### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 6, 2003 Se ssion
AMY HOLLOWAY BUTLER (MOSCHEO) v. MICHAEL CLIFTON

BUTLER

Appeal from the Circuit Court for Davidson County No. 93D-3551 Muriel Robinson, Judge

No. M2002-00347-COA-R3-CV - Filed F ebruary 20, 2003

The mother of a minor child, as custodial parent, appeals the action of the trial court in denying

her application to reloc ate with t he child f rom the Na shville ar

ea to the Dallas- Ft. Worth, Texas area pursuant to Tennessee Code Annotated section 36-6-108(d). We af firm the action of

the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in whichB EN H. C ANT RELL , P.J., M.S. and S TELLA H ARGROVE , S P . J., joined.

Philip E. Smith, Nashville, Tennessee, for the appellant, Amy Holloway Butler

(Moscheo).

R. Eddie Davidson, Nashville, Tennessee, for the appellee, Mic hael Clifton Butler.

OPINION

Amy Ho ll ow ay Butler (Moscheo), hereinafter “Mother,” and Michael Clifton Butler, hereinafter

“Father,” are

natural parents of the minor child, B. Butler. They were divorced by

decree of the Circuit Court of Davidson County on Febr uary 14, 1994. Mother w as awarded custody of the minor child, with Father having visitation on the fir st and third weekend of each month, on alternating major holidays, for half of the Christmas break, and for six weeks in the summer. Mother is employ

ed by America n Airline s, which p

rovides f light se rvice in and out of Metropolitan Nashville but has its p

rimary hub in Dallas-Ft. Worth, Texa s.

On August 17, 2000, Mother filed her Petition to

Relocate with the minor child to

the Dalla sFt. Worth ar ea, asserting tha t she had a

n opportun

ity f or much be

tter empl oym

ent in Dallas-Ft. Worth with a considerably

higher salary

and an opportunity for a dvancement . On Septe mb er 6, 2000, the Father

filed his r

esponse a nd object ions to removal

of the mino

r child fr om Nashville to Dallas- Ft. Worth. The case came on for trial on November 27, 2001. At the conclusion of the hearing, the trial court held:-2-

The Court find s based on a stateme

nt of coun sel, the te stimony of the pa rties a n d witnesses and the record as a whole, that the Mother’s request to move is based on her desire to advance her

career. The Court further finds that the desire of the Mother to advance her caree

r is a reasonable desire. The Court further finds that the Father has exercisedthe visitation as set forth in prior court orders and that he has developed

a close relationship with the child. The Court further finds that Texas does not have good re ciproc ity with the state of Tennessee and that there is a risk that the Father would not have acces s to the ch ild. Furt her, the Court fee

ls that it wi ll loose jurisdiction over the minor child. The Court further finds that it is in the b est

interest of the minor chil d to rema

in in the Mid

dle Tennessee area. The Court further finds that the Mother

shall be allowed to move but the minor c

hild’s re sidence

shall remain here.

Tenness ee Code A

nnotated section 3 6-6-108( d) provid es:

The other pa

rent may not attempt to reloc ate with t he child u

nless expr

essly authorized to do so by the c ourt p ursua nt to a change of custody or primar y custodial

re sp on si bi li ty. The parent s pending the gre ater amo

unt of time

with the child

shall be permitted to re

locate with the ch

ild unless t

he court finds:

(1) The relocation does not have a reasonable purpose; (2) The relo cation wo uldpose a threat of specific and serious harm to the chi ld which outweighs the threat of harm to the child of a c hange of custody ; or (3) The parent’ s m otive for reloca tion with the child is v

indictive in that it is intendedto defeat or deter visitation rights of the non-custodial pare ntor the parent spending less time with the child.

Tenn. Code Ann. § 36-6-10 8(d)(1- 3)(2001) . The decisive issue in this case is whether or not the custodial parent has established a reasonable purpose for relocation.

Doubtless
, re lo ca ti on be ca us e o f a be tt er jo b o pp or tu ni ty, gr ea te r s al ar y, and car eer advancement

opportunities, establishes a “reasonable pur pose” within the meaning of the statute. The proof offered in this case, however, doe s not sustain the allegations of such increased salary a nd increa sed oppor

tunities.

