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O'Bannon v. O'Bannon11/20/2003
The parties were divorced by final decree entered March 22, 1999 which incorporated a marital dissolution agreement providing Wife should have custody of the parties' two minor children - Amy, born February 26, 1995, and Grace, born August 6, 1996,- and that Husband should have liberal visitation.
After Husband received a certified letter from Wife in which she stated her intention to relocate to Spearfish, South Dakota, with the parties' children, he filed a petition to oppose the relocation and to modify custody. While the petition was pending, Husband filed a motion for immediate temporary custody which was prompted by the parties' youngest daughter having been attacked by a dog belonging to Wife and Paul Riddle, her new husband. The dog was destroyed shortly after the attack at the instruction of Mr. Riddle and the motion for temporary custody was denied with the caveat that the episode would be explored further at the plenary hearing.
A final hearing on the issues of relocation and modification of custody was held in March, 2002. Wife's request to relocate was denied upon findings that (1) the relocation does not have a reasonable purpose, (2) the relocation "poses the threat of specific and serious harm to the children which would outweigh the threat of harm of a change of custody" and (3) "that the motive for the proposed move is vindictive in that it is intended to defeat or deter [Husbands'] visitation with the children." Custody of the parties two children was changed to Husband based upon a finding of "substantial and material change of circumstances." Wife's motion to reconsider filed thereafter was denied and this appeal followed.
Wife presents for review the issues of whether (2) the court erred in denying the request to relocate, and (2) in changing custody of the children.
Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the Trial Court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996) and T.R.A.P. 13(d). The Trial Court's factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).
The Relocation Issue
We first address the issue of whether the trial court erred when it denied Wife's request to relocate with the children.
T.C.A. 36-6-108(d) provides that the parent spending the greater amount of time with the child will be allowed to relocate unless:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
The thrust of Wife's testimony is that she wishes to relocate to Spearfish, South Dakota because that is her native home and all her relatives live there. She contends that she could find employment there "within thirty seconds" and that her new husband's prospects for finding work there would be "excellent." The trial judge found that the best reason the mother gave for the relocation was that she had had a troubled relationship with her own mother and she wanted to go back "to where she was so she could rehabilitate that relationship", and "the Court finds it very strange that a parent would wait to rehabilitate he
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