Simmons v. Simmons

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE January 29, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
JOSEPH RAY SIMMONS, ) C/A NO. 03A01-9805-CV-00158
)
Plaintiff-Appellant, )
)
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) BRADLEY COUNTY CIRCUIT COURT
)
)
)
)
TONYA MICHELLE SIMMONS, )
) HONORABLE LAWRENCE H. PUCKETT,
Defendant-Appellee. ) JUDGE
For Appellant For Appellee
JIMMY W. BILBO RANDY SELLERS
Logan, Thompson, Miller, Bilbo, Cleveland, Tennessee
Thompson & Fisher, P.C.
Cleveland, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
This is a post-divorce proceeding concerning the
custody of Colby Curtis Ray Simmons (“Colby”) (DOB: March 25,
1991). The trial court awarded “primary physical custody” of
Colby to the child’s mother, Tonya Michelle Cawood, formerly
Simmons (“Mother”), thereby modifying the divorce judgment that
had granted this custodial role to the boy’s father, Joseph Ray
Simmons (“Father”). The Court did not disturb its previous grant
of joint legal custody. Father appeals, arguing that the trial
court misinterpreted the principles enunciated by the Supreme
Court in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), and that
the evidence preponderates against the trial court’s
determination that Father’s move from White, Georgia, to
Somerset, Kentucky, was prompted by vindictiveness on his part.
I.
The parties’ marriage was dissolved by final judgment
entered May 19, 1994. The judgment incorporates a marital
dissolution agreement (“MDA”) executed by the parties on February
8 and 9, 1994. The MDA vested the parties with joint legal
custody of Colby. While it did not specifically award
residential custody of Colby to Father, it is clear from the
tenor of the MDA that this is what the parties intended, a fact
acknowledged by Mother throughout these proceedings.
The MDA includes the following provision:
[Father] and the child shall have the right
to live in within a seventy-five mile radius
of Bradley County, Tennessee. Each party
shall provide transportation of either
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picking up the child or delivering the child
to the other party.
Additionally, the MDA provides that Mother is to have visitation
“on alternating weekends from 5:00 p.m. Friday until 6:00 p.m.
Sunday,” as well as summer visitation and visitation on specified
holidays.
In or around August, 1996, Father moved with Colby and
his new wife to White, Georgia, to take a position as an
elementary school teacher with the Bartow County, Georgia, school
system. His residence was within the required 75-mile radius of
Bradley County. He taught in Bartow County for one school year.
During that year, sometime in or around February, 1997, he
learned that his contract would not be renewed for the next
school year. He received written notification of this fact on
April 15, 1997.
Father and his wife had purchased a home in White,
Georgia. It was their desire to remain in that locale.
Accordingly, upon learning that his teaching contract was not
going to be renewed, Father applied for a teaching position in
four Georgia counties: Bartow, Cherokee, Gordon, and Cobb. He
was not successful in securing a position in Georgia. Had he
obtained employment in any of these counties, he would have
continued to reside within the 75-mile radius restriction. He
testified that he did not make a new application for employment
in the Bradley County or Cleveland school systems because “me and
Ms. Cawood are not able to live in the same town without me being
badgered a lot, so I did not really want to move back to
3
Cleveland.” Even at that, he stated that prior to going to
Georgia, he had applied to the two Tennessee school systems; that
he assumed his applications were still on file; and that he would
have accepted a job there “if I had an offer.” He reiterated
that his desire was to stay in Georgia “where we were purchasing
the home.”
Father did not receive any job offers in Georgia; but
in June, 1997, he learned of a fifth-grade teaching position in
Pulaski County, Kentucky, some 200 miles from Bradley County. He
accepted this position and moved to Somerset, Kentucky. His new
wife’s parents -- her father is a minister who pastors a church
in the area -- live in an adjoining county.