The proof establishes that both Mother and Father are g ood and attentive parents and tha t Father faithfully e

xercises h is visitation

rights with his daughter. The daughter is we ll settled in the Davidson County area with adequate schooling facilities. However, such c onsider ation s are inadequa te under the

statute to prevent a custodial parent from relocating if a reasona ble purpo se is establish ed. The d ifficult y isthat, whil e Mother

discusse s in her te stimony a job in Ft. Worth and

career advanc ement opp ortunitie s, when the recor d as a who le is cons idered, she pres ents to the court

no job offer

but, rather, a lita

ny o f thingsthat she hopes tobe able to accomplish after such a move. She testif ied:-3- Q. Now what are y ou making annually right now? A. Twenty-four

thousand a yea

r. Q. And if you were

al lowed to pick up more flying time as a flight attendant living in the Dallas, Ft. Worth area what would your sala

ry jump to then? A. It has the ability

to go as high as $80,000. Q. Ok ay. Now let me ask you this, have you been off ered a j ob within American Airlines that is not a fly ing job? A. Yes, I have. Q. And what d

oes that jo

b entail? A. It is an instructor

for recurr ent train ing at th e fligh t acade my in Dallas. Q. And what w ould

be the opportunity for y

ou to start out, salary wise, at that job? A. The opportunity would be $43,000 a y ear. Q. Have you e

ver made $43,000 in any

year? A. No, sir.

On cross-examination, however, Mrs. Muscheo testified:

Q. Now to da y I

believe you told the Court that if y ou move to Dallas, you could be earning as much as $80,000 per y ear? A. No. If I

flew hig h time eve

ry single d ay

of the mon

th, which is impossible, and I had been with Amer ican for five or six years, the pay

scale changes for each - - after five y

ears it changes. Of

course, it is all union but I would have the opportuni ty to fly more if I lived in Da

llas. Q. Well, I wr ot e d ow n $ 80 ,0 00 a ye a r. Is it your testimony that y ou could mak

e up to $80 ,000, or isthat not c orrect ? A. I’m

sure tha t I pr obably could, bu t that is if I didn’t have three children and a life. Q. And you also told the Court that if you

took a job as an instructor, you could sta rt at $43, 000 per y

ear, co rrect? A. I ha ve th at ab il it y. Q. Right. And in the

depositio n I a sked you that, ju st about a mo nthago,
an d do y ou r em em ber th e f ig ur e t ha t y ou g av e m e t

he n? A. No, sir, because at the time I w asn’t 100 percent sure. Since that time, I have gone to American and my boss and found out exactly what that starting pay would be. Q. Let

me ask it this way. Do y ou remember telling me in you r deposition or I asked y

ou how much that would be for the EPT Instructor, a nd you said $34,000 a yea

r. Do you re

member telling me that figure? A. Becau se in my mind and on that day , I really did truly think it was about $37,000. Q. And do you remembe r me asking y ou - --4- THE COURT: What

actually is it, what

is you r starti ng pay

at this new position? THE WITNESS: They have offered me $43,000. MR. DAVIDSON: Your Honor, I will object to that, that would be a hears ay -ty

pe offe r and I will object to that. THE COURT: Well, I want her to answer my question. What is your starting pay , $43,000?

THE WITNESS: No, it tops out at $43,000. THE COURT: I’m not asking y ou wh at it

tops out, I’m asking y

ou wh at is you r s ta rt in g p ay?

THE WITNESS: There aga in, my boss offered me

$43,000. THE COURT: You are not going to answer the question? THE WI TNESS: I ’m sorry , I’m

getting a little ne rvous. TH E COURT: The question is or what you ar e telling me i s, in a round and about way , if you take this job y ou are not a

utomatically going

to get $43,000. What is the rate of pay if you take this job tomorrow? What is your st ar ti ng sa la ry? TH E WITNESS: My star ting salary

would be $37,000 wi th th e opportunity to max out - -

THE COURT: I think I

understand what y ou mean. TH E W ITN ES S: Ok ay. I’m so rr y. QUESTIONS BY MR. DAVI DSON: Q. Now in your

deposition you mentioned two or three pe ople that

could testify as to what you

would be making , a Sharo n Len

tz and Patr

ick Walsh a

nd a Kris Vanible. Do you re

member talking about those people? A. Yes, I remember y ou asked me, I

believe, who my bosses we re or who I reported to. Q. Right. And I

asked y ou if you were

going to be bringing th

em to Court, and do you remembe r your answe

r? A. If necessar

y, y es, we would. Q. No w a re th ey h er e t od ay t o t es ti fy? A. No , t he y ar e n ot he re to te st if y. Q. Now do you reme mber - - A. But they

did send le

tters.

