### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 7,

2000 Session
ROBERT PAUL WILSON, JR. v. MARTHA RUTH WILSON
Appeal from the General Sessions Court for Blount County No. S-4587 William R. Brewer, Jr., Judge FILED FEBRUARY 26, 2001

No. E2000-01181-COA-R3-CV

In this post-divorce

case, the trial c

ourt (1) denied th

e father’s req

uest to relocate

to Georgia

with the parties’ minor child; (2) imposed sanctions for the father’s perjury; and (3) changed the joint custody decreed at the time of the divorce to sole custody in the mother. On this appeal, the father a rgues (1) that the trial court

erred in reversing its initial post-divorce decision pursuant to which the father hadbeen permitted to

relocate to

Georgia; (2) that the trial court lacked subject matter jurisdiction under the Uniform Child

Custody Jurisdiction Act to make a custody determination; (3) that the trial court should have declined to exercise jurisdiction on theground of inconvenient forum; (4) that the trial court erred in ba

sing its change

of custody u

pon the father’s

admittedly

false testimony; (5) that the trial court’s reversal of its prior decision to permit the father to relocate is barred by the doctrine of laches; (6) th

at the trial court

erred in finding that fat

her’s contemptuo

us behavior was a

proper basis for denying him an award of child support; and (7) that the trial court a b used its discretion when it imposed sanctions for criminal conte mpt without providing the necessary procedural safeguards.

We find that the tria

l court erred in d

ismissing Father

’s petition for chi

l d supp ort. In all other respec

ts, we affirm the

judgment of the tr

ial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court

Vacated in Part; Affirmed in Part; Case Remanded

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Michael Hickman, Maryville, Tennessee, for the appellant, Robert Paul Wilson, Jr. David M. Boyd, Maryville, Tennesse e, for the appellee, Martha Ruth Wilson.
OPINION-2- I. Robert Paul Wilson, Jr., (“Father”) and Martha Ruth Wilson (“Mother”) were divorced by judgment entered April 8, 1997. The parties were awarded joint custody of the ir minor child, Robert P aul Wilson, III

(DOB: September

11, 1991). Fathe

r was designate

d as the primary

residentia

l parent, and Mother was granted visitation on her days off from work every other week. In addition, she was awarded four weeks of visitation during the summer and visitation on alter n ate holiday

s. The trial court did not order either party to pay child support because it wa s anticipated that each of the parties w ould be spending a substantial amount of time with the child and because of “the extreme amount of marital debt and income of the parties.” At the time of the divorce, both parties andthe child resided in Blount County. The divorce jud gment does not contain any provisions expressly prohibiting or otherwise directly af fecting the removal of the child from Blount Cou nty.

Post-divorce, on August 13, 1997, Mother fil ed a petition in the trial court, alleging that Father was in contempt of court because

of his refusal to permit her to exercise visitation with the child. She also sought a temporary restraining order (“ TRO”), alleging that Father had obtained new employment

in Georgia

and that he intended to move there within ten days. Based upon the petition, Mother obtained an ex parte TRO, enjoining Father from removing the parties’ child from Blount County pendin g a hearing.

On August 26, 1997, the trial court heard legal argument on the issue of Father’s intended relocation. The hearing was not recorded by a stenog rapher, and the tr ial court failed to enter an order memorializing its ruling; however, in a later order, the trial court recounted the events of that first hearing a

nd summarized its fin

dings as follows: Following the arguments

of counsel [on August 26, 1997], the Court declinedto grant the temporary restraining orde r based o n, the then current state of the law, as set

out in the Aaby [ v. Strange ] case. The Courtat that time, without the hearing of proof, found that it appeared the move on the part of [Father] was not solely for vindictive purposes
. The Co urt did, however, reserve the right to decide the issue upon the hearing of a ll proof in the matter and further indicated that [Mother] would not be p rejud iced because of the Court’s declining to grant the restraining order at that hearing. (Emphasis added).

