# FILED
February

28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk CHRISTINA

RENEE KLI

NDT, )

) Petitioner/Appellee, ) Appeal No. ) 01-A-01-9606-CH-00250 v. ) ) Wilson Chancery JOHN MICHAEL ROSS KL INDT, ) No. 10261

) Responde nt/Appell ant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE
THE HONORABLE C.K. SMITH, CHANCELLOR

CHRIST INA RENEE KL

IND T, Pro Se 6001 Old Hickory B oulevard Apt. # 224 Hermitage, Tennessee 37076

LARRY HAYES, JR. Boult, Cummings, Conners & Berry 414 Union Street, Suite 1600 P. O. Box 198062 Nashville, Tennessee 37219 ATTORNEY FOR RESPONDENT/APPELL ANT

DISMI SSED AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

# O P I N I O N
The sole issue i n this chi ld custody matter is whether the Chancery Court for Wilson County had jurisdiction to modify the custody pro visions of a divorce decree entered by

the Circ uit Court f

or Harr ison County , Missouri

.
The fac ts out of wh i ch this matter arose are as follows. The parties were
ma rr ied 22 Decem

ber 1991 and

as a resu lt of that m

arriage have one c hild, Ta

ylor Elaine, born on 25 June

1992. In October

1993, petit

ioner, C hristina Renee Kli ndt, ( "th e Mother") , and the m inor child m

oved to Te nnessee. In Januar y 1994, respondent , John Michae l Ross Klin dt, ("the Father" ), file d a divorce action in Harriso n County, Missouri. The Mother adm itted that atthe time the Father filed the Missouri divorce a

ction, she and the minor child hadlived in Tennessee for only three months.

On 28 Februa

ry 1995 , thecircuit courtin Missouri entered a n order gr anting custody of the m inor child t

o the Fathe

r, pendinga final he aring. The co urt also orally ordered t he Mother to return p hysica l custody of the m inor child t

o the Father. The record shows that the Mother knew of the court's oral order but ref us ed to imm ediately return the minor child to the Father in Missouri . Instea d, she kept the childin Tennessee during March an d April 1995 and fina lly returned the child to Missouri on 2

May 19 95.

On 5 June 19 95, a judgment was entered i n the Circ uit Court f or Harr ison Cou nty, Missouri dissolv ing the marriag e and grant ing jo i nt custody of the m inor childto the Fat

her and the Mother. The record shows that the minor child rem ained in Missouri with the Father during May 1995, and then, pursuant to the Missou ri divorce de cree, the mi nor child c ame to Tennes see in June 1995.

On 30 August 1995, s om e two m onths afte

r the m inor child a

rrived in Tennessee and after

the final decree w as entere d in Missouri , the Moth er filed the instant petition se eking to m

odify c ust ody of t

he child in the

Chancer y Cour t for Wilson Cou nty. T he o nly i ssu e is whet her or n ot t he C han cery C ourt for W ilson County, Tennessee had jurisdiction to m odify the Missouri Circuit Court's order.3

In order to modi f

y a custody decree from the court of another state, Tennessee law requires that certain conditions must be met. The foreign decree can not be modif

ied unless (1) It appears to the court of this state that the court w hich rendered the decre e does not no w have jurisdiction under jurisdictional prerequisites substantial ly in accor dance wi th this partor has declined to assume jurisdiction to modify the decree; and (2) The court of this state ha s jurisdict ion. Tenn. Code Ann. § 36-6-215 (1996). In other words, as we said in dismissing a trial court's attempted jurisdiction under similar f acts, the statute "p rohibits modifica tion of [aforeign] custody decree unless 1) the other state no longerhas jurisdiction or has declined to exerci se its modification jurisdiction, and 2) Tennessee has juris diction ." Wilcox v. Wilc ox , 862 S.W .2d 533, 54 3 (Tenn. App. 1993) . Both con di tions must be met or th e courts of

this stat e cannot mo dify anot her state's custody decree. Id

.
To determin e whethe

r Tennes see has jurisdi ction, w e must look to Tennesse e Code Annotated sec tion 36-6-203: (a) A court of

this state which is c ompetent to deci de child custody matters has jurisdiction to make a childcustody determination by initial or modification decree if: (1) This state: (A) Is the home state of the child at the time of comme nce ment of the proc eeding; or (B) Had been the child' s home stat e within si x (6) months before commencement

of the proc eeding and t he child is a bsent from this state bec ause of

the child's removal o r retent ion by a per son claiming custody or f

or other r easons, and a parent or person acting as p arent continues to liv e in this sta te; or (2)(A) Itappears that no stat e has juris diction unde

r subdivision (a)(1), or each s tate wit

h jurisdict

ion under sub division(a)(1) has declined to exerci se jurisdic tion on the ground t hat this sta

te is the more appropriate forum to determine th e custody of the child; and (B) The child and at leas t one (1) co ntestant ha ve a signif

icant connection

with this s tate; and (C) There is available in this state substantial evidence concernin g the child's present or future care, protectio n, traini ng and persona

l relatio nship; and (D) It is in the

best inter

est of the child that a

court of t

his state assume jur

isdiction; o r (3) It appears t

hat no state

has jurisdi ction under

subdivisi o n (a)(1) or (2) o r each stat

e has ref used jurisdi ction on the ground thatthis is the more appro priate f orum to det

ermine c hild custody, and it is in t

he best interes t of the chi ld that a c ourt of4

this state a ssume juri sdiction. (b) Except un d er subdiv ision (a)( 3), physic al presen ce in this state of the child, or of the

child and one

(1) of the contes tants, is n ot alone sufficientto con fer juri sdiction on a court of t

his state to make a child custody determinat ion. (c) Physical presence of the chi ld, while desirable , is not a prerequi site for j urisdiction to determ

ine his or he

r custody (d) Jurisdicti on shall not be exercise d to modify an exis ting custody dec ree exce

pt in accor

dance wi th § 36-6-215

. Tenn. Code Ann. § 36-6-203 (1996).

