# FILED
December 12, 1997 Cecil W. Crowson Appellate Cou rt Clerk CHARLES MULLE, JR., ) ) Petitioner/Appellee, ) ) Appeal No. ) 01-A-01-9704-CV-00161 VS. ) ) Davidson Circuit ) No. 86D-459 KATHY REESEMULLE YOU NT, ) ) Respondent/Appellant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL RO BINSON, JUDGE

J. RUSSELL HELDMAN 320 Main Street, Suite 101 Franklin, Tennessee 37064 ROBERT L. JACKSON One Washington Square 214 Second Avenue, North, Suit e 103 Nashville, Tennessee 37201 Attorneys for Petitioner/ Appellee PEGGY D. MATHES EDWARD L. HILAND 214 Second Avenue North, Suite 105 Nashville, Tennessee 37201 Attorneys for Respondent/Appel lant

AFFIRMED IN PART; VAC ATED IN PART; AND REMANDED

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

## O P I N I O N- 2 - In this custody and visitatio n c ase, the trial court modified the father’s visitation schedule, an d found the mothe r to be in co ntemp t o f its prior orders. The mother argues on appeal that since Tennessee has not been the home state of the minor child since 1988, the Tennessee courts no longer have jurisdiction over matters involving him. We disagree, and we affirm the trial cour t.

I.

This case involves

the proper forum for the exerci se of jurisdiction under the Child Custody

Jurisdiction Act (UCCJA), Tenn. Code Ann. § 36-6-201 et seq ., and the Parental Kidnapping Prev ention Act (PKPA), 28 U.S.C. §1738 A, where the mother and child have resided in three states, an d pleadings have beenfiled in the courts of all those states.

The parties were divorced in Tennessee, and this state issued the initial order giving the mother phy sical custody of the chil d, and granting the father j oint custody and reasonable visitati on. The mother moved with the chi ld to Georgia, where they lived for ei ght years. After a period of confusion, during which proceedings were pending in both s tates, Georgia assumed jur isdiction as

the home state of the child, and Tennessee stayed the exercise of its jurisdiction in deference to the Georgia court.

The mother then moved to North Carolina, and after she and the child had been resident in that state for mor e than six m o nths, she applied to establish juris diction in its courts. The North Carolina court decline d to exercise home state jurisdiction, and Tennessee subsequently w ent forward with a hearing on al l pending petitions, which resulted in an e xpansion of the f ather’s visitation r ights, and the imposition of sanctions for contempt against th e mother.1 W e note that three publ ished opini ons have already resul ted fr om litig ation bet ween these parties: Mulle v. Yount , 420 S.E .2d 776 ( Ga. C t. App. 199 2), Mulle v. Yount , 440 S.E.2d 2 10 (Ga . Ct. App. 19 93), Youn t v. Mu lle , 470 S.E.2d 647 (Ga. S.Ct. 1996). - 3 - The mother argues that under th e UCCJA and the PKPA, Tennessee lost jurisdiction once Georgia be came the child’s home state. She also claims that Tennessee is not entitled to assume jur isdiction again, b e cause in declining jurisdiction, North Carolina did not s pecifically find, as the lang uage of Tenn. Code Ann. § 36-6-203(a)(3) apparently requires, that Tennessee “is the more appropriate forum to determine child custody , and it is in the best interest of the child that a court of this state assume jurisdiction.”

Before analyzing this argument, we will set out a more detailed account of the proceedings leading up to this appeal. We do not think it necessary, however, to exhaustively document everypetition, response and order involving these parties,
as they have been involved in virtually nonstop litigation since 1987. 1 We will primarily focus on those proceedings most necessary to understand the factual background of this case, and those most rele vant to the question of jur isdiction.
II. Proceedings in Tennessee

In May of 1987, the Fourth Circuit Court of Dav idson County granted a divorce to Tenne ssee reside nts Charles Mulle Jr. and Kathy Reese Mulle on the ground of i rrecon cilable differences. The final decr ee incorporated an agreement between the parties that cus tody of their three

month old son, Dannon Bruce Mull e, “shall be vested in them jointly.” The wife was to exercise physi cal custo dy, with reasonable visitation g ranted to the husband.

