IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned August 30, 2011
IN RE MADISON K. P.
Appeal from the Juvenile Court for Rutherford County
No. 36611J Max Fagan, by Designation
No. M2011-01760-COA-R9-JV - Filed August 31, 2011
Tenn. R. App. P. 9 Interlocutory Appeal; Affirmed in Part, Reversed in Part
F RANK G. C LEMENT, J R., J., A NDY D. B ENNETT, J., and R ICHARD H. D INKINS, J.
Gregory Dye Smith, Nashville, Tennessee, for the appellant, B. M. J.
W. Kennerly Burger, Murfreesboro, Tennessee, for the appellee, J. M. P.
MEMORANDUM OPINION 1
This application for an interlocutory appeal pursuant to Tenn. R. App. P. 9 arises from
the trial court’s decision to stay the implementation of the parenting plan that the trial court
was directed to adopt pursuant to our decision in In re Madison K.P., No. M2009-02331-
COA-R3-JV, 2010 WL 4810665 (Tenn. Ct. App. Nov. 23, 2010). The Supreme Court denied
the father’s application for permission to appeal on April 14, 2011 and the mandate of this
court was issued on April 27, 2011. Despite this, the ruling of this court has yet to be put into
effect, because the parenting plan that was to be approved and entered by the trial court, and
which was approved and entered, was immediately stayed by the trial court following its
entry, rendering our decision and the parenting plan of no effect.
1
Tenn. Ct. App. R. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
This protracted custody battle, which involves the parents and their one child who has
lived in at least four states, arises from Mother’s notification to Father in February 2009 that
she intended to bring their child, Madison, to live with her in New Jersey. In re Madison
K.P., 2010 WL 4810665, at * 3. At that time, Mother was designated the primary residential
parent. Id. Father responded to Mother’s notice that she intended to relocate to New Jersey
by immediately filing a Petition to Modify Custody/Primary Residential Status in the Juvenile
Court for Rutherford County, Tennessee. Id. At the time, the child resided in Georgia with
the maternal grandparents. Id. In the petition, Father asserted that a material change of
circumstances existed and that it was in the child’s best interests for Father to be named the
primary residential parent and for the child to reside with him in Murfreesboro, Tennessee.
Id. Mother answered and after a lengthy trial, the trial court named Father as the primary
residential parent. Id. Mother appealed and we reversed the trial court and named Mother as
the primary residential parent with the implicit understanding that the child would reside with
Mother in New Jersey. Id. at *4-14. Because the trial court had named Father as the primary
residential parent, we vacated the 2010 parenting plan and remanded “for the trial court to
adopt a parenting plan that is based on the fact that Mother is the primary residential parent
and that Madison will reside with Mother.” Id. at * 14.
When a parenting plan was not timely issued by the trial court, Mother filed a petition
for writ of mandamus on June 29, 2011. We denied Mother’s petition, however, in our order
we expressly stated that we “presume the trial court will promptly enter a parenting plan
consistent with this court’s mandate.” Since that time, the first trial judge recused herself and
another trial judge was designated to preside over this matter. Following a new series of
pleadings, motions, and hearing, the trial judge “approved” and “entered” a parenting plan
consistent with our mandate by designating Mother as the primary residential parent and
noting that she would reside in New Jersey with the child; however, the trial court
immediately stayed the parenting plan, rendering the approval and entry of the parenting plan
of no immediate effect. The trial court’s grant of the stay was principally based on the belief
that Mother is now required to comply with the Parental Relocation Statute, Tenn. Code Ann.
§ 36-6-108.
After careful consideration of the application and answer, which fully set forth the
parties’ positions, and upon review of our earlier opinion in this matter, we dispense with the
filing of a record and with further briefing in order to save the parties additional time and
expense. Pursuant to Tenn. R. App. P. 2, we suspend the application of Tenn. R. App. P. 24,
25, and 29, and find oral argument to be unnecessary pursuant to Tenn. R. App. P. 35(c). See
Hammock v. Sumner Co., No. 01A01-9710- CV-00600, 1997 WL 749461 (Tenn. Ct. App.
Dec. 5, 1997).
-2-
We have determined that the Parental Relocation Statute is not applicable for many
reasons, including the fact that the issue in this case has always been whether the child would
reside with Mother in New Jersey, as she informed Father in February 2009, or whether the
child would primarily reside with Father in Tennessee. That fact has never changed. In our
first opinion, we ruled in favor of Mother and remanded the action with the implicit
instructions that Mother be designated as the primary residential parent and that the child
would principally reside with her in New Jersey, a ruling that is now the law of the case.
Moreover, to the extent that Mother was required to give Father notice of her plan to relocate
with the child to New Jersey, she did just that in February 2009. Furthermore, the fact that
Mother resided in Tennessee during the pendency of the first appeal, and while awaiting what
have become unjustified delays of this court’s directive in our first opinion, Mother has
consistently and persistently endeavored to reside with the child in New Jersey, an issue this
court considered and ruled upon in 2010. It is now time, indeed it is well past the time, for
the implementation of this court’s directive, and without further interference or delay.
We, therefore, grant the application for a Rule 9 interlocutory appeal to consider the
issue concerning the trial court’s stay of the implementation of the parenting plan. In that
regard, we affirm the trial court to the extent that the court approved and entered a parenting
plan consistent with this court’s previous mandate by designating Mother as the primary
residential parent who would reside in New Jersey with the child for most of the year and
with Father having appropriate parenting time. We, however, vacate the stay imposed on the
implementation of the parenting plan and remand with unequivocal instructions that the
parenting plan adopted and entered in this action is now in effect and shall be implemented
and honored with no further delay.
We remand for further proceedings consistent with this opinion and costs incident to
this appeal are assessed against Father.
PER CURIAM
-3-