Barnett v. Barnett ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
November 13, 1998
LARRY ROGER BARNETT, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellee, )
)
) Bedford Chancery
VS. ) No. 19,848
)
) Appeal No.
SUSAN MARIE BARNETT, ) 01A01-9605-CH-00228
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT FOR BEDFORD COUNTY
AT SHELBYVILLE, TENNESSEE
THE HONORABLE TYRUS H. COBB, CHANCELLOR
For Plaintiff/Appellee: For Defendant/Appellant:
Rondal Thomas Wilson Michael E. Giffin
Patricia Diane Cook Robertson Worsham Gregory & Giffin
Shelbyville, Tennessee Tullahoma, Tennessee
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves two parents’ interstate competition for the custody of their
children. The husband filed a divorce complaint in the Chancery Court for Bedford
County two days after the wife commenced proceedings for separate maintenance and
child support in Florida. Following a bench trial, the Tennessee court granted the
husband a divorce and awarded him sole custody of the parties’ three children. On
this appeal, the wife asserts that the Tennessee court did not have jurisdiction over
the husband’s divorce complaint and that the trial court should not have exercised
jurisdiction over the child custody and visitation issues. While we find that the trial
court had jurisdiction over the custody issues in this case, we have determined that
the trial court should not have exercised its jurisdiction and should have deferred to
the Florida court where the wife’s petition for separate maintenance was pending.
Accordingly, we vacate the custody determination.
I.
Susan Marie Barnett and Larry Roger Barnett met while they were students at
the University of Tennessee and were married in June 1978 in Clearwater, Florida.
Dr. Barnett had recently earned his doctorate degree in electrical engineering, and
Ms. Barnett had earned a master’s degree in agricultural extension. Soon after their
wedding, the parties moved to northern Virginia where Dr. Barnett had accepted
employment with the Naval Research Laboratory. Between 1983 and 1988, the
parties had three children, two daughters and a son.
The parties moved to Salt Lake City in 1983 when Dr. Barnett accepted an
assistant research professorship at the University of Utah. Four years later, they
moved to Westminster, Colorado, and in 1988, they purchased a home in Bailey,
Colorado. Dr. Barnett continued working at the University of Utah but also began
consulting with the National Aeronautics and Space Administration in Cleveland,
Ohio and with the Tsing Hua University in Taiwan. One of Dr. Barnett’s consulting
projects involved the fabrication of high power microwave equipment for a
Taiwanese company. Because Dr. Barnett’s father’s business in Bedford County was
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building the equipment, Dr. Barnett began to spend significant amounts of time in
Tennessee. From February 1991 through July 1994, Dr. Barnett would spend several
weeks in Tennessee interspersed with several weeks in Colorado.
The lengthy periods of separation caused the parties’ marriage to suffer. Their
relationship eventually settled into a recurring pattern of irritable disagreement and
open argument. Dr. Barnett attempted to alleviate the problem by suggesting that Ms.
Barnett and the children move to Tennessee. Ms. Barnett adamantly refused to move
to Tennessee because she did not care for Mr. Barnett’s family and did not wish to
live near them. The parties’ differences continued to worsen.
Dr. Barnett’s lengthy stays in Tennessee gave the parties less and less reason
to continue living in Colorado. Since Ms. Barnett’s family lived in Florida, Ms.
Barnett eventually suggested that the family move to Florida. The parties sold their
home in Colorado in November 1994, and Ms. Barnett traveled to Clearwater, Florida
with the expectation that Dr. Barnett and the children would join her after the closing.
However, instead of traveling to Florida following the closing on December 14, 1994,
Dr. Barnett and the children went to his parents’ home in Bedford County. It was
only after arriving in Bedford County that Dr. Barnett informed Ms. Barnett that he
and the children would not be coming to Florida. This news upset Ms. Barnett, and
she informed Dr. Barnett that she was coming to Tennessee immediately to pick up
the children.