On June 19, 1997, Father filed a petition seeking to be
relieved of the 75-mile radius restriction so as to facilitate
his move, with Colby, to Somerset. Mother filed an answer and
counterclaim, denying that Father was entitled to relief with
respect to the restriction. In her counterclaim, she sought sole
custody or, in the alternative, primary physical custody. The
gravamen of her counterclaim is found in the following
allegations:
[Mother] avers that the move requested by
[Father] in this matter, is a material change
of circumstances, entitling [Mother] to ask
this court to modify the marital dissolution
agreement entered into by the parties, and to
award full custody, or at least exclusive
physical custody, of the parties’ minor child
to [her].
[Father’s] frequent moves and inability to
maintain steady employment indicate a lack of
responsibility necessary for the successful
4
raising of a child. Further, the frequent,
almost nomadic, movement by [Father] is
detrimental to the child’s mental, emotional,
and physical well being.
The majority of the minor child’s family
resides in Cleveland, Tennessee or in the
state of Georgia. Awarding custody to
[Mother] would be in the best interest of the
minor child.
The parties’ competing claims were heard by the trial court on
January 21, 1998, following which the court ordered that Mother
be designated as “primary physical custod[ian],” with custody to
be transferred at the end of the 1997-1998 school year. The
rationale for the court’s decision is found in its opinion orally
rendered from the bench:
COURT: Well, it’s a real difficult case. I
think it was a difficult case all along from
reading the file.
Back in March when joint custody was granted
by the Court I think the Court looked at the
parties and found both of them fit persons to
have custody. And I believe the marital
dissolution agreement, of course, it’s merged
into the order of the Court and it was made a
part of the court, the 75-mile radius
requirement, so I believe the Court in making
this joint custody contemplated that that
wouldn’t change. That order didn’t foresee
that we’d be trying to operate with joint
custody with primary physical custody with
the father going beyond the 75-mile radius,
but it’s happened in this case.
I think there’s proof of vindictiveness
insofar as -- I think vindictive is a very
difficult word, a hard word. It would not be
something I would normally apply to Mr.
Simmons. But if vindictiveness means the
desire to go against the Court’s prior orders
of joint custody, at least the spirit of a
joint custody agreement, and if it means to
defeat the noncustodial parent’s rights to
visitation and closeness to the child, at
least to be within a certain mile radius,
then I think the fact that he has said that
5
he did not want to be close, he didn’t want
to move any closer to you, meets that
definition of vindictive.
And this child needs to be in an environment,
in the most stable environment, for its own
best interest. And any time any changes are
made it’s going to be disruptive for the
short term but the Court’s convinced that in
the long term the stability of the child and
the best interest of the child would be
served by a change of primary physical
custody to the mother.
II.
In the 1996 case of Aaby v. Strange, 924 S.W.2d 623(Tenn. 1996), the Supreme Court revisited its 1993 decision in
Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993). The Court stated
that it wanted to “dispel the ambiguity of Taylor and clarify its
impact on the law of removal.” Aaby, 924 S.W.2d at 629. In
Taylor, the Supreme Court had attempted to “make determinate an
area of the law that ha[d] become increasingly unsettled,” id. at
326, i.e., the removal of a minor child by a custodial parent to
a locale away from that of the non-custodial parent. The Taylor
Court had held that relocation, standing alone, was not a
sufficient basis for a change of custody. Id. at 332.
As the Aaby case points out, the Supreme Court in
Taylor
was fundamentally concerned with furthering
two overarching goals in the law of removal:
(1) “limiting judicial intervention in post-
divorce family decision-making, and (2)
making disputes easier of resolution if they
must be litigated.”
6
Aaby, 924 S.W.2d at 629 (quoting from Taylor, 849 S.W.2d at 331)
(emphasis in Aaby). Because the Supreme Court decided that
“[t]he ultimate message to be gleaned from Taylor is admittedly
obscure,” Aaby, 924 S.W.2d at 629, it granted the petition of the
custodial mother in Aaby for permission to appeal so that it
could once again address the subject of removal.
