Griffin (Meyer) v. Griffin

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_____________________________________________________________________________
JANUARY LYNN GRIFFIN, Davidson Circuit No. 94D-1778
C.A. No. 01A01-9704-CV-00190
Plaintiff,
Hon. Muriel Robinson, Judge
v.
BRIAN LEE GRIFFIN,
FILED
Defendant. January 16, 1998
Cecil W. Crowson
CHERYL J. SKIDMORE, Gallatin, Attorney for Plaintiff. Appellate Court Clerk
JACK GREEN, Nashville, Attorney for Defendant.
REVERSED AND DISMISSED
Opinion Filed:
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TOMLIN, Sr. J.
This is a child custody case with potential interstate ramifications. This case began as a
divorce proceeding in the Circuit Court of Davidson County, wherein January Lynn Griffin
(“mother”) filed suit for divorce against Brian Lee Griffin (“father”), as well as seeking custody
of the parties’ minor child. On March 31, 1995 the trial court declared the parties divorced
pursuant to T.C.A. § 36-4-129. Mother was granted custody of the parties’ minor child, then
fourteen months old, with father given visitation rights. On July 19, 1996, father filed a petition
to change custody and to find contempt on the part of the mother in the Circuit Court of Davidson
County, the same court in which the divorce had been granted earlier. Following a hearing, the
trial court ordered custody of the parties’ minor child changed from mother to father. No
adjudication was made on the issue of contempt. On appeal mother has presented two issues for
our consideration: (1) whether the trial court erred in changing custody from mother to father and
(2) whether the trial court had subject matter jurisdiction of father’s petition to change custody.
For the reasons hereinafter stated, we hold that the trial court was in error in changing custody.
Following the divorce, mother and child remained in the Davidson County area until late
November-early December 1995, when mother and child moved to Hawaii to live with her mother
and step-father, who was stationed there in the military. In January 1996, mother called father
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from Hawaii, but would not give him any information as to where she was living or what her
telephone number was. Through military sources, father ascertained where mother was living.
The record reflects that shortly after mother arrived in Hawaii she met a man in the Navy
and moved in with him. She subsequently married him. In the spring of 1996, mother’s new
husband was transferred from Hawaii to a naval station in New York. In May 1996, mother
telephoned father advising him that she was coming to Tennessee and that he could see and visit
with the child upon her arrival. She also advised him at that time that she had married a member
of the U.S. Navy and that she would be in Tennessee temporarily before going to his new duty
station in New York. Upon arriving in Tennessee in early June 1996, it became necessary
to place the child in a hospital in Jackson for a short while with a kidney infection. Subsequently,
upon coming to Nashville, mother and father entered into a written agreement by which father was
to have summer visitation with the parties’ child from June 29, 1996 through September 29, 1996,
at which time mother would be permitted to pick up the child to return to New York. At that time
it was contemplated that mother and her husband would have some difficulty finding appropriate
housing in New York and the visitation agreement would give them time to get settled in. The
agreement also provided that father would have “agreeable visitation rights” until a court date
could be set and that mother and father would get in touch with one another and work out the
transportation. Mother further agreed to notify father of each phone number and address and to
send pictures of their daughter to father.
After the execution of this agreement, some week or ten days later mother and her new
husband were able to find housing sooner than expected. Contrary to the above agreement, she
called on father to return the child to her, which he refused under the agreement. Father filed his
petition to change custody several days thereafter.
I. The Subject Matter Jurisdiction Issue.
The matter of jurisdiction was never raised by the parties before the trial court, nor was the
issue tried in the trial court. Mother raised the issue in her brief before this court in a tangential
way, by stating the following in the second grammatical paragraph of the Argument section of her
brief:
Mother would initially submit the trial court lacked jurisdiction to modify custody
in this matter due to the fact the child had not been a Tennessee resident for six
months prior to the filing of Father’s Petition, thus it was error for the trial court
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to make any custody determination.
Mother’s counsel makes no citation to the Statement of the Evidence where this court might
ascertain this “fact” as alleged by her, nor did she cite any law to this court.