Ms. Barnett and her sister arrived at Dr. Barnett’s parents’ home in Bedford
County on December 19, 1994. When Dr. Barnett’s father stopped Ms. Barnett from
entering the house, Ms. Barnett demanded that the children be brought out of the
house so she could see them. The children were ushered outside without shoes and
coats, and Ms. Barnett directed them to get into her automobile without any of their
clothes or other belongings because she was taking them back to Florida with her.
After Dr. Barnett refused to accompany his wife and children to Florida, Ms. Barnett
departed with the children, leaving Dr. Barnett behind at his parents’ house.
One week later, Dr. Barnett traveled to Florida to visit his children for
Christmas and to talk with Ms. Barnett. Ms. Barnett and the children were living with
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Ms. Barnett’s parents in Clearwater. He returned to Clearwater in January 1995 with
the children’s belongings and school records. When the parties were unable to
reconcile, Dr. Barnett returned to Tennessee on February 2, 1995.
On March 8, 1995, Ms. Barnett filed a petition seeking separate maintenance
and child support in the Circuit Court for Pinellas County, Florida. In her petition,
Ms. Barnett requested the Florida court to order Dr. Barnett to pay her support during
the separation and to approve their agreement regarding the temporary custody of
their children. Two days later, Dr. Barnett filed a complaint for divorce in the
Chancery Court for Bedford County seeking an equitable division of the marital
property and custody of the parties’ children. Ms. Barnett later amended her petition
after Dr. Barnett declined to sign the draft custody and support agreement.
The legal maneuvering began in earnest once the competing proceedings in
Florida and Tennessee got under way. On March 30, 1995, Ms. Barnett obtained an
ex parte injunction from the Florida court preventing Dr. Barnett and his parents from
removing the children from her custody. Armed with this injunction, reciting that the
Florida court had taken jurisdiction over the subject matter and the parties, Ms.
Barnett moved to dismiss Dr. Barnett’s Tennessee divorce action because he did not
satisfy the statutory residency requirement and because Tennessee was not the
children’s home state. The trial court denied Ms. Barnett’s motion in April 1995, and
in June 1995 denied her motions to amend its April 1995 order and for summary
judgment.
The trial court heard the evidence in November 1995, and on December 8,
1995, entered a final judgment granting Dr. Barnett a divorce on the ground of
inappropriate conduct. Based on its concern about Ms. Barnett’s “emotional
stability,” the trial court awarded Dr. Barnett custody of the parties’ three children
and directed that the physical change of custody take place on December 26, 1995.
The trial court also provided Ms. Barnett with defined visitation and relieved her
from paying child support because she was unable to do so. Ms. Barnett has appealed
from this decision.
II.
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Ms. Barnett first asserts that the trial court lacked subject matter jurisdiction
to grant Dr. Barnett a divorce because he was not a bona fide resident of Tennessee
when he first filed his divorce complaint as required by Tenn. Code Ann. § 36-4-
104(a) (1996). On April 28, 1995, the trial court denied Ms. Barnett’s motion to
dismiss based on this ground after concluding that Dr. Barnett was a resident of
Tennessee when he filed the complaint and that the conduct on which Dr. Barnett’s
divorce complaint was based occurred in Bedford County. The evidence does not
preponderate against these findings.
A.
The substantive law governing divorce in this state is purely statutory. See
Chastain v. Chastain, 559 S.W.2d 933, 934 (Tenn. 1977); Carter v. Carter, 28 Tenn.
App. 478, 480, 191 S.W.2d 451, 452 (1944). Thus, a trial court’s subject matter
jurisdiction over a particular divorce action must be based upon the applicable
divorce statutes. See Turner v. Bell, 198 Tenn. 232, 248, 279 S.W.2d 71, 78 (1955).