Sixmonths after the divorce, the wife re married, and moved to Savannah, Georgi a, appar ently i n ignor

ance of, or in defiance of, a restraining order forbidding her to leave the State. (She will henceforth be referred to in this opinion- 4 -

byher married name as Mrs. Yount.) Whatever good will may hav e existed between the parties at the time of their agreem ent eroded quickly, i n part because of disagreements

about visitation. Mr. Mulle filed a petition in the Davidson County court forchange of custody

and for contempt, and thewife answered and counter -claimed for sole custody and for contempt.

After a hearing, the trial cou rt found there to be no cha nge o f circumstances

such as would j ustify

a cha nge of custody, but it set forth a specific visitation order on June 2, 1988, to replac e the general order for “reasonable visitation”

established earlier. The new visitation schedule gave Mr. M ulle the right to
see his son eve ry other we ekend, on certain specific hol idays, and during the summer, with pick-up and del iver y of the child to take place at specific times in Atlanta, about halfway betw een Savannah and Nashvill e.

We note that such a schedule involves extensive travel

and expense by both parties, and that

a great deal of coordination and understanding between them is required for it to

succeed. Unfortunately, the necessary degree of cooper ation was not forthcom ing.

Though visitation often did occur as contemplated by the court’s order, at other times Mrs. Yount either failed to appear, or

let Dannon go with his father only afterexpressing great

hostility towar

ds Mr. Mulle in the pr

esence o f the child. A transcript

of a tape made on a1991 occasion when Mr. Mulle pic ked Dannon up for pre-arranged visitation at Mrs . Yount’s mot her’s house in Madison, Tennessee has been made a part of the record. The transcipt clearly reveals M rs. Yount creating an emotional scene to test Dannon’s loyalty to her, and to undermine his affect ion for his father, without

consideration for the

feelings and emotional wel l-being of her four and a half year old child.- 5 - On another notable occasion, Mr. Mulle’s plane was delayed due to weather conditions in A

tlan ta. He arranged for a friend, a person known to Mrs. Yount, to pick Dannon up in the Atlanta airport and watch him until Mr. Mulle’s plane arrived. Mrs. Yount refused to g ive the child to the friend , and drove back to Savannah with him. The next mornin g, Mr. Mulle chartered a plane to Savannah, and took a taxi to the Yount residence for the purpose of exercis ing his scheduled visitation. Mr. Yount th reatened Mr. Mulle w ith a crowbar, and thre w him off the property, as Mrs. Yount watched in apparent approval.

Mr. Mulle filed another petitio n for change of custody and for contempt, alleging numerous violations of the v isitation schedule by Mrs. Yount (thi s petition was filed prior to the events desc ribed in the preceding tw o paragraph s). Again, Mrs. Yountfiled a counter-petition for full custody, and formodification of visitation. After
a full hearing, including testimony by the par

t ies and corroborating w itnesses, the court determined on February 13, 1990 that its prior order should remain substantially unchanged, but directed the parties to regularly communic ate with each other in or der forv isit ation to run more smoothly. The court did find Mrs. Yount to be in willful contempt of its prior orders, and ordered her to take a tour of the jail.

III. Proceedings in Tennessee and Georgia

On January 29 , 19 91, Mrs. Yo unt file d a petiti on in Chat ham Coun ty, Georgia, asking that she be granted sole custody of Dannon, that weekend vi sitation be reduced to one weekend per month, and that it take place in Savannahonly. The petition alleged that the Geor gia court h ad home state jurisdiction under that state’s version of the UCCJA.- 6 - On February 19, 1991, Mr.Mulle filed a notherpetition in Davidson County, alleging that Mrs . Yount had failed to abide by th e p rovisions of the court’s previousorder. He asked the court to issue a stay of all proce edings in Georgia, until the Tennessee co urt could comm unicate with the G eorgi a Superi or Court, and determine the most appropriate forum to litigate all issues.

