The Recent Case of Gene v. Aaby v. Judy Aaby Strange, ____S.W.2D____

• Court: Court of Appeals of Tennessee
• Decided: May 30, 1996
• Docket: 03A01-9511-CV-00403
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION AT KNOXVILLE FILED May 30, 1996

Cecil Crowson, Jr. Appellate C ourt Clerk CORNELIUS OGLEVIA MURPHY, ) BRADLEY CIRCUIT ) Appellant ) ) NO. 03A01-9511-CV-00403 v. ) ) CARMEN SUZETTE MURPHY ) HUMPHREY, ) ) Appellee ) AFFIRMED and REMANDED

Roger E. Jenne, Cleveland, for the Appellant.

Jeffrey A. Miller, Cleveland, for the Appellee.

OPINION

INMAN, Senior Judge

These parties were divorced in 1986. Custody of Ashley, then 6 months old,

was awarded to her mother, appellee herein.

In June 1995, pursuant to a petition filed by the mother, she was allowed to

remove the child from Bradley County, Tennessee to Singapore. Her second

husband, an executive with the Duracell organization, had accepted a position with

his company in Singapore and she wished to join him there, taking the child with her.

The father appeals, claiming that the removal was inimical to the best interests of the

child.

We need not burden those interested with a recitation of the evidence offered

on the issue of the propriety of the removal of the child. A great deal of evidence

was offered concerning this issue, particularly as to whether the removal was

contrary to the best interests of Ashley.

The recent case of Gene V. Aaby v. Judy Aaby Strange, ____S.W.2d____,

(Tenn. 1996), opinion filed April 22, 1996, forecloses our decision. The custodial

mother in Aaby petitioned to remove her child from Knoxville to Bardstown, Kentucky, so that she might join her second husband there. This court denied

permission, finding that the removal was adverse to the interests of the child. (No.

03A01-9406-00192, Tenn. Ct. App. Jan. 27, 1995). The Supreme Court reversed,

holding 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.”

The Court then added a safeguard provision that if removal posed a specific,

serious threat of harm to the child, the non-custodial parent may file a petition for

change of custody based on material change of circumstances.

There is no evidence of vindictiveness in this record, and neither is there

evidence that the removal to Singapore would pose a specific, serious threat of harm

to Ashley.

Finally, we observe that the trial judge fashioned a visitation schedule in his

commendable efforts to assist the appellant to maintain a parental relationship with

Ashley.

The judgment is affirmed at the costs of the appellant and the case is

remanded.

_________________________________ William H. Inman, Senior Judge

CONCUR:

____________________________________ Houston M. Goddard, Presiding Judge

____________________________________ Don T. McMurray, Judge