# FILED
February 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk KARLA WYNETTE SHERRELL, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9703-CH-00131 VS. ) ) Lawrence Chancery ) No. 8132-96 ROBBIE JAMES SHERRELL, ) ) Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHAN CERY COUR T OF LAWRENCE COU NTY AT LAWRENCEBURG, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

CHARLES W. HOLT, JR. BOSTON, BATES, HOLT & SOCKWELL 235 Waterloo Street P. O. Box 357 Lawrenceburg, TN 38464 Attorney for Plaintiff/Appellee DAVID L. ALLEN 200 Mahr Avenue P. O. Box 369 Lawrenceburg, Tennessee 38464 Attorney for Defendant/Appellant

REVERSED AND REMAND ED

BEN H. CANTRELL, JUDGE

CONCUR: TODD, P.J., M.S. KOCH, J.- 2 - 

## O P I N I O N

In this divorce case, w

e granted thehusband’s Motion for Interlocutory Appeal solely on the questio n of the trial court’s jur isdiction to determine the custody of the parti es’ three ye ar o ld son. Our examination of the applicable law and of the facts in the record leadus to find that the requirements of the Uniform Child Custody Jurisdiction Act (UCCJA) precl ude the trial court from deciding child custody without first conferring with the court in the child’s home state of Texas.
I. The Marriage

James Sherrell and Karla Wynette Sherrell lived together in Lawrence County, Tennessee for over a year, and then moved to the State of Texas. Their son, Robbie Sherrell Jr. was born in Waxahachie, Texason March 17, 1993. The parties were married on April

10, 1993.

For most of their married life, the parties lived in Waxahachie, Texas, in
a trailer home next door t o the home of Mr. Sherrell’s mother and father. Mr s. Sherrell’s family live in Lawrence County, Tennessee. Problems in the marriage led the Sherrells to return to Lawrence County on several o ccasions. The first such episode in the record occurred when Mrs. Sherrell came to Lawrence County in April of 1994, and ended when she returned to W axahachie in May of that same year.

Mrs. Sherrell returned again to Lawrence County in December of 1995 afterher husband allegedly committed an act of physical violence against her. Robbie Sherrell subsequently made many pr omises that he would no longer abuse his wife, and she went back t

o Texas.Howev

er anoth er episode of d omestic vi olence led Robbie Sherrell, Karla She rrell and t heir child to move to Tenne ssee on March 15- 3 -

1996. On May 19, 1996, whil e they were still in Tennessee, Mr. She rrell alleged ly abused Mrs. Sherrell once mor e. She set out the de tails of th e alleged abuse in a criminal warrant she swore out against her husband. Mr. Sherrel l wasarrested. Upon making bond, he returned to Texas.

II. Divorce Proceedi ngs and Interlocuto ry App eal

Mrs. Sherrell allowed her husband to persuade her to retur n to Texas about two weeks later. She states “[a] t the time I went back t o Texas it w

as my intention to live th ere only if my husband qu it his acts of physical violence towards me.” She claims

that the pattern of

abuse continued, and she returned to Lawrence County on or about September 3, 1996. She filed for divorce in the Chancery Court of Lawrence County on September 10, 1996.

Robb ie Sherrel l subsequently filed hi s own suit for divor ce in Ellis County Texas, on November 18, 199 6. The Texas court dismissed that suit, apparently because it had been made aware of the Tenn essee proceedings.

Mr. Sherrell responded to the Tennessee divorce complaint by making
a limited appearance for the purpose of moving the trial court to dismiss the complaint fo rlack o f jurisdiction and forum non conveniens. He argued that the pa rties were both reside nts of Tex

as, not T ennessee, that T

exas w as the ho me state

of R o bbie Sherrell Jr. under the Uniform Child Custody Jurisdic tion Act, and that Texas was therefore the more appropriate forum for determinin g both divorce and child custody.

The trial court overr

uled the motion on the ground that th e complaint
a lleged th at “the Defendant was guil ty of acts constituting inappropriate marital conduct while

the Plai ntiff

and the Defendant were bona fide residents of the State of- 4 -

Ten nessee.” S ee Tenn. Code Ann. § 36-6-104(a), an d Atchley v. Atchley , 585 S.W.2d 614 (Tenn . App. 1978).

Mr. Sherrell then moved the tr ial court for interlocutor y appeal by permission under Rule 9(a) T.R.A.P. The trial court granted the motion, and this court granted his application for appeal, solely on the questio n of the trial court’s jurisdicti on over the issue of child custody.

III. The UCCJA and Home State Jurisdiction

Both parties acknowledge that this court must look to the Uniform Child Custody Jurisdiction Act, Tenn. C ode A nn. § 36-6- 201, et seq. to make its determination. The UCCJA was established, among other things, to enable the court to “promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.” Tenn. Code Ann. § 36-6-201(a)(2).

The UCCJA makes the “home state” of the child “the preferred if not exclusive basis for a wardi ng or modifying custody.” Brown v. Bro wn , 847 S.W. 2d 496, 508 (Tenn. 1993). The definition of home state is found in Tenn. Code Ann. § 36-6-602, and reads in relev ant part: (5) “Homestate” means the state in which the child immediately preceding the ti me i nvolved lived with such child’s parents, a parent or a person acting as parent, for

at least six (6) consecutiv e months, . . . . Periods of temporary absence of any of the named persons are counted as part of the six (6) months or other period.

