Nilsen v. Black ( 1997 )

NORMAN DEAN NILSEN, )
Plaintiff/Appellee,
)
)
) Appeal No.
FILED
) 01-A-01-9705-CH-00212
VS. ) November 19, 1997
) Montgomery Chancery
) No. 97-01-0102 W. Crowson
Cecil
JENNIFER LEA BLACK, ) Appellate Court Clerk
)
Defendant/Appellant. )
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
THE HONORABLE ALEX W. DARNELL, CHANCELLOR
NORMAN DEAN NILSEN
318 6th Avenue S. #117
Seattle, Washington 98104
Pro Se/Plaintiff/Appellee
GORDON W. RAHN
TROY L. BROOKS
127 South Third Street
Clarksville, Tennessee 37040
Attorneys for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
BUSSART, J.
OPINION
The divorced father of a fourteen year old girl filed a Petition for Writ of
Habeas Corpus in the Chancery Court of Montgomery County, to compel the mother
to return the girl to his physical custody in the state of Washington. The trial court
found that custody jurisdiction remained in the state of Washington, and that a prior
order of the Washington court had transferred custody to the petitioner. The court
accordingly granted the writ. We affirm.
I.
Norman Dean Nilsen and Jennifer Lea Mills married and became the
parents of three girls, Kristine, who was born in 1983, Nicole, born in 1984, and
Danielle, born in 1986. By a default judgment, a court in King County, Washington
granted the parties a divorce in 1986, gave the wife custody of the children, and
ordered the husband to pay child support of $600 per month. In 1990, the parties
executed a modification of the divorce decree that lowered the amount of child
support to $200 per month. The mother claims that the father never paid any support
under either order.
Apparently the father lived (and still lives) with his parents in the state
of Washington. There are rooms in the house of his parents for the girls to stay when
they visit the father. In July of 1987, the mother married a soldier, Alan Black, and
moved with her family to a military base in California. During the Persian Gulf War,
Staff Sergeant Black served in Saudi Arabia. In February of 1991, the mother sent
the two oldest girls to live with their paternal grandparents, because she was afraid
of the effect that demonstrations at the base and security counter-measures might
have on them.
In April of 1991, the parties signed another modification, which gave joint
custody to the parties, but transferred physical custody to the father. The agreement
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also provided that the mother would pay child support of $25 per child per month, and
would release the husband from any liability arising from his own failure to pay child
support.
The mother testified that the modification was signed in the office of the
father’s attorney, after a lunch at which the father bought her several drinks. The
father maintained that it was signed at the base. The signature of the father’s attorney
appears on the instrument, as does the signature of a legal assistance attorney with
the Department of the Army. The modification was filed in the King County Superior
Court, and was made an order of that court on July 12, 1991.
At some point, Sergeant Black was transferred to Fort Campbell, and
his family took up residence in Kentucky. In 1994, Nicole moved to Kentucky to live
with her mother. Kristine joined her sisters and mother at Ft. Campbell 1n 1996. Her
father testified that he only intended for Kristine to have a summer visit. The mother
testified that it was Kristine’s choice to stay in Kentucky past the end of the summer
The mother took the girls to Washington in October of 1996, on a trip
that she claimed was only to visit family members. The husband insisted that the
purpose of the trip was to return Kristine to his custody, and he allegedly sent the
mother $300 for travel expenses.
Earlier that same year, the husband wrote a letter to his former wife from
a jail cell, where he was being held on drug charges. In the letter, he admitted he had
a drug problem, and acknowledged several warrants related to his use of illegal drugs.
At the hearing of this cause, the mother moved that the letter be entered into
evidence. The trial court denied the motion.
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By 1997, the mother had moved with her family to Tennessee. On
January 23, the father filed his Petition for Writ of Habeas Corpus, asking that both
Kristine and Nicole be returned to his custody. The mother answered, arguing that
it was in the best interest of the children that the court deny issuance of the writ.
After a hearing, attended by both parties and their attorneys, the trial court
ruled as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that:
1. This court recognizes the prior court order entered in
Washington in 1991 that transfers custody to the Petitioner.
The parties acknowledge that the youngest child has never
lived with the Petitioner, and that this part of the court order
does not apply. The custody jurisdiction remains in the State
of Washington.
2. Kristie Nilson shall return to Washington with the
Petitioner. He shall pick her and her sisters up at 2:30 p.m.
today and return them at 8:30 p.m. He shall then pick Kristie
up at 1:00 p.m. tomorrow. These exchanges shall take place
in the parking lot at Dairy Queen on Riverside Drive in
Clarksville.
3. The parties agreed in 1994 that Nicole would come to
Fort Campbell to live with Respondent. Since the parties
agreed to this, this Court will not change their agreement
based upon a court order entered prior to the agreement.
This issue is reserved for Washington to determine.
