Facts: Mother and Father are the parents of three children. They divorced in 2012.
At the time of divorce, they agreed to a parenting plan providing for equal parenting time and designating Father as the primary residential parent.
On September 5, 2014, Father sent the required relocation letter to Mother via certified mail. Father testified he called Mother and told her the letter was coming and what was in the letter. Father claimed Mother said she would not be there to receive it and she would refuse it. The letter was eventually returned to Father as undelivered.
On September 11, 2014, Father petitioned to modify the parenting plan to allow him to relocate to Arizona with the children.
On October 17, 2014, Mother counter-petitioned in opposition to the proposed relocation.
At trial, the sealed envelope addressed to Mother and postmarked certified mail on September 5 was entered into the record as an exhibit. Mother was asked no questions whatsoever about the letter.
The trial court denied Father’s petition to relocate with the children and modified the parenting plan to designate Mother as the primary residential parent.
On Appeal: The Court of Appeals affirmed the trial court.
Father argued that Mother’s petition in opposition to the relocation was not filed within the statutorily-mandated 30 days and, therefore, he should have been permitted to relocate with the children.
Tennessee Code Annotated § 36-6-108(a) requires the relocating parent to send a notice to the other parent by registered or certified mail containing:
- a statement of intent to move;
- the location of proposed new residence;
- the reasons for proposed relocation; and
- a statement of the other parent may file a petition in opposition to the relocation within 30 days of receipt of the notice.
Tennessee Code Annotated § 36-6-108(c) allows the other parent 30 days from the receipt of the notice to file a petition in opposition to relocation of the child. Subsection (g) provides that if a petition in opposition to a proposed relocation is not filed within 30 days of receipt of the notice, the parent proposing to relocate with the child shall be allowed to do so.
The court rejected Father’s argument because he did not prove he sent the statutorily-required notice to Mother:
[W]hile Father proved that he sent something to Mother by certified mail, he failed to prove that the something he sent was the notice required by Tenn. Code Ann. § 36-6-108. It may be suggested that since the something that Father sent to Mother appears as an exhibit in the record on appeal that this Court could review the contents of this exhibit to determine whether Father actually sent the required notice. We note that in order to make this determination we would need to open the sealed envelope, something we certainly have the authority to do. If we did this, however, we would be reviewing and basing our decision upon evidence that never was presented to the Trial Court. The evidence presented to the Trial Court with regard to this issue consisted of a sealed envelope and Father’s testimony quoted fully above. Father failed to meet his burden to prove his full compliance with the notice requirement of Tenn. Code Ann. § 36-6-108.
* * * * *
Given the record on appeal, including the evidence presented to the Trial Court, Father failed to prove that he sent Mother notice of the relocation pursuant to, and in full compliance with, Tenn. Code Ann. § 36-6-108. As such, the thirty-day response period pursuant to the statute never was triggered. We will not consider evidence, i.e., the contents of the sealed envelope, not presented to the Trial Court. Given all this, we find no error in the Trial Court’s determination that Mother’s petition in opposition to the relocation was filed timely.
The trial court’s change of custody was affirmed.
K.O.’s Comment: It is sobering to think the outcome could have been different had the sealed envelope admitted into evidence been opened at trial. As John Greenleaf Whittier wrote:
For of all sad words of tongue or pen,
The saddest are these: “It might have been!”
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.