IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
AMY (KELLEY) SMITH,
Plaintiff/Appellee, ) ) FILED ) Williamson Chancery No. 24120 ) October 27, 1998 VS. ) Appeal No. 01A01-9711-CH-00657 ) Cecil W. Crowson ALTON WADE KELLEY, ) Appellate Court Clerk ) Defendant/Appellant. )
APPEAL FROMTHE CHANCERY C OURT O WILLIAMSON COU F NTY AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL, CHANCELLOR
J. RUSSELL HELDMAN Franklin, Tennessee Attorney for Appellant
JAMES L. CURTIS Nashville, Tennessee Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HOLLY KIRBY LILLARD, J. Defendant, Alton Wade Kelley (“Appellant” or “Husband”), appeals the trial court’s order allowing
Plainitff, Am Kelley Smith (“Appellee” or “W y ife”), to relocate to Texas with the parties’ m child, Robert inor
WadeKelley, declining to change custody of the minor child to Husband, declining to award Husband attorneys
fees, and declining to dismiss Wife’s motion under 12(b)(6). W appeals the portion of the trial court’s ife
judgment which set the new visitation schedule for Husband.
I. Factual and Procedural History
Theparties in thisactionwere divorced on October 11, 1996. A Marital Dissolution Agreement (“MDA”)
was incorporated into the final decree of divorce. There w only one child born of the marriage. The decree as
provided that the partieswould share joint custody of thechild, with W having actual physical custody of the ife
minor child. The Final Decree granted Husband liberal visitation privileges, providing him about 180 days of
visitation per year. The Final Decreealso stated that “the parties agree not tomove m than sixty miles from ore
Nashville, Tennessee.”
On July 4, 1997, Wife w married to Jim Sm (“Smith”). Smith w em as ith as ployed by General Mills in
Dallas, Texas. Shortly after their marriage, W filed a Petition to M ife odify requesting that she be allowed to
move the parties’ child, then age 2 ½ to Texas to reside with her and her new husband. Husband filed a ,
motion to dism Wife’spetitionforFailureto Statea ClaimUpon WhichRelief Can Be Granted. The trial court iss
found that the petition was the proper way for W to exercise her desire to remove the child fromthe state ife
and dismissedHusband’s motion. Inresponse toWife’smotion,Husband filed a complaint to Change Custody,
Visitation and Child Support and for Injunction and Other Relief.
At thetime of thehearing, W hadobtaineda new job with International Paper in Dallas with a $6,000 ife
increase in pay plus additional bonuses. Wife and her new husband had made plans to purchase a house in
a city just north of Dallas. Also, Wife testified that she had checked into schools in the McKinney area and had
enrolled the child in a private day school. Wife contends that, at the time their MDA was written, she had no
plans to remarry or to move to another state. Husband contended otherwise.
Both Wife andHusbandtestifiedthat they workedto accommodateeach other w attendingto their hile
2 child. Wife contends that she is the prim care giver. Wife further testified that she is ready to transport the ary
parties’ child however often is necessary to keep Husband involved in the child’s life.
The parties’ child has febrile seizures on occasion. Husband is concerned that Smith has no idea of
howto handlesuchseizures. Also, Husbandtestifiedthat thechild’spediatricians are in Brentwood, Nashville,
and Columbia, and that these doctors arefam with the child’s condition. As such, Husband contends that iliar
this would not be in the child’s best interest and would be a material change in circumstances to uproot the
child fromTennessee to Texas. W testified that she had a referral for a doctor in a Dallas suburb, and that ife
Smith could be taught how to deal with the child’s seizures.
Husband testified that he wanted the child tohave continued contact with his family in Tennessee. He
stated that the child has a good relationship with both Wife’s and Husband’s family and that they all reside in
Tennessee. He also desires for the child to attend the schools that he attended in the Nashville area.