T he tr ial court granted Mr. Mulle the temporary r estraining order he requested, and issued a show cause or der for Mrs. Yount to appear and explai n why t he or der should not be made permanent. Thereafter, motions were filed by both parties, in both states, including moti ons by Mrs. Yount for the Dav idson County trial judge to recuse herself and to decli ne jurisdiction in favor of the Georgia courts, both of which motions were deni ed.

On June 1, 1991, the Georgia Superior Court declared that Georg ia was the appropriate place to exer cise jurisdiction under

the UCCJA, because it had become the child’ s home state, and because in the language of the UCCJA “there is available in this state

substant ial evidence concerning the child’s present or future care, protection, t raining and personal relationships.” The court subsequently mod ified visitation by requiring that all pick-up and return of the child take place in Savannah rather than in Atla nta.

Mr. Mulle subsequently filed a discretionary appeal in the Georgia Court of Appeals. In an October 27, 1992 opinion, Mulle v. Yount , 420 S.E. 776, that court vacated the order of the Georgia Super ior Court, finding that

under Georgia’s ver

sion of the UCCJA, the Superior Court was without

authority to modify the or ders of the Tennessee court unless it also found either that Tennessee no longer had jurisdiction, or that Tennessee had declined to ex ercise its jurisdi ction.- 7 - On remand, the Superior Court declared that Tennessee no longer had j urisdiction, and it issued a new order on visitation on December 23, 1992, w hic h differed from its earlier order in several respects, but chie fly by li mi ting weekend visitation to one weekend per month. The Geor gia court’s order st

ated: “[a]ll other aspects of the Tennessee Court Order, enter ed on or about May 19, 1987, in the Fourth Circuit Court of Dav idson County, Tennessee, Case No. 86 D-459, notso modified by this Order, sha ll remain in full force and effect.”

On February 4, 1993 the Davidson County Circuit Court held a hearing
on Mr. Mulle’s earli er-filed petitions for contempt. Mrs. Yount w as not present, but

her attorney made a

special appearance for the purpose of moving the court to dismiss the petitions for

lack of jurisdiction. I n colloquy between the trial judge andMr. Mulle’s attorne y, the trial judge revealed that she had been in communication with the Georgia court prior to June 1, 1991, but that its rulings on juri sdiction were contrary to whatshe had been led to believe they would be. The court subsequently h eard direct testimony byCharles Mulle, and

by his present wife, Katie Stone Mulle, in regard to the conduct of Mrs. Yount relativ

e to Mr. Mulle’s v

isitation with Dannon.

On February 2 5, 1993, the court denied the defendant’s mot ion to dism iss, findi ng that it had never rel inquished jurisdicti on to the state of Georgia. It fu rther found Mrs. Yount in contempt for h aving willfull y prevented Mr. Mu l le fro m exercisingvisitation with his son on seven occasi ons, and sentenced her to serve ten days in jail for each v

iolation of its orders.
This apparent

stalemate between competing courts ended when, with the prompting of the Georgia cou rt, the parties ente red into an agreed order on visitation, with

Mr. Mulle agreeing to refrain from fil ing further actions in Tenness ee. On the motion ofMr. Mulle, the Dav idson County court enter ed an order on June17, 1993 i n which it set aside its contempt order of February 25, 1993, and recit ed tha t- 8 -

in light of communication betw een it and the Georgia court, it was staying all further litigation in the state of Tennessee, “pending furthe r orders of this court.” The parties thereafter litigated their differences in the Georgia cour t.
IV. Proceedings in North Carolina and Tennessee

Mrs. Yount moved to Forsy th County, North Carolina on May 27, 1995. In February of 1996, Mr. M ulle filed a petition in Tennessee for contempt, to modify visitation, and to pr

oceed with all

petiti ons prev

iously fi l ed in the Davidson County Circuit Court. On M ay 14, 1996, the Court order ed as follows: ORDERED AND ADJUDGED by the C ourt t hat all matters pending

in the F

ourth C ircuit

Court fo rDavidson County, Tennessee shall be continued indefinitely until such time as th e Superior Court of Chatham County, Georgia makes a ruling as to whether they are r elinquishing jurisdiction of the custody and welfare of this child and in the eventthe Superior Court of Georgia does relin quish jurisdiction, then the Fou rth Circuit Court will confer w ith the Court in Winston/Salem North Carolina as to which Court will exercise jurisdiction over the custody and welfare of the minor child, Dannon Bruce Mull e.