On the day of the TRO hearing, Father filed a motion seeki ng to mo dify the joint custody arrangement

so as to vest him with sole custody of the child. He cited his job transfer to Georgia as the relevant

change of circumstances. He also sought an order requiring Mother to pay

child support.1 At the hearing , Fath er’s counse l char acter ized Fat her’s mo tion as one to “m odify and re arrange visitatio n,” not to mod ify joint custody.

2 On the issue of relocati on, Mother ’s couns el asked that Fat her “be orde

red to remai

n here in the Stat e of Tennessee, in Blount County, as the order ori

ginally provided...or t

hat [Mother] be awarded the custody o f the child.” This statement is curious for t wo reasons. First, the record up to that point does not contain an order requiring Father to remain in B lount Cou nty. Second, counsel’s statement is t he first indicati

on in the record th

at Mother sou

ght cust ody of the ch ild.
-3- In September, 1997, Father andthe child moved to Athens, Georgia. Despite the move, Mother continued to exercise visitation with the child every other weekend.

In March, 1998, Mother filed another petition for contempt, alleging that Father had refused to allow her to have contact with the child’s caregiver; that he had refused to adv ise her when the child went out of town or

of the identity of the person taking care of him on those occasions; and that he had failed to pr

ovide the child with

medical and denta

l treatment.

The final hea

ring on Mot her’s August 13, 1997, petition finally took place on January 21, 1999. Before any witnesses were called, the

trial court inquir

ed of counsel re

garding the is sues to be resolved at the hearing. Counsel for the parties appear

ed to agree tha

t the issues to

be litigated includedthose raised by

th e two con tempt petitions filed by Mother, as well as Father’s motion seeking sole custody and an award of child support. 1 The parties disagreed, however, as to whether Father’s relocation was st il l at issue. Mother’s counsel argued that the issue was still before the court because, although the court ha d denied Mot her’s request for a temporary injunction, it had expressly reserved a final ruling on the injunction issue pending a ful l evidenti ary hearing. 2 Father’s counsel disagr eed, st ating “I believe it was agreed that they did not have any proof that [Father’s relocation] was vindictive, so the Court let him go....I thought the matter was over.” Father’s counsel argued that because the court had already determined that F ather could relocate, the January 21, 1 999, he aring was concerned solely with “whether [Fa ther is] in contempt for not allowing visitation, whether he should be awar

ded child support,

and nothing else.” Without stati ng whether it considered

Father’s relocation to s till be an issue, the tria l court advised Mot

her to call her f

irst witness and stated, “let’s see what we get to.”

The testimony presented at trial revealed the following facts. At the time of the divorce, both parties were employed by Home De pot. Shortly after the di vorc e, Mother remarried. Her new husband was also employed by Home Depot. As a re sult of this situation, Father testified that h e believedhis opportunities for advancement within thecompany loc ally were limited. He therefore requested a transfer to a Home Depot store in Athens, Georgia. Although his position and sal ary would remain the s ame, Father testified that he thought the transfer would provide more opportunities in the future. Furthe rmore, he testifi

ed that the transf

er would allow him to

be closer to several members of his family who lived within 50 miles of Athens. He denied being motivated by a desire to hinder Mother’s visitation.-4-

Fath er worked at the Athens store for approximately a y ear until he was discharged for allegedly failing a drug test. Father denied using any drugs. After his termination, he began working for University F

ord-Mazda, a ca

r dealership in

Athens. Father testified

that he was still working at the dealership and earning approximately $30,000 a y ear.
When Father first mov

ed to Georgia, h

e and the child re

sided with the child ’s patern al grandmother. A few months later , they moved in with the child’s paternal grandfather. Fa ther testified that

living at the gr

andfather’s hom

e was a good arrang

ement. He repor

ted that the child
was doing very well in school and is “a happy little guy.” Fa ther acknowledged that he had refused to reveal to Mother theidentity of the child’s caregiver or otherwise notify Mother as to when the child was in anothe

r person’s care. On this point, he te stified as follows: Q Whydid you refu se to tell her who was caring for the minor child?

A Well, there was a coup le of reasons. On

e, when she would call, if we were not home, she would call my father, my brothers , my sisters, people that I

knew that lived in Atlanta, just anybody that she could think of to try and track me down. Q Did those people c omplain to you

about that?

