Hill v. Robbins

• Decision Date: 14 May 1993
• Citation: 859 S.W.2d 355
• Parties: Virginia (Robbins) HILL, Petitioner-Appellant, v. Terry Len ROBBINS, Respondent-Appellee.
• Court: Tennessee Court of Appeals

Page 355

859 S.W.2d 355

Virginia (Robbins) HILL, Petitioner-Appellant, v. Terry Len ROBBINS, Respondent-Appellee.

Court of Appeals of Tennessee Eastern Section.

May 14, 1993.

Permission to Appeal Denied by

Supreme Court Aug. 2, 1993.

Douglas R. Beier, Evans & Beier, Morristown, for petitioner-appellant.

Christopher P. Capps, Capps, Cantwell & Capps, Morristown, for respondent-appellee.

OPINION

FRANKS, Judge.

The mother moved the parties' children from Morristown, Tennessee, to Erie, Pennsylvania, and filed a petition asking the Court to modify the final decree to allow the minor children, ages 9 and 7, to reside outside the State. ¹ The father filed what is labeled a "Cross-Petition for Contempt and Change of Custody" alleging that the mother had removed the children from the State without the Court's permission, and alleged "Petitioner would show unto this Court that this is a major change of circumstances not contemplated by the marital dissolution agreement, which he feels justifies a change of the primary physical custody of the minor children from respondent to petitioner".

Following an evidentiary hearing, the Trial Judge found the mother in contempt, but reserved punishment. ² The Trial Court further ordered that the father become the primary physical custodian of the children "until such time as the wife [sic] relocates to this State.... If she chooses to remain in Pennsylvania, then, so be it." The Trial Court stayed its judgment and the mother appealed.

Any agreement or arrangement concerning the custody of minor children is subject to modification, and in this case the mother, who was seeking approval of removing the children from the state, had the burden to establish her case by a preponderance of the evidence. Rogero v. Pitt, 759 S.W.2d 109 (Tenn.1988). The mother remarried in January of 1992 and was employed as a loan clerk at the First Tennessee Bank in Morristown. Her husband was employed at the bank as a courier, doing menial jobs. After her marriage, the mother and her husband began considering better job opportunities in Nashville or Memphis. The mother testified there was no opportunity for advancement in the local bank, and her husband testified that he could find no other employment in the Morristown area. The mother is a native of Illinois, ³ and her extended family continues to live in Illinois. She has no family or other ties to the Morristown area. The paternal grandmother and her husband ⁴ had lived in Morristown from 1977 until their relocation to Pennsylvania in the summer of 1992, when the step-grandfather became a general manager of a division of Plastec, in Erie Pennsylvania. The paternal grandparents had been very supportive of the mother and the children, and established a close relationship with the children. The grandparents advised the mother and her husband of job opportunities in Pennsylvania, and encouraged them to relocate. The husband was offered a job with the paternal grandfather's company.

The mother and her husband moved to Erie, Pennsylvania in August of 1992, where she immediately became employed in the commercial loan department of a bank in Erie. She testified she has good opportunities for advancement with that bank. Her husband did not accept the job with the grandfather's company, but obtained employment as a production control clerk at Modern Industries. He testified that his job in Morristown was a dead end job, and that there were more job opportunities in Pennsylvania. The step-father testified:

"Q. Well, take us to the decision to move to Pennsylvania. How did that come about?

A. Well, what it came down to is that, pertaining to my job, my job was a dead-end job. There was nowhere to advance to. And, now, I don't want to speak on behalf of my wife, but she was in the same boat. And we knew that their grandparents, the kid's grandparents, were moving to Erie. And, you know, we--I guess--I guess what I'm trying to say is that I--My opinion is it was in the best interest to move to Erie. After looking at, you know, all the other facts, it was in the best interest of the children."

The father who has also remarried testified:

"Q. Well, they were close to their grandparents when they were living here; weren't they?

A. Yes.

Q. As a matter of fact, the last time we were in court, your parents lined up with you to get specific visitation?

A. Yes.

Q. And the children are close to their mother?

A. Yes. I assume so.

Q. She's been their primary caretaker ever since the divorce?

A. Yes.

. . . . .

* * *

Q. Mr. Robbins, don't you think it's in the best interest of the children to remain with their mother who's been their primary caretaker?

A. No, sir.

Q. Why not?

A. I believe, also, the way our judicial system is set up the mother is the primary caretaker, but there is a lot of fathers that step forward and can take care of a child just as well as a mother can. Not only do they have that mother, they have a stepmother that's willing to take very good care of them.

Q. They've always been happy with their mother; haven't they?

A. As far as I know."

At the conclusion of the trial, the Trial Judge observed in his bench opinion:

"It would be better for the children if they should be allowed to live in Pennsylvania, since they have been uprooted from Tennessee and re-established in their new home in Pennsylvania, but this situation did not exist when the move was made. There were no waiting jobs, only the expectation or hope of a job, and that at the largess of paternal grandfather. The move, beyond any doubt, was precipitated by the paternal grandparents' desire to have the children with them."

The Trial Judge rejected the mother's testimony that the move was "motivated and consummated for financial reasons". The Court's conclusion is primarily based on the fact that the mother is making a few cents less per hour in her new job, and her husband is only making slightly more per hour in his new job. He concluded, taking into account the "cost of living differential as between Tennessee and Pennsylvania, the wife and her new husband are in effect earning less in Pennsylvania than they did here in Tennessee." It is undisputed that the mother and her husband were seeking other job opportunities before their relocation to Pennsylvania, and among the places being considered was Memphis, some 400 miles from Morristown. The evidence is not disputed that there are opportunities for job advancement in Pennsylvania which did not exist in Morristown as well as excellent schools.

It should be noted that Taylor v. Taylor, 849 S.W.2d 319, (Tenn.1993) was decided subsequent to the trial of this case, and summarizes the factors to be considered in a removal dispute:

"They include (but are not limited to) a recognition that in removal cases, the question of custody is not subject to de novo review, unless the petition cites reasons other than removal as grounds for change of custody; that there...