Nichols v. Nichols

• Citation: 792 S.W.2d 713
• Parties: Mary Louise NICHOLS, Plaintiff/Appellant, v. Daniel John NICHOLS, Defendant/Appellee. 792 S.W.2d 713
• Decision Date: 18 June 1990
• Court: Tennessee Supreme Court

Page 713

792 S.W.2d 713

Mary Louise NICHOLS, Plaintiff/Appellant, v. Daniel John NICHOLS, Defendant/Appellee.

792 S.W.2d 713

Supreme Court of Tennessee,

at Nashville.

June 18, 1990.

Jack Norman, Jr., Nashville, for plaintiff/appellant.

Joe P. Binkley, Jr., Nashville, for defendant/appellee.

OPINION

O'BRIEN, Justice.

The parties in this case were divorced on the grounds of irreconcilable differences on 11 August 1986. They entered into a property settlement agreement which the Court considered to make adequate and suitable provisions for the care and custody of their minor children. The agreement was incorporated into the divorce decree. The custody of the children, James, five, and Michael, three, was vested in the wife in accordance with the terms and provisions of a pendente lite order previously entered in the case. This order provided for visitation privileges with the father on every other weekend and on Tuesdays, Wednesdays or Thursdays every other week when he was off from work. There is evidence in the record that by agreement between the parents the father of the children would pick them up on Tuesday or Wednesday on those weeks and they would remain with him in his home through Sunday night. On school days he would deliver them to school, or day care for the youngest one, and pick them up in the evening. He was also granted visitation privileges for one-half of the Christmas and Thanksgiving holidays and for a reasonable, unrestricted summer vacation. This situation prevailed except for those times when he was on active duty with the National Guard and apparently worked to the mutual satisfaction of the parties.

On or about 1 November 1987 Mr. Nichols returned the boys to their mother's home and intended on that occasion to tell her he was preparing to remarry. She greeted him with the news that she had taken a job with the Veteran's Administration in Phoenix, Arizona and would be moving about the 10th of December. When she departed for Arizona, by agreement she left the children with their father until the holiday school recess. He was to place them on a plane to Phoenix on December 27th. On December 14th he filed a petition for change of custody and obtained a restraining order enjoining the mother from interfering with his temporary physical custody. She immediately filed an answer and cross petition. After a hearing the trial court entered an order finding the primary physical care, custody and control of the two minor children should be changed from the mother to the father. Provisions for visitation were included in the judgment. A motion for new trial was filed by her. Subsequently the trial court entered an order staying execution of the final decree, to become effective on 25 March 1988, which was the last day of school for the children prior to a spring recess. Thereupon the father filed a motion for review of the stay order in the Court of Appeals. This motion was granted. The boys, now 8 and 6 years of age respectively, have remained in the custody of their father since that time.

The mother's appeal was granted by this Court. It is claimed that each of the lower courts applied an erroneous standard of law for a residential parent to remove minor children from the jurisdiction. It is argued that at the time of the hearing in the trial court Walker v. Walker, 656 S.W.2d 11 (Tenn.App.1983), was the leading case on the issues to be determined. That the decision of the trial court and of the Court of Appeals seems to indicate that appellant was to be held accountable in accordance with the decision in Seessel v. Seessel, 748 S.W.2d 422 (Tenn.1988) which was not released until some three months after the trial court decision.

The appellee responds that this argument is without merit because this Court's decision in Rogero v. Pitt, 759 S.W.2d 109 (Tenn.1988) indicates that such "retroactive application" is clearly appropriate. Further, that the Court of Appeals did not sua sponte invoke Seessel to affirm the trial court's judgment, but on the contrary, appellant invited the Court's consideration of Seessel and now claims error in the Court's acceptance of that invitation.

In Rogero, p. 112, this Court said:

"The parties have devoted lengthy portions of their briefs to the question of where the burden of proof lies in cases such as this. Since the case was instituted, however, this Court has rendered its decision in the case of Seessel v. Seessel, 748 S.W.2d 422 (Tenn.1988), holding that the party who files a petition such as this has the burden of proof. In this case the mother filed the petition to seek approval of a change in the custody arrangement. The burden of proof rested upon her, therefore, to establish her case by the preponderance of the evidence. This she has done. We decline the request of counsel for the mother to reconsider the Seessel case or to overrule it."

This case is precisely on point. The father filed a petition to seek approval of a change in the custody arrangement. He had the affirmative of the issue and the burden was upon him to establish his case. The trial court, after giving each of the parties a full opportunity to present proof, and after hearing all of the evidence offered, stated, "this is strictly a petition for change of custody". It is true that the appellant filed an answer to the appellee's original petition for change of custody and a cross-petition in which she prayed that custody of the children be restored to her, that the terms and conditions of the divorce decree be continued in full force and effect, and for the imposition of sanctions in accordance with Tenn.R.Civ.P. 11. The trial judge concluded that Mrs. Nichols' career change which involved a relocation to the State of Arizona, created a change of circumstance which warranted placing custody of the children with their father so they would not be uprooted from their home State.

Insofar as the Court of Appeals judgment is concerned, that Court did cite Seessel in chastising the trial court for finding a "change of circumstance" because the custodial parent moved to Arizona. That court refused to respond to the issue posed there by the appellant of whether custody may justifiably be changed solely because she moved to another State. They found the dispositive issue to be whether the appellant proved by a preponderance of the evidence that the relocation of the children to Arizona would be in their best interests. In verbatim they said:

"As we have noted, the thrust of the evidence offered by the appellant is that the relocation to Arizona was in her best interest. She so testified. Inferences, of course, may be drawn that the children's welfare is correlative to their mothers; but we cannot find that the appellant established by a preponderance of the evidence that relocation of the children is in their best interest, and neither can we say that the evidence preponderates against the judgment. Rule 13(d), T.R.A.P., Seessel, supra."

We are of the opinion that each of the parties have misconstrued the question of where the burden of proof lies in cases of this nature. Under the practice in this State the burden of proof, in its usual and primary meaning, ... never...