Tenn. Code Ann. § 36-4-104(a) provides that, “a divorce may be granted . . . if the
acts complained of were committed while the plaintiff was a bona fide resident of this
state . . ..”1 This statute makes Tennessee residency by the party seeking divorce a
condition precedent to granting a divorce. See Carter v. Carter, 113 Tenn. 509, 512,
82 S.W. 309, 309 (1904).
The residency requirement in Tenn. Code Ann. § 36-4-104(a) is intended to
assure that Tennessee has a sufficient relationship with the parties and their marriage
to make it reasonable for the courts of this state to affect the parties’ martial status.
See Wiseman v. Wiseman, 216 Tenn. 702, 706-07, 393 S.W.2d 892, 894 (1965).
Hence, the residency requirement constitutes one of the elements making up a
Tennessee court’s jurisdiction over any asserted divorce complaint. See Tyborowski
v. Tyborowski, 28 Tenn. App. 583, 585, 192 S.W.2d 231, 232 (1945).
As used in Tenn. Code Ann. § 36-4-104(a), the term “residence” means
domicile. See Wiseman v. Wiseman, 216 Tenn. at 711, 393 S.W.2d at 896; Brown v.
1
The act of marital misconduct upon which the divorce was granted was Ms. Barnett’s
snatching of the children from Dr. Barnett’s parents’ Bedford County home on December 19, 1994.
That finding of marital misconduct is not at issue in this appeal.
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Brown, 150 Tenn. 89, 91, 261 S.W. 959, 959 (1924). Our courts have described
domicile as:
The place where a person has his principal home and place
of enjoyment of his fortunes; which he does not expect to
leave, except for a purpose; from which when absent, he
seems to himself a wayfarer; to which when he returns, he
ceases to travel.
Snodgrass v. Snodgrass, 49 Tenn. App. 607, 611, 357 S.W.2d 829, 831 (1961). To
create domicile in Tennessee, a person ordinarily must not only intend to establish a
personal home in this state but must also act consistently with this intention. See
Greene v. Greene, 43 Tenn. App. 411, 429, 309 S.W.2d 403, 411 (1957). To acquire
domicile here, the person must also have no present intention or expectation of
changing his or her residence to some other state. See Tate v. Collins, 622 F. Supp.
1409, 1412 (W.D. Tenn. 1985).
Except when a person’s domicile is fixed as a matter of law, see, e.g., Tenn.
Code Ann. § 67-8-504 (1998) (determining a decedent’s domicile for inheritance tax
purposes); Restatement (Second) Conflict of Laws § 14(2) (1971) (determining the
birth domicile of children), the person claiming domicile in a particular state must
establish his or her claim by a preponderance of the evidence. See Hofferbert v. City
of Knoxville, 470 F. Supp. 1001, 1002 (E.D. Tenn. 1979). Where domicile has been
contested and proved, our review of the trial court’s determination is de novo upon
the record with a presumption that the trial court was correct, unless the evidence
otherwise preponderates. Tenn. R. App. P. 13(d); see also Bernardi v. Bernardi, 42
Tenn. App. 282, 291, 302 S.W.2d 63, 68 (1956). In reviewing such questions, we
consider not only a person’s declarations and conduct but also all other relevant facts
and circumstances. See Wiseman v. Wiseman, 216 Tenn. at 708, 393 S.W.2d at 895.
B.
Ms. Barnett insists that Dr. Barnett’s domicile could only have been either
Colorado or Florida when he filed his divorce complaint in December 1994. To
support her claim that Colorado was Dr. Barnett’s domicile, Ms. Barnett points to all
the parties’ contacts with Colorado between 1988 and December 1994. To support
her claim that Florida was Dr. Barnett’s domicile, she points out that Dr. Barnett
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came to her parents’ Florida home in December 1994 and in January 1995 to help her
enroll the children in school and to look for suitable housing there. We find both of
these arguments unpersuasive.
