# FILED
October 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

RANDY ALBERT WATKIN S, )

) Plaintiff/Appella

nt, ) Fayette Equity No. 9009

) vs. ) ) Appeal No. 02A01-9708-CH-00178 VICKI LYNN (SMITH) WATKINS, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF FAYETTE COUNTY

AT SOMERVILLE, TENNESSEE

THE HONORABLE DEWEY C. WHITENTON, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : Patricia L. Penn Donna M. Fields Memphis, Tennessee Memphis, Tennessee

AFFIRMED AND REM ANDED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J.OPINION

This is an interstate

child custody disput

e. The child’s fa

ther and mother w

ere first divorced in Tennessee with c

ustody awarded to

the father. The

parents reconc

ile d, a nd remarried, later di vorcing again i n an Arkansas court. Custody was awarded to the mother. After a dispute over visitation, the father utilized an order from the prior Tennessee divorce t o ph ysically remove the children to Tennessee with him. The father was ordered by the Tennessee trial court to return the children to their mother, and appeals from this order. We affirm. This case involves a volatile relationship and convoluted litigation. Moreover, sinc e no transcript of the proceedings below was filed, the facts must be gleaned from the technical record. Appellant Randy Watkins (“Father”) and Ap pellee Vicki Lynn Watkins (“Mother”) were married on December 31,

1984, in Fayette County, Tennessee. A son, Randy Wayne Watkins, was born to the couple on Sep tember 22, 1985. Fa

ther and Mother f

irst separated in July 1986. Father filed a complaint for divorce in Tennessee that month, Fayette C ounty cause number 7738. However, the parties reconciled in August 1986 and the litigation was postponed. Father and Mother separated again on January 13, 1987, when Father allegedly abandoned

Mother. Mother then moved to Memphis, Tennessee with the child. Father then filed a motion in the Fayette County, Tennessee proceedings for temporary custody of the parties’ child. After anex parte hearing on January 26, 1987, Chancellor Dewey Whitent on granted Father temporary custody of the parties’ child, and awarded restricted visitation to Mother. The parties reconciled again in May 1987, then separated again in July 1987. They then resumed litigation over child custody in the Fayette County, Tennessee proceedings. The record on appeal includes a temporary order allowing Mother visitation with the parties’ child on alternating weekends. The record for the Fayette County, Tennessee proceedings,

Fayette County cause number 7738, does not contain a final decree of divorce. On February 8, 1988, Mother gave birth to a second child, Richard Steven Watkins. Father filed a second complaint for divorce in Fay

ette County, Tenne

ssee, Fayette

County cause number 8650, on January 17, 1990. Mother was served by publication. An ex parte decree of divorce was filed on April 9, 1990, placing custody of the children with Father. A writ of attachment was also issued for the children to be picked up and delivered to Father. Subsequently, the parties rec oncile d. The y remarried on Ju ne 23, 1990 in Walls , Mississippi. The record does not state where the parties resided during this 1990 marriage. On September 12, 1990, they separated for the last time. On February 25, 19 91, Mother filed f

or divorce in

Craighead2

County, Arkansas. Four days later, on March 1, 1991, Father filed a divorce action in Fayette county, Tennessee, Fayette County cause numbe

r 9009. On this

samedate, Father also obtained, apparently ex parte , a writ of attachme

nt for custody of th

e chil dre n. There is no record of any hearing or other proceedings on Father’s writ of attachment for custody of the children. The course of the Arkansas litigation must be reconstructed fr om exhibi ts, pleadings, and motions contained in the technical record. Father answered Mother’ s co mplaint for divorce and challenged

the Arkansas court’s subject matter and personal jurisdiction in the matter. The Arkansas trial court, Craighead County Judge Graham Partlow, found that the Arkansas court had jurisdiction to adjudicate the divorce and child custody issues because Mother

had lived in the state of Arkansas for 60 days prior to fil

ing suit. Both parties parti cipated in a hearing in the A

rkansas court on

child custody and support issues. The final dec ree of divorce, entered by the Arkansas trial court on March9, 1992, granted c ustody of the childr

en to Mother with

visitation to

Father and ordered Father to pay child support and to provide medical care for the children. The Arkansas trial court awarded Mother a judgment for back child support and attorney fees. The Arkansas court also found Father in contempt for willful disobedience of the court’s orders, but delayed sentence for one year to allow Father an op

portunity to

pay the child support arrearage. Finally, the Arkansas trial court

e ntereda mutual restraining order preventing the parties from harassing each other. The recor d

co ntains no indication that Fa ther appealed th

is decree by the C

raighead County, A

rkansas tr ia l court. On November 27, 1996, based on a report to a child abuse hotline that Father had abused the parties’ children, the Craighead C ou nty, Arkansas trial court Chancellor David Goodson, entered

an order su spending Fath er’s visitation rights. Father filed a notice of appeal in the Arkansas appellate court from the November 27 order. The notice of appeal states that the appeal was taken “inspite of the fact that this court lacks jurisdiction in this cause of action.” However, the record contains no indication that the issue of jurisdiction of the Arkansas court was considered on appeal in Arkansas.3

