IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
TERRI ANN ADAMS, )
) Appeal No.
Plaintiff/Appellant, ) M1999-02664-COA-R3-CV
)
vs. )
) Cheatham Chancery
WILLIAM DAVID COOPER ) No. 8485
Defendant/Appellee
)
) FILED
APPEAL FROM THE CHANCERY COURT 29, 2000
February
OF CHEATHAM COUNTY
Cecil Crowson, Jr.
Appellate Court Clerk
THE HONORABLE ROBERT E. BURCH PRESIDING
JENNIFER DAVIS ROBERTS
106 CENTER AVENUE
P.O. BOX 944
DICKSON, TENNESSEE 37055
ATTORNEY FOR PLAINTIFF/APPELLANT
ROBERT L. PERRY, Jr.
102 FREY STREET
P.O. BOX 82
ASHLAND CITY, TENNESSEE 37015
ATTORNEY FOR DEFENDANT/APPELLEE
VACATED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCURS:
CANTRELL, P. J.
CONCURS IN SEPARATE OPINION:
KOCH, J.
OPINION
This case involves a dispute over custody between parents who never
married. In January 1997, the trial court herein awarded custody of the
couple’s two children to Terri Ann Adams (“Mother”), who was then living in
Florida with the children. Mother, Father and the children had lived in
Tennessee prior to the couple’s separation and at the time of the initial
requests for custody. Mother was awarded custody “so long as she obeys
court ordered visitation.” On one occasion, Mother did not obey court ordered
visitation, and William David Cooper (“Father”) filed a petition for contempt
and for a change of custody in the Tennessee trial court which had made the
original custody award. By the time of the hearing on the change of custody,
Father had also moved from Tennessee. Nonetheless, the parties and the trial
court proceeded with the contempt and change of custody hearing, after which
the court changed custody from Mother to Father based solely on the one
violation. Mother has appealed the change of custody. Because we find that
Tennessee no longer had jurisdiction over the custody of these children, we
vacate the trial court’s order awarding custody to Father, thus reinstating the
original award of custody to Mother which was entered with a proper
jurisdictional foundation.
I.
The parties lived together for five years but never married. They had
two children, the first born in 1990 and the second born in 1993. The parties
were living in Tennessee in November 1995 when Mother moved from the
parties’ home and she filed a petition for custody in the appropriate Tennessee
trial court. Father filed an answer, seeking legitimation of the children and
asking for physical custody. In February 1996, the Tennessee trial court
legitimated the children, and by agreed order placed custody with Mother and
set child support and visitation pending a final hearing.
At some point, Mother obtained an order of protection against Father.
2
Shortly after the temporary custody award, Mother reported that Father had
violated the order of protection. While Father was in jail for the alleged
violation in February 1996, Mother moved with the children to Florida. Father
remained in Tennessee. In March of 1996, Father filed a petition for contempt
on the basis that Mother’s move destroyed his visitation with the children. He
also requested that custody be awarded to him in the final order or that Mother
be required to return the children to Tennessee for visitation. In April of 1996,
Mother responded to Father’s petition, stating she moved to Florida because of
Father’s violence and threats toward her.
A hearing was held in October 1996 on the issues of custody, support
and visitation as well as on Father’s petition for contempt. The court issued
an order placing “temporary custody” with Mother in November 1996. In
January 1997, the court issued a Memorandum Opinion and Order in which
the court found that Father had been “violent toward [Mother] on several
occasions” and that Mother was “bitter and vindictive” toward Father.
Regarding the reason for Mother’s move, her fear of Father, the court was
unpersuaded by Mother’s reasons and believed less drastic means than a move
to Florida could have protected Mother. Consequently, the Court found
Mother in contempt for moving the children to Florida and fined her $1,100,
$50 for each weekend visitation Father missed with the children.1 In addition,
Mother was required to post a bond for transportation costs for the children so
that they could visit Father.