The preponderance of the evidence at trial showed that Dr. Barnett intended to
establish his home in Tennessee when he left Colorado and that his actions were
consistent with his intentions. He informed his parents as early as the spring of 1994
that he planned to move to Tennessee. He also sold his home in Colorado, concluded
his business there, and moved his personal items to Tennessee. Dr. Barnett basically
concentrated his whole livelihood, his only means of support for himself and his
family, in Tennessee. He also acquired a Tennessee driver’s license and pilot’s
license.
Dr. Barnett’s two subsequent short trips to Florida to visit Ms. Barnett and their
children lack convincing earmarks of any change of domicile. Dr. Barnett never
moved his personal property or the location of his consulting business to Florida.
The December 1994 trip was little more than a Christmas visit with his children, and
the month-long visit in January 1995 seems to have been mainly an attempt to
reconcile and work out marital differences with Ms. Barnett. When these efforts
proved fruitless, Dr. Barnett promptly returned to Tennessee.
On December 19, 1994, when the acts constituting the grounds for his request
for divorce occurred, Dr. Barnett was living with his parents in Bedford County. His
work was in Bedford County, and he had no other home at the time. By that time, he
had abandoned his Colorado domicile and had not taken any acts whatsoever to
establish a domicile anywhere other than in Tennessee. The place where a person
lives is presumed to be the person’s domicile. See Hussey v. Jackson, 766 S.W.2d
184, 187 (Tenn. 1989); Hines v. Hines, 220 Tenn. 437, 441, 418 S.W.2d 253, 255
(1965). Based on the record, we cannot say that the evidence preponderates against
the trial court’s finding that Dr. Barnett was a bona fide resident of Tennessee when
he filed for divorce and, therefore, that Dr. Barnett met the residency requirement of
Tenn. Code Ann. § 36-4-104(a).
III.
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Ms. Barnett also asserts that the trial court did not have jurisdiction to make a
decision regarding the custody of the parties’ children. She asserts that the trial court
erred by determining that Tennessee was the children’s home state when Dr. Barnett
filed his divorce complaint. While we agree that Tennessee was not the children’s
home state in March 1995, we have determined that the trial court could properly
have concluded that Tennessee has a significant connection with the children and
with Dr. Barnett to warrant asserting jurisdiction over the custody and visitation
issues under Tenn. Code Ann. § 36-6-203(a)(2) (1996).2
A.
Tennessee courts are empowered to make initial child custody determinations
when Tennessee is the affected child’s home state. See Tenn. Code Ann. § 36-6-
203(a)(1)(A). For the purpose of the statute, the “home state” is the state in which
the “child immediately preceding the time involved lived with such child’s parents,
a parent or a person acting as a parent, for at least six (6) consecutive months.” Tenn.
Code Ann. § 36-6-202(5) (1996). Inexplicably, the trial court in this case found that
Tennessee was the children’s home state even though they had been in Tennessee for
only five days in December 1994 before Ms. Barnett took them to Florida. No
interpretation of the facts can support a conclusion that Tennessee was the home state
of these children when Dr. Barnett filed for divorce.
However, Tennessee courts may acquire jurisdiction to decide child custody
and visitation questions when Tennessee is not the affected child’s home state. Tenn.
Code Ann. § 36-6-203(a)(2) provides an alternative means for acquiring jurisdiction
if the following four requirements are satisfied:
(A) No state qualifies as the child’s home state, or all states qualifying as the
child’s home state decline to exercise jurisdiction because Tennessee is
a more appropriate forum for deciding custody issues;
(B) The child and at least one of the parents have a significant connection
with Tennessee;
2
This court may affirm a trial court’s decision that reaches the correct result, irrespective of
the trial court’s reasons. See Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986); Kaylor
v. Bradley, 912 S.W.2d 728, 735 n.6 (Tenn. Ct. App. 1995); Clark v. Metropolitan Gov’t, 827
S.W.2d 312, 317 (Tenn. Ct. App. 1991).