In April 1997, after Father’s visitation rights were suspended by order of the Craighead County, Arkansas trial court, Father decided to utilize the 1990 divorce decree and wr it of attach ment

issued by the Fayette County, Tennessee court, prior to the parties’ remarriage i n Mississippi and divorce in Arkansas. Father “enrolled” the Tennessee divorce decree a nd writ of attachment

in Crittenden County, Arkansas. The record has no indication that Father or his counsel informedthe court of the parties’ remarriage in Mississippi and s econd divorce in Craighead County, Arkansas or the suspension of Father’s visitatio

n based on report

s of child abuse. With advice and assistance of counsel, Fathe r sought a writ of a

ttachment from the

Chancery Court o

f C rittenden Count y, Ark ansas, based on the divorce decree and writ of attachment from the prior Tennessee action. After anex parte hearing, Crittenden County Chancellor Rice Van Ausdall ordered that the children be picked up from school and delivered to the custody of Father. With no notice to Mother, the writ of attachment was executed on Friday, April 11, 1997. On this date, Fathe r, along with

his attorney and police officers from the City of Marion, Arkansas, went to each child’s school, and took physical custody of the children. Father then brought the children to his home in Fayette County, Tennessee. After Father left the schoo l s with the children , school official

s contacted Mothe

r and told her that Father had taken the children. The following Monday, Mother filed an application for writ of habeas corpus in the Craighead

County, Arkansas Chancery Court to require Father to return the children. The Craighead County, Arkansas Chance llor, David

Goodson, ordered Father to appear before the court with the children on April 15, 1997. Father did not comply with this order. Instead, counsel for Father filed a Notice in the Fayette County, Tennessee court that Father had enrolled and enforced the divorce decree and writ of attachment from the divorce

prior to the parties’ remarriage. The Notice to the Tennessee court included no information o n the parties’ rem arriage in Mississ

ippi, the divorce i

n Arkansas,or the Arkansas court’s order suspending Father’s visitation rights based on suspected child abuse. When Chancellor Goodson in Arkansas received a faxed copy of the Notice filed by Father’s counsel in Fayette County, Tennessee, Chancellor Goodson contacted by telephone the Tennessee trial judge, Chancellor Dewey Whitenton. The next day, April 16, 1997, Chancellor Goods on wrote

a letter to Chancellor Whitenton, confirming their telephone conference and enclosing copies of pleadings from the Craighead County, Arkansas proceedings, including the divorce complaint

and4

Father’s answer

noting the parties’ remarriage, the Craighead County, Arkansas court’s finding of jur isdiction, the Arkansas dec ree of divorce,

the award of cus

tody to Mother, the A

rkansa s orde r suspending Father’s visitation, and Father’s notice o f ap peal to the Arkan sas Court of Appea

ls. Chancellor

Goodson noted that the law in Arkansas and Tennessee in dicated that the 1990 Tennessee decree of divorce has been invalidated by the parties’ subsequent remarriage. The same day, Chancellor Goodson in Arkansas issued a body attach ment requiring the Crittenden County, Arkansas Sheriff to take the children from Father and return them to the custody of Mother. Mother filed a motion to contest jurisdiction in the Fayette County, Tennessee Court. After

a hearing on April 18, 1997, Chancellor Whitenton in Fayette County ent ered an or der which included the follo

wing: 1. This Court communicated with the Honorable David Goodson of the Second Judicial District in Arkansas, on April 15, 1997. 2. This Court has reviewed a letter from Chancellor Goodson which is attached as Exhibit “A.” 3. This Court has heard th e representati

on of th e pl aintiff [Father] that the children have lived with their mother in Arkansas for five years or more. 4. This Court finds that Arkansas is the ho

me state of the ch

ildren pursuant to the Uniform Child Custody Jurisdiction Act and that custody litigation should take place in Arkansa

s. 5. Over

the objection of the plaintiff, t he Court is issuing a Writ of Habeas Corpus to Return Children and Body Attachment. 6. The plaintiff is ordered to return the children to the defendant forthwith. The Fayette County court then issued a writ of habeas corpus ordering Father to return the children to Mother, and issued a body attachment ordering the Fayette County Sher

iff to take the childre

n into physical custody andreturn them to Mother. After that, the children were finally returned to Mother. From this Order, Fa