On the issue of custody, the court placed custody with Mother, finding
such award to be in the best interests of the children. The court attempted to
condition the award on Mother’s compliance with court ordered visitation,
stating:
Given the facts of this case, the Court is of the opinion that it
would be in the best interests of the children that they be in the
custody of their mother. In spite of Plaintiff’s obvious disregard
of the visitation orders of this Court, the facts establish that she
1
Mother filed a timely Notice of Appeal of the contempt finding in February 1997, but never
perfected the appeal.
3
has been the parent who has been primarily engaged in caring for
the children. The sole factor against her is her move from the
state for reasons which the Court does not accept as justified. . . .
Custody of the minor children of the parties is awarded to
Plaintiff so long as she obeys the orders of this Court with respect
to visitation. . . . Plaintiff should be advised, however, that her
award of custody is on “shaky ground” and that any action of hers
in the future to frustrate visitation may result in her losing
custody of these two children. The Court simply cannot
discharge its duties to the children in this case if the custodial
parent will not follow its orders. . . . The Plaintiff is admonished,
however, that a reoccurrence of flouting the Court’s orders
WILL result in her incarceration. (emphasis in original).
Despite the court’s stern warning, Mother did not send the children to
Tennessee for their next visit, which was scheduled for their spring break in
March of 1997. On May 2, 1997, Father filed a petition for contempt because
of the missed visit and again asked for custody of the children. He also asked
for a reduction in his child support obligation. On October 22, 1997, Mother
filed a counterpetition for contempt against Father for his failure to pay child
support. In that pleading, Mother also alleged that Father had moved to
Illinois, making transportation of the children for visitation more difficult.
Father answered Mother’s counterpetition by alleging his income had
decreased making him unable to pay his child support obligation. He admitted
he had moved to Metropolis, Illinois.2
When the hearing on the contempt petitions was finally held in February
1998,3 Father testified that he was unemployed after quitting his job. He had
moved from Tennessee and was currently residing in Illinois. He had taken a
lower paying job when he moved, but had been unemployed for the two
months prior to the hearing. He admitted that he was in arrears in his child
support obligation and that he had borrowed money from his mother to pay his
own living expenses, but not to pay child support.
Father testified that when he called Mother prior to the spring break
2
The date of Father’s move is unclear. The record reflects that Father was still living in
Tennessee in early 1997, but the petition filed by Mother in October of 1997 and the response
thereto by Father clearly establish that Father had moved from Tennessee.
3
No transcript of this hearing was filed, but a Statement of the Evidence, approved by the
trial court, is included in the record. See Tenn. R. App. P. 24(c).
4
visitation in question, Mother told him that she could not afford to send the
children to Tennessee and that she did not have to abide by the court’s orders
because those orders were on appeal. He also testified that his summer
visitation with the children had taken place because he asked the court for
some of the money on deposit to pay for transportation.
Mother stated that prior to the spring break she did not have the money
to send the children to Tennessee and notified Father to that effect. It was her
understanding that if she was unable to pay for transportation for visitation,
the money held by the court could be used, but she did not know how to access
that money. She further stated that it was her belief, based on an explanation
provided by her attorney, that because of her appeal the proceedings were
frozen.4 She later discovered this information was incorrect, fired that
attorney, and hired a new one.
Mother also testified that she brought the children to Father earlier than
required for his visitation at Christmas. Father refused to return the children
earlier, although Mother asserted they had agreed to this shifting of the
visitation schedule. The result was that Father had the children longer at
Christmas than was required by the court’s order. Mother felt that this
additional time made up for the missed spring break. Mother testified that she
was strictly complying with the court’s orders, except for the missed spring
break, but that she could not afford transportation costs, particularly because
Father was $3,508.71 in arrears in his child support.
In its order entered February 24, 1998, the trial court found Father in
willful contempt of the court’s previous order establishing child support and
set his arrearage at $3,508.71, but did not impose sanctions for Father’s
contempt. The court further found Father to be voluntarily unemployed and,
therefore, denied Father’s requested reduction in child support.
