### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 5, 2002 Session WENDY DIANE LAYNE (NOW HASTINGS) v . MARK ANTHONY LAYNE

Appeal from the Circuit Court for Marion County No. 12138 Thomas W. Graham, Judge

No. M2002-00670-COA-R3-CV - Filed January 28, 2003

The divorced parents of

a fourteen-year-old girl asked the trial court to sign a n agreed order

to enable her to l ive with her grandm other so sh e coul d atte nd sch ool i n Hami lton Coun ty. The tr ial j udge refused to si gn the orde

r. While the

decision to sign or not to sig n such an

order is within the sound discretion of the tri al court , the cour t in this case erroneously

believed that it lacked jurisdiction over the matter because the parties had not shown a cha nge of circumstances since the prior decree. We find tha t the proo f does sho w a chan ge of c ircumsta nces and that the b est inter

ests of the

child require the entry

of the proposed order. Therefore we reverse. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which P ATRIC IA J. C OTT RELL , J. and J OHN H. G ASAWAY , III, S P . J., joined. H. Graham Swafford, Jr., Jasper, Tennessee, for the appellant, Wendy Diane Lay

ne (now Hastings). OPINION I. A N A MICABLE D IVORCE On Februa

ry 4, 1997, the Circuit

Court of Marion County gr anted Wendy Diane

Lay ne a divorce from

her husband, Mark Anthony Lay ne. The divorce seems to have been fairly amicable, since the same attorney

apparently r

epresented both parties. Custody of the pa rties’ two daughters was granted to the mother, and the f ather wa s ordere d to pay

child support. After the divorce, the mother remarried, and found a job in Chattanooga with Blue Cross/Blue Shield of Tennessee. She subseq uently

earned a promotio n, which r

equired her to tra

nsfer to the Nash ville Off ic e of th e medical insurer. She and her new husband moved to Clarksville, and she began commuting to work in Nashville on a da

ily b asis.1 The Statement of the Evidence was only signed by Ms. Layne’s at torney. However, Rule 24(f) of th e Rules of Appellate Procedure states that i f the judge does not approve the stat ement within 30 days af ter the expirat

ion of the peri od for filing ob jectio ns, it “sh all be deemed to have bee n approved and shall be so considered by the appellat e court

. . . .” -2- The older ch

ild, Amber

Renee L ayne, was d

eeply unhappy with her situation in Clarksville, and wished to attend school near her old home. Her maternal g randmother, Kay

Green, who resides in Hamilton County, agr

eed to have her grandda

ughter move in with her, so she could enroll at Red Bank Middle School. The Hamilton County school sy stem took the position that a court order was needed for Amber

Lay ne to enr oll in one o f its schoo ls. Howev er, Ambe r was all owed toenroll in Red Bank Middle School with the understanding that a court order would be forthcoming. In December of

2001, the mother

(now known as Wendy Ha stings) filed a Petition to Amend Divorce Decree in the Circuit Court of Marion County. The petition recounted the a bove facts, and askedthe court to grant temporary custody of Amber to Ka

y Green. Mark Anthony

Lay ne filed an answer in which he stated

that he ha d no objec tions to granting the maternal g randmother

temporary custody of Amber

for educ ation pur

poses. II. P ROCEEDINGS IN THE T RIAL C OURT A te mporary

order w as prepa

red and p resente d in chamb ers to the Marion Cou

nty Circuit judge for his signatur e. The pr oposed or der rec ited the p arties’ agree ment that K

ay Green w ould have the a uthority

to make educational, parenting and medica l decisions while Amber was in her care, but that Am

ber woul d continue

to reside on weeke nds with her mother, unless visiting with her father. The father would continue to pay child support, but would pay Ms. Gree n a pro-rated share to assis t her d uring t he week s Ambe r was i n scho ol. Th e judge refuse d to s ign the orde r, appar ently because he believed he did not have proper jurisdiction, and the matter wa s put on the docketfor further hearing. On January

16, 2002, both parents and Ms. Green appeared be fore the court, along with the child. No transcript was made of that hearing, but a Rule 24 Statement of Evidence 1 was fil ed. It states that the parents testified that they were

n ot seeking to abrogate or shirk any parental responsibilities or obligat ions; that w hile Ambe

r was de eply

unhappy with atte nding school in Clarksville, there were no allegations or proof that she was delinquent, unruly, de pendent or neglected; and that the court refused counsel’s sugge stion that i f it had any conc erns about Amber’s best interest, it should appoint a guardian ad litem and/or advocate f or the child. At the conclusion of the hearing, the court announc ed that it was with out j urisd icti on to sign and/or approve such an order, and that it was of the opinion that as a matter of substantive law, suc h an arrangement was impermissible and improper. On February 15, 2002, the trial court filed the final order in this case. The order

stated tha t it would be

appropr iateto dismiss the petition on procedural ground s, because

of the fa ilure to na

me Ms

. Green as a party

to the litigation, but that to save the parties f urther time and expe

nse, the c ourt would

also rule on the mer

its.-3-

The court recited some of the circ umstanc es discussed above, including the fact that there was no showing that

either parent was unfit or incapable of car rying out the duties of

parenthood, and no showing that Amber was abused or neglected, but only that she wa s an “unhappy little girl.” The court concluded that on the basis of those circumstances, it wa s comp elled to dismiss the Petition to Amend Divorce Decree for “failing to state a claim upon which relief may be granted as a matter of law.” This appeal followed. III. T HE C OURT ’ S J URIS DICTI ON We notethat the only brief filed in this appea l was that of Wendy Diane Hastings. Her counsel tendered a letter signed by Mark Anthony L

ayne, stating

that he ag rees wit

h the position taken by t

he appellant and

that he do es not i ntend to file a brief or to respond further. When an appellee decline s to file