Both parties testified on their ow behalf along with various other w n itnesses. A great deal of the
testimony dealt with what is in the best interest of the parties’ child. At the close of all the evidence the trial
court renderedits decision. Thetrial court found that although the MDAlabeled the parties’ custody of thechild
as “joint custody,” the Husband’s periods of placement were referred to intheagreement as “Child Visitation”
and Husband was paying support for the child. The trial court therefore determined W to be the “custodial ife
parent” and Husband w determ as ined to be the “non-custodial parent.” The trial court then ruled that Wife
should beallowedto rem the childto another state although Husband should be awarded the same amount ove
of visitation as provided for in the M The trial court then ordered both parties to present visitation proposals DA.
to the court. The trial court at a subsequent hearing approved a visitation schedule which awarded the
Husband 170 days visitation with the child, and ordered Wife to provide all transportation costs.
Husband appeals from this judgm Wife appeals the portion of the judgment which set visitation ent.
at 170 days.
II. Husband’s Motion to Dismiss
3 Husband contends that the Chancellor erred in failing to dismiss W Petition to Modify for failure ife’s
to state a claim upon w relief can be granted. He argues that nowhere in Wife’s petition does she ask the hich
court to modify the Final Decree of Divorce to change the injunctive language therein. Rather, Wife’s petition
asks for permissionto m the m child totheState of Texas, andfor H ove inor usband’s visitationto be amended.
Husband argues that since wife has alleged no substantial or material change of circumstances according to
law which justifies any change in the locational restrictions found in the Final Decree of Divorce, a change
cannot be made, and therefore her petition should have been dismissed.
Wife contends that Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993), specifically endorses this
procedure of requesting fromthetrial court, in advance, permissionto relocate. Wife alsopointsto Tenn. Code
Ann. §36-6-101(a) which states: “Such decree shall remain within the control of the court and be subject to
such changes or modifications as the exigencies of the case may require.”
A prior order restricting movem of child may be modified by agreement on motion to court having ent
jurisdiction over matter, and subject to approval of that court, if noncustodial parent consents to removal of
child from state and parties can agreeonrevised visitationarrangement. Taylor at 332. “If agreement between
custodial parent and noncustodial parent regarding removal of child from state cannot be reached, burden of
proof falls on parent who filespetitionseekingrelief; noncustodial parent who seeks to prevent removal must
show by preponderance of evidence . . .” Id.
In this case, W followed the proper procedureto seek the court’s approval to rem the m child ife ove inor
from the state. The requirement that Wife need show a change of circumstances is relevant to change of
custody determinations. Wife did not seek to change custody, but rather sought the court’s permission to
remove the m child to Texas. The trial court committed no error in refusing to grant Husband’s Motion to inor
Dismiss for Failure to State a Claim Upon Which Relief can be granted.
III. Removal of Minor Child and Altering Visitation
Recent cases haveaddressedthelawof removal andattempted toset forth parameters to be followed
by the courts and the parties in such removal cases. In the case of Taylor v. Taylor, 849 S.W.2d 319 (Tenn.
4 1993), the Supreme Court of Tennessee was asked to reverse a decision of the trial court prohibiting the
custodial parent from moving out of state with her three-year-old daughter, which m had been objected to ove
by the father of the child. The Suprem Court laid out the procedure to be followed in these cases and the e
burdens which must be carried by the parties.
If there is no outstanding order restricting movement of the childor children, and the parties can agree to a revised visitation schedule, the custodial parent is free to rem ove without seeking further court authorization. Likewise, if thenon-custodial parent consentsto the removal andtheparties can agree on a revised visitation arrangem a prior order of restriction ent, may be modified by agreement on motion to the court having jurisdiction of that order and subject to the approval of that court.
If agreement between the parties cannot be reached, under the procedural ruleannounced inSeessel and Nichols, the burden of proof fallsontheparty who files a petition seeking relief. In order to discharge that burden, the non-custodial parent who seeks to prevent removal must show by a preponderance of the evidence that removal is adverse to the best interest of the child or children involved. If, on the other hand, the custodial parent files for relief, seeking to lift a prior prohibition on removal or asking the court's permissionto move fromthejurisdiction, or both, thecustodial parent has the burden of proving that removal is in the child's best interest. That burden can be shifted by a prim facie showing of a sincere, good-faith a reason for the move and a prima facie showing that the move is consistent with the child's best interest. Id. at 332.