With regard to the issue on appeal, the trial court changed custody to
4
On cross-examination, when confronted with a tape recording of her telephone
conversation with Father, Mother testified that, in fact, she had stated that she did not care what
the judge said about visitation.
5
Father and ordered Mother to pay child support. In its order, the court
reviewed its prior order awarding custody to Mother “so long as she obeys the
orders of the Court with respect to visitation” and then stated:
The Court specifically found that [Mother] has not done as
ordered. The Court further specifically found that it is obvious
that [Mother] will not voluntarily obey this Court. The Court
found that it must either transfer custody or it must surrender total
control of the parties’ children to [Mother], which the Court finds
would result in [Father’s] visitation being denied or severely
limited. On this basis alone, custody is awarded to [Father]
effective immediately. (emphasis added).
The court awarded Mother visitation and ordered that Mother would
bear the costs of transportation for visitation. Mother immediately filed a
motion to reconsider or to alter, which the court denied seven and a half
months later. Mother then appealed.
II.
Neither party raised, either before the trial court or in this appeal, the
issue of the trial court’s jurisdiction to modify the previous custody award, and
the trial court did not address that issue. The record, however, reveals facts
that raise serious questions of subject matter jurisdiction which this Court is
obligated to consider in its review of the trial court’s order changing custody.
See Tenn. R. App. P. 13(b).
In order to adjudicate a claim, a court must have jurisdiction over both
the parties and the subject matter. See Landers v. Jones, 872 S.W.2d 674, 675
(Tenn. 1994). Personal jurisdiction relates to the court’s authority to
adjudicate the claim as to the person and can be waived by the express or
implied consent of a party. See id. In the case before us, both parties waived
any claim of the court’s lack of personal jurisdiction by appearing before the
court to try the case on its merits.
Subject matter jurisdiction, however, cannot be waived by the parties
and is always at issue. See id; State ex rel. Dept. of Social Services v. Wright,
736 S.W.2d 84, 85 n.2 (Tenn. 1987); Tenn. R. Civ. P. 12.08; Tenn. R. App. P.
13(b). Subject matter jurisdiction relates to the cause of action itself and is
6
conferred by the sovereign (here, the state legislature). See id. Jurisdiction
over the modification of a custody award is subject matter jurisdiction. See
Gutzke v. Gutzke, 908 S.W.2d 198, 201 (Tenn. Ct. App. 1995).
A trial court’s authority to hear and determine matters of child custody
is established by statute in Tennessee. At the time of the proceedings herein,
the trial court’s subject matter jurisdiction in such matters was governed by
Tennessee’s version of the Uniform Child Custody Jurisdiction Act (UCCJA),
Tenn. Code Ann §§ 36-6-201 - 225 (1996) [repealed].5 Under that statute,
jurisdiction of a Tennessee court to make a child custody determination by
modification decree depended upon one of two prerequisites: (1) this state
was the child’s “home state” at the time of, or within six months before, the
commencement of the proceeding to modify custody, or (2) the child had no
“home state” or the child’s “home state” had declined to exercise jurisdiction
on the basis that this state was the more appropriate forum.6 See Tenn. Code
Ann. § 36-6-203 (1996) [repealed].
Tennessee’s version of the UCCJA, although it bears the name
“Uniform” in its title, differed from the Uniform version in one important,
and relevant herein, respect. See Brown v. Brown, 847 S.W.2d 496, 500
(Tenn. 1993). In adopting a modified version of the “Uniform” act, Tennessee
chose to limit jurisdiction in child custody matters to a single state, the child’s
“home state” if the child had one. See Tenn. Code Ann. § 36-6-203(a)(1) 1996
[repealed]; Brown; 847 S.W.2d at 500. “Under this scheme, jurisdiction exists
in only one state at a time.” Id.