The Georgia court subsequently issued an order re linq uishing jurisdiction over child custody and visitation matters, and Mrs. Yount filed an ac tion in the Forsyth County District Court requesting that North Carolina take jurisdiction of the matter. On July 23, 1996, the North Carolina court d eclined to take jurisdic tion, and dismissed the action.

The court noted that it was entitled to a ssume home state jurisdicti on under Chapter 50A of

the North Carolina Gener al Statutes, the North Caro lina version of the UCCJA. But it declin ed to do so under another provision of the Act, which bars the exercise of jurisdiction if proceedi ngs in conformity with the UCCJA are pending in the courts of another state.2 Though the Ge orgia cou rt stated in its order of 3/ 23/92 that

“It i s further t he findi ng of this court that

. . . by the l ack of contacts t hat the minor chi ld has wit h the State of T enn ess ee, it is clear ly indicat ed that Ten nesse e no long er has ju risdiction in this matte r. . .” that findi ng is clearly err

oneous, and is no t binding on the Ten nesse e court. - 9 -

On Oc tober 31, 1996, the Davidson County Circuit Cour t held its previouslydeferred hearing. Mrs. Yountdid not personally appear, but her attorney again contested the jurisdicti on of the court. After hearing testimony by Mr. Mulle and his wife, the court reinstat ed the order of February 25, 1993, which it had previously stayed. It also found Mrs. Yount t o be guilty

of two counts of contempt by faili ng to appear to respond to two show cause orders, and sentenced her to serve ten days in the Metropol ita n Davidson County Jai l for each violation, w hich together with th e reinstated judgment m ade for a total sentence of ninety days. The court also reinstated two weeken d per month visitation by the father. This appeal followed.

V. Jurisdiction

The UCCJAis designed to “[a]void jurisdictional competition and conflict with courts of other states in matter s of child custody

. . . .” Tenn. Code Ann. § 36-6- 201(a)(1). As this case demonstrates, the Act is not self-executing, nor does it immunize the courtsof the various states from being drawn into disputes ov er jurisdiction in a way that mirrors the disagreements between the parties themselves. Nonetheless, the Act, togethe r with the complementary federal statute, 28 U.S.C.A. § 1738A, makes possible near-uniform nationwide stand ards for states to apply in order to determine whether or not to assume jurisdiction ov er a given custody

dispute.

Under those standards, Tennessee decli ned to exercise its juri sdiction
over the custody of Dannon Mulle in deference to t he Georgia court. But the trial court made it clear that in deferring to Georgia’s “home state” jurisdicti on, it wasnot thereby abandoning its own right to exercise jurisdiction, if and when Georgia relinquished the role i

t had assumed. 2- 10 - 28 U.S.C.A. § 1738A reads in per tinent part: (c) A child custody determination mad e b y a cour t of a State is consistent with the provisions

of this section only if -- (1) such court has jurisdict i on under the law of such state; and (2) one of the following conditi ons is met:

. . . (E) the court has continuing jurisdiction pursuant

to subsection (d) of this secti on. (d) The jurisdiction of a court of a State which has made a child custody determination consistently w ith the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such state remains the residence of the child or of any contestant

. (emphasis added)

This section indicates that a state does not necessarily lose jurisdiction
over a child custody case mer ely because the

child hasresided in another state lo ng enough for that other state to bec ome the child’s home state. See State ex rel. Cooper v. Hamilton,688 S.W.2d 821 (Tenn. 1985). Subsections (c)(1) and (d) require us to examine our own l aw to determine the proper for um for decision.