A Yeah, they did. And the other reason was if we’re not home and[the child] is involved in something, I

don’t think that it’ s ri ght for her to disrupt that. If she i s – if she e ver called and we were home, she immediate

ly got to spe

ak to him.

Father testified that he h

ad taken the child

to the dentist and that the child had received proper medical attention. Father testified that he had been the child’s primary caregiver since the divorce andthat, in

his opinion, r emoving the child from him would be detrimental to the child. At the conclusion of his testimony, Father acknowledged that he had failed to pay Mother $6,900 due he r under the divorce settlement. Heindicated that he wanted the trial court to assess back child support and credit this amount against the $6,900 still due Mother.

Mother testified that she had remarried and had a new b aby . At the time, she was earning approximately

$38,500 a year. She testified that at the time of the divorce, the parties were spending equal time with the child. She further testified that before Father moved, she had a few problems withvisitation; she stated that she currently had no problems with visitation, although she felt that the six-hour round trip n ecessary to visit with the child is “not right” for her or the child. She tes tif ied tha t sh e wan ted Fath er t o mo ve b ack t o Bl oun t Co unt y.
Mother acknowledged that, to her knowledge, the child was doing well in sch ool, altho ugh she complained that she hadreceived only one report card from Fathe r. She testified that she did not3 It appears from thi s order that the trial court considered Father’ s relocati on to be the sole issue at the January 21, 1999, heari

ng. In t he orde r, the court states that f ollowing the August 26, 1997, hearing on Father’s relocation, “[o]ther pleading s for cha

nge of custody and contempt were filed...but were not consi dered by the Court in any ways [sic] that pertain to the issue before the Court to day.”
-5- know the name of the child’ s caregiver. As for Father’ s home, Mother test ified that she fel

tit lacked discipline and that there were too few restrictions on the child.

Mother disputed Father

’s reasons for mo

ving. She presen

ted the testimony

of a fellow Home Depot employee, who testified that Father told the witne ss that he want ed to move away with the child to get away from Mother and her new husband.

At the conclusion of the pr oof, the trial court announced that it would take the case under advisem e nt. Before the trial court entered its order, however, in February , 1999, Mother filed a motion f or contempt alleging that Father had perjured himself at the January 21, 1999, hearing regarding his income and employment status as of the time of the hearing. Mother argued that the trial court should disallow all of Father’s testimony and immediately

order the child

to be returned to her custody in Tennessee. Father file d a motion to strike Mo ther’s contempt p

etition. In this motion, Father argued that Mother’s contempt petition was barred by the equitable doctrine of laches andthat the trial cour

t lacked su

bject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to make a custody determination in this case.

After several months, the trial court entered an order regarding the January 21, 1999, hearing andwhat it characterized as “the ultimate issue,” i.e. , whether Father should be allowed t

o move with the child to Georgia. 3 The court stated that, because of Mother’s allegations of perjury , the court was “uncomfortable” and therefore declined to enter an order based upon the testimony presented at that hearing. It ordered another hearing to be scheduled so that evidence could be introduced regarding Mother’s allegations.

On September 24, 1999 , Mother filed an a mendme nt to her or iginal peti tion, all eging a material change in circumstances and seeking sole custody of th

e child. Father

objected to

Mother’s amendment

and renewed his argument that the trial court lacked subject matter jurisdiction to make a custody determination.

A hearing was held in November, 1999, on the allegations of perjury. Al though no oral testimonywas taken, the depositions of both parties were introduced, apparently by agreement, in lieu of their “live” te

stimony. I

n his deposition, Fa

ther admit

ted that he had lied ab

out his employment

at the January

21, 1999, hearing but stated that he did not feel that his employment was relevant to what was at issue before the court.