In Aaby, the Supreme Court substantially limited the
circumstances under which a non-custodial parent could prevent
removal or secure a change of custody based solely upon the
planned removal of a minor child. The crux of the holding in
Aaby is found in the following language from that opinion:
...we conclude, as the mother insists, that a
custodial parent will be allowed to remove
the child from the jurisdiction unless the
non-custodial parent can show, by a
preponderance of the evidence, that the
custodial parent’s motives for moving are
vindictive -- that is, intended to defeat or
deter the visitation rights of the non-
custodial parent.
This conclusion does not mean, however, that
a non-custodial parent’s hands are tied where
removal could pose a specific, serious threat
of harm to the child. In these situations,
the non-custodial parent may file a petition
for change of custody based on a material
change of circumstances. The petition would
state, in effect, that the proposed move
evidences such bad judgment and is so
potentially harmful to the child that custody
should be changed to the petitioner. Because
Tennessee law allows custody to be changed if
the behavior of the custodial parent clearly
posits a danger to the physical, mental or
emotional well-being of the child, Musselman
v. Acuff, 826 S.W.2d 920 (Tenn.App. 1991),
such a petition would not violate Taylor --
which only prohibits a change of custody
based solely on the fact of the move.
7
Id. at 629-630 (footnote omitted)(emphasis in Aaby).
8
III.
As a threshold determination, we must decide if there
are factual differences between the instant case and Aaby which
impact how -- if at all -- the precedent of that case is
applicable to the facts of this case. Without question, there
are factual differences -- two of which are arguably pertinent to
the question now under consideration. In the instant case, the
trial court was faced with a joint custody decree, while the
Court in Aaby was confronted with a decree of sole custody.
Furthermore, the instant case involves a specific provision
limiting the primary custodian’s place of residence to the area
within a 75-mile radius of Bradley County. The judgment in Aaby
contained no such limitation. Aaby, 924 S.W.2d at 624. We will
address these two factual differences in reverse order.
IV.
We do not believe that the 75-mile radius restriction
is an impediment to the applicability of the Aaby principles and
procedures to the facts of this case. In Taylor, the Supreme
Court attempted to comprehensively address the issue of removal.
In doing so, the Court even addressed how a court should view an
order that prohibits or restricts relocation, even though there
was no such provision in the Taylor case. Since the Court in
Aaby intended to refine, and untangle the ambiguity in, the
holding in Taylor, it is logical to assume that the Aaby Court
would have stated that its holding was not applicable to cases
with prohibitory language had it so intended. It did not so
9
state. We conclude from this that the Aaby Court intended that
the principles and procedures enunciated in that case would apply
to cases with prohibitory provisions as well as to those cases
without such provisions.
It is clear from the Aaby opinion that the Supreme
Court intended to cover the entire spectrum of removal cases.
While an appellate court’s decision must be read in the context
of the facts of the case, see National Life & Accident Ins. Co.
v. Eddings, 221 S.W.2d 695, 699 (Tenn. 1949), we cannot ignore a
broad pronouncement by the Supreme Court, especially one that is
obviously designed to cover, and clarify, the totality of an area
of the law. See Holder v. Tennessee Judicial Selection
Commission, 937 S.W.2d 877, 881-82 (Tenn. 1996).
V.
As to the argument that Aaby is not applicable to a
joint custody arrangement where one parent is the residential
custodian and the other has visitation rights, that position was
considered by us and rejected in Perry v. Perry, 943 S.W.2d 884(Tenn.App. 1996). In that case, Judge Lillard, speaking for the
Court, said the following:
Father attempts to distinguish Aaby by
arguing that the custodial parent in that
case had sole custody, while the parties in
this case have joint custody, with Mother
having primary physical custody. This is a
distinction without a difference.
10
Id. at 886. (emphasis in Perry). We adhere to our holding in
Perry. Aaby is controlling here; hence, the procedures and
principles set forth in Aaby control the disposition of this
appeal.1
VI.
It is clear to us that Mother’s counterclaim for change
of custody was prompted by, and is essentially based upon, the
fact that Father was planning to relocate to Kentucky.2 The
trial court so treated it, and we believe this is the proper
interpretation of the issues made by the pleadings.