The appellant argues that Tennessee does not meet the requirements of Tenn. Code Ann. § 36-6-203 for the exercise of jurisdiction in this case. The relevant portion of that statute reads:

(a) A court of this state . . . has jurisdiction to make a child custody determination by initial or modification decree if: (1) This state:

(A) Is the home state of the child at the time of commencement of the proceeding; or . . .; or (2)(A) It appears that no state has juri sdiction under subdivision (a)(1), or each state with jurisdicti on under subdivision (a)(1) has

declined toexercise jurisdi ction on the ground that this state i s the more appropriate forum to determine the custody of the c hild; and (B) The child and at least one (1) contestant have a significant connection with this state; and (C) There is available in this st ate substantia l evidence concerning the child’s present or future care, protection, training and personal relationship; and (D) It is in the best inte rest o f the child that a court of this state assume jur isdiction.- 11 - The appellant points ou t tha t in declining to ex ercise home-state jurisdiction over Dannon Mulle, the North Carolina court did not specifically find that Tennessee “is the more appropriate foru m to de te rm in e t he

cu stod y o

f t he ch il d. ” We d o not believe, howev

er that Tennessee is requir ed to wait upon such a f inding b y North Carolina, in light of the f act that i t is the original re ndering state, that it nev er reli nquished jurisdiction of the case, an d that there is substantial evidence in the record relative to

the requirements of Tenn. Code Ann. § 36-6-203(a)(2) (B), (C) and (D).

As the state which rendered the o riginal custody or der in this case as well as several subsequent modifications, Tennessee remains a r epository of information about the child’s “care, protection, training and personal relationship.” The proof shows that Mr. Mul le has remained a resident of Tennessee since the divorce, while Mrs. Yount has changed her state of residence twice. The record also indicates that Dannon’s maternal grandmother, his maternal great-g randmother, and other relatives on his mother’s side live i n Nashville. The pediatr ician that treated Dannon since his birth practices i n the Nashville area, a nd remains available to him. The record does not indicate that Mrs.Yount has any family connections in Nor th Carolina, other than Dannon and Mr. Yount.

Mr. Mull e has testified that he and his new wife have forged a stro n g bond with Dannon. He has cons istently exercis ed his visitation ri ghts excep t when prevented from doing so by Mrs. Yount, and he has faithfully met h is child support obligations. Though he has sometimes exercised visitation at his co ndo minium in Florid a, it ap pears to this court that his actions have helped Dannon to maintain “a significant connection with this state.”- 12 - The original decree of the Tennessee court granted joint custody of the child to both parties, and that part of the decree has never been modified. We note that joint custody implies some level of

joint decision-making

by the parties, and that the court’s order specifical ly required the partiesto decide jointly on a pr ivate school for Dannon, with each party to pay half the cost.

The Georgia court subsequently modified the order, requiring Mr. Mulle to pay all the costs of pri vate school, and Mr. M ulle expressedhis willingness to do so. Mr. Mulle has testified that Dan non has been diagnosed with a learning disability, and that he believes that a good private school education would more likely meet his needs than would public school.

However Mrs. Yount has ignor ed th e orders of both courts, has not consulted with Mr. Mulle, and has enrolled Dannon in public sch ools the last two years. It is apparent

to this court that Mrs. Yount is willing to ignore the best interest of her child when to do so would mean conceding Mr. Mulle a larger role in Dannon’s lifeth an sh e w

ou ld li ke hi m t o h av

e. We therefore find that it is not in the best interest of the child to allow the q uestion of jurisdiction to r emain in limbo until the Nor t h Carolina court chooses to speak more definitively, and we affirm the jurisdictionof the Tennessee court.