The Supreme Court in Taylor applied these substantive principles and procedural rules and came to
the conclusion that thejudgments of thetrial court and the Court of Appeals must be reversed. The custodial
parent properly petitioned the trial court to suspend its previously imposed restriction on removal and sought
permission to move with the child to Davenport, Iowa. The SupremeCourt stated that removal was warranted
based on a well-established reason for the move-her remarriage to someone who was living, for an equally
good reason, some distance fromMemphis. The Court also statedthat there w nosuggestionin the record as
that the mother was anything other than awholly fit person to have custody of child and there w noshowing as
that the move would have adverse consequences to the child’s health or well-being. The Supreme Court then
stated as follows:
It is obvious that the previously established schedule of visitation will have to be altered. There is no proof that this cannot be successfully accomplished to accommodate the interests of both parents, as well as the child's interest. There is nothing in the record to indicate that Deborah Mitten's conduct has been vindictive or that in proposing to move to Davenport, she intended to depriveSteve Taylor of his visitation rights or to interfere w his close relationship with his child. ith Id. at 333.
5 In thecase of Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), the custodial parent petitioned to move
out of statewith the child. The Suprem Court, inreversingthe decisions of thetrial and appellate courts, ruled e
that a custodial parent may remove a child to another jurisdiction unless noncustodial parent can show, by
preponderance of evidence, that custodial parent's motives for moving are vindictive. Id. at 623.
The Supreme Court in Aaby stated that theultimate messageto begleanedfromTaylor is admittedly
obscure. They felt that was evidenced by the fact that both parties in Aaby put forth arguments which found
support in the text of the Taylor opinion, and by the trial court's obvious confusion as to its meaning. The
Supreme Court further stated that because they had failed to "m determinate an area of law that has ake
become increasingly unsettled," they must dispel the ambiguity of Taylor and clarify its impact on the law of
removal. Aaby at 629.
Although it drewupon authority from many other jurisdictions and dealt with a number of specific sub-issues, Taylor was fundamentally concerned with furthering two overarching goals in thelawof rem oval: (1) "limiting judicial intervention in post-divorce family decision-making, and (2) making disputes easier of resolution if they must be litigated." Id. at 331 (emphasis added). We continue to believe that these goals must determine the law. Moreover, we believe that the traditional best interests of the child test, for the reasons enunciated in Taylor, makes these goals difficult or impossible to achieve. And we are convinced, again for the reasons stated in Taylor, that the interests of the custodial parent and the interests of the child are basically interrelated, even if they are not always precisely the same. Therefore, we conclude, as the mother insists, that a custodial parent will be allowed to rem ove 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 visitationrights of thenon-custodial parent. Aaby at 629.
The Suprem Court then proceeded to set out the appropriate procedure for rem e oval.
With regard to procedure, we concludethat if the partiescannot agree on an acceptablevisitation schedule, thecustodial parent seeking to removemust file a petition with the court to reapprove or revise, as the case may require, the existing visitation schedule. In the hearing on the petition, the non-custodial parent may, if he or she wishes, present evidence that the custodial parent's motives for moving are vindictive; also, any petition for a change of custody based on the above-discussed grounds shall be heard at this time. Id. at 630.
In the case before this Court, there was a specific provision placed in the MDA which prohibited the
parties from moving more than sixty (60) miles from Nashville, Tennessee. Husband first contends that there
6 exists no new circumstances which justifya change inthe“sixty m residential restriction. He cites case law ile”
which holds that the “remarriage of either parent does not of itself constitute a change of circumstance that
would warrant achangeof custody.” Tortorich v. Erickson, 675 S.W.2d190, 192(Tenn. Ct. App. 1984). While
this statement of the law is correct, we point out that Wife was not seeking to change custody, but rather
permission to rem the child from the state and a redetermination of visitation. ove
Husband contends that the removal language in the MDA is contractual in nature and should be
enforced aswritten. He arguesthat theonly waytheagreement can be modifiedis pursuant to the modification
clause in the MDA which states that the agreement can only be modified by the parties in writing. Husband
contends that the Chancellor was therefore without authority, absent the parties’ agreement, to perm this it
removal.
In Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975), the Supreme Court of Tennessee held that
when a husband and wife contract with respect to the legal duty of child support, upon approval of that
contract, the agreement of the parties becomes merged into the decree and loses its contractual nature. The
Supreme Court stated that the reason for stripping the agreement of the parties of its contractual nature was
the continuing statutory power of the Court to modify its term when changedcircum s stances justify. Id. at 224.