In an order entered

December 14, 1999, the trial court found that Father’s false testimony was material to the issue of whether Father should be allowed to move to Georgia with the child. The-6-

court held that

it wou ld di sregar d all o f Fath er’s t estim ony fro m the J anuar y 21, 19 99, he aring . It ordered the following:

That this Court’s previ ous d ecision allowing [Father] to move the [sic] Georgia with the parties’ minor child is reversed.
[Father] is ordered to immediately return to Tenn essee with the parties’ minor child. Should [Father] not r eturn, the minor c

hild shall be returned and placed in the physical custody of [Mother].

As punishmen

t for his pe

rjury , [Father

’s] Mo tion and Request for Child Support is dismissed.

As further punishme

nt for hisperjured testimony, [Father’s] Motion to Strike is dismissed.

As further punishment for his per jur ed testimony, [Father] shall be ordered to pay all court costs incurred in this case not y et paid.

* * *

That counsel for

the parties shall schedule, w ith the Court, [Mother

’s] Mot ion for Cha nge o f Cu sto dy.

As further punishme

nt for hisperj ured tes tim ony, the Court will also consider [Mother’s] request

for attorney

fees upon [Mother’ s] attorney f iling an affida

vit.

On January 20, 2000, Mother filed a petition, demanding that Father return the ch ild to Tennessee and renewing her request for sole custody of the child. Mother

alleged that Father had returned to Tennessee to allow her Christmas visitation with the child but had then returned with the child to Georgia. She

also filed a petition for contempt, alleging that Father had denied her visitation for the weekend of January 14 and would n ot allow her to talk with the child by telephone. Fo llowing a hearing on January 25, 2000, the trial court found that Father had f ailed to return t o Blount County with the

child as ordered by the Court on December 14, 1999. Father wa s then ordered to return the child

within ten days of

the hearing. When Father failed to do so, a warrant for custodial interference was issued, Father was arrested , and th e child was placed in the custody of Mother. This appeal followed.

II.

Father argues that the

trial court’s ord

er reversing i

ts prior decision to

permit Father to relocate was against the

preponderance

of the evidence

and was based on a

n error of la

w. H e4 W hen Mother ini tiall y fil ed her peti

tion opposi

ng Father ’s move, the cont rolli ng author

ity on t he issu e of relocat ion was Aaby v. Strange, 924 S.W.2d 62 3 (Tenn. 1996). In Aaby, the Supreme Court hel d that a custodial parent would be permitted to r elocate wit

h the child u

nless the n

on-custodial

parent cou

ld s how that the cu stodial pare nt’s motive f or relocat

ing was t o defeat t

he non-cus

todial pa rent’s visit ation rights. Id. at 629. The Aaby court also not ed that the non-custodial parent could seek a change of custody based upon a material cha nge of circumst

ances if removal posed “a specific, serious threat of harm to the chil d.” Id. In 1998, th

e Legisl ature en acted Chapt

er 910 of the Pub lic Acts of 1998, which was codi fied at T.C.A. § 36-6-10 8. Becau se this statute i s remedial and does not impair any ves

ted rights, it may be re trospective ly applied. Caudill v. Foley, 21 S.W.3d 203 , 208-09 (Tenn. Ct. App. 1999).
-7- contends that Mother failed to carry her burden under applicable law to successfully prevent Father fr om rel ocating with the child. He further argues that the trial court’s August, 1997, ruling permitting him to move was a fin al adjudicati

on an d not subject to a collateral attack nearly three years later.

We begin by

addressing Father’s contention that the trial court’s August, 1997, ruling was a final adjudication of the issue of relocation. The record indicates that as a result of the August 26, 1997, he ar ing, the tri al court dec lined to gra nt an injun ction enjo ining Father from relocat ing. However, the record is cle ar that the trial c

ourt, at that hear ing, reserved the right to decide whether to permit Father to relocate with the child upon a full evidentiary

hearing, which

hearing event

ually
occu r redon January 21 , 1999. Clearly , the trial court’ s initial ruling wa s not an order full

y adjudicating the parties ’ rights regar ding t he issue, and therefore, is not a final judgment. See Hoalcraft v. Smithson, 19 S.W.3d 822, 827 (Tenn. Ct. App. 1999).