VI. Visitation

In its order

of November 18, 1996, the trial court reinstated the twice monthly visitation that Mr.Mulle enjoyedbefore it was reduced to once a month by the Georgia court. The appellant argues that the Tennessee court was in error because it failed to give full effect to Tenn. C ode An n. §§ 36-6-215(b) and 36-6-223. Those portions of the UCCJA require that upon taking juri sdiction ofa custody case, the Tennessee court must request transcripts and records o f proceedings from other- 13 -

states wh ere ju risdiction was pre viously exercised, and give due consi deration to those documents.

The appellee points out that the appellant

never asked the trial court, by motion or otherwise, to

request such documents of the Georgia trial cour

t prior to the hearing in question. We agree with the appellee that this is a proper situat io n fo r application of Tenn. R. App. P. 36(a), which deals w ith the relief to be granted b y an appellate court in th e face of error belo w, and which reads in pertinent part, “[n]othing in this rule shall be const rued as requiring r elief be granted to a party responsible for
an error, or who

failed to take whatever action was reasonably av

ailable to prevent or nullify the harmful effect of an e rror.”

We also note that theappellant has appended to her brief copies of the transcript

of the procee dings in the Georgia court, and that court’s final order, which she ins i sts the trial court shoul d have considered pursuant t o the above-mentioned statutes. We have read those d ocume nts, and we find nothing in them that would lead us to believe that consideration of their contents would have cause d the tria l judge to issue a different order than the one she did.

On the cont rary, we have found possible reasons that Mrs. Yount might not have been very eager for the Tennessee court to examine those rec ords, for the Georgia court found that Mrs. Yount h ad violated the parties ’ agr eement to enroll Dannon in an appropriate priv ate school, and it fined her $100 for her willful contempt of its order on telephone vi sitation.
VII. Contempt

As r egardsthe contempt portion of the Tennessee cour t’s order, we note that al l seven violations of the 1988 visitation order occurred before Tennesse e- 14 -

deferred to the jurisdiction of the Geo rgia court, as did the sanctioning of Mrs. Yount forthose violations. It thus does not appear that there could be any transcripts or records in Georgia that woul d be relevant to the decision to reinstate those penalties.

We also cannot

credit the appellant’s argument that the Georgia court’s ruling on contemptis res judicata, and cannot be re-litigated

in the Tennessee court. The Georgia court found Mrs. Yount to be guilty of a single act of conte mpt of it s own order, a judicial decision that has nothing to do with the prior contempts of th e Tennessee court’s order, for which penaltie s wer e first imposed in 1993 and reinstated in 1996.

However the additiona l penalties levied by the Tennessee court stand
on a somewhat different footing. The trial court s tated that “Mrs. Yount has failed to appear in Court in response to the last two directives of the Court, and she is found to be in will ful crim inal contempt for failure to appear. ” The court sentenced her to serve ten days in j ail for each of those contempts.

The trial court is apparently referring to its show cause orders of March 5, 1993 and March 26, 1996, in both of which Mrs. You nt was directedto appear and show cause why she

should not be found in contempt of the prio r orders of the court. Mrs. Yountresponded to both of those orders by filing motions to dismiss forlack of jurisdiction, and her attorneys filed noti ces of special appear ance, and appeared at both hearings on Mrs . Yount’s behalf, solely for the purpose of contesting jurisdiction.

We recognize that a c

ourt may punish an individu al for disobeying its orders, even when those orders may later be found to be e rroneous. State v. Sammons , 65 6 S .W. 2d 862 (Tenn. Crim.App. 1982). However we do not deem a litigant’s decision to make a special appearance to contest the juris diction of the trial court to be a violation of an order to appear, so long as there is a legitimatequestion- 15 -

as to whether or not the court has jurisdiction. We therefore rever se the two ten day sentences imposed by the tri al court.

VIII.

We affirm the order of the tr ia l court in all respect s, except for the findings of contempt for failure to appear. That por tion of the court’s order is v acated, and this cause is remanded to the C ircuit Court of Davi dson County for further proceedings consistent w ith this opinion. Tax the costs on appeal to the appellant.

________________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WALTER W. BUSSART, JUDGE