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(C) Substantial evidence concerning the child’s present or future care,
protection, training, and personal relationships is available in Tennessee;
and
(D) It is in the child’s best interests for a Tennessee court to assume
jurisdiction over the custody issue.
We have determined that the facts in the record satisfy each of these requirements.
B.
The laws of both Florida and Tennessee require that a child live with a parent
in the state for at least six months before the state could be considered the child’s
home state.3 The parties’ children had not lived in either Tennessee or Florida for six
months before Ms. Barnett filed her action for separate maintenance or before Dr.
Barnett filed his divorce complaint. Accordingly, for the purpose of Tenn. Code Ann.
§ 36-6-203(a)(1)(A), neither Florida nor Tennessee qualified as the children’s home
state.
The evidence likewise supports the second jurisdictional prerequisite – that the
children and at least one of the parents have a “significant connection” with
Tennessee. Making this determination does not require the court to compare the
significance of the child’s contacts with the competing possible forums. See Cullen
v. Prescott, 394 S.E.2d 722, 725 (S.C. Ct. App. 1990). Rather, it requires the court
to focus on the kind and quality of the links between the child, the parent, and the
particular forum where the court sits. Dr. Barnett has significant connections to
Tennessee. His present and prospective livelihood is here. He grew up here, was
educated here, and his extended family lives here.
The connection between the children and Tennessee presents a closer question.
The children spent the most significant part of their lives in Colorado, although they
visited Dr. Barnett’s family in Tennessee on occasion. Until December 1994, the
children’s most significant connection was with Colorado. However, both their
parents have abandoned Colorado, and the children’s connections with Colorado have
effectively been severed. In this circumstance, the court cannot dwell on the
3
See Fla. Stat. Ann. § 61.1306(5) (West 1997); Tenn. Code Ann. § 36-6-202(5).
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significance of the links the children have with Colorado but rather must focus on the
links between the children and Tennessee.
Tennessee has significant links with the parties’ children and with Dr. Barnett.
In addition, substantial evidence concerning the children’s best interests can be found
here. Dr. Barnett was raised and educated here and has decided to reside here. His
extended family lives here. The children have a home in Tennessee close to a large
group of their relatives whom Dr. Barnett can look to for help and support with his
parental responsibilities. Accordingly, we find that the evidence in the record
satisfies the conditions in Tenn. Code Ann. § 36-6-203(a)(2)(B), (C), & (D) and that
the trial court could have exercised jurisdiction to adjudicate the custody of the
parties’ children under Tenn. Code Ann. § 36-6-203(a)(2).
IV.
Ms. Barnett also asserts that the trial court should not have exercised its
custody jurisdiction but rather should have deferred to the Florida court where her
earlier petition for separate maintenance was pending. The resolution of this issue
requires consideration of both Tennessee’s version of the Uniform Child Custody
Jurisdiction Act and the federal Parental Kidnaping Prevention Act. Because the
Florida court was the first to exercise its custody jurisdiction, we have determined
that the trial court erred by addressing the custody issues rather than deferring to the
Florida court.
A.
The Uniform Child Custody Jurisdiction Act was enacted to “avoid
jurisdictional competition and conflict with courts of other states in matters of child
custody.” Tenn. Code Ann. § 36-6-201(a)(1) (1996). It accomplishes its purpose by
establishing a set of objective rules for determining which court should resolve an
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interstate custody dispute. One of these rules is the “first-in-time” rule in Tenn. Code
Ann. § 36-6-207(a) (1996) which provides:
A court of this state shall not exercise its jurisdiction
under this part if at the time of filing the petition a
proceeding concerning the custody of the child was
pending in a court of another state exercising jurisdiction
substantially in conformity with this part, unless the
proceeding is stayed by the court of the other state because
this state is a more appropriate forum or for other reasons.
