# FILED

Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt 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 TEN NESSEE MIDDLE SECT ION AT NASHVIL LE

APPEALE D FRO M THE C HANC ERY C OURT O F MON TGOMERY COU NTY AT CLARKSVILLE, TEN NESSEE THE HONORABLE ALEX W. DARNELL, CHAN CELLOR

NORMAN D EAN NILSEN 318 6th Avenue S. #117 Seattle, Washington 98104 Pro Se/Plainti ff/Appellee GORDON W . RAHN TROY L. BROO KS 127 South Third Street Clarksv ille, Tennessee 37040 Attorneys for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. BUSSART, J. 

## O P I N I O N- 2 - The divorced father of a fo urteen year old girl fil ed a Petition for Writ of Habeas Corpus in the Chancery Court of Montg omery County , to compel themother to return the g irl to his

physical custody i n the state of Washi n gton. The trial court found that custody

jurisdic tion remained in the state of Washington, and that a prior order of the Washington court had transferred custo dy to the petitioner. The court
accordingl y gr

anted t he wr it. We affirm.

I.

Norm an Dean Nils en and Jennifer Lea M ills marr ied and became th e parents of three gir ls, Krist ine, who was born in 1983, Nico le, born in 198 4, and Danielle, born in 1986. By a default judg ment, a court in Ki ng County , Washington granted the parties a div orce in 1986, g ave the w ife custody of the children, and ordered the husband t o pay chil d support of $600 per month. In 1990, the par ties executed a modification of the divorce d ec ree that lowered the amount of child support to $200 per

month. The mother cl aims thatthe father never paid any support under either order.

Apparently the father li ved (an d still l ives) w ith his paren ts in the stat e of Washington . Thereare rooms in the house of his parents for the girl s to stay when they visit the father. In J uly of 1987, the mother marr ied a soldier , Alan Black, and moved wi th her family to a militar y base in C alifornia. During the Persian Gulf W ar, Staff Sergeant Bl ack served in Saudi Ara bia. In Februa ry of 1991, the mot her sent the two oldest girls

to live w ith their paternal grandparents, beca use she was afraid of the effect that demonstrat ions at the base and security counter-measures might have on them.

In April of 1991, th e parties si gned another modi fication, wh ich gave join t custody to the parties, but transferred phy sical cust ody to the father . The agreement- 3 -

also provided t hat the mother would pay chil d support of $25 per child per month, and would release the husband f rom any liability arising from his own failure to pay child support.

The mother testified that the modification was sig ned in the office of the father’s attorney, after a lunch at which the fa ther bought her several drinks. The father maintained that it was signed at the base. The signature of the father’s attor ney appears on the instrument, as does the sig nature of a legal assistance at torney w ith the Department of the Ar my. The modificati on was filed in the King County Superior Court, and was made an order of that court on Jul y 12, 1991.

A t some point, Serg eant Black was transferred to Fort Campbel l, an d his family took upresidence i n Kentucky. In 19 94, N icole move d to K entu cky to live with her mother. Kristine joined her sisters and mother at Ft. Campbell 1n 1996. Her father testified that he only intende d for Kristin e to have a summer vis it. The mother testified that i t wasKristine’ s choice to stay in Kentuc ky past the end of the summer

The mother took the g irls to Washington in O ctober of 1996, on a tr i p that she claimed was onl y to vi sit family members. The husband i nsisted that the purpose of the trip was to ret urn Kristi ne to his cust ody, and he al legedly sent the mother $300 fo r travel expenses.

Earlier that same year , the husband w rote a letter to hi s former wi fe from
a jail cell, where he was being held on drug charges. In the letter, he admitted he had
a drug problem, and ack nowledged several w arrants rel ated to his use of illegal drugs. At the hearing of this cause, the mother moved that the let ter be enter ed into evidence. The trial cour t denied the motion.- 4 - By1 997, the mother had moved with her family to Tenness ee. On January 23, the father filed h is Petition for Writ of Habe as Corp us, asking that both Kristineand Nicole bereturned to his cu stod y. The mother answered, argui ng that it was i n the best interest of the children that the court deny issu ance of the wri t.

After a heari ng, attended by both parties and their attorneys, the trial court ruled as follow

s:

IT IS HEREBY ORDERED, ADJ UD GED AND DE CREED that: 1. This court re cognizes the prior court order

entered in W ashington in 1991 that transf ers custody to the Petitioner. The parti e s acknowl edge that the youngest chil d has never lived with the Petitioner, an d that this par t of the court ord er does not apply. The custody jurisdiction remains in the State of W ashington. 2. Kristie Nilson shal l return to Washington w ith the Petitioner. He shall pi ck her and her sister s up at 2:30 p.m. today and return them at 8 :30 p.m. He shal l then pick Kristie up at 1:00 p.m. tomorrow. These exchan ges shall take place in the p ar king lot at Dairy Queen on Riverside Drive in Clarksv ille. 3. The parties agreed in 1994 thatNicole would come to Fort Campbell to l ive with R espondent. Since the parties agreed to this, thi s Court w ill not chang e their agr eement based upon a court or der ente red p rior to the agreement. This issue is

reserve d for Washington to determine. Entered this t he 24th day of Januar y, 1997. This appeal followed.

II.