The transcript in this case consists of a four and a half page Statement of the Evidence
prepared by father and approved by the trial court. Father testified that mother moved to Hawaii
in the latter part of November, 1995. On the other hand, mother testified that she left Tennessee
to go to Hawaii in December, 1995. Mother removed the child from Hawaii sometime in May or
June, 1996 at the latest. Father’s petition to modify custody was filed in Davidson County on July
19, 1996. It appears to this court that there is no concise proof that Hawaii was established as a
home state under T.C.A. § 36-6-202(5) (1996) that would destroy the jurisdiction of the Tennessee
court, provided by T.C.A. § 36-6-203(a)(1)(B) (1996). See Gaddy v. Gaddy, 861 S.W.2d 236, 238
(Tenn. Ct. App. 1992). Accordingly, we are of the opinion that under these circumstances the
Tennessee court retains jurisdiction of this custody dispute.
II. The Custody Issue.
Our scope of review in custody cases is de novo upon the record, accompanied by a
presumption of correctness. We must affirm, unless the preponderance of evidence is otherwise.
Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). In all such cases the paramount consideration
is the best interest of the child.
In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991), the Eastern Section of
this court set out the burden that must be carried and the standard that
must be met in a case such as this:
When the issue before the Court is whether to modify a prior custody order, it need
not repeat the comparative fitness analysis that is appropriate at the time of the
original custody decree. Instead, in a modification proceeding, the trial judge must
find a material change in circumstances that is compelling enough to warrant the
dramatic remedy of changed custody. Moreover, the burden is on the non-custodial
parent to prove changed circumstances. (citations omitted).
It appears to this court that the crux of the father’s petition for change of custody was the
care he observed being given by mother to their daughter. When his visitation with the child
began, father noticed that the child was still in diapers, was underweight, still on a bottle and
extremely withdrawn. A similar observation was made by the child’s paternal grandmother, who
added that the child had been potty trained and was off the bottle since sometime in mid or late
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1995. As to these contentions, mother testified that if the child was underweight it was because
of the kidney infection for which she had been hospitalized for a week to ten days prior to
beginning the visitation. She also stated that she had put the child back in diapers for travel and
had placed her on the bottle because she needed fluids.
In the opinion of this court, the evidence presented preponderates against the award of
change of custody by the trial court. Stated another way, the father, the noncustodial parent, has
not carried his burden of proving a material change in circumstances that would warrant the
changing of custody, noted by this court in Musselman to be “a dramatic remedy.”
In looking at the whole picture, it seems clear to this court that to some degree at least the
parties are using this child as a “tool” or a “weapon” to get at one another. While there was no
prohibition against mother removing the child from this jurisdiction, it could have been and should
have been done in a more considerate manner. The damage done by this was in large measure
rectified by mother asking father to exercise three months of continuous visitation in the summer
of 1996, albeit in some measure to her benefit. Then, when it developed that mother and her new
husband found living quarters much sooner than expected, rather than honoring the agreement that
she initiated, she upset the apple cart by calling on father to return their child to her. This action
at least partially precipitated (in this court’s opinion) father’s action in seeking to bring about a
change of custody.
There is little or no evidence in this record as to the background of both father and mother,
except it does seem apparent that there is little decent concern and affection for one another. They
must not--we repeat, must not use this child as a pawn to get at one another. This child is an
innocent victim of their inability or unwillingness to maintain a home in which to raise her with
tender loving care. They must exercise every effort to do so in the future. If not, we remind both
parents that a trial court, be it New York, Tennessee or Hawaii, would have the power under
appropriate circumstances to place this child in a home where she can find constant love and
affection and will be given the type of upbringing she deserves.
The judgment of the trial court changing custody from mother to father is reversed and
father’s petition dismissed. Costs in this cause on appeal are taxed one-half to father and one-half
to mother, for which execution may issue if necessary.
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_________________________________________
TOMLIN, SR. J.
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HIGHERS, J. (CONCURS)
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FARMER, J. (CONCURS)
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