Posted by: koherston | August 10, 2015

Untimely Petition Leads to Parental Relocation in Lebanon, TN: Buchanan v. Buchanan

germanyFacts: Mother, a German citizen, married Father while he was stationed in Germany with the United States Army. They moved to the United States, had one child, and later divorced.

At the time of divorce, they entered an agreed parenting plan designating Mother as the primary residential parent and awarding Father 122 days of parenting time each year.

On December 27, 2013, approximately five years after the divorce, Mother sent Father a certified letter notifying him of her intention to relocate to Germany with Child. Mother said she was moving to assist her parents, whose health conditions had deteriorated and who needed assistance with their everyday lives. The letter also stated Mother had secured employment which would allow her and the child to have a better quality of life. The letter further told Father that he “may file a petition in opposition to [Mother’s] proposed relocation within 30 days of receipt of this notice.”

Father received Mother’s certified letter on December 28, 2013.

Father responded by writing a letter to Mother’s attorney expressing his opposition to the proposed relocation. The letter was dated January 24, 2014, and was received by Mother’s attorney on January 27.

On February 3, 2014, Mother filed a Petition to Modify Visitation stating that Father had failed to file a petition in opposition as required by statute. Based on this failure to file a petition in opposition, Mother said she and Child were relocating to Germany and the parenting schedule needed to be modified to accommodate this relocation.

On February 12, 2014, Father, a non-lawyer who was representing himself, filed his petition in opposition to Mother’s proposed relocation.

Mother moved to dismiss Father’s petition on the grounds that it was not timely filed.

The trial court denied Mother’s motion to dismiss, holding that the requirement that Father’s petition be filed within 30 days of receipt of notice of Mother’s intent to relocate was an “unreasonable burden on a pro se petitioner.” In other words, because Father was not a lawyer and was representing himself, the trial court excused him from the deadlines imposed by the governing law. The trial court further stated, “It is unfair to require someone who’s child is going to be taken 4500 miles away only 30 days in which to hire an attorney and file a pleading and paid them a huge retainer fee.”

After hearing, the trial court denied Mother’s proposed relocation, holding that her motive for relocating was vindictive and had no reasonable purpose. The trial court then increased Father’s parenting time.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Parental relocation in Tennessee is governed by Tennessee Code Annotated § 36-6-108. The portions of the statute pertinent to this appeal are § 36-6-108(d)(1) and (g).

According to the statute, a party opposing a proposed relocation may file a petition within 30 days of receipt of notice, and in the event no petition is filed within that 30-day period, “the parent proposing to move with the child shall be permitted to do so.”

After reviewing the record, the Court concluded:

The record shows that Father received a certified letter on December 28, 2013, notifying him of Mother’s intended relocation and advising him that he “may file a petition in opposition to [Mother’s] proposed relocation within thirty (30) days of receipt of this notice.” Father waited until January 24, 2014, to write Mother’s attorney expressing his opposition to the move. It was not until after Mother filed her petition to alter visitation — in which she noted Father’s failure to timely file a petition in opposition gave her the right to relocate, pursuant to Tenn. Code Ann. §36-6-108(g) — that Father filed a petition in opposition, asking the court “to have sympathy due to me not having the finical [sic] means for counsel or the understanding of the Tennessee laws….”

The language of Tenn. Code Ann. § 36-6-108(g) is clear and mandatory. The record does not support the court’s determination that it was an “unreasonable burden” or “unfair” to apply the 30-day time limit to Father. Stating one’s opposition to a proposed move, without more, is not in compliance with the statute and is not sufficient to invoke the adjudicatory powers of the court. Moreover, whether Mother was prejudiced by Father’s failure to timely file the petition is not an appropriate consideration.

Accordingly, the trial court was reversed. Mother and Child may now relocate to Germany. The matter was remanded to the trial court for entry of a new parenting plan reflecting this relocation.

K.O.’s Comment: This case is very similar to Rutherford v. Rutherford, a 2-1 decision in which the same arguments were made and the same result was reached. It is worth noting that Justice Holly Kirby (who is still the reigning “World’s Most Awesome Judge,” by the way) was part of the majority in Rutherford.

Tennessee law is clear that pro se litigants who invoke the complex and technical procedures of the courts assume a very heavy burden. While they are entitled to fair and equal treatment, they must follow the same substantive and procedural requirements as a party represented by a lawyer. They cannot shift the burden of litigating their case to the courts.

While pleadings filed by pro se litigants may sometimes be held to less stringent standards than those applied to pleadings prepared by lawyers, the same substantive law applies to all parties whether they are represented by a lawyer or are attempting to represent themselves.

Buchanan v. Buchanan (Tennessee Court of Appeals, Middle Section, July 30, 2015).

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


Responses

  1. Thank you

    On Monday, August 10, 2015, Knoxville, TN Divorce Lawyer, Child Custody,


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