Thus, for our purposes in determining whether the trial court herein had
jurisdiction to modify custody, the initial inquiry is whether Tennessee was
the children’s “home state” at the requisite time. The UCCJA defined “home
state,” in pertinent part, as “the state in which the child immediately preceding
5
Tennessee adopted the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), effective June 14, 1999, replacing the earlier UCCJA.
6
Additional criteria must be present even if the threshold requirements of the second
prerequisite are met. See Tenn. Code Ann. §36-6-203(a)(2)(A) (1996).
7
the time involved lived with such child’s parents, a parent, or a person acting
as parent, for at least six (6) consecutive months...” Tenn. Code Ann. § 36-6-
202(5) (1996) [repealed].
[T]he courts of this state have jurisdiction to make or modify a
child custody order if Tennessee is "the home state of the child at
the commencement of the proceeding" or was the child's home
state "within six (6) months before commencement of the
proceeding" and the child has been taken outside Tennessee by a
person claiming custody, leaving one parent (or "a person acting
as parent") in Tennessee. Tenn. Code Ann. § 36-6-203(a)(1)(B).
In other words, if Tennessee has been the child's "home state" and
the child is now in another jurisdiction, Tennessee continues to be
the child's home state for an additional period of six months
following removal, at which point the other state becomes the
child's "home state," based on the child's presence there for a
period of six consecutive months.
Brown, 847 S.W.2d at 500.
The filing of the petition to modify custody would be considered “the
commencement of the proceedings” for purposes of determining the
jurisdiction of the trial court to modify custody in the order before us on
appeal. See Brown, 847 S.W.2d at 507; Marcus v. Marcus, 993 S.W.2d 596,
600 (Tenn. 1999). Father filed the petition for contempt and to modify
custody on May 2, 1997. The record herein establishes that Mother and the
two children moved to Florida in February of 1996 and remained there.
Therefore, Tennessee was not the children’s “home state” and had not been
the children’s “home state” for over a year, at the commencement of the
proceedings to change custody.
In very limited and specific circumstances, Tennessee courts had
jurisdiction in child custody matters under the Tennessee version of the
UCCJA even where Tennessee was not the “home state.” “If Tennessee is not
the child’s ‘home state,’ a Tennessee court may assume jurisdiction only upon
a finding that no other state qualifies as the child’s ‘home state,’ or that the
‘home state’ has declined to exercise jurisdiction and deferred to Tennessee as
‘the more appropriate forum to determine the custody of the child.’ ” Brown,
847 S.W.2d at 500. The trial court herein made neither requisite finding. The
record demonstrates that Florida had become the children’s “home state” six
8
months after Mother’s move there and was the “home state” at the time of the
commencement of the proceedings to modify custody. The record contains no
indication that a Florida court had deferred to Tennessee or that any action
had been filed in a Florida court.
Thus, a basis for the trial court’s jurisdiction cannot be found in Tenn.
Code Ann. §36-6-203(a) (1996) [repealed]. See Brown, 847 S.W.2d at 507.
Similarly, federal law does not provide a basis for jurisdiction in this
case. The Parental Kidnaping Prevention Act (PKPA), 28 U.S.C.A. § 1738A
(West 1994),7 in effect in during the proceedings herein, provides for
continuing jurisdiction in some circumstances. Under the PKPA, a state
rendering an initial custody award may maintain jurisdiction to modify that
award so long as that state continues to have jurisdiction over the matter and
remains the residence of the child or of any contestant.8 See 28 U.S.C.A. §
1738A(d). The first prong of the requirement is stated: “A child custody
determination made by a court of a State is consistent with the provisions of
this section only if (1) such court has jurisdiction under the law of such state.”
28 U.S.C.A. § 1738A(c). Because the PKPA incorporates the issuing state’s
jurisdictional requirements, the federal statute does not provide a basis for
subject matter jurisdiction herein because no such jurisdiction existed under
Tennessee law.9
III.
Nor did the trial court’s use of the phrase “so long as” in its initial
7
Congress amended the Act in November 1998, but the amendments would not have altered
the result in the case before us.