a brief , we normally

decide cases on the record and on the appellant’s brief alone. See Rule 29(c ) Tenn. R. App. P. I n this cas e, howev er, the a ppellant request ed oral a rgumen t, which we granted. We begin our discu ssion with

the obser vation tha t parent s have a c onstitution al righ t to raise their children as they

see fit. Hawk v. H

awk , 855 S.W.2d 573 (Tenn. 1 993); Illinois v. Stanley , 405 U.S. 645 (1972). Under most circumstances, courts and other g overnment bodies have absolutely no autho rity

to interfere with the child-raising arr angements chosen by

their parents. Thus, if a married couple were to decide that they wished the

ir childr en to be r aised by a trusted grand parent, and the grandparent

was ag reeabl e, the co

urts would

have no mo

re powe r to interve

ne than it would if the pa rents de cided to s end their childre n to a priv ate boar

ding school. When a marriage is dissolved through divorce , however, the determination of which parent is to ex ercis e cust ody over t he chi ldren of the marri age becomesa matter for judicial decision. The court thus becomes an additional party to a set of relationships that are otherwise quite private. When ruling on the question of custody , the primary conc ern of the court must al way s be the be st interest of the child. Placenc ia v. Plac encia , 3 S.W.3d 497 ( Tenn. Ct. A pp. 1999) ; Varley v. Varley , 934 S.W.2d 65 9 (Tenn. Ct. App. 19 96); Bah v. Bah , 668 S.W.2d 663 (Tenn. Ct. App. 1983). Until th e c hi ld re ac he s t he ag e o f m aj or it y, questions of custody remain within the exclusive jurisdiction of the trial court in which the action for divorce was brought, and which has rendered a decree respec ting the

child’s c are, cu stody

and suppo

rt. Kane v. Kane , 547 S.W.2d 559 (Tenn. 1977). While the a

ward of custody is consider

ed final for purp oses of r

es judica ta upon the f

acts in existence at the time it is rendered, see Damron v. Damron 367 S.W.2d 47 6 (Tenn. 1963), it i s also “subject to such ch anges or modific ation as th e exigencies of th

e case ma y require .” Tenn. Code Ann. § 36-6-101(a)(1). In order to promote stability, and to prevent situations where the proper custody

of a child could be challenged

every time the c

ustodial parent experiences minor difficulties, our courts have declared that they will not or

der a ch ange o f custody

unless the

party petit ioni ng for s uch a ch ange can demonstrate that the child's circumstances have materially cha

nged in away that could not have-4-

been reasonably

foreseen at the time of the original custody decision. Steen v. Steen , 61 S.W.3d 324 (Tenn. Ct. App. 20 01); Massengale v. Massenga le , 915 S.W.2d 818 (Ten n. Ct. App. 1995); Taylor v. Taylo r, 849 S.W.2d 319 (Tenn. 1993). Once the court is satisfied that such a chang e of cir cumstances has been shown, it must make a fresh determination of custody , in light of the bes t interest of the child. In th is ca se a l ot ha s h ap pe ne d s in ce th e e nt ry o f t he fi rs t c us to dy d ecree. The mother has rema r ried, moved twice, and now lives in Clarksville. Her work in Nashville requires a long commute eachday. The c

hild, Amber, moved with her mother to Hamilton County and made friends in school. The subsequent move to Clarksville resulted in a dislocation that affected he r p ro fo un dl y. As we have

said, the chang e in circumstance

that allow s a

modification of

a custody dec

ree is one that a

ffects t he best in terests of the child. See Mass engale v . Masseng ale , 915 S.W.2d 818 (Tenn. Ct. App. 1995). But we have also said: The determining facts in these . . . custody cases are so infinite in their variety that the reported decisionin one case is of little aid or assistance in settling the next. The supreme rule to which all others should yield is the we lfare and best interest of the child. Holloway v. Bradley , 230 S.W.2d 1003, 1005 (Tenn. 1950). We think that the proof shows a material change of circ umstances and that the best inter ests of t he ch ild would be served by honor ing her parents’ decision to commit her custody to her grandmother during the school y ear. We do not mea

n to imply that the trial court is obligated to adopt the paren

ts’ view o f the bes t interest of their child, but under

the circumstance s of this case we think the courts should assist the parentsin making a decision that is in fact in the child’s best interest. We note that among the factors the court is di rected to conside

r when ma

king a custody

determin ation is “t

he reas onable preference of the child if twelve ( 12) year s of age or older.” Tenn. Code Ann. § 36- 6-106 (7). IV. A N ECESS ARY P ARTY A grant of custody , even of temporary custody, is an

entrustment

which imposes a significant obligation on the re cipient. See Bush v. Bush , 684 S.W.2d 89 (Tenn. Ct. App. 1984). It thus appears appropr iatethat the proposed custodian be named as a party to any proceeding involving an award of custody , so that there ca

n be no dou

bt she is vo luntarily

placing herself within the jurisdiction and supervis ion of the

court. Appellant’s counsel acknowledges that it would have been better if he had named Ms. Green as a party a

t the outset. He

argue s, howeve

r that a r emedy for his oversig

ht was re adily

availab le in the form of an amendment of the pleadings to confor m to the evidence, which

could relate bac

k to-5-

his original petition. See Tenn. R. Ci v. P. Rules 1 5.02 and 1 5.03. Sinc e we ar e reman ding thiscase for fur ther pro ceeding s, he will h ave the o pportunit y to move the c ourt for

such an a mendment

. V. The order of the trial court is reversed. Remand this cause to the Circuit Court of Marion County for further procee dings co nsistent w ith this opin ion. Tax the

costs on a ppeal to t he appellant.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.