This rule is drawn verbatim from the Uniform Child Custody Jurisdiction Act. See
Uniform Child Custody Jurisdiction Act § 6, 9 U.L.A. 219 (1988).
Tenn. Code Ann. § 36-6-207(a) plainly directs trial courts to refrain from
exercising their jurisdiction if another custody proceeding, in substantial conformity
with the Uniform Child Custody Jurisdiction Act, is pending in another state when
the action in this state is filed. Thus, under this provision, the mere fact that a
custody suit has been filed in another state is sufficient to require the trial courts in
this state to stay their hand.
However, Tenn. Code Ann. § 36-6-207(a) is not the only statute addressing
jurisdiction in interstate custody disputes. The federal Parental Kidnaping Prevention
Act provides:
A court of a State shall not exercise jurisdiction in
any proceeding for a custody determination commenced
during the pendency of a proceeding in a court of another
State where such court of that other State is exercising
jurisdiction consistently with the provisions of this section
to make a custody determination.
28 U.S.C.A. § 1738A(g) (West 1994). Under this section, the mere unilateral filing
of a custody complaint in another state is not enough to prevent a court in another
state from exercising its custody jurisdiction. See Wambold v. Wambold, 651 A.2d
330, 333 (Me. 1994). Courts, however, must decline to exercise their custody
jurisdiction when the court of another state has issued some order indicating that it
has assumed jurisdiction over the custody matter. See Braden v. Braden, 551 N.W.2d
467, 470 (Mich. Ct. App. 1996); Hobbs v. Hobbs, 508 So. 2d 677, 680 (Miss. 1987);
In re Marriage of Kastana’s, 896 P.2d 726, 730 (Wash. Ct. App. 1995).
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The Parental Kidnaping Prevention Act preempts inconsistent provisions of a
state’s version of the Uniform Child Custody Jurisdiction Act. See Wilcox v. Wilcox,
862 S.W.2d 533, 544 (Tenn. Ct. App. 1993). Accordingly, when the courts of this
state find themselves involved with an interstate custody dispute that is also pending
in the court of another state, they should not proceed to adjudicate custody issues
until determining:
(1) Whether the proceeding pending in the other state is substantially
in conformity with the Uniform Child Custody Jurisdiction Act
and
(2) Whether the court in the other state has already issued an order
indicating that it has assumed jurisdiction over the custody
matter.
If the answer to both questions is “yes,” the court should defer to the other court
unless, following consultation, the two courts decide that it would be in the children’s
best interests to proceed in Tennessee. The lawyers for the parties are obliged to
inform the trial court if custody proceedings are pending in another state. However,
trial courts also have a statutory obligation to consult with their counterparts in other
states in order to avoid issuing competing and inconsistent custody orders. See Tenn.
Code Ann. § 36-6-207(b), (c).
B.
This case illustrates an almost complete breakdown of the orderly process
envisioned by the Uniform Child Custody Jurisdiction Act and the Parental
Kidnaping Prevention Act. On March 8, 1995, Ms. Barnett filed a petition for
separate maintenance in the Circuit Court for Pinellas County, Florida requesting,
among other things, that the parties’ temporary custody and support agreement be
incorporated into a final judgment for separate maintenance. Two days later, Dr.
Barnett filed his complaint for divorce in the Chancery Court for Bedford County.
On March 31, 1995, Ms. Barnett moved to amend her petition for separate
maintenance to request custody of the parties’ children and child support because Dr.
Barnett had declined to sign the temporary custody and support agreement referred
to in her initial petition.
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On April 3, 1995, Ms. Barnett requested the Florida court to issue a temporary
injunction preventing Dr. Barnett and his relatives from removing the parties’
children from her custody. Ms. Barnett’s motion informed the Florida court that Dr.
Barnett had filed a petition for divorce in Tennessee and that she was “in great fear
that . . . [he] will attempt to come to Florida and take the children back to Tennessee.”
