Rogero v. Pitt

• Decision Date: 10 October 1988
• Citation: Rogero v. Pitt, 759 S.W.2d 109 (Tenn. 1988)
• Parties: Madeline Anne ROGERO, Plaintiff-Appellant, v. Mark Alan PITT, Defendant-Appellee. 759 S.W.2d 109
• Court: Tennessee Supreme Court

Page 109

759 S.W.2d 109

Madeline Anne ROGERO, Plaintiff-Appellant, v. Mark Alan PITT, Defendant-Appellee.

759 S.W.2d 109

Supreme Court of Tennessee at Knoxville.

Oct. 10, 1988.

Peter Alliman, Madisonville and Mildred Cunningham, Knoxville, for plaintiff-appellant.

W. Mitchell Cramer, Knoxville, for defendant-appellee.

OPINION

HARBISON, Chief Justice.

In this case the mother of two young children sought permission to move with them from Knoxville, Tennessee, to Dayton, Ohio, where she planned to remarry. The father opposed the removal, primarily upon the ground that it would disrupt the joint custody arrangement which the parties had agreed upon when they were divorced in September, 1983.

Both the trial court and the Court of Appeals denied the petition of the mother to remove the children, holding that she would either have to remain in Knoxville in order to continue to be the residential parent or, if she did move, primary custody would be changed and awarded to the father. We respectfully disagree and hold that the mother carried the burden of proof incumbent upon her to show that the removal was in the best interest of the children under all of the circumstances. The cause will be remanded to the trial court to consider and fix periods of visitation if the parties are unable to reach an agreement concerning same.

The facts are essentially undisputed. The parties were married in Columbus, Ohio, on February 15, 1975. The two children were born in 1976 and 1979. The parties were divorced by decree of the Fourth Circuit Court of Knox County, Tennessee, on September 19, 1983.

During the eight and one-half years of their marriage, the parties lived in five states. They moved from Ohio to Illinois, then to California, then to South Carolina. They moved to Tennessee in 1980 and have remained in this state since that time. All of the moves were made in connection with the husband's work. His responsibilities now involve a territory encompassing Tennessee and northwest Georgia. His work requires him to travel to some extent, but he testified that in the future he should not have to be out of Knoxville more than two days in any given week. The family of the husband lives in Baltimore, Maryland; that of the wife in Dayton, Ohio. The husband is now 38 years of age and the wife 36.

During the years of their marriage, the wife was able to attend school part-time. Since the divorce in 1983 she has completed graduate studies at the University of Tennessee in Knoxville. She wishes to marry a resident of Dayton, Ohio, who lives in the neighborhood of her sister, and not far from her mother and other relatives. The trial judge found the proposed stepfather to be an entirely fit person to have the children in his home. He is the father of four other children, all of whom reside in his home, which is spacious and has ample room for all of the persons involved. Both children of the parties to this case are highly intelligent. They are rated as "gifted" children, and educational facilities in Dayton were shown by evidence to be as good or better for such children as the facilities available in Knoxville. Job opportunities for the wife in Dayton were shown to be more favorable than in Knoxville.

The parties moved to Knoxville only because of the requirements of the husband's occupation. They have no other relatives in that city or in Tennessee. The husband's job situation appears to be stable, and there is no indication in the record that he may be moved again in the future, but the facts are that the family lived in five different states during the first five years of their marriage because of his work.

Both parties appear to be highly intelligent and they are excellent parents. Since the divorce the husband has taken an active interest in the rearing of the children, in their school work and in their outside activities. The divorce was granted on grounds of irreconcilable differences. The husband wished to retain the residence in which the parties were living. The wife and children, therefore, moved out of that home and into another home in a different part of the city of Knoxville.

Both the trial court and the Court of Appeals placed great emphasis upon the fact that when the parties were divorced, their agreement regarding custody of the children was embodied into the final judgment. The decree reflected an agreement by the parties that they should have "joint legal custody of their children." At the time of their divorce, the decree recited that the children "at the present time" were "physically residing with the wife." The parties agreed that physical residence of the children might be changed "in full or in part at any time by mutual agreement of the parties."

The decree recited a further agreement of the parties that the welfare of the children was of paramount importance, and that the parties were reluctant to restrict visitation rights to a rigid schedule. The parties agreed that the children might visit "the non-custodial parent" at any time by agreement of the parties. Decisions concerning the health, education and activities of the children were to be made by the parties "after adequate consultation has occurred between them." The parties agreed that neither would do anything which might estrange the children from the other parent or interfere with the natural and continuing relationship between the children and either parent. The agreement did provide, however, that the parent with whom the children resided "will have day to day jurisdiction of the children; however, all decisions of a substantive nature will be made by conscenses (sic) if time and circumstances reasonable (sic) permit."

Nothing was contained in the agreement concerning the removal of either party from Knoxville or from the state. The husband agreed to pay monthly support, and agreed to deposit the same in the United States mail "with sufficient postage to carry same to its ultimate destination" on or before the 10th day of each month.

Both parties testified that they discussed the subject of removal before entering into the agreement which is reflected in the decree. No separate agreement appears in the record, other than the recitals of the final judgment. The wife testified that the husband had insisted upon a provision prohibiting removal of the children from the state without mutual consent, but she was not agreeable to such a provision. As previously stated, Tennessee was not the home of the family of either party, and in the eight years between the marriage and the divorce decree the parties had moved numerous times. The husband did not actually deny the wife's testimony but said that he did not remember all of their conversation.

Nothing in the decree purports to restrict either party from moving out of Knoxville or out of state. Both the trial court and the Court of Appeals recognized this fact, but both felt that a removal to Dayton, Ohio, some 300 miles, involved a distance too great to permit continuation of the joint custody arrangement. The trial judge indicated that if the...