Luke v. Luke

• Decision Date: 23 May 1983
• Citation: Luke v. Luke, 651 S.W.2d 219 (Tenn. 1983)
• Court: Tennessee Supreme Court
• Parties: Joseph Andrew LUKE, Plaintiff-Appellant, v. Pamela Lynn LUKE (Seward), Defendant-Appellee. 651 S.W.2d 219

Page 219

651 S.W.2d 219

Joseph Andrew LUKE, Plaintiff-Appellant, v. Pamela Lynn LUKE (Seward), Defendant-Appellee.

651 S.W.2d 219

Supreme Court of Tennessee at Knoxville.

May 23, 1983.

Gerald C. Russell, Alcoa, for plaintiff-appellant.

James L. Frederick, Knoxville Legal Aid Society, Inc., Knoxville, for defendant-appellee.

OPINION

DROWOTA, Justice.

We granted Plaintiff-Appellant's Rule 11 Application For Permission to Appeal in order to review the trial court's denial of Plaintiff's out-of-state visitation with his daughter.

Plaintiff, Joseph Andrew Luke, age 32, and Defendant, Pamela Lynn Luke (Seward), age 29, were divorced in Florida July 16, 1976. Defendant, Pamela Luke, was awarded custody of their minor daughter, Rebecca, age 4 at the time of the divorce. Plaintiff was given "liberal and reasonable visitation rights" and was ordered to pay $80 per month child support.

Pamela Luke suffers from a rare disease called Fredrick Ataxia, which causes a loss of balance and deterioration of the muscles. This disease was diagnosed in 1970 and it got worse when Rebecca was born in 1972. At the time of the divorce in 1976, Defendant was using a walker. For the past three years, she has been confined to a wheelchair. Her prognosis is not predictable. She stated that it could get worse in three months, a year, five or ten years, and then again, it may not progress at all. She is unable to get out of bed and into her wheelchair by herself, but she can operate her wheelchair when she is in it and can drive her specially equipped automobile once she is in it.

Shortly after their divorce in 1976, Joseph Luke moved to Alabama. In June, 1980, he married Virginia Luke, who has a twelve-year-old daughter, Sherry Ann. Mr. Luke presently resides in Red Level, Alabama, approximately 535 miles from Sevier County.

Pamela Luke, who had remained in Florida with her daughter after the divorce, moved to Pigeon Forge, Sevier County, Tennessee, in June of 1981. She was married to Mr. Seward when she moved to Sevier County. Mrs. Luke divorced Mr. Seward in mid-February 1982. She has no family in the Sevier County area, and Mr. Seward provides no support or assistance. She and her daughter live in a trailer park, where her monthly expenses for lot rental and mobile home payment total $173.70. Including child support payments and social security benefits for her daughter and herself, she has a total income of $776.00 per month. Mr. Luke, as a machine shop welder, makes $184.42 per week take-home, approximately the same monthly income as Defendant.

On September 25, 1981, Joseph Luke filed a complaint in the Chancery Court for Sevier County seeking specific visitation privileges. A hearing was held on December 16, 1981, for the purpose of determining Plaintiff's visitation privileges with his daughter during the Christmas holidays of 1981. Plaintiff requested that his daughter be allowed to come to his home in Alabama for a period of seven days during the holidays. The Defendant and her counsel advised the court that she would be more willing for her daughter to go to Alabama in the summer than at Christmas because she was very attached to the daughter emotionally during Christmas. The Chancellor denied Plaintiff's out-of-state request but allowed him visitation privileges with his daughter in Tennessee from 8 a.m. through 4 p.m. and 6 p.m. to 9 p.m. during the holidays.

Plaintiff brought his wife, Virginia, and step-daughter, Sherry Ann to Sevier County in order that he might visit his daughter, Rebecca, for eight days during the Christmas holidays. Virginia testified that Rebecca appeared to have a strong affection and love for her father. She stated: "I love her just like my own." Rebecca testified that she loves her mother and father and she knows they love her.

On March 12, 1982, a subsequent hearing was held in which Plaintiff sought to have his daughter visit him at his home in Alabama for six weeks during the summer vacation of 1982, and one week during the Christmas vacation. Once again, the Chancellor denied Plaintiff's request for visitation outside the state of Tennessee, but did allow Plaintiff liberal visitation within Tennessee. It was from the decree entered May 5, 1982, which limited visitation privileges within the State of Tennessee, that Plaintiff perfected his appeal to the Court of Appeals. The Court of Appeals, in an opinion released February 24, 1983, affirmed the Chancellor's decree. On March 23, Plaintiff filed an Application For Permission to Appeal in this Court. Mrs. Luke filed her response on April 7, 1983, and on April 25, this Court granted Plaintiff's Rule 11 Application and set this cause for the May session in Knoxville.

The thrust of Plaintiff's appeal is that the Chancellor considered the welfare of Pamela Luke rather than the welfare of Rebecca in denying him the right to take his daughter to Alabama with him. Pamela Luke testified that her daughter helps her get dressed in the morning and get into her wheelchair and helps her undress in the evening, helps her take a bath, helps her cook, helps her use the bathroom about one or two...