In general terms, Aaby focuses on two aspects of a
planned move: the relocating parent’s motive in moving and
whether the proposed move “could pose a specific, serious threat
of harm to the child.” Aaby, 924 S.W.2d at 629. (emphasis
added). In the instant case, Mother did not allege, nor did the
proof show, the type of specific, serious threat of harm
contemplated by Aaby. Thus, the narrow question for us is
whether Father’s motive for relocating -- the reason for his move
from Georgia to Kentucky -- was “to defeat or deter the
visitation rights of” Mother. Id. The question is not whether
1
After this case was heard and decided on January 21, 1998, with an
order entered February 18, 1998, confirming the change of custody, the
legislature enacted Chapter 910, Public Acts of 1998, with an effective date
of May 7, 1998. That Chapter is now codified at T.C.A. § 36-6-108. That Act
is not applicable to this case and has not been considered by us.
2
Mother makes a general reference in her counterclaim to Father’s
frequent moves and “inability to maintain steady employment.” The evidence
regarding his moves is, at best, inconclusive. Her allegation with respect to
Father’s employment is not substantiated by the proof. In any event, there
was absolutely no proof that Colby was adversely affected by any of this.
11
the planned move will adversely affect Mother’s visitation
rights. Such moves frequently do; rather, the real question is
whether Father’s motive -- his state of mind -- was to defeat or
deter Mother’s visitation with Colby.
VII.
Father’s motive for relocating must be viewed in the
context of his circumstances. He received his degree from Lee
College subsequent to the parties’ divorce. His teaching job in
Georgia was his first position in his new profession. He first
learned in or around February, 1997, that his teaching contract
was not going to be renewed. Father testified that most teaching
positions for the next school year had already been filled by
that time of the year. When the school term ended in the May-
June, 1997, time frame, Father was facing the prospect of
supporting his wife and Colby in a new house with no job and only
one year’s experience in his chosen profession.
It is reasonable to assume that Father decided to move
to Kentucky because he needed a job. The teaching position in
that state had the added advantage of placing Father and his
family near his in-laws. There was absolutely no proof that
Father had other job opportunities in Georgia, Tennessee, or
elsewhere when he decided to move to Kentucky.
It is important to note that, prior to the move, Father
had afforded Mother more, rather than less, visitation than was
required by the trial court’s judgment. From the time of the
12
divorce until March, 1995, Father and Mother alternated weeks
with their minor child. Since the move to Kentucky, there had
been only two occasions when Father was unable to strictly comply
with Mother’s every-other-weekend entitlement. On both
occasions, Father gave Mother other days of visitation to make up
for the missed days.
The trial court admitted that the word “vindictive” was
not a word that it would normally apply to Father. However, it
then concluded that the “definition of vindictive” was met in
this case because Father went “against the Court’s prior orders
of joint custody, at least the spirit of a joint custody
agreement.” He further found that Father was “vindictive” in not
desiring to live in Mother’s county of residence. With all due
respect to the trial court, this is not the issue. The issue,
under the teachings of Aaby, is whether the relocating parent’s
motive for the move is to defeat or deter the other parent’s
visitation rights. The preponderance of the evidence in this
case is that Father’s motive for moving outside the area
encompassed in a 75-mile radius of Bradley County was to pursue
gainful employment. There is nothing about his actions or words
to indicate that he wanted to hinder Mother’s visitation rights.
On the contrary, the record is replete with evidence that Father
has fostered Mother’s time with Colby. This Court finds
particularly significant the fact that Father voluntarily split
the child’s time equally with his former wife for a period of 10
months immediately following the divorce even though Mother was
only entitled under the trial court’s judgment to every-other-
weekend visitation.
13
In the final analysis, we find that the evidence
preponderates against the trial court’s judgment changing the
custodial arrangement that existed prior to the order of February
18, 1998. See Rule 13(d), T.R.A.P.
The judgment of the trial court is reversed. This
matter is remanded to the trial court for the entry of an order
consistent with this opinion. The order will provide that the
physical custody of Colby will be transferred to Father within
one week of the end of the 1998-1999 school year. Costs on
appeal are taxed against the appellee.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
14