Taylor v. Taylor

• Citation: 849 S.W.2d 319
• Parties: Deborah Anne TAYLOR (Mitten), Plaintiff-Appellant, v. David Steve TAYLOR, Defendant-Appellee.
• Decision Date: 22 February 1993
• Court: Supreme Court of Tennessee

Page 319

849 S.W.2d 319

Deborah Anne TAYLOR (Mitten), Plaintiff-Appellant, v. David Steve TAYLOR, Defendant-Appellee.

Supreme Court of Tennessee,

at Jackson.

Feb. 22, 1993.

Hal Gerber, Wanda B. Shea, Penny L. Hendrix, Memphis, for plaintiff-appellant.

James T. Ballentine, Memphis, for defendant-appellee.

OPINION

DAUGHTREY, Justice.

In this child custody dispute, we are asked to reverse an order by the trial court prohibiting the custodial parent in this case, Deborah Taylor Mitten, from moving out of state with her three-year-old daughter, Brittney, over the objection of the non-custodial parent, David Steve Taylor. The resolution of this dispute requires a reassessment of the procedural rules established in a trilogy of recent cases, beginning with our opinion in Seessel v. Seessel, 748 S.W.2d 422 (Tenn.1988). Because we find that Deborah Mitten should have been allowed to move with the child to Davenport, Iowa, where her new husband had established residence while attending school, we reverse the order of the trial court denying permission to remove, as well as the judgment of the Court of Appeals affirming that order. We also take this occasion to announce more precisely the procedure that should be followed and the standards that will apply in cases of this nature in the future.

I. Factual and Procedural Background

The facts in this case are largely undisputed. Deborah and Steve Taylor were married in early 1987 and had a daughter, Brittney, in August of that year. The marriage proved to be an unhappy one and the parties separated in September 1988. They secured a divorce based on irreconcilable differences in May 1989, when Brittney was not yet two years old. By agreement, Deborah Taylor was awarded custody of Brittney, and Steve Taylor was given visitation privileges for two days a week and every other weekend.

There was nothing in the decree that prohibited Deborah Taylor from moving out of state with Brittney. Nevertheless, in October 1989, several months after the decree of divorce became final, she filed a petition asking the trial court to "modify visitation" so that she could move with Brittney to Montana to live with her parents and attend school there. In response, Steve Taylor filed a counter-petition for change of custody. There was a hearing on the matter in December 1989, at which time the judge apparently denied both petitions, although no order was entered to that effect. The parties agree, however, that the trial judge made two rulings at the hearing, finding that it was in the child's best interest for the mother to retain custody but prohibiting her from taking the child to Montana.

In June 1990, Deborah Taylor married Mark Mitten and made plans to move to Davenport, Iowa, where he was enrolled in chiropractic school. Mark Mitten had already established what has been described as a "wonderful relationship" with his new step-daughter during trips between Memphis and Davenport. The Mittens rented a home in Davenport for the family and made daycare arrangements for Brittney. Deborah Mitten secured a new job at a local hospital as a phlebotomist, the same profession she had followed in Memphis.

Mark Mitten then made a special trip to Memphis to meet Brittney's father, to apprise Steve Taylor of the planned move and to "let him get to know the man who was Brittney's new step-father." Steve Taylor told Mark Mitten that Brittney talked about Mitten frequently and seemed to like him very much, but Taylor refused to consent to changing the visitation schedule so that Brittney could move to Iowa with her mother and step-father.

In November 1990, Deborah Mitten filed a petition to remove the child from Memphis to Davenport. In response, Steve Taylor once again filed a petition for change of custody, precipitating a full hearing in the trial court. At that hearing, Deborah Mitten denied any intent to prevent Brittney from seeing her father and his family, and she expressed her desire to co-operate in setting up a revised visitation schedule. Naturally, it would have permitted fewer visits between Brittney and her father than had occurred in Memphis, but it undoubtedly would have provided for visits of longer duration than they had enjoyed in the past. ¹

The trial court found that it was in the child's best interest to remain in Deborah Mitten's custody, but, once again, the trial judge denied her request to move Brittney out of state.