Trial courts have continued authority in post-divorce matters concerning the care, custody and control of
children. Tennessee Code Annotated§ 36-6-101(a) states: “Suchdecree shall remainwithinthe control of the
court and be subject to such changes or modifications as the exigencies of the case may require.” Provisions
which restrict where the child shall reside are provisions which concern the care, custody and control of the
child. Therefore, the removal provision in the MDA w merged into the decree and lost its contractual nature. as
It may therefore be modified if the correct procedure is followed. Such procedures have been spelled out in
Taylor and Aaby.
Husband contends that the Taylor and Aaby line of cases are not applicable to the case at hand. In
thiscase there was a specific provision placedin the M w DA hich prohibited the partiesfrommovingmore than
sixty (60) miles fromNashville, Tennessee. Neither Taylor nor Aaby contained a sim provision. However, ilar
in Taylor, there was a standing court order which prohibited the Mother fromremoving the child to another
state.
7 Whenlaying out the procedural framework for removal in Taylor, theSupreme Court stated, “If, on the
other hand, thecustodial parent filesfor relief, seeking to lift a prior prohibition on removal or asking
the court’s permission to move from the jurisdiction, or both, the custodial parent has the burden
of proving that removal is in the child’s best interest.” Taylor at 332. (Emphasis added). While it was later
clarified in Aaby that theburden rests uponthe non-custodial parent to show a vindictive purpose for the move,
the language in Taylor states that a parent may seek relief in the courts to lift a prior prohibition on removal.
The Supreme Court did not limit such “prior prohibition onremoval” to one placedupon theparties bythe court
in a prior proceeding. The language used by the Supreme C is broad enough to encompass a prior ourt
prohibition on removal found in an MDA.
Additionally, in Hill v. Robbins, 859 S.W.2d 355 (Tenn. Ct. App. 1993), this Court reversed a trial
court’s decision to change physical custody to thefather until the mother relocated to the state of Tennessee.
In Hill, the final decree incorporated the marital dissolution agreem in which the wife agreed not to move ent
from the state of Tennessee with the children during their minority. O appeal this Court stated that “any n
agreement or arrangement concerning the custody of m children is subject to modification . . .” citing inor
Rogero v. Pitt, 759 S.W 109 (Tenn. 1988). .2d
For the foregoing reasons, the trial court was at liberty to lift the prohibition on removal found in the
final decree. W followed the proper procedure outlined in Taylor and Aaby by petitioning the court to allow ife
her to remove the child from Tennessee and asking for a new visitation schedule for Husband. The burden
then wasupontheHusbandto show, bya preponderanceof the evidence, that Wife’smotives for moving were
vindictive, that is, intended to defeat or deter Husband’s visitation rights. Aaby at 629.
Wife testified to her reasons for desiring to m to Texas with the m child. W stated that she ove inor ife
had remarried and her husband lived and worked in Texas. Wife was able tofindemployment there w apay ith
increase of $6,000.00 and additional bonuses. Smith, W current husband, testified that he would not be ife’s
able to move to Tennessee as his employment was in Texas and he also has two minor children in Texas and
has regular visitation with them Smith testified that if the court did not allow Wife to move with the child to .
Texas, W and Sm w ife ith ould be forced to carry on a long distance marriage.
Wife testified that she was willing to work with Husband, if the court allows her torem to the State ove
8 of Texas, to transport the child back and forth to Husband in Tennessee.
Q: Now, tell Judge Bell what you are willing to do. A: Well, I want Alton to have every opportunity to spend as much time with him as he can. And we are - I am prepared to bring him back at my expense every six weeks for nine days and transport the child at my expense. Q: Now, are there any other times that you would propose for there to be visitation between the father and the child? A: Yes, sir. We would like to have him spend a week with hi m at Christmas and two separate two-week periods during the summer and then any weekend out of the month that he would like to come to Dallas. Q: So you don’t object to him visiting at least once a month in Dallas if he wants to come or can come? A: I encourage it.
When W was questioned about whether her move was done to defeat or deter visitation, Wife stated that ife
it was not and that she encourages visitation between Husband and the child.
