IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 27, 2013 Session

THOMAS GOODMAN RUTHERFORD v. MELODEY JOICE LAWSON

RUTHERFORD

Direct Appeal from the Circuit Court for Davidson County

No. 05D-692 Joe Binkley, Jr., Judge

No. M2012-01807-COA-R3-CV - Filed May 7, 2013

______________________________

SEPARATE CONCURRENCE

_______________________________

JUDGE HOLLY M. KIRBY, concurring separately:

I have carefully considered Judge Stafford’s energetic dissent in this case, and find that I

cannot agree. I submit this separate concurrence to explain my position.

I note at the outset that the question of whether Father in this case actually filed a Rule 6.02

motion to enlarge time appears far from clear. However, assuming arguendo that he did, I

would not apply Rule 6.02 to this case. For all of the dissent’s in-depth discussion of Rule

6.02 and the concept of excusable neglect, it contains only passing reference to the language

in Tennessee’s parental relocation statute, and no discussion at all of whether application of

Rule 6.02 squares with the express language, history, and legislative intent of the parental

relocation statute. This is, I believe, a crucial oversight.

I agree with the majority opinion on the discussion of the plain language of Tennessee Code

Annotated §36-6-108, and its overall purpose.

The history and intent behind Section 36-6-108 are equally important to the decision in this

case. Both are discussed at some length in this Court’s opinion in Webster v. Webster, No.

W2005-01288-COA-R3-CV, 2006 WL 3008019 (Tenn. Ct. App. Oct. 24, 2006).

In Webster, the Court noted first that, years ago in Tennessee, “the custodial parent had

virtually unfettered authority to move the child away from the non-custodial parent,

regardless of the reason or the effect on the child’s relationship with the non-custodial
parent.” Id. at *10 (citations omitted). As time went on, the value of involving both parents

in child-rearing became more widely recognized. As there was no statute governing the

issue, trial court decisions varied widely. The Tennessee Supreme Court, struggling with

clarifying the law for trial courts and parents alike, issued a confusing series of decisions that

sparked an increase in parental relocation cases and were “admittedly obscure.” Id. at *11.

In an effort to quell the confusion and settle the law, the Tennessee Supreme Court issued

its decision in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). The Aaby case set forth a

framework for parental relocation cases, and stated expressly that its goals were to “(1)

limit[] judicial intervention in post-divorce family decision-making, and (2) mak[e] disputes

easier of resolution if they must be litigated.” Webster, 2006 WL 3008019, at *11 (quoting

Aaby, 924 S.W.2d at 629). The standard adopted by the Aaby Court “made it quite difficult

for a non-custodial parent to defeat the custodial parent’s petition to relocate.” Id. at *12.

Aaby also included a spirited dissent. Id. at *12-13.

In the wake of Aaby, Tennessee’s legislature enacted a parental relocation statute that largely

followed the Aaby framework but also incorporated some of elements advocated by the

dissent. Id. at *13. Importantly for our purpose in this case, the Webster Court describes the

structure of the parental relocation statute as “rigid,” designed to “facilitate[] the goals,

reiterated in Aaby, of limiting judicial intervention and making disputes easier to resolve if

they must be litigated.” Id. at *14.

Against this backdrop, we can see that applying Rule 6.02 to Section 36-6-108 to permit trial

courts to enlarge the 30-day mandatory deadline set forth in the statute is inconsistent with

the history and intent of Tennessee’s parental relocation statute. Rather than leave the

decision in parental relocation mattersto trial courts, with widely varying approaches, results,

and timelines, the legislature chose to enact a statute with a mandatory structure that

drastically limits the trial court’s discretion and compresses the timeline for resolution.

The reason for this is clear. Parental relocation cases are often prompted by a time-sensitive

opportunity for the custodial parent, such as a job offer. If the parent opposing relocation is

permitted to unduly delay, the opportunity for the custodial parent may be lost. The

legislature made a policy decision to permit the non-custodial parent to file a petition

opposing the relocation, but only within the “rigid” structure of the statute, to limit judicial

intervention and get the case resolved quickly. Allowing a trial court to apply Rule 6.02 to

enlarge the deadline for initiating the action opens the door for the exception that swallows

the rule, and is counter to the history and intent of the parental relocation statute.

Parental relocation cases are frequently heartbreaking, with profound competing

considerations and impact on both parents and the subject children. Delay does not improve

-2-
them. The legislature has enacted a statute with explicit directions to the courts on the

resolution of such cases, and we are required to follow the clear legislative directives in the

statute.

Moreover, even if Rule 6.02 were applicable, which it is not, there are no circumstances in

this case that would constitute excusable neglect. Mother’s notice to Father informed him

of the thirty day period to file a petition, as required under the statute. Whether he had a

lawyer or not, Father knew about the 30-day deadline and simply missed it.

For all of these reasons, I concur with the majority’s reversal of the trial court’s decision.

______________________________

HOLLY M. KIRBY, JUDGE

-3-
_________________________________

HOLLY M. KIRBY, JUDGE

-4-