Bas ical ly, Tennessee has juri sdiction in t wo situati ons: One, T ennessee is atthe beginning of the proceeding or has been within the past six mon th s th e “ho me state" of the m

inor child o r; two, all other states wi th “home state” jurisdic tion have declined to exercise juri sd iction in de ference to Tennes see. T ennessee C ode Annotated section 36- 6-202(5) de fines hom e state a s "the stat

e in which the chi ld imm ediately pre ced in g t he t ime involved lived with such child' s parents, a parent or aperson ac ting as parent , for at least six ( 6) consec utive m onths." T he record i n this
case shows that the Mother and the minor child moved to Tennessee in Octobe

r 1993; that the Fa

ther file d a divorce

action in M issouri on 24 J anuary 1994; and

that on5 June 1995, a

final dec ree of di vorce wa s entered in the cir cuit court in Missouri.

On 30 August 199 5, the Mot her file d the instant suit

seeking to m

odify t he Missouri Circuit C ourt's cus tody ord er. At t he t ime of filing t his suit, th e minor child had in fact liv ed in Tennes see for more than s ix months. Howeve r, the is sue in this
case arises f

rom t he fact t hat theparties'Missouri div orce act ion was ongo ing when the Mother an d the m

inor child m

oved to Te nnessee a

nd the Missou

ri Circu it Court, as the child’s home s tate, w as validly exercisi ng its child c ustody j urisdiction up to the tim e it enter ed its fina l decree on 5 June 1995.

The time period bet

ween the entry of the Missour

i final decree and th e date the Mother filed her

modification petition in Tennessee was less than th ree m onths. In order for us to find that Tennessee i s the minor child's "home state" under Tennessee Code Annot ation sect ion 36-6-203( 5), we would h av e to count approxi mate ly three months which preceded the entry of the Missouri final decree. We are cited no case nor have we found one that has addressed this precise issue.5

Thus, we m

ust answe r the quest

ion of firs t impr

ession: "w hen does the

six mon th period menti oned in Te nnessee Co de Annotat ed sectio n 36-6-202(5 ) begin to r un when anoth er st ate i s vali dlyexer cisin g chil d custodyjuri sdict ion?"

In support of his contention that finding Tennessee to be the minor child's "h ome state" would be impro pe r, the F ather cit es Boyd v. Boyd , 653 S.W .2d 732 (Te nn. App. 198 3). In Boyd , the m inor child h ad reside d in New York wit h his mother for several year s when the father f iled a cust

ody m odificati on proceed

ing in Tennessee while the minor child was visiting his father in Tenness ee. Id. at733. The trial court gra

nted the fa

ther tem porary custod y by extending the child's physical presence in Tennessee

. Id. This cour t reverse d the trial

court, a nd in deny ing the fathe r’s petition to rehear, we rejec ted the fa ther's a ttemp t to count "t

he period du

ring
w hi ch [the] child resi ded in this st ate pendingresolution of a custod y disput e" for purposes of attaini ng "home state " status. Id. at 738. Likewise, in the instant case,
we con clude that the period the minor child spent in Tennessee with the Mother, pending final re solution of the Missour

i divorce, should not be

counted as part of the six months necessary to achieve hom e state status in Tennessee.

Missouri w as proper

ly exercisi ng child cust

ody jurisdic tion from

the date the Father f

iled his divor

ce action in January

1994 until the

date the M issouri Cir

cuit Courtentered its final judgment and decree of divorce on 5 June 1995. The Missouri Court of Appeals found thatMissouri had subjectmatt er juri sdiction ove

r the issue of child custody and the Mi ssouri Ci rcuit Court found likewise in its final decree. There was no app eal from the Missour

i final decree; how ever, by fil ing a modif ication proceedi ng in Tenne ssee less t han three months after e ntry of

the Missouri final decree, the Mother was, in essence, a ttempting to appeal the Missouri decree t o the Tenn essee Ap pellate C ourt.

Under the facts in t his case, Tennesse e is not the minor child's hom

e state and Tenn essee cannot ass ert jur isdiction und er Tenne ssee Code Annotated section 36-6-203(a)(1). In addition, Tennessee does not have jurisdic tion under su

bsection (a)(2) or (a)( 3) of sect

ion 36-6-203 as the re cord fail s to s how th at Missouri has declined to exercise

its valid hom

e state j urisdiction

in this case . In the j udgmen t and decree of dissoluti on of m arriage entered b y the Missour

i Circuit Court, it specif

ically6

foundthat "this c ourt has j urisdiction over the subject matt er and the parties i n this cause, including j urisdiction over the m

inor child b orn of this m

arriage , Tay lor

Elaine Klindt." In thedecree, the court a lso retain ed juris diction over the issue of custody until further orders of

the court b y stat

ing that "r

evo lving f

our (4) m onths cy cle of exchangingphysical custody of the child shall continue until fu rther order of this court." We thin

k it is clea r that the Missouri Circuit Court has n o intention todecline to exercis e its cont inuing jurisdicti on.

Itis therefore ordered that this case be dismissed for lack of subject matter jurisdic tion and the cause be remanded to the trial court for entry of an order dismis sing the case in its entir ety. Costs on appeal are assessed to the Mother, Christina Renee K lindt.

______________ __________

________ _ SAMUEL L . LEWIS, JUDGE CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

_________________________________ BEN H. CANTRELL , JUDGE