We were advised at oral argument that, as the result of the trial court's ruling, Deborah Mitten is now living in an apartment in Memphis with Brittney and a new child, born of her marriage to Mark Mitten, while he continues to live in Davenport and attend school there, separated from his wife, his step-daughter, and his own infant child. We are thus faced with what has to be considered the worst of several possible alternatives: Brittney's parents' relationship is no longer intact, having been severed by divorce, but her mother's relationship with her step-father has been hampered, and the new family is likewise not an intact unit. Brittney remains in Memphis, but in the custody of a mother who is forced to stay there by her ex-husband's refusal to let her take Brittney to Iowa and set up a stable home for her there, and by a court order finding that this situation is in the child's "best interest."

The trial judge in his written order, made the following specific findings:

The court further finds that the proper legal standard to be applied in this cause is to determine what is in the manifest best interest of the minor child. Although the mother has remarried and petitioned the Court for permission to move to Davenport, Iowa, where her husband intends to reside for at least two and one-half (2 1/2) years, the Court finds that the situation essentially is unchanged from that which existed on December 15, 1989, at which time the Court heard and denied a prior petition by the mother seeking permission to move with the minor child to the State of Montana. The circumstances are that, except for the maternal grandparents who have relocated from the Memphis area to the State of Montana, all extended family members of both parents still live in in the Memphis area. There are no members of the extended family living in Davenport, Iowa, and the only advantage to the minor child of such a move would be that she would be in a complete family. [Emphasis added.] The disadvantage of allowing the move would be that the father and all other members of the minor child's extended family would be denied ordinary visitation.

The Court finds that there has been regular contact between the minor child and the father, David Stephen Taylor, in that the father sees the child two days every week, as well as every other weekend. The Court further finds that the paternal grandparents and at least one paternal uncle have frequent visitation and contact with the minor child and that one cousin of her own age has a very close relationship with the minor child. The Court finds it would not be in the best interest of the minor child for those regular contacts to be severed.

It would be easy enough simply to reverse the judgment in this case, finding that the arrangement produced by the trial court's order was not in the child's best interest, and that the advantage to Brittney of "being in a complete family" outweighs the advantage of uninterrupted contact with her extended family and "ordinary visitation" with her father. Our call on the child's "best interest" in this respect would be final and unappealable, and the new family unit--composed of Mark and Deborah Mitten and their two children--could finally take up residence together and, subject to a reasonable visitation schedule for Brittney and her father, get on with the business of life. The problem with treating this case merely on its facts, however, is that the resulting opinion would do nothing to clarify existing law or prevent such an unfortunate situation as occurred here from occurring again in the future.

Nor would it give the lawyers of Tennessee a predictable basis upon which to advise clients, who face custody disputes of this kind and seek guidance in an effort to avoid litigation.

II. Tennessee Law Prior to Seessel

The question of a custodial parent's legal authority to remove a child from the jurisdiction of the court that initially awarded custody, although widely litigated elsewhere in the country, has received scant attention in Tennessee until the last decade. In the 19th century, of course, the common law here, as elsewhere, gave the father an absolute right to the custody of his children; a mother who wished to leave the marital home, let alone the marital jurisdiction, could do so only at the cost of losing any parental rights she might have had, by operation of law. See, e.g., State ex rel. Paine v. Paine, 23 Tenn. (4. Hum.) 523 (1843); Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627 (1949); Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 106 S.W.2d 558 (1937).

After the turn of the century, courts determining questions of child custody began to focus less on "the technical legal right of the father to ... possession [of his children], to use them at once, or at some future day, when grown older for the benefit of their services," and more on the welfare of the children, especially where "the person who invokes the aid of the court is the mother of the children, and a worthy woman." Kenner v. Kenner, 139 Tenn. 211, 221, 201 S.W. 779, 782 (1918). This principle, said the Tennessee Supreme Court at the time, is one whose "just, elevated and humane sentiments must find response in the bosom of every right-thinking man," being based on the notion "that children are not chattels, but intelligent and moral beings, and that as such their welfare and their happiness is a matter of first consideration." Id.

Eventually, of course, the pendulum swung to the opposite extreme. For most of this...