The appellant has pr

epared a wel l-wri tten brief, pres enting the followi ng issues to thi s court:

1. Did the tr ial cou rt err in not considering the best interests of the child? 2. Did the trial court err i n not admitting into evid ence a- 5 - handwritt en letter from the appellee? 3. Did the trial court errin enforcing the 1991 modification entered into by

the appellant and appellee?

The appellantargues that Kristine’ s interest i s best served by remaini ng with her mother; that the lette r in ques tion contains evidence of the un fitness of the father to exerci se custody; and that the 19 91 custody modi fication was an unconscionable b argain that should not have been enforced by any court.

We believe, however , thatthe Uniform Chil d Custody J urisdicti on Act of 1979 (UCCJA), Tenn. Code Ann. § 36-6 -201 et se q., is disp osit ive of this case, and that it pretermi ts all thre e issues rai sed by theappellant. A Tennessee court may

not make a determination as to the best int erests of a chil d or the val idity of an ag reement modifying a child cus tody order issued by

another state, unless

it has jurisdic

tion and can meet the req uirements of the UC CJA for exer cise of that jur isdiction.

The Act is desi gned “. . . w ith the express intent of eliminat ing inter state competition ov er c ustody matters, child-snatching, and un authorized holdovers following authorized visi tation per iods.” Brown v . Brown , 847 S.W.2d 496 (Tenn. 1993). It seeks to “make uniform th e laws of those states which enact it,” Tenn. Code Ann. § 36-6-201(a) (9). Every state that has adopted the A ct (and it has been adopted byall fifty states, the District of Columb ia, and the U.S. Virgin Islands) is requi red to recogniz e and enforce the cus tody determi nations of other st ates:

36-6-214. Recognition and enforcement of foreign decr ee. -- The courts of this state shall recogniz e an d enforce an initial or modification decree of a court of another state which had assumed juris diction und er statutory provisi ons substantially in accordance with this part or which was made under factual ci rcumstanc es meeting the jurisdict ional standards of this part, so longas this decree has not been modified in accordanc e with jurisdic tional standar

ds substantiall y simil ar to those of this part.- 6 - Under certain ci rcumstances, t h e T enn esse e cou rts m ay mo dif y a decree that was origi nally rendered in another state:

36-6-215. Modification of fo reig n decree.-- (a) If a court o f a nother state has made a custody decree recognizable and enforceable under § 36-6-213, a court of this state shall not modif y that decree unless: (1) It appears t o the court of this state that the co urt which rendered the d ecree does not now have juri sdiction under jurisdic tional prerequis ites substantially in accordance with thi s par

t or has decl ined to as sumejur isd ict ion to mo dify the decree; and (2) The court of this state has jurisdict ion. Thus, alt hough it might be argu ed that Te nnessee has obtain ed custody jurisdict ion over Kristine Nilsen by becoming her h ome state, see Tenn. C ode Ann. § 36-6-203(a)(1), Tennessee is not entitled to exercise that j urisdicti on unless it can also be shown that

Washington State has lost j urisdicti on, or has declined to exercise the jurisdic

tion it retai ns. “The lang uage could not be plainer. Jurisdiction simply shall not be exerci sed, even thoug h Tenn e ssee has become the ‘ho me state,’ except in accordance w ith the Code sec tion cited.”See State

ex rel Coope r

v. Hami lton, 688 S.W.2d 821, 824 (Tenn. 1985).

The appellant cit es a nu mber of T enness ee case s whi ch she claim s stand for t he pr opo sitio n tha t in p roce edin gs invo lving ch ild cu stod y, th e strict l egal rightsof the parties must be subordinated to the best interests of thechildren. State
ex rel Daugher

ty v. Rose, 71 S.W.2d 685 (Tenn. 1934); Cecil v. S tate ex rel Cecil

, 237 S.W.2d 558 (Tenn. 1951). However to the extent that th ese cases con flict wi th the UCCJA, they

have of coursebeen overr uled by the Le gislature.

Lest the reader of this opinion b elieve that the UCCJA offers no recou rse in situations w here enforcement of an out- of-state judgment would enda ng er the welfare of a chi ld, we refer them to another par t of the Act:- 7 - § 36-6-204. Temporary decrees -- Obt a ining permanent custody

decree. -- (a) A court of this state which is competent to decide child custody matters has limited jurisdict ion to suspend temporar ily enforce ment of an existin g decr ee and to make a tempo rary decree for a perio d no t longer than sixty (60) days if the child is physically presentin this state and: (1) The child has been abandoned; or (2) It is necess ary in an emergency to protect thechild bec aus e the child has been subjected to or is immediately threatened with ser ious harm to l ife or wit h seriou s bodil y inju ry. (b) In order to obtai n a permanentcustody dec ree, the petitioning party shall file in a state which has jurisdic tion as set out in § 36- 6-203.

Howeve r the appellant has

not asked for rel ief under Tenn. Code Ann. § 36-6-204, and this does not appear to be an appropriate ca se for such rel ief. The above-quot ed statute doesgran t Tennessee the power to act to pr otect an endangered child who is physi cally pr esent in the state, but we not e that section ( b) further underli nes the primacy of the ori gin al rende rin g st ate i f a perman ent cha nge of custody is

desired.

III.

The ord er of the trial court is affirmed. Remand this cause to th e ChanceryCourt ofMontgom ery County f or any fu rther pro ceedin gs necessary . Tax the costs on appeal to the appellant.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:- 8 -

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WALT ER W. BUSSART, JUDGE