Husband testified as to numerous and substantial reasons why he would like the child to remain in
Tennessee. While this Court admires and encourages the bond Husband seeks to maintain by keeping the
child in close proximity toHusbandand the child’s extendedfam this Court is bound by the holdingin Aaby. ily,
The custodial parent will beallowed to m with the childunless the non-custodial parent proves a vindictive ove
purpose. There was simply no proof in this case that Wife was seeking to defeat or deter Husband’s visitation
rights. Quite the contrary, the proof showed that Wife was willing to undertake the rather costly expense of
transporting the child to and from Tennessee at six-week intervals for visitation periods with Husband. Wife
also expressedthat Husbandwaswelcom totravel to D e allas for periods of visitation as well. ThisCourt holds
that the trial court was not in error in allowing Wife to rem the m child from the state. ove inor
IV. Visitation Schedule
Both parties object to the visitation schedule ordered by the trial court. In Taylor the Supreme Court
discussed the visitation issue.
[R]emoval of the child from the jurisdiction m require rescheduling of the ay non-custodial parent's visitation; . . . that the courts must be sensitive to the non-custodial parent's efforts to maintain his or her relationship with the children, and that visitation should be arranged in a manner most likely to enhance that relationship . . . These factors, and any related factual circumstances found by the court to be significant in a given situation, must be weighed individually and collectively. Taylor at 332.
9 The Suprem Court also addressed the visitation issue in Aaby. e
With regard to procedure, we concludethat if the partiescannot agree on an acceptablevisitation schedule, thecustodial parent seeking to removemust file a petition with the court to reapprove or revise, as the case may require, the existing visitation schedule . . . As is the case in the initial proceedings, neither party shall bear the burden of proof on the visitation issue; rather, the trial court shall, in its sound discretion, fashion an acceptable revised visitation arrangement. Any prior lawinconsistent with these conclusions is expressly overruled. Aaby at 630.
It is apparent that the trial court had discretion to fashion an acceptable visitation schedule. Due to
the distance of the m in this case, it would be highly impractical to retain the original visitation schedule. ove
Husband’s visitation proposal requested that he havethechild at least two weekendsper monthandthe entire
time he is out of school during the summ Wife proposed a visitation schedule consisting of 111 days while er.
Husband’s schedule requested 184 days. The trial judge decided to keep the visitation at the same level as
it had previously been exercised. The trial judge ultimately approved a visitation schedule patterned after
Wife’s schedule, but consisting of 170.5 days per year.
Wife contends that the trial court failed to import into its visitation schedule the current law in
Tennessee. She claims the trial court incorrectly concluded that Husband was necessarily entitled to “the same
kind of visitation” he had in the Marital Dissolution Agreement. Wife contends that her original visitation
proposal, which provides approximately 111 days of visitation, requiressignificantly lesstravel. Sheclaims that
while this has a positive impact on her, it is also beneficial to the child.
It is clear from the language of Taylor and Aaby quoted above that the trial court is free to modify the
visitation schedule and is not restricted to the same kind of visitation originally provided for. However, there
is nothing in the record which convinces this Court that the trial judge was not aware of this fact when it
fashioned the new visitation schedule. The trial court was equally at liberty to increase or decrease the amount
of visitation. In setting the new visitation schedule the Chancellor made the following comment. “I think he is
entitled to, and I think in the interest of the child, half and half forever is not going to work. Half and half for the
foreseeable future I hope will work.” This language evidences the trial court’s recognition that it was not
required to award the same amount of time Husband previously had, but that for now, the split of time would
continue to work. For the reasons stated, we hold that the trial court did not commit error in granting Husband
10 170 days of visitation, with Wife providing all transportation costs.
V. Husband’s Request for Attorney Fees
Paragraph Three of the Marital Dissolution Agreement reads in pertinent part:
NON-COMPLIANCE. Should either party incur any expense for legal fees as a result of the breach of any portionof this Marital Dissolution Agreement by the other party, the Court shall award reasonable attorney’s fees and suit expenses to the non-defaulting party which are reasonably incurred.