8
Even if jurisdiction had continued under the first prong of the PKPA, it would likely have
been lost under the second because, when the court changed custody in February 1998, neither
the children nor any contestant continued to reside in Tennessee. “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.” Marcus, 993 S.W.2d at 599.
9
Tennessee adopted the Uniform Child Custody Enforcement Act (UCCJEA), effective June
14, 1999. One difference between the UCCJA and the UCCJEA is the UCCJEA’s continuing
jurisdiction provision, Tenn. Code Ann. §36-3-217 (Supp. 1999). That provision would
maintain modification jurisdiction in the court making the initial custody determination until
neither the child nor one parent has a significant connection with Tennessee or until a court
determines that neither the child nor either parent is presently residing in Tennessee.
9
custody determination confer on it continuing jurisdiction to modify that
determination. The trial court issued its initial custody Memorandum Opinion
and Order in January 1997, after Mother’s move to Florida for which the court
found her in contempt, and found that the best interests of the children were
served by being in the custody of their Mother. The court also stated that
custody was awarded to Mother “so long as she obeys the orders of this Court
with respect to visitation.” Father argues (regarding the merits, not the
jurisdictional issue) that this January 1997 award of custody to Mother was
“conditional,” such that her violation of the visitation order triggered the
change of custody to Father. The trial court appears to have shared that view
as evidenced by the court’s statement that the change of custody was based
solely on Mother’s failure to obey the court’s visitation order. Further, the
only evidence produced at the hearing concerned Mother’s compliance with
the court’s visitation order and Father’s compliance with the court’s child
support order, which evidence is relevant to the contempt issues before the
court. However, a change of custody inquiry would require evidence about
additional facts and circumstances. See Arnold v. Gouvitsa, 735 S.W.2d 458,
462-63 (Tenn. Ct. App. 1987).
In making an initial custody decision, a trial court must attempt to set
custody arrangements that “promote the best interest of the child, enhance the
child’s relationship with each parent, and interfere as little as possible with
post-divorce family decision-making.” Adelsperger v. Adelsperger, 970
S.W.2d 482, 484 (Tenn. Ct. App. 1997). Once that decision has been made
and has become final, the award of custody is res judicata “upon the facts in
existence or reasonably foreseeable when the decision was made.”
Adelsperger, 970 S.W.2d at 485. Having been awarded, custody should not
be disturbed unless there is some change in circumstances that affects the
welfare of the child. See id. If the court finds that a material change of
circumstances has occurred, then the court will proceed to determine if the
best interests of the child dictate a change in the existing custody arrangement
10
and to devise a custody arrangement that serves those interests. See
Adelsperger, 970 S.W.2d at 485. “In child custody matters the paramount
concern of the Court is the welfare of the children and the rights of the parties
will yield to that concern.” Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.
Ct. App. 1983); see also Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. Ct.
App. 1991).
Underpinning the requirement that a change of circumstances must be
found before a court can consider changing an award of custody is the child’s
“ongoing need for continuity and stability,” which this court has consistently
recognized. See Smithson v. Eatherly, No. 01A01-9806-CV-00314, 1999
WL 548586 at *3 (Tenn. Ct. App. July 29, 1999) (no Tenn. R. App. P. 11
application filed) (citing Adelsperger, 970 S.W.2d at 485; Hill v. Robbins, 859
S.W.2d 355, 358-59 (Tenn. Ct. App. 1993); Contreras v. Ward, 831 S.W.2d at
290). Because of this need for stability, our child custody decisions have
created a presumption in favor of the original custody award. See Smithson,
1999 WL 548586 at *3 (citing Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn.
1993)). Consistent with that presumption, temporary awards of custody are
generally disfavored, and should be made only if necessary, when the court
needs additional information before making a permanent decision or where
the health, safety, or welfare of the child or children is imperiled. See King v.
King, No. 01A01-91-10PB00370, 1992 WL 301303 at *2 (Tenn. Ct. App.
