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# FILED January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_____________________________________________________________________________ JANUARY LYNN GRIFFIN, Davidson Circuit No. 94D-1778 C.A. No. 01A01-9704-CV-00190 Plaintiff, Hon. Muriel Robinson, Judge v. BRIAN LEE GRIFFIN, Defendant. CHERYL J. SKIDMORE, Gallatin, Attorney for Plaintiff. JACK GREEN, Nashvi

lle, Attorney for

Defendant. REVERSED AND DISMISSED Opinion Filed:

____________________________________________________________________________ TOMLIN, Sr. J. This is a child custod y ca se with potential in terstate ramific

ations. This case b

egan as a divorce proceeding in the Circuit Court of Davidson County, wher ein January Lynn G riffin (“mother”) filed suit for divorce against Brian Lee Griffin (“father”), as well as seeking custody of the parties’ minor child. On March 31, 1995 the trial cour t declared t he parties divorced pursuant to T.C.A. § 36-4-12

9. Mother was gra

nted custody of the

parties’ min

or child , then fourteenmonths old, with father given visitation rights. On July 19, 1996, father filed a petition to change custody and to find contempt on the part of the mother in the Circuit Court of Davidson County, the same court in w hi ch the divorce had been granted earlier. Following a hearing, the trial court ordered custody of the parties’ minor child chang ed from mother to father. No adjudication was made on the iss ue of contempt.On appeal mother has presented two issues for

our consideration: (1) whether the trial court erred in changing custody from mother to father and (2 ) whether

the trial court had subject matter jurisdiction of father’s petition to change custody. For the reasons hereinafter stated, we hold that the trial court was in error in changing custody. Following the divorce, mother and child remained in the Davidson County area until late November-ear

ly December 1995, when mother and child moved to

Hawaii to live with her mother and step -father, w ho was stationed there in the military. In January 1996, mother called father2

from Hawaii, but would not give him any information as to where s he was livi ng or what her telephone number was. Through military sources, father ascert ained whe re mother was living. The record reflects that shortly after mother arrived in Hawaii she met a man in the Navy and moved in with him. She subsequently marr

ie d him. In the spring of 1996, mother’s new husband was transferred from Hawaii to a nav al station in New York. In May 1996, mother telephonedfather advising him that she was coming to Tennesse e and that he coul

d see and visit withthe child upon her arrival. She also advised him at that time that she had married a member of the U.S. N avy and that she would be in Tennes see temporarily b efore going to his n

ew duty station in New York. Upon arriving in Tenne ssee in early

June 1996, it became necessary to place the child in a hospital in Jackson for a short while with a kidney infection. Subsequently, upon coming to

Nashville, mother and

father entered into a written agreement by which father was to have summer visitation with the parties’ child from June29, 1996 through September 29, 1996, at which time mother

would be permitted

to pick up the child t

o return to

New York. At that t

ime it was contemplated that mother and her husband would have some difficulty fi nding appropriate housing in New York and the visitation a greement would give them time to get settled in. The agreement

also provided that father would have “agreeable visitation r ig hts” until a court d

ate

cou ld be set and that mother and father would get in touch with one another and work out the transportation. Mother further a greed to notify father of

each phone numbe

r and address an

d to send pictures of their daughter to father. After the executi on of this agreement, some week or ten days later mother and her new husband were able to find housing sooner tha n ex pected. Contrary to the above agreement, she calledon father to return the child to her, which he refused under the agreement. Fathe r filed his petition to change custody several days thereafter. I. The Subject Matter Jurisdiction Issue. The matter of

jurisdiction was never raised by the parties before the trial court, nor was the issue tried in the trial court. Mother raised the issue in her brief before this court in a tangential way, by stating the following in the second grammatical paragraph of the Argument section of her brief: Mother

would initially

submit the trial court lacked jurisdiction to modify custody in this matter due to th

e fact the child h

ad not been a Ten

nessee resident

for six mon ths prior to the filing o f Father’s Petition

, thus it was error

for the trial cour t3 to make any custody determination. Mother’s counsel makes no c ita tion t o the Statement of the Evidence where this court might ascertain this “fact” as alleged by her, nor did she cite any law to this court. The transc ri pt in this case consists of a four and a half page Statement of the Evidence prepared by father and

approved by the trial court.

