.
Sanderson, 954 S.W.2d 742, 745 (Tenn. App. 1997). Designed to prevent a party
from “gaining an unfair advantage,” Carvell v. Bottoms, 900 S.W.2d 23, 30 (Tenn.
1995), the indoctrination of judicial estoppel by Tennessee courts has been cogently
explained by this Court in Sartain v. Dixie Coal & Iron Co., 266 S.W.2d 313 (Tenn.
1924):
The distinctive feature of the Tennessee law of judicial estoppel (or
estoppel by oath) is the expressed purpose of the court, on broad
grounds of public policy, to uphold the sanctity of an oath. The sworn
statement is not merely evidence against the litigant, but (unless
explained) precludes him from denying its truth. It is not merely an
admission, but an absolute bar.
Id. at 318.
Applying the law to the facts of this case, we find that the Wife is estopped
from now asserting that two of the North Carolina orders that she previously sought
11
The petition only refe rred to the November 22, 1994 order increasing the Husband’s alimony
and child support obligation and not the Novem ber 22, 1994 contem pt order.
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to enroll in the Chancery Court of Shelby County are void.12 Because the North
Carolina court, on two occasions, found the Wife to be in violation of the September
30, 1993 order, which the Wife previously sought to enroll, the Chancery Court of
Shelby County did not err by considering these contempt orders as a basis for
declining to exercise jurisdiction in accordance with Tenn. Code Ann. § 36-6-209(b).13
CONCLUSION
After due consideration of the law and the record in this case, we find that the
trial court acted within its discretion in finding that “it was just and proper under the
circumstances” to decline jurisdiction due to the Wife’s “violat[ion] [of] any other
provision of a custody decree of another state.”14 Therefore, the decision of the Court
of Appeals is reversed, and the order of the trial court dismissing the Wife’s complaint
is reinstated.
Costs on appeal are taxed to the Appellee, Lorraine Burton Spiers Marcus.
12
The sugge stion has been m ade that th e W ife’s April 18, 1995 petition only so ught to
incorpo rate the orders of the North Carolina court dated September 30, 1993 and November 22, 1994,
to the extent that they addressed issues of alimony and child support. However, a plain reading of the
W ife’s April 18, 1995 petition, discussing at length the custody arrangement and visitation schedule set
forth in the Sep temb er 30, 19 93 orde r, clearly indic ates that th e W ife wa s se ekin g to inc orpo rate a ll
aspec ts of the Nort h Ca rolina cour t’s directives in these orders. In fact, absolutely no language in the
petition avers that the latter North Carolina orders should be incorporated to the extent that they
address child support and alimony. Moreover, this argument was never espoused by the Wife in her
briefs before th is Court or the Court of Appeals, nor do her briefs allege that the trial court acted
imp rope rly in dismissing her claims for a modification of the Husband’s alimony and child support
obligation.
13
During oral argum ent, the W ife conc eded tha t North C arolin a reta ins ju risdic tion to hold
parties in contempt of valid orders. Because we find that the Wife is now judicially estopped from
arguing the inv alidity of the S epte mb er 30 , 199 3 ord er, it follows tha t North Caro lina se em ingly wo uld
have jurisdiction to hold the Wife in contempt of this order. We express no opinion concerning whether
the orders at issue would be void under the PKPA and North Carolina law, since the Wife is estopped
from presen ting this argu men t.
14
W e further note that the phrase “[u]nless required in the interest of th e child” refe rs only to
the first sentence in Tenn. Code Ann. § 36-6-209(b), which requires mandatory declination, and not the
secon d sente nce of th e provision which is a pplicable in th e prese nt case .
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_____________________________________
Frank F. Drowota, III,
Justice
Concur:
Anderson, C.J.
Birch, Holder, Barker, J.J.
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