ther now appeals

. Our review of this case is governed by Rule 13(d) of the T ennessee Rules of

Appellate Procedure, which provides that review of findings of fact by the trial court

shall be de novo upon the record of the trial court, accom

panied by a pr esumption of correctness of the findings, unless the evidence preponderates

otherwise. T.R.A.P. 13(d); Union Carbide Corp. v. Huddleston , 8 54 S.W.2d 87, 91 (Tenn. 1993). Under Rule 13(c) of the Tennessee Rulesof Appellate Proc edure, this Courtmay consider

only “those facts

established by the

evidence in the tr

ial court and set f

orth in the record.” T.R.A.P. 13(c). On appeal, Father argues that the Tennessee trial court erred in its determination that it had5

no jurisdiction over the child cu stody action. However, Father, the appellant in this case, filed no transcript of the proceedings

below for our re

view. The recor

d on appeal consis

ts of the technical

rec ord only. In the order of the Tennessee trial court from which Father appeals, the trial court declinedto exercise jurisdiction after finding that Arkansas was the children’s “home state” for purposes of custody litigation under the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act. One basis for this finding was Father’s admission that the children had lived with Moth er in Arkansas for five years or mor

e at the time of the

hearing. The cou

rt also communicatedwith the Arkansas trial court and considered a letter from that court describing the Arkansas custody litigation. Under Tennessee Code Annotated § 36-6-207, Tennessee’s Unifor m C hild Custody Jurisdiction Act (UCCJA), a Tennessee court should decline to exercise jurisdiction “if at the time of filing the petition a proceeding concerning the custody of the child[ren] was pending in a court of another state exerc is ing jurisdiction substantially in conformity with this part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” Tenn. Code Ann. § 36-6-207(a

) (1996); see Cooper v. Hamilton , 688 S.W.2d 821 (Tenn. 1985). Chancellor Whitenton pro pe rly consulted with the Arkansas judge, Chancellor Go odson, concerning the Arkansas litigation. See Tenn. Code Ann. § 36-6-207(c) (199 6)

. Moreover, the Tennessee trial court may decline to exercise jurisdict ion ov er this case under Tennessee Code Annotated § 36-6-209 “[i]f the petitioner ha s violate d any other provision of a custody dec ree of anoth

er state.” Tenn. Code Ann. § 36-6-209(b) (1996). Father’s actions were clearly in derogation of the Arkansas order suspending Father’s visitation righ ts. Therefore, it is clear that the trial court complied wit h Tennessee’s U

CCJA in making its

determination to decline to exercise jurisdiction. See Tenn. Code Ann. § 36-6-207 (1996). Father argues that Mother had “unclean hands” becau se she moved to Arkansas after the parties’ separation. Father’s petition for a writ of attachment from the Fayette County Court states that the children “were by secrecy and subterfuge removed from their home by their mother.” Father’s appellate brief is filled with unflattering characterizations of Mother’s conduct. From this, Fat herargues t

hat Arkansas courts had no jurisdiction over this matter. The record, however, contains no evidence, only Father’s conclus

ory allegations. M

ore importantly, if

Father hadsuch objections, the forum for litigating them was the Craighead County, Arkansas trialcourt in which6

the divorce proceedings were held. Father did not appeal the Arkansas court’s determination that i thad jurisdiction or its issuance of the decree of divorce. He cannot raise such objections in thi s Court now. Father also argues on appeal that the 1990divorce d ecree and writ of attachment from Fayette County, Tennessee

is still valid and shou

ld control in this c

ase, d espite the partie

s’ subsequent

remarriage an

d the divorce in

Arkansas. Father claims that the parties’ rem

arriage in 1990 was fraudulent and void, and that consequently the subsequent Arkansas divorcewas void and

o f no effect. Once again, the record contains no evidence of this, only Father’s conclusor y alle gations. Most importantly, Fat her’s allegation

s should have been

raised and resol

ved in th e Craighead

County, Arkansas divorce proceedings. Father and his counsel participated fully in the Arkansas divorce proceedings, admitted the parties’ remarriage and did not appeal from the decre e of divorce. Although

this is a n issue of first impression in Tennessee, the clear majority of states hold that remarriage

by the parties re

nders a prior custody decree void and unenforceable. See, e.g. , Ex parte Phillips , 95 So.2d 77 (Ala. 19 57); Oliphant v. Olip

hant , 7 S.W.2d 783 (Ark. 1928); Warren v. Warren , 97 S.E.2d 349 (Ga. 1957); In re Parks , 630 N.E.2d 509 (Ill. App. 1994); Rasch

v. Rasch , 168 So.2d 738 (Miss. 1964); Debra E. Wax, Annotation, Effect of Remarriage of Spouses to Each Otheron Child Custody and Support Provisions of Prior Divorce Decree , 26 A.L.R. 4th 325, § 3 (1996). We agree. In this case, after entry of the 1990 Fayette County, Tennessee ex parte decreeof divorce awarding custody to Father , the parties rema rried. The effe

