FILED

November 19, 1997

Cecil W. Crowson

Appellate Court Clerk

NORMAN DEAN NILSEN, )

)

Plaintiff/Appellee, )

) Appeal No.

) 01-A-01-9705-CH-00212

VS. )

) Montgomery Chancery

) No. 97-01-0102

JENNIFER LEA BLACK, )

)

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.

O P I N I O N
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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