Thomas Goodman Rutherford v. Melodey Joice Lawson Rutherford

416 S.W.3d 845, 2013 WL 1928542, 2013 Tenn. App. LEXIS 324
Court of Appeals of Tennessee·Decided May 7, 2013·No. M2012-01807-COA-R3-CV·Published·Cited by 12 cases

Opinions

OPINION

ALAN E. HIGHERS, P.J., W.S.,

delivered the opinion of the Court,

in which HOLLY M. KIRBY, J., concurred separately and J. STEVEN STAFFORD, J., dissented.

Mother, who spent greater time with the parties’ minor child, notified Father via certified letter of her intent to relocate out of state. Thirty-three days later, Father filed a petition in opposition to the move. The trial court allowed Father to oppose relocation, despite his failure to formally oppose the move within thirty days, noting that Mother had learned of Father’s opposition within the thirty-day period and that she had not relocated until “well after” Father filed his petition.

In this statutory construction case, we conclude that Tennessee’s parental relocation statute, Tennessee Code Annotated section 36-6-108, mandates that a parent wishing to oppose relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation. If no written petition in opposition is timely filed, the parent proposing to relocate with the child shall be permitted to do so, notwithstanding the absence of harm or prejudice to the relocating parent due to the untimely petition. Because Father failed to file a written petition in opposition to Mother’s proposed relocation within thirty days of receipt of her certified letter, we find the trial court erred in conducting any further analysis pursuant to section 36-6-108. The decision of the trial court is reversed, and Mother is permitted to relocate to Omaha, Nebraska, with the minor child. Father’s request for appellate attorney fees is denied, and all remaining issues are deemed pretermitted.

I. Facts & PROCEDURAL History

Thomas Goodman Rutherford (“Father”) and Melodey Joice Lawson (“Mother”) divorced in 2007 after an approximate seven-year marriage. The parties have one minor child. In 2010, the parties entered into an “Agreed Order,” which incorporated a revised Parenting Plan allowing Mother 214 days of parenting time with the child and allowing Father 151 days with the child.

On January 3, 2012, Mother sent Father a certified letter notifying him of her intent to relocate to Omaha, Nebraska. The letter, which Father acknowledged receiving on January 4, 2012, stated as follows:

This is to notify you, that on March 5, 2012, I plan on moving to Omaha Nebraska.
My company is transferring me there to take a new position.
Thomas, you may file a petition in opposition to my move within thirty days of receipt of this notice. If you do that we will have to fight this in court. Otherwise we need to sit down and come up with a new parenting plan that will make the best of this for us all.

Apparently on January 25, 2012, Mother and Father met to discuss Mother’s proposed relocation. It is undisputed that at the meeting, Father verbally expressed his opposition to relocation, and the parties were unable to reach an agreement regarding the proposed relocation.

[847]*847On February 6, 2012-83 days after receiving Mother’s relocation notice letter-Father filed a “Petition in Opposition to Proposed Parental Relocation, and to Modify” (“Petition in Opposition”). Father alleged that relocation would be detrimental to the child, and he sought to be named the child’s primary residential parent. In response, Mother filed a “Petition to Relocate” claiming that the move had a reasonable purpose, that it would not harm the child, and that it had no vindictive motive. Additionally, Mother noted that Father had failed to file a petition in opposition to the move within thirty days of receipt of the certified notice letter,1 and, therefore, she requested that she be allowed to relocate and that Father’s visitation be modified as set forth in an attached proposed Parenting Plan.

On February 18, 2012, the trial court entered a Temporary Restraining Order preventing Mother from relocating with the minor child. Thereafter, on April 25, 2012, Mother filed a “Motion to Determine Status of Case Pursuant [to] TCA 36-6-108(g)” questioning why she had been temporarily enjoined from relocating with the child when Father had failed to timely oppose the move in writing. In response, Father argued that his untimely filing was the result of excusable neglect because “he was without the financial resources to hire an attorney at the time he received notice of Mother’s intent to relocate” and because his present attorney, who agreed to serve as a favor to Father’s father, was unable to meet with him until after the thirty-day period had expired.2 Following a hearing on May 22, 2012, the trial court entered an Order finding that Tennessee Code Annotated section 36-6-108(g)’s thirty-day time period should not “be applied to bar Father’s right to contest Mother’s relocation[,]” noting that “[tjhere is no proof of harm or prejudice to Mother resulting from the date of his filing.”

A trial on the merits was conducted in July 2012. On August 1, 2012, the trial court entered an order3 in which it rejected Father’s argument that the parties were spending substantially equal time with the minor child; the court concluded that Mother spent greater time with the child.4 However, the trial court found that Mother’s proposed relocation lacked a reasonable purpose because it was the result of a voluntary lateral move — rather than an employer “transfer” as she had alleged- and because Mother had “only a belief and a hope that she w[ould] advance in her career in her position in Nebraska[.]” After determining that the move lacked a reasonable purpose, the court conducted a best interest analysis, and it determined that relocation was not in the child’s best interest. It then designated Father as the child’s primary residential parent. In light of the trial court’s findings, a new parenting plan was entered on August 1, 2012, and a final order was entered on October 26, 2012. Mother timely appealed to this Court.

[848]*848II.Issues Presented

On appeal, Mother asks this Court to construe Tennessee Code Annotated section 36-6-108 to determine whether its thirty-day period for filing a petition in opposition to relocation is permissive or mandatory. Additionally, Mother asks this Court to find that the evidence preponderates against the trial court’s conclusion that her relocation lacked a reasonable purpose, and Father asks this Court for an award of attorney fees pursuant to Tennessee Code Annotated section 36-6-108(1) and/or because Mother’s appeal is frivolous.

For the following reasons, we reverse the decision of the trial court, and we permit Mother to relocate to Omaha, Nebraska, with the minor child.

III.Standard of Review

This is a matter of statutory interpretation, which presents a question of law. In re Estate of Trigg, 368 S.W.3d 483, 490 (Tenn.2012). Accordingly, our review is de novo, with no presumption of correctness afforded to the trial court’s legal conclusions. Id. As our Supreme Court has explained:

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Thomas Goodman Rutherford v. Melodey Joice Lawson Rutherford, 416 S.W.3d 845, 2013 WL 1928542, 2013 Tenn. App. LEXIS 324 (Tenn. Ct. App. 2013).

416 S.W.3d 845 (Thomas Goodman Rutherford v. Melodey Joice Lawson Rutherford) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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