Oct. 23, 1992) (no Tenn. R. App. P. 11 application filed). Child custody
decisions should be made “with as much finality as the circumstances permit.”
King, 1992 WL 301303 at *2 (citing Hilliard v. Hilliard, 254 S.E.2d 372, 373
(Ga. 1979)).
It is impossible to reconcile these principles with recognition of a
“conditional” award that can be modified upon violation of the condition,
without consideration of the “change of circumstances” and “best interest”
11
analysis requirements.10 In Kyker v. Kyker, No. 03A01-9509-CV-00324, 1996
WL 67178 (Tenn. Ct. App. Feb. 16, 1996) (no Tenn. R. App. P. 11 application
filed), the trial court changed custody from the mother to the father solely on
the basis of the court’s finding that the mother had violated an earlier order
that she not cohabit with a specifically named man. This court found that the
evidence preponderated against the trial court’s finding of a one-time violation
of that order, but made it clear its ruling would have been the same even if a
violation had occurred. This court agreed with the mother’s assertion, “[E]ven
if the evidence does not preponderate against the court’s findings, [the trial
court] was in error in changing the custody as a punishment to her since the
proof fails to show it was in the best interest of the child for her custody to be
changed.” Kyker, 1996 WL 67178 at * 2.
We do not believe that a court’s use of “so long as” or similar
“conditional” language converts a final custody award into an order which the
court can modify without consideration of all the factors required by case law
and statute. See Tenn. Code Ann. § 36-6-101(Supp.1999). Nor does it create
an award over which the trial court continues to maintain jurisdiction absent
any other jurisdictional basis.
Similarly, neither Father’s petition for contempt nor Mother’s later
petition for contempt conferred upon the trial court continuing jurisdiction to
modify its previous custody award. The specific statutory requirements for
subject matter jurisdiction to modify a custody determination cannot be
disregarded even where a court may have jurisdiction over other matters.
10
Courts can and do place restrictions on custody and visitation. See Suttles v. Suttles, 748
S.W.2d 427, 429 (Tenn. 1988) (suspending visitation “until a change of circumstance can be
shown” because of the father’s incarceration and violence toward the son and other family
members); D. v. K., 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995) (requiring visitation to be
supervised after the father allowed five year old twins to play unsupervised in a motel parking
lot 100 yards from the interstate ramp for five hours); Burrell v. Burrell, No. 03A01-9809-CV-
00291, 1999 WL 172670 at *4 (Tenn. Ct. App. Mar. 24, 1999) (no Tenn. R. App. P. 11
application filed) (upholding restriction on children being in presence of custodial father’s
girlfriend pending an appropriate investigation). The conditions imposed in these cases,
however, deal with the best interest of the child, rather than the enforcement of the court’s
order. Fostering a child’s relationship with the noncustodial parent is, of course, generally in
the child’s best interest, but a single violation of a visitation order does not constitute automatic
grounds for change of custody obviating the need to consider other factors relevant to the
child’s interest.
12
While we recognize that “the inherent power of courts to punish
contemptuous conduct has long been regarded as essential to the protection
and existence of the courts,” Black v. Blount, 938 S.W.2d 394, 397 (Tenn.
1996), that power to punish “the willful disobedience or resistance of any
[party] to any lawful [order] of said courts,” Tenn. Code Ann. § 29-9-102
(Supp. 1999), does not include removal of custody as an available punishment.
Thus, even if the trial court herein retained jurisdiction over the contempt
petitions,11 the punishment for such contempt may be by fine or by
imprisonment, or both. See Tenn. Code Ann. § 29-9-103 (Supp. 1999).
Removal of custody is not an available sanction for contempt. See id.
While a parent’s misconduct may provide some evidence of his or her
fitness to have custody,12 a custody decision is not, and cannot be, used to
punish the parent. It is well established that an award of custody is to be made
to assure the best interests of the children and not to reward or punish a parent.