The Florida court entered a temporary injunction, ex parte, on April 3, 1995,
enjoining Dr. Barnett and his family from removing the parties’ three children from
Ms. Barnett’s custody.
Two days after obtaining the temporary injunction in Florida, Ms. Barnett
moved the Tennessee court to dismiss Dr. Barnett’s complaint on two grounds – one
of which was the pending separate maintenance proceeding in Florida. To
substantiate her claim, she provided the Tennessee court with a copy of the Florida
court’s April 3, 1995 order. Dr. Barnett responded on April 19, 1995, by filing his
own motion to dismiss in the Florida court.
On April 28, 1995, the Tennessee court entered an order denying Ms. Barnett’s
motion to dismiss after concluding “that this suit is not barred by the prior suit
pending in Florida because there is no suit filed in Florida for a divorce or custody
of the children, but only an action for separate maintenance.” On May 15, 1995, Dr.
Barnett filed an amended motion to dismiss in the Florida court relying on the
Tennessee court’s April 28, 1995 order. Predicably, the Tennessee court entered an
order on June 8, 1995 denying Ms. Barnett’s motion to alter or amend, and the
Florida court entered an order on August 2, 1995 denying Dr. Barnett’s motion to
dismiss.4 This is how matters stood when this case was tried in Tennessee on
November 29, 1995 and when the final judgment was entered on December 8, 1995.
C.
Based on these facts, we must first determine whether Ms. Barnett’s separate
maintenance proceeding in Florida was a custody proceeding that was in substantial
4
The Florida court denied Dr. Barnett’s motion to reconsider its August 2, 1995 order, and
on September 28, 1995, directed Dr. Barnett’s present and future employers to withhold $2,985 per
month from his compensation for “domestic support payments.” On October 18, 1995, the Florida
District Court of Appeals declined to review the Florida court’s decisions in the parties’ case.
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conformity with the Uniform Child Custody Jurisdiction Act. The Tennessee court
concluded in its April 28, 1995 order that it was not. Regrettably, this conclusion is
factually and legally incorrect.
Under Fla. Stat. Ann. § 61.09 (West 1997), a wife may seek separate
maintenance for both herself and children of the marriage without seeking any
determination of custody. The Florida courts have held that the Uniform Child
Custody Jurisdiction Act has no application in these cases. See Howell v. Howell,
545 So. 2d 933, 934 (Fla. Dist. Ct. App. 1989). However, Ms. Barnett’s amended
petition in the Florida court requested both custody and support. Accordingly, her
action in Florida easily fits within the definition of “custody proceeding” under both
Tenn. Code Ann. § 36-6-202(3) and Fla. Stat. Ann. § 61.1306(3) (West 1997).
Having determined that the Florida proceeding was a “custody proceeding” for
the purposes of the Uniform Child Custody Jurisdiction Act, we must determine
whether the proceeding was in substantial conformity with the Uniform Child
Custody Jurisdiction Act and whether the Florida court was the first to issue an order
indicating that it had assumed jurisdiction over the child custody issue. Because the
parties’ children had no home state in March 1995 but were residing with their
mother in Florida at the time, we find that the Florida court could properly exercise
“significant connection” jurisdiction over the children.5 We also find that the Florida
court’s April 3, 1995 order enjoining Dr. Barnett and his family from removing the
children from Ms. Barnett’s custody provided a clear indication that the Florida court
intended to exercise jurisdiction over the custody issue.
Based on these facts, the Tennessee court erred by exercising its custody
jurisdiction in this case. Ms. Barnett filed her petition seeking separate maintenance
and custody first, and the Florida court was the first court to enter a presumptively
appropriate order indicating that it intended to exercise jurisdiction over the issue of
custody. Faced with these circumstances, the Tennessee court should have stayed its
hand unless the Florida court later stayed its proceedings in deference to the
proceedings in Tennessee.
5
The Florida court concluded in its August 2, 1995 order that the “parties including the
Respondent have had substantial contact with Florida.”
