# F I L E D

O c t ober 16, 1998 C eci l W
. C r o w son A ppel l a t e C our t C l e r k SUSAN MANQUELLA ADA MS, ) Davidson Circuit

) No. 96D-1679 Plaintiff/Counter-Defendant/ ) Appellant, ) ) VS. ) ) EARNIE BRYAN ADAM S, ) Appeal No.

) 01A01-9711-CV-00626 Defendant/Counter-Plaintiff/ ) Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APPEAL FROM THE CIRC UIT COURT OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE HONORABLE MURIEL ROBIN SON, JUDGE

Randle W. Hill, Jr., #12113 329 Union Street P.O. Box 190632 Nashville, Tennessee 37219-0632 ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLANT Robert L. Jackson, #2486 ROBERT L. JACKSON & ASSOCIATES 214 Second Avenue

, North Suite 103 Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLEE,

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD, JUDGE

CONCURS: BEN H. CANTRELL, PRESIDING JUDGE, M.S. WILLIAM C. KOCH, JR., JUDGE-2-

SUSAN MANQUELLA ADA MS, ) Davidson Circuit

) No. 96D-1679 Plaintiff/Counter-Defendant/ ) Appellant, ) ) VS. ) ) EARNIE BRYAN ADAM S, ) Appeal No.

) 01A01-9711-CV-00626 Defendant/Counter-Plaintiff/ ) Appellee. )



## O P I N I O N
Susan Manquella Adams, hereafte r ref erred to as the wife, has appealed from the judgmentof the Trial Court declaring her and her husband, Earnie Bryan Adams, to be divorced, awarding joint custody of two children with alternating phy sical c ustody in each parent, and providing for chil

d support and other

incidentals.

The parties were ma

rried in Calif

o rnia on September 10, 1989, where the wife was employedby General Motors Acceptance Corporation, and the husband was a motorcycle jump performer. A child was born in 1990. In 1991, the parties moved to Tennessee where the wife found employment with Toy ota Credit Co., and t

he husband continu

ed his effortsto become a motorcycle

jumping star. A secondchild was born in 1993. In March 31, 1996, the wife moved out of their apartment leaving the children with the husband. The parties continued to occupy separate apartments in the same apartment complex, both before and after the di vorce, so that the changes in physical custody did not affect the schooling or social contacts of the children.

On June 7, 1996, the wife sued for divorce on grounds of irreconcilable differences and inappropriate marital conduct. On August 23, 1996, the husband counterclaimed on the same grounds.
The judgment of the

Trial Court contai

ns the following pro

visions: The Court does have concerns about the children’s residencebeing relocated to another state sincew the children-3- have lived most of their lives in Davidson County and the children are thriving here and in consideration of all the proof, the Court finds as hereinafter provided: It is furth e r ORDERED, ADJUDGED, AND DE CREE D by the Court that the children shall re

main in Davidson County, Tennessee. It is furth er ORDERED, ADJUDGED, and DECREED by the Court that in the event Mrs. Adams is not happy residing in

Davidson County and she wishes to remove her residence, she may do so, but the children shallremain in Davidson County, Tennessee. Should Mrs. Adams choose to remove her residence to an other co unty or state, then her custodial period would be the months of June, July and August of each year, it being the in tention of this Court that the children shall rem ai n in Davidson County during the school year should Mrs. Adams move to another location. The only issue rais

ed by the appella

nt wife is:
Whether the trial court erred in awarding the par ties jointcustody of the mi

norchildren and prohibiting the wife from taking the children to California, instead of awarding her exclusive custody, and al lo wing her to move with the children. The husband pres

ents the following i

ssues: 1. Whether

the trial court’s awarded of joint lega l andsplit physical custody and whether the alternative custody arrangements,

if the moth

e r/appellant chose to leave Davidson County, Tennessee, should be affir med because a preponderance

of the evidence shows that said judgment was in the children’s

best interest. 2. Whether

the Appellant’s appeal of the Trial Court’s ruling is fr

ivolous.
The wife argues that the quoted ruling of the T rial Court forces her to choose between equal time of custody of the children and living where she wants to live in California with her family.