ct of the parties’ remarriage

was to render the prior custod y decree void and unenforc eable. Father’s

argument is without merit. Finally, Father

argues that the order

of Chancellor Whitenton in Fayette County, Tennessee requiring that the children be returned to Mother should be reversed and remanded because Father and his counsel “were only given a few hours notice and no opportunity to

respond at the hearing

on [Mother’s] motion.” This argument may only be characterized as sheer chutzpah. In this case, Mother obtained from the Craighead County, Arkansas trial cou rt an order suspending Father’s visitation rights based on allegations of ch ild abuse. Clearly

the appropriate

forum for Father to seek

a remedy was the Craighead County, Arkansas trial court or an appeal to the Arkansas appellat e court. Instead, Father chose to utilize a six-year old writ of attachment and decree of divorce from Tennessee that

was clearly void and unenforceable. Without notice to Mother or her counsel, and1 The record in this case includes a letter from the Deputy Prosecuting Attorney for

Crittenden County, Arkansas, which states that his office had initiated a criminal investigation into the removal of

the parties’ chil

dren by Father, Pa

tricia L. Penn, Fat

her’s Tennesse

e counsel, and Terrance E. Tatum, Father’s Arkansas counsel, to determine whether any or all of them should be charge

d with Interfere

nce with Custody, a

class D felony, a

nd/or Kidnapping, a

Class Y felony. 7 withoutdisclosing the parties’ remarriage and divorce in Craighead County, Arkansas or the order suspending Father’s visitation rights based on suspected child abuse, Father “enrolled” t h e void Tennessee order in Crittenden Coun ty, A rkansas. Through this deception Father obtained the assistance of the City of Marion polic e in Crittenden Coun

ty, Arkansas to go t

o each child’s sch

ool, still with no notice to Mother, and physically remove the children and take them to Tennessee. Once in Tennessee, Father filed a “notice”with the Fayette County, Tennessee court that he had “enrolled” in Arkansas the void Tennessee decree o f div orce and writ of attachment. Again, nothing in the record indicates that Father informed the Fayette County, Tennessee court of the part

ies’ remarriage, the Arkansas decree of divorce and award of custody to Mother, or the order of the Arkansas court suspending Father’s visitation rights based on suspected child abuse. When o rdered by the Craighead

County, Arkansas court to return the child to Mother, Father r

efused. The Faye

tte County, Tennessee court was finally informed of the Arkansas divorce proceedings by counsel for Mother and the tri

al judge in Craighe

ad County, Arkansa

s, and Father was finally forced to return the children to Mother’s custody. For Father to abuse the Tennessee and Arkansas justice systems in this mann er, to say nothing of traumatizing the parties’ sons by these actions, i s indefensible. For

Father’s counse

l to countenanceand advise this course of conduct is unconscionable. 1 For Father to now ar gue in this Court t hat the Tennessee order requiring him to return the children to Mother should be r everse d because Father

was “only

given a few hours notice” is nothing short of astonishing. The decision of the trial is affirmed. Mother argues that this a

ppeal is frivolous

and asks this Co

urt to award her fee

s and costs associated

withthis matter. Father

’s appeal is

clearly frivolous. See Tenn. Code Ann. § 27-1-122 (1980); McDonald v. Onoh , 772 S.W.2d 913, 914 (Tenn. App. 1989). “Successful litigants should nothave to bear the expense and vexation of groundless appeals.” McDonald , 772 S.W.2d at 914 (quot ing Davis v. Gulf Ins. Gr oup , 546 S.W.2d 583, 586 (Tenn. 1977)). Mother’s reque st i s2 Father continues to seek remedies in forums other than the Arkansas court system. On

May 28, 1997, Father filed an “interstate child custody case” complaint with the United States District Court for the Western District of Tennessee. The complaint seeks permanent custody of the children as well as declaratory, injunctive, and monetary relief against Mother, Mother’s attorneys, the Honorable David R. Goodson (the Arkansas judge involved in the case), the director of a child abuse and neglect volunteer service involved in the previous action, Winston Bryant, the attorney general of the state of Arkansas, the State of Arkansas, and Father’s former Arkansas attorn

eys, including Mar

tha P. Gilpatrick, M

artin E. Lilly, and P

aul J. Teufel, or

their successors or as signs. 8 granted. 2 The cause is remanded to the trial court for an award of appropriate fees a nd costs. The decision of the trial court is affirmed, and the cause is remanded for a determination of the amount

of fees and costs

to be awarded to A

ppellee. Costs

are assessed against Appellant, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.