. . . . Q. An d, i n fact, if you took a ll of these other flights and worked a lot

more and wereflying in the air cons iderabl

y mo re then y ou would be

spending less time with y

our child ren, cor rect? A. That

is why I want to be an instructor. That is wh y I wa nt to move there so that I can work there an d w ork from

8:00 to 3:00

when my childre n are in-5-

school. I am not try

ing to be difficul t, I’ m truly

just try ing toadvanc e in my

career and make something of my self. Q. But

as far as proof that you would ha

ve this instructor’s job, you have nothing here today

other tha n yo u are telling the

Court that

it is or was a

vailable to you , corre ct? A. Ye s, that is exactly what I ’m telling you and tha t is what the l etter s state tha t they sent. Q. Now - - A. That

is why they

are not here because I

told them that the letter w ould be fine.

Faced with a see

mingly insurmoun

table evid en ti ar y p roblem, the trial court thereafter observed:

THE COURT: She doesn’t have any proof asto the off

er. She sa

id th a tshe thought the letter would do it, but evidently she didn’t consult with her attorney because y ou have obje

cted to it a s being h

earsay so move on to something else. She doesn’t have an offer today , she only thinks that they may make

he r the offer if she moves there.

This case is unlike Caudill v. Foley , 21 S.W.3d 203 (T enn. Ct. App. 1999), where justification for relo cation wa s based up on a new h usband with a succ essful bu siness i n Freep ort, Florida, togethe

r with the facts that the child had many fr iends and relatives in the Freeport area and that the f ormer Mr s. Foley thoug

ht she had an excellent chance of re-employ

ment with her former employer in Free port. Mother

offers no proof of any

thing in Texas except a belief and a hope that she can secure better employ ment. There is no proof in therecord that B. has any fr iends or acqua intances in the Dallas-Ft. Worth area. I t is also correct to say

that nothing in the rec or d indicates that the move to Te xas would po se a thre at of spe cific and seriousharm toB., nor is there any proof tha t such move

on the par

t of Mothe

r is motiva

ted by vindictive

ness.

The fundamental problem is the lack of proof concerning a ny job in Texas. Mother identified three people, S haron L

entz, Patr ick Walsh, and Kris V anible, in depositi on as per sons who c ould testify about her future employ

ment in Texas. On her witness list, she listed Patr ick Walsh and a “representative

from American Airlines” but chose not to call them as witnesses. Instead, she relied

on al le ge d l et te rs , w hi ch we re pr om pt ly a nd pr op er ly o bj ec te d t o b y Fa th er ’s at to rn ey.

The s tandard of review in this case under Tenne ssee Rule of Appellate Procedure 13(d) i s de novo upon the r

ecord w ith a presumption of correctness of the trial court’s fa ctual determinations unless the e vide nce preponderates aga inst those determinations. Jahn v. Jahn , 932 S.W.2d 939 (Tenn. Ct. App. 1996) . No presumption of correctness attaches to the trial cour t’s conclusions of law unde r this rule. Tennesse e Farmer s Mut. Ins . Co. v. Mo ore , 958 S.W.2d 759 (Tenn. Ct. App. 1997). The credibility of witnesse s and the weight to b e giv en their testimony

lies, in the

first instance, with the tr

ier of fa ct, who ha s had the o

pportunit y to observe the manner and the demeanor-6-

of the witne sses as they testify . Credibility determinations by the trial court are accorded g reat weight by an appe

llate court. K

och v. Koch , 874 S.W.2d 5 71 (Tenn . Ct. App. 1 993); Doe A. v. Coffee County Bd. of Educ. , 925 S.W.2d 534 (Tenn. Ct. App. 1996).

The assertio n by

the trial court tha

t “Texas r

e ally doesn’t h ave go od recip rocity with Tennessee” is not supported by any eviden ce i n the record and is not a proper subject of judicial notice. Tenn. R. Evid. 201(b).

The Court has c onsidered the appl ications o f both par

ties for a ttorney ’s feesand, in its discretion under Tennessee Code Annotated section 36-5-103(c), declines to award attorney ’s fees to ei th er pa rt y.

The judgmen

t of the tr ial cour t is affirmed on thebasis that the proposed relocation does not have a reasonable purpose. The case is remanded to the trial court, and cos ts of the cause are

assesse d again st Appella

nt.

___________________________________ WILL IAM B. CAI

N, JUDGE