The phrase “immediately prec eding the time involv

ed” means the period of time prior to the institution of the action. State ex rel Cooper v. H amilton , 688 S.W.2d 821, 823 (Tenn. 1985). “The period during wh ich a child has resided in this state pending resolution of a custod y dispute may not be consi dered in reckoning the- 5 -

time necessary to establish ‘home state’ jurisdiction.” Boyd v. Boyd , 653 S.W.2d 732, 738 (Tenn. App. 1983). Therefore for the purp oses of these proceedings, Tenness ee has not beco me the hom e state o f Robbie Sherre ll Jr. by vir

tue of the time he has spent in this state between September 3, 1996 and th is appeal.

Although the appellee argues otherwise, it appears from the undisputed facts in the record that Tennessee canno t be considered the home state of Robbie S herrell Jr., and if the child has a home state, it must be Texas. The parties had a fixed habitation in Texas, but when they were in Tennessee, they stayed in the homes of relatives. Robbie Sherrell Jr. was listed on the Texas Medicaid roll. The appell ee had a Texas driver’s license. The motor vehicl e of the parties was registered in the State of Texas. Mrs. Sherrell entered into a two-year

rental-purchase agreement for furniture in August o f 1996 o n which she listed a W axa hachie ho me address. All these facts tend to show that the chi ld’s home state was Texas, with periods of temporary absence in Tennessee, rather than the other way around.

Tenn. Code Ann. § 36-6-203(a)(1) gives this s tate ju risdiction to determine child custody when it i s the home state of the child, but under limited circumstances, Tenne ssee may issue a custody order, even if it is not the child’s home state, when

It appears that no state has juri sdiction under subdivi sion (a)(1), or each state with juri sdiction under subdivision (a)(1) has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the c ustody of the child; and (B) The child and at least one (1) conte stant ha ve a significant connection w ith this state; and (C) There is available in thi s state substantial evidence concer

ning th e child ’s present or fu ture c are, protection, training and personal relationship; and (D) It is in the best interest of the child that a court of this state assume jurisdic tion. Tenn. Code Ann. § 36-6-203(a)(2).- 6 - The a ppellee moved this court t o modify the record on appeal by allowingher to file an authenticated copy of the transcript of the record of the Texas divorce action, including the or der dismissing that action. This court denied the motion, because matters concerning the content of the record o n appeal are primarily questionsfor the trial c ourt . At the time of oral argument, the trial court had not y et ruled on the motion.

Though we do not have the T ex as court’s order before us, the parties have given us no reason to believe that the Texas court specifically found Tennessee to be a more appropriate forum for the det ermination of child custody than Texas.

IV. Communication with other Courts

The UCCJA instructs t he tri al court to examine the plea dings for information as to the child’s resi dence for the five years pr evious to the filing o f the complaint. See Tenn. Code Ann. § 36-6-210. It a lso m ust consult the child care registry that the clerk of each court is required to maintain for communications as to the pendency of custody proceedings i n other states which may affect the j urisdiction of the trial court. See Tenn. C ode Ann. § 36-6-217. If the court has reason to believe that proceedings are pending in another state, it must make a n inquiry to the stat e court administrator or other appropriate official of the other state. Tenn. Code Ann. § 36-6-207(c). If the trial court learns from these inquiries that there i s a proceeding pending in another state, it should not exercis e its jurisdiction unl ess the other state has stay ed its proceedings for an appr opriate reason. Tenn. Code Ann. § 36-6 - 207(a).

There is nothing in the recor d to indicate that there w as any communication between the Texas c ourt and the Tennessee court such as is contemplated by the Act. In all fairn ess to the trial court, we must note that it may not- 7 -

have been as attentive to these r equir ements as it should have been, because the appellee’s attorney failed to com plete tha t part of the initial div orce complaint that requires her to disclose the child’s address for the past five years.

One purpose ofthe UCCJA is to “[d]ete r abductions and other unilater al removals of children undertaken to obtain custody awards.” Tenn. Code Ann. § 36-6- 201(5). Though Mrs. Sherrell may have left Texas for a val id reason, i.e. to escape
an abusive relationship, her departure sho uld not have the effect of stripping the Texas courts of jurisdic tion over the custody of a child whose home is in that state.
Further, we believe t hat one p urpose o f requirin g substan tive communication between the courts is to prevent a “race to t he courthouse” which would give an unfairjurisdictionaladvantage to the party filing first. If the Texas court dismissed Mr. Sherrell’s case under a misconception that the ear lier-filed Tennessee divorce complaint relieved it of the ob ligation to look to the Tex as version of the UCCJAto determine if it hadjurisdiction over the child custody aspects of this case, we would be reluctant to award Mrs. Sherrell the benefits flowing from such an error.

We would also be reluctant to support the proposition that the trial court could bootstrap its jurisdi ction over the divor ce, which is not at is

sue here, into jurisdic tion ove r child custody, in the face of explicit provi sions in the UCCJA that require it confer wi

th the Texas court to

determine if Texas

has declined to exercise jurisdiction on the grounds listed in Tenn. Code Ann. § 36-6-203(a)(2).

V.

The facts before us a re not sufficient to confer jurisdiction on the trial court to determine the custody of Robbie Sherrell Jr. We therefore remand th is case to the trial court so that i t may consult with the Te xas court, learn the st atus of any- 8 -

proceedings there, and reach a mutually acceptable de ci sion on child custody jurisdiction. We see n o lega l obstacle to a bifurcated proceeding, with divorce determined in one state and child custody in the other, but as a practi cal matter, and forthe benefit ofall parties, it would probably be best if all the issues were determined in a single forum, whether that forum be in Tennessee or Texas.

This cause is remanded to the Chancer y Court of

Lawrence County for furtherpr oceedin gs consist ent with th is opinio n. Costs o f this ap peal are t axe d against the appellee, Karl a Wynette Sherrell.

________________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE