# FILED
April 22, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

GENE V. AABY, ) FOR PUBLICATION ) Plaintiff-Appellee, ) Filed: April 22, 1996 ) v. ) KNOX CHANCERY ) JUDY E. AABY STRANGE ) Hon. Frederick D. McDonald, ) Chancellor Defendant-Appellant. ) ) ) ) ) No. 03S01-9507-CH-00073 For Plaintiff-Appellee : For Defendant-Appellant : George F. Legg Sarah Y. Sheppeard Becky H. Halsey William A. Mynatt Stone & Hinds, P.C. Sheppeard & Swanson, P.C. Knoxville, Tennessee Knoxville, Tennessee



## O P I N I O N

COURT OF APPEALS REVERSED. DROWOTA, J.2 In this child custody di spute, Judy E. Strang e, th e custodial parent, appeals from the Court of Appeals’ affirmance of the tr ial court’s order denyin g her permission to move out-of-state with h er child. The sole issue for our determination i s whether the lower courts proper ly interpreted the pri nciples enunciated in Tay lo r v. Taylor , 849 S.W.2d 319 (Tenn. 1993) in deciding this case. F or the reasons

set fort h below,
we conclude that the lower courts did notdo so; therefore, we rev erse the judgment.

FACTS AND PROCEDURA L HISTORY
Judy E. Strange and Gene V. Aaby were d ivorced on June 6, 1990, by final judgmententered in the Knox County Chancer y Court. This judgment incorporated
a marital dissolution ag reement, which, among other things, awarded cust

ody of the p arties ’ then-three year old son,Brandon, to the mother. The order g ranted the father visitation on alternat

e weekends; it also prov ided for certain s u mmer and vacation visitation. The judgment contained no prohibition ag ainst the c ust odial parent moving out-of-state with Brandon.

This dispute began in June 1992 w hen the fathe r file d a petition requesting that his child suppor

t obli gation be decreased. The mother, i n response, filed a petition opposing the decrease. Her petition also included a “ counterclaim,”

in which the mother requested permissi on to move with Brand on to Bard stown, Ke ntucky. The mother’s stated reason for wishing to move was that

she had remarried, and that her new husband, Kendall Stra nge, had f amily in the Bardstown area. She also stated that she had received a sui table offer

of employment in Bardstown.The father answered the counterclaim by asser ting that a move to Kentucky would not

be in the3

best interests of the child; the father sought to have custody changed to him if the mother t ook Brand on to Ken tucky.

At the initial hearin g i n January 1993 on the custody issues, the mother testified that she wished to move to Bardstown because of the reasons stated in her petition. The father, on the other hand, offered expert psychological and psychiatric proof whi ch tended to show that removal would not be in Brandon’s best interests. The experts based these conclusions, in part, on the relationship s Br andon had formed with h is f ather and the father’s extended famil y. At the conclusion of the proof, the trial court rul ed that the m other had failed to prove that s he should be allowed to move to Kentuck y with the child.

In March 1993the mother then filed a motion to alter or amend th e judgment, arguing that the ruling violated th e principles set forth in Taylor , supra , which had just been released bythis Court. The trial c ourt agreed to reopen the proo f, and after hearing additional evidence and considering the case in light of Taylor , ruled that the mother would be allowed to mov e to Kentucky. The November 1993 memorandum opinion issued by the tri al court provides, i n part, that:

The mother’s fundamental reason f or wanting t o move from Knoxville to Bardstown is her desire to locate in a smaller community, whi ch she believeswill provide a better place in which t o live. Th e testimony is convincingthat the mother hersel f will feel much better li ving in a smaller community than Knoxvi lle. She grew up in a small er commun ity. She believes a sm aller community will be a better place to raise Brandon. It cannot be found that her desire to move is wron g, notwithstanding

testimony

that it will hav

e some disruptive effect on the boy. Indeed, under Taylor the effect on the child is gener ally to be gi ven lesser consideration. In any event there is t estimony that Brandon will be able to adjust to the move.4 In the absence ofconvincing evid ence that the child wil l be harmed the Court should be very hesit ant to substitute its opinio n forthe mother’s decision, which is o ne of the many a custodial parent must make that will affec t a chi ld. Bardstown has a g ood school system, and her presenthusband has relatives the re. W hile the move is not made in order for eith er the mother or her present husband to improve their employmentopportunities, it appears that they will have reaso n able opportunitiesf or empl oyment there ... The mother has ex pressed a valid reaso n fo r moving, although her reason may well be v

iewed by others as insufficient. It also appear s that in amome nt of anger the mother spoke [to Brandon’s teacher] of taking Brandon to Kent ucky without allowing

the father to see Brandon again. It is not concluded, however, that the mother’s motivation for the move is to deny or deter the father’s visitation. It is according ly concluded from the evidence and in light of Taylor

... that the mother should be, and accordingly is, granted permission to take Brandon to Bardstown.

The trial court also ordered a revised visitation schedule , in which t he father was granted additional summer and vacation visitation. Finally, the trial court denied the father’s petition for a change of cu stody based on the proposed mov e.

In December 1993 the father fileda motion to alter or amend, arg uing that the November

1993 judgment conflicted with an unpublished opinion of the Eastern Section of the Court of Appeals that had just been releas ed. After reviewing

its decision in light of this opin i on, the trial court rev erted to its original

determination, holding that the mother had not proven that the move would b e in Bra ndon’s best interest. The mother resigned from her new job in Kentuc ky and moved back to Knoxville after le arning of the ru ling.

The mother appealed from thi s decis ion to th e Court of Appea ls, which affirmed the decision. After the Court of Appeals’ decision was handed down, the mother and Kendall Strange separated ; and she has since filed for div orce. Because5

the trial court’s vacillat ing c ourse of a ction in this case obvi ously indicates the presence of confusion in the law of removal, we granted the mother’s application for permissi on to app eal for t he purpo se of cla rifying th is law.

BACKG ROU ND O F THE LAW O F RE MOV AL

A. Pre- Taylor law

In the not too distant

past, Tennessee law conferred upon the custodial parent sole responsibility for mak ing decisions regarding the place of the child’s residence. For example, in Thomas v. Thomas , 206 Tenn. 584, 335 S.W.2d 827 (1960), the non-custodial parent, the father, requested that he be relieved of his duty to provide child support beca use the mother had depriv

ed him of his vis itation rights by remarryingand moving to Texas w ith the children. We rejected that argument, hold in g that “the mother had the rig ht to control the child’s whereabouts and the father had no voice where the child should reside and coul d not make his du ty to support the child depend upon the place of the child’s abode.” Thomas , 335 S.W.2d at 828. We further stated that “the mere fact that the decree grants the other parent the right of vis itation d oes not im plicitly pr ohibit th e remova l of the child from the jurisdiction.” Id

. See also Evans v. Evans , 125 Tenn. 112, 140 S.W.745, 746 (1911) (“The custody of this child w as entrusted to her mother. [The father ] has no voice as to where she shall reside; but, by decree of the court, the mother is made the ar biter of such matters.”)
Subseque ntly, however, Tennessee court s began moving away from the6

position that the non-custodialparent had no say whatso ever in the removal

decision. Instead, the Court of Appeals twic e held that if the non-custodial parent wished to prevent the mov e, h e or she would be requi red to prove that remova l would not be in the “bes t i nterests of the child.” See Arnold v. Gouvista , 735 S.W.2d 458, 463 (Tenn. App. 1987) (custodial parent may not be held in contempt of court for leaving the state with child if di vorce decree contains no provision prohibiti ng movement; burden rests upon non-custodial parent to prove that move is not in the best interests of the child); Walker v. Walker , 656 S.W.2d 11 (Ten n. Ct. App. 1983) (where divorce decree prohibits custodial parent from re moving the child from s

tate , that parent bears burden of proving th at move is in best interests of the child; however, where divorce decree contains no such provision, bur

den is on noncustodial parent seeking to prevent the move).

These rules granting the c ustodial parent substantial autonomy ofmovement were, however, undermined in 1988 by this Court in Seessel v. Seessel , 748 S.W.2d 422 (Tenn. 1988). In that case, the custodial parent filed a petiti on to remove the child to Colorado; and the non-custod ial parent f iled a counter-petit ion seeking a change of custo dy. Although there was apparently no provision in the divorce decree prohibiting removal, the trial cou rt nevertheless ruled that the custodial parent had failed to prove that the

move was in the child’s best interest. The Court of Appeals, citing Walker , reversed that judgment,holding that the non-custodi al parent had not adduced any evidence that the move would be adver se to the child’s best interests.

We reversed the judgment of the Court of Appeals. In so doing, we quoted the following treatise pas

sage with approval :1 We did not hold, however,that the custodial parent always had the bu rden of

proving that the move would be in the best interests of th e child if the divorce decree was silent on remov al. Rath er, we held that the custodial parent would bear the burd en of proo

f onlyif he or she filed a petition seek ing permission to move. See Nichols v. Nichols , 792 S.W.2d 713, 715 (Tenn. 1990) ( Court of Appeals erred in concluding that the custodi al parentfailed to prove that remov al was in children’s best int erests because custodial par ent di d not file a petition seeking to move). Thus, we left open the question of whether the cus todial parent was required to seek a court’s perm ission for removal at all if the decree was silent on the issue. 7 A court which grants a divorce or separati on may expr essly auth orize the removal of a minor child from th e jurisdiction. Simil arly, the cour t has the power to a

ward c ustody ... to one who cont emplates an immediate removal of the child fro m the jurisdiction .... It has accordinglybeen stated that it is against the policy of the law to permit the removal of

a minor child from the state unl ess the applicant shows that the best interests of the child will be bet

ter served by

its removal. The question whether the court shall permit or prohibit the removal of the child rests withi n its sound judicialdiscretion. The general rule that in matters affecting the custody o f a child the court wil l be governed primarilyby the welfare and best i nterests of the child applies in determining whether to permit or prohibit removal of the child from the jurisdiction.

Seessel , 748 S.W.2d at 424, quoting 24 Am. Jur. 2d, Divorce andSeparation , § 798 (1966). W e also stated th at generally the pa rty filing a petition with the court bears the burden of proof on that petition; and w e concluded that because the custodi al paren t had filed a petition seeking permission for removal, the burden rested up o n her to prove that remova l was in the child’s best interests.

Becau se it required the custodi al parent to establish that the move w oul d benefit the child, 1 Seessel represented a substantial curtailment of the tradition al legal freedom afforded the custodial parent to make decisions as to th e child’s residence. Nor was the burden of proof issue the only way in which Seessel served8

to limit this freedom. By explicitly endorsing the use of the best interests of the child standard in removal cases -- a first for this Court -- and declining to set forth any specific principles for determining the bes t interests, we conferred e normous discretion upon trial courts in deciding the removal i ssue. Indeed, we recogni zed the open-endedness of the best interests test in Rogero v. Pitt , 759 S.W.2d 109 , 11 2 (Tenn. 1988), where we s tated:

There are few legal formulae or invariable princi ples to guide the courts in decisions of this nature. Suc h decisions are pr imarily factual, not legal. Attempts to reduce to legal doctrine the resolution of cases such as this usuallyhave little significance. The best interests of the children under all the circumstances, which, of course , in clude their relationships with their parents, must be the concer n of the courts.

B. Taylor v. Taylor
It was not

long before theapproach taken in Seessel , Rogero , and Nichols v. Nichols , 792 S.W.2d 713 (Tenn. 1990), began to cause problems. In 1993 w e noted that “although there was little or no litigation in this area of domestic relations prior to
our opinion in Seessel , the trial and inter mediate courts have exper ienced a significant

increase in the number of remov al c ases filed since Seessel was announced.” Taylor , 849 S.W.2d at 326. Therefo re, w hen presented with the opportuni ty

in Taylor

to establish some concrete standards to guide the courts in determining the best interest of the child,we attempted to provide s uch gui dance.

In that case, Deborah and Ste ve Taylo r became divorced in May 1989; the divorce decree provided t hat the mot her was to have custody of their daughter Brittney, and the father w as granted visitati on rights.9 There was no thing i n the divorce decree that prohibited the mother from
r emoving the child from the state. Nev ertheless, several months later the mothe r filed a pe tition requesting the court to “modify visitation” so that she and Brittney could move from Memphis to Montana. The mother planned to live w ith her parents and attend school in that state. The trial court denied this request.

Several months later Ms. Taylor remarried and made

plan s to move to Davenport, Iowa, where her new husband was enroll ed in school. The new husband, Mark Mitten, had established a good relationship wi

th Brittney during pr

evious visits to Me mphis, and Ms. Taylor had secured suitable employment in Iow a. Furthermore, the coup le had ren ted an ap artment in Davenpo rt, and ha d made da ycare arrangements for Brittney . Although theparties attempted to work out a revised visitation schedule among themselves, the father ultimately refused to allow Brittney to be taken to Iowa.
Subsequently the mother filed a petition requesting that the trial c ourt mod ify its previous order and all ow her to move to Dav en port with Brittney. Al though the mother denied any intent to defeat the father’ s visitation rig hts, and expressed a willingness to allo w greater summer and v acation visitation to c

ompensate for the lessened regular v isitation that the move w ould entail, the trial cour t denied permission to move. The trial court found that the move was not in the best interests of Brittney because she had c onsiderable extended family in the Memphis area, with which she had frequent contac t. The Court of Appeals affirmed this judg ment, and we granted the mother’s application for permission to appeal.10 We began our analysis by criticizing the open-endedness of the best interests standard generally, stati ng that “the absence of standards for its determination threatens to render the concept of ‘best in teres t’ so vague that it defies analysis, invitesdecision by guessw ork, and evades any sor t of meaningful review on appeal.” Taylor , 84 9 S.W.2d at 326. W e then narrowed our focus, noting that the best interestsdetermination in the removal context is not equiv

alent to the original cus

tody decision and that, therefore, relocation would not, standing alone, constitute a basis for a change of custody. We stated:

These cases, and others like them, reflect the collective wisdom of both the courts and child p s ychologists that children, especially those subjected to the trauma of divorce, need s tability and cont in uity in relationships

most of all. Thi s reco gnition had led to a strong presumption in favor of continuity of placement, which is reflec ted in the well-established r

ule that courts will

not entertain petitions for change of custody unless there has been some change in circumstanc es that has rendered the custodial parent un fit orhas exposed the child to some form of risk. Id . at 328.

We next tu rned to the best i nterest s determ ination

itself.After surveying

the law of other jurisdictions, w e determine d that the custodial parent’s happines s and well-beingare crucial to t he child’ s interests because the cust odial parent has the responsibility

of caring for the child on a daily basis. Therefore, we stated, “the child’s best interests are fundamentally interrelated with those of the custodial parent,” id ., and the removal decision s hould be made with this in mind.

We concluded our discussion o f the best interests determ ination by making two observations: (1) that while non-custodial

parents have the right to maintain their11

relationships

with their childr

en, visitation is nevertheless a flexibl e arrangement that maybe altered; and (2) that because the non-custodial parent’s fr eed om o f movementis not limited by cust ody considerations, fairne ss demands that the custo d ial parent have a commensurate amount of freedom, even though this may
r equire revision of the visi tation schedule. We summarized our discussion b y enunciating the followin g list of factors to be consi dered in the removal decis ion:

The factors to be considered in a removal dis put e ... include (but are not limited to) a recognitio n that in removal cases, the ques tion of custod y is not subject to de novo r eview, unless the peti tion cites reasons other than removal as gr ounds for custody; that there is a strong presumption in favor of continui ty of the original custody a ward; that the welfare of the child is affected by the welfare of the custodi al parent, and thatthe best interest of the child must be reviewed in o rder to deter mine the advantage s of the m ove to the child; that removal of the child from th e jur isdiction may requi re rescheduling of the noncustodial parent’s visitation, but that removal is not , in and of itself, a change of circumstance sufficient to justify modificationof the custody order; that the courts must be sensitive to the non-custodial parent’s efforts to maintain his or her rel at i onship with the childr en, and that visitation should be arranged in a manner most likely to enhance that relationship; and finally, that the motives of the custodial parent in making the move must appear to be valid, that i s, not intended to defeat or deter visitation by the non-custodial parent. These factors , and any related circumstanc es found by the court to be significant i n a given situa tion, mu st be weighe d individu ally and co llectively. Id . at 332.

We also addressed the procedural aspects of the removal petiti on, and concluded as follows:

If there is no outstanding or der restric ting movement of the child or children, and the parties can agree t o a revised visitation schedule, the custodial parent is free to move without seeking further court authorization. Likewise, if the non-custodial parent co nsents to the removal and the parties can agree on a revised visi tation arrangement,12 a prior order of

restriction may

be modified by agreement on motion to the court having juri sdiction of that order and subject to the approval of that court. If agreement cannot be reached, under the procedural rule announced in Seessel and Nichols , the burden of proof falls on the party seeking relief.In order to discharge that burden, the non-custodial p arent who seeks to prevent removal must show by a p reponderance of the evidence that removal is adver se to the best interest of the chi ld or children involved. If, on the other han d, the custodial parent files for relief, seeking to lift a prior prohibition on removal or asking the court’s permission to move from the jurisdictio n, or both, the custodial pare nt has the burden of proving that r emoval is in the child’ s be st interes t. Th at burden c

an be shifted by a

prima fa

cie show

ing of a sincere , good-faith reason for the move and a pri m a facie showing that the move is consistent with the child’s best inter est. Id

.
Finally, we applied these rules to that case and reversed the judgment. We explained that:
[The custodial parent] has shown that removal is wa rranted in this c ase, based on a well-establi shed reason for the move - - he r remarriage to someone who was liv ing, for an equally good reason, som e distance from Memphis. There is no suggestion in the r ecor d that Deborah Mitten is any thing other than a whollyfit perso n to have custody of Brittney -- indeed, the trial court has now made thatfinding on three separate occasions. There is no showing that the mo ve will have adverse consequences to Brittney’s health or well-being. In fact, the record reflects that the Mi ttens have gone out

of their way

to make the move from Memphis to Davenpor t a smoot h one fo r Brittne y, attempting in ev ery way to reduc e the impact of the transition on her and looking at all times to her welfare. It is obvious that t he previo usly established schedule of visitation will have to be altered. There is no proof that this cannot be successfully accomplished to accommodate the interests of both parents, as well as the child’s interest. There is nothin g in th e record to indicate that Deborah Mitten’s conduct has be en vindictive or that in proposing to move to Davenport, she intended to deprive Steve Taylor of his visitation rights or to

interfere with his close relationship w ith his child. Taylor , 849 S.W.2d at 333-34.13 APPLICATION OF THE LA W OF REMOVAL

The parties here construe Taylor in very different w

ays. The mother insists that the case

is a com plete r

ecastin g of T enne ssee’s law of removal because the Taylor court accepted the proposition that the inter ests of the child and the custodia l parentare fundamentally bound up with one another -- a proposition which, she says, is inherentlyat odds with the traditi onal best interests test. The mother urges that under Taylor

the court should not judge the wisdom of the custodi a l parent’s decision to relocate. Rather, she states, the proper inquiry is limited to determining whether the custodial parent's motiv es for moving are “valid, that is, not intended to deter or defeat vis itatio n by the non-custodial parent.” Taylor , 849 S.W.2d at 332. Because the lower co urts correctly found that she was not attempting to defeat or deter the father’s visitation rights by wishing to move, the mother argues, she should be allowed to relocate w ith Brandon.

The father argues, on the other hand,that Taylor did not change the traditional best interests test, but simpl y sought to make it clear that the well- being of the custodial parent is to be considere d by the courts in reviewing these disputes. He cites as support for this assertion the fact that we s tated that“the best interest of the child must be revie wed in order to determine the advantages of the move to the child." Id . at 332. He also relies upon our statement that “much of what we held in the Seessel
- Rogero
- Nichols trilogy remains good law in Tennessee.” Id . at 331. Because Taylor

merely revised the best interests standard, he concludes, the lower courts were correct in co ns ider ing all the circumstanc es and determining that14

Brandon’s best interests would no t be served by moving.

The ultimate message to be glea ned from Taylor is admittedly obscure. This is evidenced by the fact that both of these arguments find support in the text of the opinion, and by the trial cour t’s obviou s confus ion as to i ts meani ng. Becau se we have fail ed to “make determinate an area of law that has become increasingly unsettled,” id . at 326, we must disp el the ambiguity of Taylor and clarify its impact on the law of removal.
Although it drew upon auth ority from many other jur isdictions and dealt with
a number of specific sub-issues, Taylor was fundamentally concern ed with furthering two overarching goal s in the law of removal: (1) “ limiting judicialintervention in postdivorce family decision-making , and (2) making disputes easier of r esolution if they must be litigated .” Id . a t 3 31 (e mp ha si s add ed ). We continue to believe that these goals must determine the law. M oreover, we believ e that the traditionalbest interests of the child test, for the reasons enunciated in Taylor , makes these goals difficult or impossible to achieve. And we are convinced, again for the r easons stated in Taylor , t h at the interests of the custodial parent and the interests of the child are basically interrelated, even if they are not alway s precisely the

same. Therefore, we conclude,
as the mother insists, that a custodial parent will be allowed to remove the child from the jurisdict ion unles s the non -custodi al parent can show, by a preponderance of the evidence, that the custodial parent’s motives f or m oving are vindictive -- that is, intended to defeat or deter the vi sitation rights of the non-custodial parent.

This conclusion does not mean, however, that a non-custodial parent’ s hands2 Situationsthat could pose a “specific, serious threat of harm” to the child are, for example, if the parent

wished to take a child with a serious medical problem to an area where no adequate tr eatment was readily av ailable; if the parent wished to take a child with special educational requirements to an area with no acceptable educational facilities; or if the parent wished to move and take up residence w ith a person with a confirmed history of child abuse. This list is merely intended as illustrative; it does not purport to be an exhaustive list of situations that would qualify. 15 are tied where removal could pose a specific, serious threat of harm to the child. In these situations, 2 the non-custodial parent may file a petition for

change of custody based on a material change of circumst ances. The petition would s tate, in effect, that the proposed move evidences such bad judgment and is so potentially harmful to the child that custody should be changed to the petitioner. Because Te nnessee la w allows custody to be changed if the behavior of the custodial parent clearly posits a danger to t he physical, mental or emoti onal well-being of the c hild, Musselma n v. Acuff , 826 S.W.2d 920 (Tenn. App. 1991), such a petition w ould not violate Taylor

-- which only prohibits a chang e of custody based solely on the fact of the move . However, expert psycholog ic al and/or psychiatric testimony that removal could be generallydetrimental to the child will usually not suffice to establish an injury that is specific and serious enough to justify a change of custody. A move in any ch ild’s life, whether heor she is raised in the context of a one or two par ent home, carries with it the potential of disruption ; such common phenomena -- both the fact of moving and the accompanyingdistress -- cannot cons titute abasis for the drastic measure of a change of custody.

With regard to procedure, w e conclude that

if the parties cannot agree o n an acceptable visitation schedule, the custodial parent seeking to remove must fil e a petition w ith the court to reapprove or r evise, as the case may require, the existi ng3 If the court finds th at the pro posed mo ve is ofsuch a limited physica l distance that

a r evision is unnecessar y, it may simply

reapprove the existi ng sched ule

. Otherwise, the trial court wi ll need to fashion a revise d schedule. Of course, if the parties can agree to a visitation schedule, then there is no need for the custodial parent to file a petition at all

. 4 The visitation issue in the initial pr oceedings is controll ed by Tenn. Code Ann. § 36-6-301, which provides, in part, as follows:

Aftermaking an award of custody, the court shal l , upon request of the non-custodial parent, grant such rightsof visitation as wi ll enable the child andthe noncustodial parent to maintai n a parent-child relationship unless the court finds, after a hearing, that visitationis like ly to endanger the child’s ph ysical or emotiona l health ... 16 visitation schedule. 3 In the hearing on the petiti on, the non-custodial parent may, if he or she wishes, present evidence that the custodia l parent’s motives for moving are vindictive; also, any petition for a change ofcustody based on the above- discussed grounds shall be heard at this time. If the non-custodial pare nt does notwish to raise eith er of these issues, the sole iss ue at the hearing shall be the revision of th e visitation schedule. As is the case in the initial proc

eedings, neither

party shall bear the burden of proof on the visitati on i ssue; rat her, the trial court shal l, in its sound discr etion, fashion an acceptable revis ed visitation arrang ement. 4 Any prior la w inconsistent with thes

e conclusions is expr

essly overruled.

In this case, the trial court ex pressly found that the mother’s motive for mov ing
was not vindictive. We find that the record supports this conclusion. Furthermore, although the father presented psychological and psychiatric evi dence that Brandon could be harmed by the move, we find that this evidence does not illustrate a harm that is specific and serious enough to justify a chang e of custody.17 For the foregoing reasons, the judgment of the Court of Appeals is reversed.

_______ ________________________ ________ FRANK F. DROWOTA III JUSTICE
Concur: Anderson, C. J. Reid, Birch, JJ. White, J. - Dissenting - see separ ate dissenting opinion.