Wilcox v. Wilcox

862 S.W.2d 533, 1993 Tenn. App. LEXIS 389
CourtCourt of Appeals of Tennessee
DecidedJune 4, 1993
StatusPublished
Cited by10 cases

This text of 862 S.W.2d 533 (Wilcox v. Wilcox) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilcox v. Wilcox, 862 S.W.2d 533, 1993 Tenn. App. LEXIS 389 (Tenn. Ct. App. 1993).

Opinion

OPINION

LEWIS, Judge.

This is an appeal by defendant Timothy J. Wilcox (Father) from the trial court’s grant of the plaintiff Janice H. Wilcox’s (Mother) motion for summary judgment. The court, in granting the motion for summary judgment, determined that the Wilson County Circuit Court “was and is now the most convenient forum for adjudication” of the case, and found that the State of Tennessee was the home state of the Mother and the minor children. The order also granted the Mother a judgment against the Father for child support arrearage of $5,378.90, representing thirty-eight weeks of child support at $141.55 per week. The Mother was awarded attorney’s fees in the amount of $5,977.50 which represented “legal expenses incurred to date for the services [of the attorney] in his representation of [the Mother] in these proceedings regarding the jurisdiction, custody, visitation, and child support issues of the parties’ minor children.” The court further found that it “had and continues to have home state jurisdiction over the parties’, their Children and the facts in this cause pursuant to the provisions of T.C.A. 36-6-203(a)(1)(B), and other authority under the law and facts of the cause.” The court also found that it “had and continues to have jurisdiction to modify the custody, visitation and child support decrees entered in the DeKalb County Circuit Court, DeKalb County, Indiana, pursuant to the provisions of T.C.A. 36-6-215(a) & (b),” and also found that the Father had “violated the provisions of the Uniform Child Custody Jurisdiction Act by failing and/or refusing to return the minor Children after his modified summertime visitation period thereby preventing [the Father] from relief under the provisions of the Act.” The court also found that the Circuit Court for Wilson County “was and is now the most convenient forum for adjudication of this cause, the State of Tennessee being the home state of the Mother and the minor children and there being the substantial appropriate body of evidence for proof concerning the Children’s past and future care, protection, training and personal relationships more readily available in this forum court’s jurisdiction.” The court also ordered that the Mother’s “Petition for Continuing Decree of Custody should be and hereby is granted and that absolute custody, care and control of the parties’ minor Children ... is confirmed in the Mother ... and the [Father] ... is ordered to deliver the Children [535]*535to the [Mother] forthwith in Wilson County, Tennessee.”

THE FACTS

The parties were formerly married to each other and were divorced on 23 August 1989 by an order entered in the Circuit Court, DeKalb County, Indiana. The parties entered into a Property Settlement Agreement and Custody Stipulation on 23 August 1989. The DeKalb County divorce decree approved and made a part of the decree the Property Settlement Agreement and Custody Stipulation and recited that the parties reside in DeKalb County, Indiana, and that the Mother should have the care and custody of the parties’ minor children with certain visitation rights to the Father, which were detailed in the court’s order.

The Father at the time of the divorce was a resident of DeKalb County, Indiana, and continues to be a resident of DeKalb County. The parties and the two minor children lived in DeKalb County, Indiana, from the time of the birth of the children until the parties divorced. The Mother and the children then moved to Wilson County, Tennessee. The DeKalb Circuit Court order provided that upon the move to Tennessee, the Father’s visitation would include each summer from the Monday after the end of school to 1 August, one week during alternate Christmas and spring vacations, and six weekends each year.

The issues regarding custody and visitation privileges were litigated in the DeKalb Circuit Court in 1989 and 1990, following the divorce. The DeKalb Circuit Court modified the visitation provisions of the decree by orders entered 18 December 1989, 17 July 1990, 3 August 1990, and 29 November 1990.

The first pleading filed in the Circuit Court for Wilson County, Tennessee, was the Mother’s petition filed on 14 December 1990, which sought a finding of contempt, injunc-tive relief, an increase in child support, sup- ' port arrearages, and a prayer that “[a]ll decisions regarding [the] custody, visitation, and child support be made in Tennessee.” The Mother sought and was granted a restraining order and a show cause order. In the amended petition for contempt filed by the Mother on 9 January 1991, it is stated that the original petition and both orders were served on the Father on 14 December 1991, before he picked up the children for then-weekend visitation.

Following the filing of several other pleadings, motions and affidavits, the entry of several orders, the filing of certified copies of the ease history, orders entered in the Circuit Court for DeKalb County, Indiana, and copies of the Property Settlement Agreement and Custody Stipulation, an evidentiary hearing was held in the Circuit Court for Wilson County on 5 June 1991. The trial court’s order was entered on 1 July 1991, and, regarding child custody jurisdiction of the Indiana Court, the Circuit Court for Wilson County found and ordered as follows:

[T]he DeKalb Circuit Court in that proceeding had and exercised personal jurisdiction over the parties, and exercised and retains jurisdiction to make child custody determinations with respect to the minor children of the parties under jurisdictional prerequisites substantially in accordance with the Tennessee Uniform Child Custody Jurisdiction Act and the Federal Parental Kidnapping Prevention Act, and under factual circumstances meeting the jurisdictional standards of said Acts[.]

Regarding the custody jurisdiction of the Circuit Court for Wilson County, the court stated in its order:

The Court finds that, following the parties’ divorce, the Mother and children removed to Tennessee and now make then-home in Wilson County; that the Father has remained a resident of DeKalb County, Indiana; that Tennessee was the home state of the children at the time of the filing of the Mother’s first Petition in this cause, on December 14,1990; and that this Court has jurisdiction to make a custody determination concerning the said children, by modification decree, subject to restrictions on the exercise of such jurisdiction as provided by the Tennessee Uniform Child Custody Jurisdiction Act and the Federal Parental Kidnapping Prevention Act.

[536]*536The court further found and ordered as follows regarding summer visitation:

By Order entered on January 28, 1991, this Court suspended the Father’s child visitation until he should ask this Court for further hearings. The Court finds that the Father’s Motion seeking to have that Order set aside should be and it hereby is granted. However, it appears to the Court that under the Orders of the DeKalb Circuit Court the Father’s extended summer child visitation with both children was to begin on the first Monday following the end of their school year, or Monday, June 3, 1991, and to continue until August 1, 1991.

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Cite This Page — Counsel Stack

Bluebook (online)
862 S.W.2d 533, 1993 Tenn. App. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-wilcox-tennctapp-1993.