We next turn to the issue o f relocatio n. At the ti me of the J anuary 21, 1999 , hearing, 4 the applicable

law on relocation

was T.C.A. § 36-6- 108, which provide s, in pertinent part,

as follows:
(c) If the parents are

actually spending substantially equal interva ls of time with the child and the relocating parent seeks to move with the child, the oth er pa rent may, wit hin thi rty ( 3 0) days of receipt of notice, file a petition in opp osition to removal of the child. No presumption in fa vor of or against the request to relocate with the child shall arise. The court shall de termine whether

or not topermit relocation of the child based upon the best interests of the child. The court shallconsider all relevant factors including the following where applicable: (1) The extent to whi ch visitation rights have been allowed and exercised; (2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply with any new visitation arrangement; (3) The love,

affecti on and emo

tional tie s exi s ting between the parents and child; (4) The disposition of th e parents to provi

de the child with fo od, clothing, medical care, education and other nece ssary care and the degree to which a parent has been the primary caregiver;-8- (5) The importance of continuity in the child’s life and the length of time the child has li

ved in a stable, sa

tisfactory environment; (6) The stability

of the family

unit of the parent

s; (7) The mental an

d physical he

alth of the paren

ts; (8) The home, school and community record of the child; (9) The reasonable preference of the child if tw elve (12) years o f age or older....; (10) Evidence of

physical or emotional abuse to the child, to the other parent or to any other person; and (11) The character and

behavior of any other person who resides in or frequents the home of

a parent and such person’s interactions with the child. (d) If the parents are not actually spending substantially equal intervals of time with the c hild and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of rec

eipt of the notice

, file
a petition in opposition to removal of the child. The other parent may notattempt to reloca

te with the child unless expr

essly author

ized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount

of time with the child shall be permittedto relocate with the child unless the court finds: (1) The relocation does not have a reasonable purpose; (2) The relocation would pose a threat of specif

ic and serious har

m to the child which outweighs the threat of harm to the chil d of a change of custody; or (3) The parent’ s motive for reloc ating with the child is vindictive in thatit is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child.

T.C.A. § 36-6-108(c) and (d) (Supp. 2000). As can be seen, the statute makes a distinction between parentswho spend “substantially equal intervals of time” with a child and t hose who do not. Mother’s testimony reflects that until Father moved to Georgia, the parties wer e spend i ng “substantially equal intervals of time with the child”:

Q After

the divorce, how were you an d your former husband sharing the child, as far as how much time were you sp

ending with the child?

A When they were

still here in B lou nt C oun ty, i f I go t of f ear ly, I wou ld go pic k hi m up at l east two to t hree days a week. Robe rt would have him, be able to pick him up when he got off early at le

ast two to three days a week.-9- Q So, you were actually shar ing ab out equal time; is that correct?

A Right, we were b

oth getting to se

e him, right. Q And had that c ontinued up until the time when he moved, ma’am?

A That had continued, right, up until he moved.

While not disputing the fact that the parties were spending substan

tially equa

l intervals of time

with the child, Father a

rgues that subse

ction (d) is

the applicable provision in the instant case. We cannot agree. The applicable provision is T.C.A. § 36-6-108(c), which requires application of a b

est interest analysis in determining whether relocation is appropriate. See Connell v. Connell, C/A No. 03A01- 9808-CV-00282, 2000 WL 122204, at *3 (Tenn. Ct. App. E.S., filed January 25, 2000). Upon reviewing the r

ecord in this case, we c

annot say tha

t the evidence pr

eponderates ag

ainst
a finding that relocation of the child would not be in the child’s best interest. While in Georgia, Father and the child have

lived first with the child’s paternal grandmother and later with his paternal grandfather. Father has been ter minated from at least two jobs and is currently self-employ ed. Mother, on the other hand, has maintained stable employment and earns approximately $38,500 per year. She h as re married and appe ars to have a stab

le life situation. M

oreover, this Cour

t is concerned

by Father’s unwillingness, if not outright refusal, to share basic information – such as the child’s report cards or the name and phone number of the child’s caregiver –with Mother. There is also a clear

suggestion in the record that Father recently has shown a propensity

to interfere with Mother’s visitation and her relationship with the child. Based upon T.C.A. § 36-6-108(c), particularly

subsections (1), (2), (5), and (6), we find that the evidence does not preponderat e against the trial court’s decision refusing Father’s request to relocate with the child.