Husbandargues that W breachedthe“sixty mile provision” andtheestrangem provision of the MDA, and ife ent
that he should therefore be awarded his fees and expenses pursuant to Paragraph Three of the MDA and
Tenn. Code Ann.§36-5-103(c). Thetrial courtfoundthat Wife followedthecorrect procedurein com to court ing
to get permission to m and as such she did not breach the agreement. ove
If Wife had removed the child from the jurisdiction and subsequently filed this petition, or by her
removal actions caused Husband to file a petition for relief, we would have a clear case of breach of the
agreement. However, Wife was aware of this provision in the agreement, and sought the court’s approval in
order to avoid breaching the agreement. Wife followed the correct procedure to avoid violating the “60 mile
provision.” For reasons that will be explained hereinbelow, Wife also did not violate the “estrangement”
provision of the M For the foregoing reasons, this Court finds that the trial court did not commit error in DA.
declining to award attorney fees to Husband.
VI. Change of Custody Issue
Husband contends that the trial court erred in failing to award Husband sole and exclusive custody
of the child. He claims that W violated the estrangement provision of the MDA w ife hich states that “Neither
party shall do anything which may estrange the child from either parent or hamper the natural development
of their [sic] love for either parent.” He claim W violatedtheestrangem provision by becom engaged s ife ent ing
to a m and not telling him until after she was married that she had decided to m an ove. He claim that this s
shows that Wife does not want in good faith to exercise joint custody of the m child and that she would inor
rather “estrange” or alienate the child from Husband. He cites cases in which this Court has refused to permit
11 the alienating parent to have custody of the children and insured that the parent who has suffered alienation
because of the other parent’s actions is awarded custody so that no further alienation occurs.
In this case, there was absolutely no evidence offered to support the contention that W has ife
attempted to alienate the child from Husband. There has never been any problem with Husband exercising
his visitation. There have been no allegations that either party has criticized or otherwise talked poorlyabout
the other parent in the presence of the child. Rather there was evidence by both parties that they shared in
the upbringing of the child. Both parties testified that the other w a fit parent. Husband appears to base his as
estrangement claim on the fact that Wife desires to move with the child to Texas.
Relocation, standing alone, does not constitute a basis for a change of custody. Taylor at 332. The
Supreme Court subsequently discussed what is necessary for a change of custody in removal situations in
Aaby v. Strange.
This conclusion does not mean, however, that a non-custodial parent's hands are tied where rem oval 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. Because Tennessee law allows custody to be changed if the behavior of the custodial parent clearly posits a danger to the physical, mental or em otional well-being of the child, Musselman v. Acuff, 826 S.W 920 (Tenn.App.1991), such a petition would not violate .2d Taylor--which only prohibits a change of custody based solely on the fact of the move. 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 anychild's life, w hether heor she israised inthe context of a one or two parent home, carries with it the potential of disruption; such comm phenomena--both the fact of moving and the accompanying on distress--cannot constitute a basis for the drastic measure of a change of custody. Aaby at 629-30.
Husband did not offer any evidence that the proposed move evidenced such bad judgment and was
so potentially harmful to the child that custody should be changed to Husband. No evidence was introduced
that the behavior of Wife clearly posits a danger to the physical, mental or emotional well-being of the child.
In fact, theevidence inthiscaseshowedthat Wife hadfound a higher paying jobin Texas, sheandSm were ith
in the process of purchasing a home, she had made arrangements for a suitable day school program for the
child, and she had gotten references for doctors in the Dallas area who could treat child for his medical
12 condition. Wife further agreed to pay the cost to transport the child, accompanying him both to and from
Tennessee, for his scheduled visitation with Husband. It appears that Wife is doing everything possible to
ensure a smooth transition for the child and facilitate ample visitation with Husband.
Custody will not bechanged to the Husband basedsolely on the fact of Wife’s move. Husband did not
offer sufficient evidenceto support his estrangem claim, nor did he offerevidence that the m would posit ent ove
a danger to the child’s physical, mental or emotional well-being. Furthermore, thelanguage inAaby suggests
a very strong showing of danger would need be shown, as expert testimony that the move itself would be
generallydetrimental to the child will not usually suffice. Such a showing was not made by Husband. The trial
court did not commit error in failing to award Husband sole and exclusive custody of the minor child.
VII. Conclusion
The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to the Husband, for
which execution may issue if necessary.
HIGHERS, J.
13 CONCUR:
FARMER, J.
LILLARD, J.