Father testified t

hat mother moved to

Hawaii in the latter part of November, 1995. On the other hand, mother testified that she left Tennessee to go to Hawaii in December, 1995. Mother removed the child from Hawaii sometime in May or June, 1996 at the latest.

Father’s petition to modify custody was filedin Davidson County on July 19, 1996. It

appears to this co

urt that there is

no concise proof

that Hawaii was e

stablished as a homestate under

T.C.A. § 36-6-202(5) (1996) that would destroy the jurisdiction of the Tennessee court, provided by T.C.A. § 36-6-203(a)(1)(B) (1996). See Gaddy v. Gaddy , 861 S.W.2d 236, 238 (Tenn. Ct. App. 1992). Accordingly, we are of the opinion that under these ci rcumstances the Tennessee court retains jurisdiction of this custody dispute. II. The Custody Issue. Our scope of review i n custody cases is de novo upon the record, accompanied by a presumption of correctness. We must affirm, unless the preponderance of evidence is otherwise. Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1984). In all such cases the paramount consideration is the best interest of the child. In Musselman v. Acuff

, 826 S.W.2d 920, 922 (Tenn. App. 1991), the Eastern Section of this court set out the

burden that must be

carried and the

standard that must be met in a case

such as this: When the issue before the Court is whether to modify a prior custody order, it need notrepeat the comparative fitness anal ysis that is appropriate at the time of the original custody decree. Instead, in a modification proceeding, the trial judge must find a material change in circumstances that is compelling enough to warrant the dramatic remedy of changed custody. Moreover, the burden is on the n on-c ustodial parent to prove changed circumstances. (citations omitted). It appears to

this court that the crux of the father’s petition for change of custody was the

care he observed being given b y mo ther to their daug hter. When his visi

tation with the child began, father noticed that the child was stillin diapers, was underweight, still on a bottle and extremely withdrawn. A similar observationwas made by the child’s paternal grandmother, who addedtha t the child had been potty tra ined and was off t

he bottle since som

etime in mid or late4

1995. As to these co

ntentions, mother te

stified that if the c

hild was underweight

it was because of the ki dney infection for which she had been hospitalize

d for a week to te

n days prior to beginning the visitation. She also stated that she had put the child back in diapers for travel and had placed her o

n the bottle becau

se she needed fl

uids. In the o pinio n of this court, the evidence presented preponderates against the award of change of custody by the trial court. Stated another way, the father, the noncustodial parent, has not carried his burden of proving a material change in circumstances that would warrant th e changing of custody, noted by this court in Musselman to be “a dramatic remedy.” In looking at the whole picture, it seems clear to this court that to some degree at least the parties are usi ng this child as a “tool” or a “weapon” to get at one another. While there was no prohibition against mother re moving the child fr

om this jurisdiction,

it could have bee

n and should have been done in a more cons iderat e manner. The damage done by this was in large measure rectified by mother asking father to exercise three months of continuous visitation in the summer of 1996, albeit in some

measure to her benefit. Then, when it developed that mother and her new husband found living quarters much sooner than expected, rather than honoring the agreement that she initiated, she upse

t the apple cart b

y calling on fathe

r to return their

child to her. This action at least partially pr

ecipitated (in thi

s court’s opinion)

father’s action

in seeking to

br ing about a change of custody. There is little or no evidence in this r ecord as to

the background of both father and mother, except it does seem apparent that there is little decent concern and affection for one another. They must not--we r epeat, must not use this child as a pawn to get at one another. This child is an innocent victim of t

heir inability or un

willingness to mainta

in a home in which to

raise her with tender loving care. They must exercise every effort to do so in th

e future. If not,

we remind both parentsthat a trial court, be it New York, Tennessee or Hawa ii, would have the power under appropriate

circumstances to place this child in a home where she can find constant love and affection and will be given the type of upbringing she deserves. The judgment of the trial co urt changing custody from mother to father is reversed and father’s petition dismissed. Costs in this cause on appeal are taxed one- half to father a

nd one-half to mother, for which execution may issue if necessary.5 ______________________ __________________

_ TOMLIN, SR. J.

________________________________________ HIGHERS, J. (CONCURS)

________________________________________ FARMER, J. (C ONCURS )