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We now turn to the remedy for a trial court’s failure to adhere to the Uniform
Child Custody Jurisdiction Act or the Parental Kidnaping Prevention Act. Neither
Act prescribes a remedy when states fail to follow the law. See Brown v. Brown, 847
S.W.2d at 509. However, an explicit remedy is not needed. State courts are
responsible for enforcing both the Parental Kidnaping Prevention Act and their state’s
version of the Uniform Child Custody Jurisdiction Act. They must abstain from
exercising jurisdiction when the Acts require them to. Any other rule would
undermine the salutary purpose of the Acts. Thus, when a state court discovers that
a court in another state has asserted jurisdiction over custody issues, it should dismiss
its custody proceeding, see Cunningham v. Cunningham, 719 S.W.2d 224, 228 (Tex.
App. 1986), and it should vacate any custody orders it has already issued. See Grun
v. Grun, 496 A.2d1183, 1186 (Pa. Super. Ct. 1985). Accordingly, the appropriate
remedy in this case is to vacate the portions of the trial court’s December 8, 1995
order relating to the custody and support of the parties children and remand the case
to the trial court for further proceedings consistent with the Parental Kidnaping
Prevention Act and Tenn. Code Ann. § 36-6-207.
V.
As a final matter, we address Dr. Barnett’s criticism of the Florida court’s
failure to consult with the Tennessee court upon being informed that a custody
proceeding was pending in Tennessee. We find the focus of this criticism somewhat
selective because there is no indication in this record that the Tennessee court
attempted to consult with its counterpart in Florida when it learned of the pending
Florida custody proceedings. When two courts learn that a custody proceeding is
pending in another jurisdiction, the Uniform Child Custody Jurisdiction Act envisions
that the courts will jointly evaluate the matter and that the court with the least interest
or connection with the children will decline to exercise jurisdiction and defer to the
other court. See In re T.R.W., 536 N.E.2d 74, 76 (Ill. App. Ct. 1989).
We are disinclined to undercut the intent of the Parental Kidnaping Prevention
Act and the Uniform Child Custody Jurisdiction Act by establishing a precedent that
their requirements can be ignored where one or both courts decline to follow them.
As far as we can tell, both trial courts shirked their responsibility in this case.
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Because our appellate oversight does not reach to Florida, we must limit our review
to the actions of the Tennessee court. The fact that the Florida court did not contact
the Tennessee court provides no justification for the Tennessee court’s failure to
contact the Florida court and did not empower the Tennessee court to make a custody
determination in contravention of the Uniform Child Custody Jurisdiction Act and
the Parental Kidnaping Prevention Act.
The goal of the Uniform Child Custody Jurisdiction Act and the Parental
Kidnaping Prevention Act is to promote the interests of children by fostering
interstate cooperation between courts. See Stock v. Stock, 677 So. 2d 1341, 1345-49
(Fla. Dist. Ct. App. 1996). Hopefully meaningful cooperation can still occur, even
at this stage of the proceeding. To paraphrase the Tennessee Supreme Court, we trust
that when requested to cooperate under the auspices of the Uniform Child Custody
Jurisdiction Act and the Parental Kidnaping Prevention Act, that the courts of Florida
will respond affirmatively, just as we trust the courts of Tennessee would do in a
similar situation. See Brown v. Brown, 847 S.W.2d at 506.
VI.
We vacate the portions of the trial court’s December 8, 1995 judgment relating
to child custody and support and remand the case for further proceedings consistent
with Tenn. Code Ann. § 36-6-207 and the Parental Kidnaping Prevention Act. We
also tax the costs of this appeal to Larry Roger Barnett for which execution, if
necessary, may issue.
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WILLIAM C. KOCH, JR., JUDGE
CONCUR:
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SAMUEL L. LEWIS, JUDGE
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BEN H. CANTRELL, JUDGE
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