Posted by: K.O. Herston | June 27, 2013

In 2-1 Decision, Missed Deadline Leads to Parental Relocation in Nashville Child Custody Dispute: Rutherford v. Rutherford

Facts: Father and Mother, parents of one child, divorced in 2007 after a seven-year marriage. The parenting plan designated Mother as the primary residential parent.

In 2012, Mother sent Father a certified letter notifying him of her intent to relocate to Nebraska because of a job opportunity. A few weeks later, they met to discuss the proposed relocation. At the meeting, Father orally expressed his opposition to the relocation.

Thirty three days after receiving Mother’s certified letter, Father filed a petition in opposition to Mother’s proposed relocation. Father sought to modify the parenting plan to designate him as the primary residential parent.

Mother filed a response noting that Father had failed to file a petition in opposition to the move within 30 days of receipt of the certified notice letter. Father argued that his untimely filing was the result of excusable neglect because he was without the financial resources to hire an attorney at the time he received notice of Mother’s intent to relocate and because his attorney, who agreed to serve as a favor to Father’s father, was unable to meet with him until after the 30-day period had expired.

The trial court found that Tennessee Code Annotated § 36-6-108(g)’s 30-day time period should not be applied to bar Father’s right to contest Mother’s relocation, noting that “there is no proof of harm or prejudice to Mother resulting from the date of his filing.” After determining that the move lacked a reasonable purpose, the trial court conducted a best interest analysis, and it determined that relocation was not in the child’s best interest. It then designated Father as the child’s primary residential parent.

Mother appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Mother, relying upon Tennessee Code Annotated § 36-6-108(g), argued that Father’s failure to file his petition within 30 days meant she should automatically be allowed to relocate with the child without further consideration by the court. She maintained that oral notification does not satisfy this requirement and that proof of harm or prejudice is not necessary to enforce the requirement.

Tennessee Code Annotated § 36-6-108(g) provides in relevant part that “[i]n the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing relocation with the child shall be permitted to do so.”

A majority of the Court agreed with Mother, writing:

[W]e conclude that section 36-6-108 mandates that a parent wishing to oppose relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation. If no written petition in opposition is timely filed, the parent proposing to relocate with the child shall be permitted to do so, notwithstanding the absence of harm or prejudice to the relocating parent due to the untimely petition. Because Father failed to file a written petition in opposition to Mother’s proposed relocation within thirty days of receipt of her certified letter, we find the trial court erred in conducting any further analysis pursuant to section 36-6-108. The decision of the trial court is reversed, and Mother is permitted to relocate to Omaha, Nebraska, with the minor child.

Judge Kirby wrote the following in a separate concurrence:

Rather than leave the decision in parental relocation matters to 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….

Parental relocation cases are frequently heartbreaking, with profound competing considerations and impact on both parents and the subject children. Delay does not improve 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.

Judge Stafford dissented from the majority opinion, stating:

Rule 6.02 . . . “grants the trial judge broad discretion to enlarge many of the procedural time limitations prescribed by the Rules of Civil Procedure,” . . . [including] “acts required or permitted by statute, including statutes of limitations….”

Because of the “broad authority” conferred by Rule 6.02, I must conclude that the trial court has discretion under Rule 6.02 to extend the time for filing a petition in opposition to a parent’s relocation pursuant to Tennessee Code Annotated Section 36-6-108(g).

According, in this 2-1 decision, the trial court was reversed.

Rutherford v. Rutherford (Tennessee Court of Appeals, Middle Section, May 7, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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