Father argues that the t

ri al court changed custody based solely on his misconduct, i.e. , his false sta tem ent s un der o ath con cern ing h is e mpl oym ent and income. We disagree with Father’s characterization

of the trial court’s action. Becau se of h is perjured statements, the trial court disregarded

his testimony.

Undoubtedly

, Father’s per

jury grea tly affec ted his credibility as a witn ess. See Wilder v. Wilder, 863 S.W.2d 707, 713 (Tenn. Ct. App. 1992). We f ind no error in the trial court’s decision to disregard Father’s testimony in its entirety

due to his perjury . This was within the trial court’s

prerogative a

s the trier of fac

t.
The trial court chan

ged custody

in this case because it found that relocation was not in the best interest of the child and

because Father failed to return to Blount County with the child. The evidence does not preponderate against the trial court’s judgment chang ing custody to Mother.5 The UCCJA was replaced by the Uniform Child Cust ody Jurisdiction

and Enforceme

nt Act, effect ive June 14, 1999. See 1999 Tenn. Pub. Act s ch. 3 89. The ne

w act doe s not a

pply t o acti ons commenced before that date. See T.C.A. § 36-6-243 (Supp. 200 0).

6 In di scussing this i ssue in their briefs , both parties erroneously cite T.C.A. § 36-6-222, which is part of th e UCCJEA. As we have already discus sed, the UCCJA, not the UCCJEA, is the controll ing law in t

his case.
-10- III.

Father con tends that the trial court lacke d subject matter ju

risdiction under th

e Uniform Child Custody Jurisdiction Act to make a custody determination.

The issue of the trial court’s jurisdiction to make a child custody

determination in th

is case is governed by

the Tennessee version of the Uniform Child Custody Jurisdiction Act (“UCCJA”), T.C.A. § 36-6-201, et seq. (1996) (repea led 1999). 5 Under the UCCJA, a Tennessee court had jurisdiction to make a child cus tody determ

ination by ini

tial or modificati

on decree if Ten

nessee “ [i]s the home state of the child

at the commencement of the proceeding.” T.C.A. § 36-6-203(a)(1)(A) (1996) (repealed 1999). A child’s “home state” was defined as “the state in which the chil d immediately

preceding the time involved lived with such child’s parents, a parent or a person acting
as parent, for at least six (6) consecutive months....” T.C.A. § 36-6-202(5) (1996) (repealed 1999). The “commencement of the proceeding” and “the time involved” referre d to the start of the proceedings regarding the “custody determinat ion.” See Brown v. Brown, 847 S.W.2d 496, 507 (Tenn. 1993); State ex rel. Cooper v. Hamilton, 688 S.W.2d 821, 824 (T enn. 1985). For t

he purpose of determining whether the trial court had jurisdiction as the child’s home state, the rel evant time periodis August, 1997, when the proceedings touching upon the child’s custodial care beg an. Without question, Tennessee was th e child’s home sta

te at that time. While

the final hearin

g in this
case occurred some p

eriod of time

later, the critical date is the “commencement of the proceeding.” That happened in August, 1997, when the trial court’s jurisdiction was first invoked on the subject of the child’s custodial arrangement. Accordingly, we find a nd hold that the trial court had jurisdiction to make a custody determination in this case.

Father argues that even if the trial court had subject matter jurisdiction, the trial court abused its discretion by not declining to exercise jurisdiction on the basis that it is a n inconvenient fo

rum. The UCCJA provided that a court proper ly exercising jurisdicti on nevertheless c

ould decline to exercise that jurisdiction upon finding that it was an inconvenient forum and that another state was
a more a ppropri ate forum. See T.C.A. § 36-6-208(a) (1996) (repealed 1999). 6 A finding of inconvenient

forum could be made upon the motion of any party or upon

the court’s own motion. T.C.A. § 36-6-208(b) (1996) (repealed 1999). In dete

rmining whether

it was an inconven

ient forum,
a court had to consid

er whether it wa

s in the best i

nterest of the c hild for another s tate to assume jurisdiction. T.C.A. § 36-6-208(c) (1996) (repealed 1999).