11
Our supreme court has observed that a court which loses jurisdiction to modify custody
“seemingly” retains jurisdiction to enforce its unmodified custody order through contempt. See
Marcus v. Marcus, 993 S.W.2d at 603 n. 13. We note that while courts in several states agree
with the conclusion implied in that observation, other courts have reached different
conclusions. Compare Brighty v. Brighty, 883 S.W.2d 494 (Ky. 1994) (UCCJA explicitly
applies to child custody determinations, and a contempt order is not a custody determination);
Kirylik v. Kirylik, 292 S.C. 475, 357 S.E.2d 449, 450 (1987) (“even if a court loses jurisdiction
to modify its prior orders under the UCCJA, it retains the inherent power to enforce compliance
with them through civil contempt”); Taylor v. Taylor, 332 Pa. Super. 67, 480 A.2d 1188 (Pa.
Super. Ct. 1984) (same); Rapp v. Russell, 965 S.W.2d 897 (Mo. Ct. App. 1998) (same) with
Funk v. Macauley, 457 N.E.2d 223 (Ind. Ct. App. 1983) (UCCJA governed any jurisdictional
issue when a contempt proceeding was “inextricably interwoven” with matters of custody and
visitation); Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (Ark. Ct. App. 1993).
(Arkansas court was asked to enforce portion of order which did not involve questions of
“custody determination,” thus UCCJA was not applicable). Thus, the nature of the relief
sought and its relationship to a “custody determination” are issues to be examined by courts in
determining whether inherent enforcement jurisdiction or the UCCJA’s modification
jurisdiction applies in a specific situation. We believe both judicial economy and the policies
underlying the UCCJA would best be served by domestication of the initial custody order in
the new home state for purposes of enforcement as well as modification, thereby also avoiding
personal jurisdiction problems. In this case, however, we need not determine whether the court
retained jurisdiction to enforce its prior order by contempt since the court imposed no sanction
for contempt and, as discussed above, was not authorized to change custody as a punishment
for contempt or without evidence to show changed circumstances and an analysis of the
children’s best interests. See Arnold v. Gouvitsa, 735 S.W.2d at 463 (“trial court made a
custody decision under the name of a contempt proceeding”).
12
Both the courts and the legislature have recognized the importance of enabling the child
to maintain a relationship with the noncustodial parent. See Wilson v. Wilson, 987 S.W.2d 555,
564 (Tenn. Ct. App. 1999); Tenn. Code Ann. § 36-6-106(10) (Supp. 1999). A custodial
parent’s consistent efforts to thwart a close and continuing relationship between the child and
the non-custodial parent through failure to provide visitation could constitute a material change
in circumstances since the original order foresaw such visitation. Evidence of such efforts by
the custodial parent would also be relevant in a best interests and comparative fitness analysis.
13
See Adelsperger, 970 S.W.2d at 485 (neither the mother’s move to Mississippi
nor her motivation for moving provided grounds for changing custody to the
father); Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991)
(custody was awarded to the father, not to punish the mother for her
relationship with another man, but because the father was comparatively more
fit); Long v. Long, 488 S.W.2d 729, 733 (reversing the trial court’s change of
custody to the father which was based on the mother’s boyfriend visiting until
late hours); see also Williams v. Williams, 263 SW2d 531, 532 (Tenn. 1953)
(although father was in contempt, best interests of child are paramount).
We agree that a court must be able to enforce its own orders, but
modification of custody is not an available sanction for contempt. Thus,
whether or not the trial court retained subject matter jurisdiction to consider
the contempt petitions before it, it no longer had subject matter jurisdiction to
modify the existing custody order.
V.
Because the trial court had no jurisdiction to modify the award of
custody, we must vacate the trial court’s order awarding custody to Father.
The original award of custody to Mother is reinstated, along with the visitation
and child support orders. See Arnold v. Gouvitsa, 735 S.W.2d at 463. Costs
are taxed to Appellee for which execution may issue if necessary.
_____________________________
PATRICIA J. COTTRELL, JUDGE
CONCURS:
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M. S.
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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