IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
FILED
RONNIE WILSON PERRY, )
October 2, 1996
)
Plaintiff/Appellee, ) Wilson Equity No. 8435
Cecil W. Crowson
)
Appellate Court Clerk
vs. )
)
MARLA RENEE PERRY (ROBINSON) ) Appeal No. 01A01-9602-CH-00088
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT OF WILSON COUNTY
AT LEBANON, TENNESSEE
THE HONORABLE C. K. SMITH, CHANCELLOR
For the Plaintiff/Appellee: For the Defendant/Appellant:
Jessica Dawn Dugger Jon S. Jablonski
Gregory S. Gill Nashville, Tennessee
Lebanon, Tennessee
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
WILLIAM C. KOCH, JR., J.
OPINION
This is a child custody case. Appellant Marla Perry sought to move out of state with the
minor children of her previous marriage. In response, Appellee Ronnie Perry filed a petition
seeking a change in custody. The trial court held that custody would be changed in the event that
the mother moved out state. We reverse, based on the Tennessee Supreme Court’s decision in
Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996).
In 1992, Appellant Marla Perry (Mother) and Appellee Ronnie Perry (Father) were
divorced. The parties have three minor children. The divorce decree gave the parties joint
custody of the children, with Mother having primary physical custody and Father having liberal
visitation privileges. The Marital Dissolution Agreement, incorporated into the divorce decree,
specifically provided for the possibility of Mother moving elsewhere with the children. In the
event that Mother moved from Tennessee, Father was to get additional visitation.
In 1995, Mother decided that she wanted to move to Tulsa, Oklahoma, and notified
Father to that effect. Father filed for a change in custody. The trial court found that Mother had
done an excellent job raising the children and that “it would be devastating to the children” if
custody were changed to Father. On the other hand, there was no justification for Mother’s
planned move to Oklahoma, the children did not want to move, and “[i]t would be crushing to
the children if they moved to Oklahoma.” The court stated that the primary consideration was
the best interest of the children and that the court’s authority could not be abrogated by the
Marital Dissolution Agreement. Furthermore, the court concluded that “the stability of the
children dictates that they stay in school where they are, stay in the environment they are
accustomed, stay in their community and close to their relatives.” Consequently, the trial court
ordered that custody of the minor children remain with Mother unless she decided to leave the
state, in which case custody would be changed to Father. Mother now appeals this decision.
Resolution of this appeal is controlled by the Tennessee Supreme Court’s decision in
Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). In Aaby, the parties were divorced by a
judgment which incorporated a marital dissolution agreement giving custody of the minor child
to the mother. The judgment provided for visitation for the father and contained no prohibition
against the mother moving out of Tennessee with the child. When the mother requested
permission of the court to move to Kentucky, the father petitioned to have custody changed to
him if the mother moved, claiming that a move to Kentucky would not be in the child’s best
interest. Id. at 624. The trial court ultimately ruled that the mother had not shown that the move
would be in the child’s best interest and that custody would be changed to the father if the mother
did move. Id. at 624-25. The appellate court affirmed, and the mother then appealed to the
Tennessee Supreme Court. Id. at 625.
The Tennessee Supreme Court granted the application for permission to appeal in order
to clarify the law of removal. Id. The Court reviewed the law of removal in Tennessee,
especially Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993), its earlier effort to provide guidance
on removal issues. Aaby, 924 S.W.2d at 625-28. The Court reaffirmed that the two predominate
goals in the law of removal are to limit judicial intervention in family decisions after divorce and
to make it easier to resolve legal disputes which must be litigated. Aaby, 924 S.W.2d at 629.
The Court noted that the traditional test, determining the best interests of the child, made
achieving these goals difficult. In addition, the Court recognized that the interests of the child
and of the custodial parent, while not always identical, are “basically interrelated.” Id. In light
of this background, the Court held as follows:
Therefore, 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.
Id. (footnote omitted). The Court then explained what was needed to establish a specific, serious
threat of harm:
However, expert psychological and/or psychiatric testimony that removal could be
generally detrimental to the child will usually not suffice to establish an injury that
is specific and serious enough to justify a change of custody. A move in any
child’s life, whether he or she is raised in the context of a one or two parent home,
carries with it the potential of disruption; such common phenomena--both the fact
of moving and the accompanying distress--cannot constitute a basis for the drastic
measure of a change of custody.
Id. at 630. The Court noted some examples of the type of threat of harm which could warrant a
change of custody, such as a desire to take a child with a serious medical condition to an area
where adequate treatment was not available. Id. at 629 n.2.
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The Aaby Court found that the mother’s motive for moving was not vindictive and that
the evidence did not demonstrate a harm that was specific and serious enough to warrant
changing custody to the father. The Court therefore reversed the appellate court. Id. at 630.
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. The resolution of this case is clearly
controlled by Aaby.
There is no evidence in the record that Mother’s move is vindictive. Further, the record
does not demonstrate any harm to the children beyond the general emotional and social harms all
children face when their family moves from one area to another. Therefore, Mother may move to
Oklahoma without surrendering physical custody of the children. The cause is remanded to the
trial court for any further proceedings required, such as modification of the visitation schedule, if
necessary.
The trial court’s decision denying the petition for change of custody is affirmed. The
order providing that custody would be changed to Appellee if Appellant chooses to relocate is
reversed. The case is remanded to the trial court for any further proceedings required, consistent
with this Opinion. Costs on appeal are taxed to Appellee, for which execution may issue if
necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P. J., W.S.
WILLIAM C. KOCH, JR., J.
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