We do not find an abuse

of discretion her

e. When these

proceedings began, Tennessee was the home state of the child. The trial court permitted Fat her to move to Geor gia with the child pending a final hearing on the relocation issue. Mothe r continued to reside in Tennessee and-11-

exercise her visitation with the child here. Under the circumstances o

f this case, the tr

ial court did notabuse its discretion when it proceeded to exercise the jurisdiction that it clearl y had. Father’s argument to the c

ontrary is w

ithout merit.

IV.

Father contends that the equitable doctrine of laches bars Mother from co ntesting his relocation with the child to Georgia.

“The two essential elements of laches are negligence and unexcused delay of the c ompl ainant in asserting his alleged claim....” Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990). Laches is applicable only “where the part y invoking it has been prejudiced by the delay.” Archer v. Archer, 907 S.W.2d 412, 416 (Tenn. Ct. App. 1995). We do not find that the doctrine of laches is applicable here. Mother was not tardy in asser ting her opposition to

Father’s move; she filed her petition in opposition in August, 1997, bef ore Father h ad left Tennessee. Moreover, we do not findthat the delay between the filing of her petition and the final hearing can be attributed to any negligence on Mother’s part. Even if the delay could be attributed to Mother –
a conclusion that is not supported by this record – Father has not dem onstr ated how he has been prejudiced

by the delay. Having found no unexcusable delay and no prejudiceto Father, we fi nd this argument to be w

ithout merit.

V.

Father’s last two issues involve the “punishment” that the trial court imposed upon Father for his perjury. First, Father argues that the trial’s orde r “denying Father child support as punishment for contempt (false testimony) was inequitable and an abuse of discretion.” Second, he argues that the trial court abused its discretion “by imposing sanction for criminal contempt

on Father without providing necessary procedural safeg uards.”

Father’s character

izatio n of the trial court’s actions as being based upon a finding of contempt is in error. I

n its December 14, 1999, order, the trial court did not f

ind Father in con

tempt, criminal or otherwise; rather, it imposed sanctions – namely, the dismissal of his motion for ch

ild support and motion to strike, and the imposition of court costs and attorney’s fees – upon Father for his perjury. Perjury “offe nds the basic princi ples underl ying our judicial system.” Wilder, 863 S.W.2d at 713. It is conduct that courts cannot, and should not, condone. See id. In light of the circumstances of this case, we do not find that it was ina

ppropriate

for the trial court to impose court costs and attorney ’s fees upon Fat her and to dismiss his motion to strike in order to sanction him for his misconduct. We do find, however, that the trial court’s dismissal of his motion requestin

g child support was not an appropriate sanction. Just as custody decisions should no

t be made to

punish a parent, see Wall v. Wall, 907 S.W.2d 829, 834 (T enn. Ct. App. 1995), child support should not be deniedto punish a parent

for his or her misc

onduct. Although

typically paid to a custodial par

ent, child support payments are clearly intended for the benefit of the child. Rutledge v. Barret t, 8 02 S.W.2d 604, 607 (Tenn. 1991). Accordingly, we vacate that portion of the trial court’s judgment.-12-

We remand this case for

a determination,

in accordance with the Child Support Guidelines, of the amount of child support to

which Father, a

s the primary

residential pare

nt, was entitled fr

om the time of the filing of

his motion in August, 1997, until custody was awarded to Mother in December, 1999.

VI.

The judgment of the tr

ia l court dismissing Father ’s motion requestin

g child support is vacated. In all other respects, the judgment of the trial court is affirmed. Costs on appeal are taxed equally between the par

ties. This case is r

emanded for coll

ection of costs as sess ed b elow and for further proceedings consistent with this opinion, all pursuant to applicable law.

___________________________________ CHARLES D. SUSANO, JR., JUDGE