On May 7, 1998, Chapter 910 Pu blic Acts of 1998, became effective as T.C.A. § 36-6- 108. Said section c

ontains the followi

ng pertinent provi

sions:-4- 36-6-108. Parental relocation
. - (a) If a parent who is spendi ng in tervals of time wit h a child desires t

o relocate outside the state

or more than one hundred (100) miles from the other parent with

in the state, the re

locating parent s

hall send a notice to the oth

er parent at the other pare

nt’s last kno wn add ress by register ed or certified

mail. Unless excused by the court for exigent circumstances, the notice shallbe ma

i led not later than sixty (60) days prior to the move. The notice shall contain the following: (1) Statement of intent to move; (2) Location of proposed new residence; (3) Reasons for proposed relocation; and (4) Sta tement

that the other parent may file a petition in opposition to the m ove within thirty (30) days of receipt of the notice.

- - - - (c ) If the parents are actually spending substantially

equal inter vals of time with the child and the relocating parent seeks to move with the child, the other parent may, within

thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shalldetermine whether or not to permit relocation of the child based upon the best interests of the c hild
. The court shall

consider all relevant factors including the following where applicable:

- - - - (2) Whether

the primary residential pare n t, once outof the jurisdicti

on, i s likely to comply with any new visita

tion arrangemen

t; (3) The love, affection and emotional ties existing between the parents and child;

- - - - (5) The imp ortance of continuity in the child’s life and the length of ti

me the child

has lived in a stable, satisfac

tory environment.
The husband argues that the quoted legislation applies to post-divorce proceedings and is not applicable to

the judgment in the present case which was entered before enactment of the legislation.

Remedial statues may not be a pplied retrospec

tively if they impai

r vested rights.

Shell
v. State , Tenn. 1995, 893 S.W.2d 416. State Department of Human Services v. Defriece , Tenn. App. 1996, 937 S.W.2d 954.-5- Statutes which are remedial, procedural or interpretive, declaring the public policy of the state and not impairing any vested right do apply retrospectively unless they expressly provide otherwise or the retroact

ive application wo

uld produce an unj ust

result. Kee v. Shelter In

s. Co., Tenn. 1993, 852 S.W.2d 226; Pacific Eastern Cor p. v. Gulf Life

Holding Co ., Tenn. App. 1995, 902 S.W.2d 946.

This Court has determin

ed that the quoted 1 998 legislation is remedial, procedural

and interpretive; that it d o es not impair any vested right; that it contains no prohibition of retrospectiveapplication; and t hat it declares th

e public policy of the State

as to its subject matter and should apply to t

he present appe

al.
Accordingly, the above quoted portions of the judgment of the Trial Court are vacated. In all other respects, the judgment is affirmed. If either partydesires to remove

either or both of the children out of the State or for a distance of 100 miles from their present domicile, such party may seek permission to do so under the provisions of T.C.A. § 36-6-108.
The foregoing disposes of the issue presented by the wife.

The evidence does not preponderate against the award of joi nt custody with alter

nate physical custody under

the condi tions above stated. As stated above, this portion of the judgment is affirm

ed. Modification o

f custody remains

within the control o

f the Trial Court. Removal of the children out of the State or for a distance of 100 miles is controlled by T.C.A. § 36-6-106.
This disposes of the husband’s first issue.

In response to the husban d’s secon d issue, this Court finds that the appeal is not frivolous.-6- Costs of this appeal are taxed equally. That is, eachparty shall pay one -half of said cos

ts.

The cause is rema

nded for further

proceedings.


### MODIFIED, AFFIRMED AND REMANDED

.

___________________________ HENRY F. TODD, JUDGE

CONCUR:

___________________________ BEN H. CANTRELL, P.J ., M.S.

___________________________ WILLIAM C. KOCH, JR., JUDGE