Tortorich v. Erickson

• Decision Date: 04 May 1984
• Citation: 675 S.W.2d 190
• Parties: Terri Lynn Erickson TORTORICH, Plaintiff-Appellant, v. David Charles ERICKSON, Jr., Defendant-Appellee. 675 S.W.2d 190
• Court: Tennessee Court of Appeals

Page 190

675 S.W.2d 190

Terri Lynn Erickson TORTORICH, Plaintiff-Appellant, v. David Charles ERICKSON, Jr., Defendant-Appellee.

675 S.W.2d 190

Court of Appeals of Tennessee,

Western Section, at

Nashville.

May 4, 1984.

Application for Permission to Appeal

Denied by Supreme

Court

Aug. 20, 1984.

Carol L. Soloman and George J. Duzane, Nashville, for plaintiff-appellant.

Billie Jean Tune, Nashville, for defendant-appellee.

NEARN, Presiding Judge, Western Section.

This is a child custody dispute. The Trial Judge changed custody from the mother to the father and the mother appeals.

We first note that appellant's brief does not comply with Rule 27 T.R.A.P. The brief does not contain a statement of the issues presented for review as required by the Rule. Instead, under the heading of Argument there are posed general questions such as "Were the factors the Judge considered in his decision for a change of custody proper?" followed by an argument in favor of an affirmative response to the query. To answer such a query requires a degree of clairvoyance with which this Court is not possessed.

The only issue presented by this appeal and the only one we consider is whether the evidence supports the ruling of the Trial Judge that it was in the best interest of the minor child that custody be for now changed.

The minor child is a boy, approximately three years of age. In the divorce proceedings custody was awarded the mother, with visitation rights in the father. The parents have squabbled over the exercise of those rights since the divorce. Various proceedings, including those for contempt, have been filed or are pending. However, the proceeding now appealed from is the hearing on the father's petition for change of custody and we will confine this opinion to matters that bear on that issue, although the proof is liberally sprinkled, if not saturated, with evidence on other issues.

Sometime after the mother was awarded custody of the child, she moved to the state of Louisiana with a male friend to whom she is now married and living with in that state. The order of custody did not forbid the mother to leave the state, but did order her to notify the father if she did leave. She failed to notify the father and secreted herself and the child in Louisiana for several months. With the aid of detectives, the father located the child and by means of a writ of habeas corpus obtained physical custody of the child and returned to this state where the petition to change custody had been filed and where the mother appeared and defended the petition.

The proof shows that the mother loves her child, properly cares for his physical needs and is a good mother.

The husband did not attempt to show that she was a "bad" mother. However, the proof does show that while the father has not been in the past an exemplary citizen and probably in the past has not exercised the care and concern for the child that he should have, he has now or is now attempting to change his ways and accept his parental responsibilities.

The major factor relied upon by the father to show a change in circumstance is the home environment of the child in the state of Louisiana; specifically, the character of the mother's new husband. The mother testified that the stepfather was a self-employed "financial broker" who worked on a commission basis, but that she did not know his income. However, there is proof in the record that the new husband or stepfather is presently under indictment by the Federal authorities in the state of Louisiana for conspiracy to import marijuana. There is also testimony in the record that the...