Entered this the 24th day of January, 1997.
This appeal followed.
II.
The appellant has prepared a well-written brief, presenting the following
issues to this court:
1. Did the trial court err in not considering the best
interests of the child?
2. Did the trial court err in not admitting into evidence a
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handwritten letter from the appellee?
3. Did the trial court err in enforcing the 1991 modification
entered into by the appellant and appellee?
The appellant argues that Kristine’s interest is best served by remaining
with her mother; that the letter in question contains evidence of the unfitness of the
father to exercise custody; and that the 1991 custody modification was an
unconscionable bargain that should not have been enforced by any court.
We believe, however, that the Uniform Child Custody Jurisdiction Act of
1979 (UCCJA), Tenn. Code Ann. § 36-6-201 et seq., is dispositive of this case, and
that it pretermits all three issues raised by the appellant. A Tennessee court may not
make a determination as to the best interests of a child or the validity of an agreement
modifying a child custody order issued by another state, unless it has jurisdiction and
can meet the requirements of the UCCJA for exercise of that jurisdiction.
The Act is designed “. . . with the express intent of eliminating interstate
competition over custody matters, child-snatching, and unauthorized holdovers
following authorized visitation periods.” Brown v. Brown, 847 S.W.2d 496 (Tenn.
1993). It seeks to “make uniform the laws of those states which enact it,” Tenn. Code
Ann. § 36-6-201(a)(9). Every state that has adopted the Act (and it has been adopted
by all fifty states, the District of Columbia, and the U.S. Virgin Islands) is required to
recognize and enforce the custody determinations of other states:
36-6-214. Recognition and enforcement of foreign
decree. -- The courts of this state shall recognize and
enforce an initial or modification decree of a court of another
state which had assumed jurisdiction under statutory
provisions substantially in accordance with this part or which
was made under factual circumstances meeting the
jurisdictional standards of this part, so long as this decree has
not been modified in accordance with jurisdictional standards
substantially similar to those of this part.
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Under certain circumstances, the Tennessee courts may modify a
decree that was originally rendered in another state:
36-6-215. Modification of foreign decree.-- (a) If a
court of another state has made a custody decree
recognizable and enforceable under § 36-6-213, a court of
this state shall not modify that decree unless:
(1) It appears to the court of this state that the court
which rendered the decree does not now have jurisdiction
under jurisdictional prerequisites substantially in accordance
with this part or has declined to assume jurisdiction to modify
the decree; and
(2) The court of this state has jurisdiction.
Thus, although it might be argued that Tennessee has obtained custody
jurisdiction over Kristine Nilsen by becoming her home state, see Tenn. Code Ann.
§ 36-6-203(a)(1), Tennessee is not entitled to exercise that jurisdiction unless it can
also be shown that Washington State has lost jurisdiction, or has declined to exercise
the jurisdiction it retains. “The language could not be plainer. Jurisdiction simply shall
not be exercised, even though Tennessee has become the ‘home state,’ except in
accordance with the Code section cited.” See State ex rel Cooper v. Hamilton, 688
S.W.2d 821, 824 (Tenn. 1985).
The appellant cites a number of Tennessee cases which she claims
stand for the proposition that in proceedings involving child custody, the strict legal
rights of the parties must be subordinated to the best interests of the children. State
ex rel Daugherty v. Rose, 71 S.W.2d 685 (Tenn. 1934); Cecil v. State ex rel Cecil, 237
S.W.2d 558 (Tenn. 1951). However to the extent that these cases conflict with the
UCCJA, they have of course been overruled by the Legislature.
Lest the reader of this opinion believe that the UCCJA offers no recourse
in situations where enforcement of an out-of-state judgment would endanger the
welfare of a child, we refer them to another part of the Act:
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§ 36-6-204. Temporary decrees -- Obtaining
permanent custody decree. -- (a) A court of this state which
is competent to decide child custody matters has limited
jurisdiction to suspend temporarily enforcement of an existing
decree and to make a temporary decree for a period not
longer than sixty (60) days if the child is physically present in
this state and:
(1) The child has been abandoned; or
(2) It is necessary in an emergency to protect the child
because the child has been subjected to or is immediately
threatened with serious harm to life or with serious bodily
injury.
(b) In order to obtain a permanent custody decree, the
petitioning party shall file in a state which has jurisdiction as
set out in § 36-6-203.
However the appellant has not asked for relief under Tenn. Code Ann.
§ 36-6-204, and this does not appear to be an appropriate case for such relief. The
above-quoted statute does grant Tennessee the power to act to protect an
endangered child who is physically present in the state, but we note that section (b)
further underlines the primacy of the original rendering state if a permanent change
of custody is desired.
III.
The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Montgomery County for any further proceedings necessary. Tax
the costs on appeal to the appellant.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
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_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WALTER W. BUSSART, JUDGE
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