                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
_____________________________________________________________________________

JANUARY LYNN GRIFFIN,                                 Davidson Circuit No. 94D-1778
                                                      C.A. No. 01A01-9704-CV-00190
       Plaintiff,
                                                      Hon. Muriel Robinson, Judge
v.


BRIAN LEE GRIFFIN,
                                                                       FILED
       Defendant.                                                       January 16, 1998

                                                                      Cecil W. Crowson
CHERYL J. SKIDMORE, Gallatin, Attorney for Plaintiff.                Appellate Court Clerk

JACK GREEN, Nashville, Attorney for Defendant.

REVERSED AND DISMISSED

Opinion Filed:
____________________________________________________________________________

TOMLIN, Sr. J.

       This is a child custody case with potential interstate ramifications. This case began as a

divorce proceeding in the Circuit Court of Davidson County, wherein January Lynn Griffin

(“mother”) filed suit for divorce against Brian Lee Griffin (“father”), as well as seeking custody

of the parties’ minor child. On March 31, 1995 the trial court declared the parties divorced

pursuant to T.C.A. § 36-4-129. Mother was granted custody of the parties’ minor child, then

fourteen months old, with father given visitation rights. On July 19, 1996, father filed a petition

to change custody and to find contempt on the part of the mother in the Circuit Court of Davidson

County, the same court in which the divorce had been granted earlier. Following a hearing, the

trial court ordered custody of the parties’ minor child changed from mother to father. No

adjudication was made on the issue of contempt. On appeal mother has presented two issues for

our consideration: (1) whether the trial court erred in changing custody from mother to father and

(2) whether the trial court had subject matter jurisdiction of father’s petition to change custody.

For the reasons hereinafter stated, we hold that the trial court was in error in changing custody.

       Following the divorce, mother and child remained in the Davidson County area until late

November-early December 1995, when mother and child moved to Hawaii to live with her mother

and step-father, who was stationed there in the military. In January 1996, mother called father



                                                1
from Hawaii, but would not give him any information as to where she was living or what her

telephone number was. Through military sources, father ascertained where mother was living.

         The record reflects that shortly after mother arrived in Hawaii she met a man in the Navy

and moved in with him. She subsequently married him. In the spring of 1996, mother’s new

husband was transferred from Hawaii to a naval station in New York. In May 1996, mother

telephoned father advising him that she was coming to Tennessee and that he could see and visit

with the child upon her arrival. She also advised him at that time that she had married a member

of the U.S. Navy and that she would be in Tennessee temporarily before going to his new duty

station in New York.            Upon arriving in Tennessee in early June 1996, it became necessary

to place the child in a hospital in Jackson for a short while with a kidney infection. Subsequently,

upon coming to Nashville, mother and father entered into a written agreement by which father was

to have summer visitation with the parties’ child from June 29, 1996 through September 29, 1996,

at which time mother would be permitted to pick up the child to return to New York. At that time

it was contemplated that mother and her husband would have some difficulty finding appropriate

housing in New York and the visitation agreement would give them time to get settled in. The

agreement also provided that father would have “agreeable visitation rights” until a court date

could be set and that mother and father would get in touch with one another and work out the

transportation. Mother further agreed to notify father of each phone number and address and to

send pictures of their daughter to father.

         After the execution of this agreement, some week or ten days later mother and her new

husband were able to find housing sooner than expected. Contrary to the above agreement, she

called on father to return the child to her, which he refused under the agreement. Father filed his

petition to change custody several days thereafter.

                            I. The Subject Matter Jurisdiction Issue.

         The matter of jurisdiction was never raised by the parties before the trial court, nor was the

issue tried in the trial court. Mother raised the issue in her brief before this court in a tangential

way, by stating the following in the second grammatical paragraph of the Argument section of her

brief:

         Mother would initially submit the trial court lacked jurisdiction to modify custody
         in this matter due to the fact the child had not been a Tennessee resident for six
         months prior to the filing of Father’s Petition, thus it was error for the trial court


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        to make any custody determination.

Mother’s counsel makes no citation to the Statement of the Evidence where this court might

ascertain this “fact” as alleged by her, nor did she cite any law to this court.

        The transcript in this case consists of a four and a half page Statement of the Evidence

prepared by father and approved by the trial court. Father testified that mother moved to Hawaii

in the latter part of November, 1995. On the other hand, mother testified that she left Tennessee

to go to Hawaii in December, 1995. Mother removed the child from Hawaii sometime in May or

June, 1996 at the latest. Father’s petition to modify custody was filed in Davidson County on July

19, 1996. It appears to this court that there is no concise proof that Hawaii was established as a

home state under T.C.A. § 36-6-202(5) (1996) that would destroy the jurisdiction of the Tennessee

court, provided by T.C.A. § 36-6-203(a)(1)(B) (1996). See Gaddy v. Gaddy, 861 S.W.2d 236, 238

(Tenn. Ct. App. 1992). Accordingly, we are of the opinion that under these circumstances the

Tennessee court retains jurisdiction of this custody dispute.

                                      II. The Custody Issue.

        Our scope of review in custody cases is de novo upon the record, accompanied by a

presumption of correctness. We must affirm, unless the preponderance of evidence is otherwise.

Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). In all such cases the paramount consideration

is the best interest of the child.

        In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991), the Eastern Section of

this court set out the burden that must be carried and the standard that

must be met in a case such as this:

        When the issue before the Court is whether to modify a prior custody order, it need
        not repeat the comparative fitness analysis that is appropriate at the time of the
        original custody decree. Instead, in a modification proceeding, the trial judge must
        find a material change in circumstances that is compelling enough to warrant the
        dramatic remedy of changed custody. Moreover, the burden is on the non-custodial
        parent to prove changed circumstances. (citations omitted).

        It appears to this court that the crux of the father’s petition for change of custody was the

care he observed being given by mother to their daughter. When his visitation with the child

began, father noticed that the child was still in diapers, was underweight, still on a bottle and

extremely withdrawn. A similar observation was made by the child’s paternal grandmother, who

added that the child had been potty trained and was off the bottle since sometime in mid or late



                                                 3
1995. As to these contentions, mother testified that if the child was underweight it was because

of the kidney infection for which she had been hospitalized for a week to ten days prior to

beginning the visitation. She also stated that she had put the child back in diapers for travel and

had placed her on the bottle because she needed fluids.

       In the opinion of this court, the evidence presented preponderates against the award of

change of custody by the trial court. Stated another way, the father, the noncustodial parent, has

not carried his burden of proving a material change in circumstances that would warrant the

changing of custody, noted by this court in Musselman to be “a dramatic remedy.”

       In looking at the whole picture, it seems clear to this court that to some degree at least the

parties are using this child as a “tool” or a “weapon” to get at one another. While there was no

prohibition against mother removing the child from this jurisdiction, it could have been and should

have been done in a more considerate manner. The damage done by this was in large measure

rectified by mother asking father to exercise three months of continuous visitation in the summer

of 1996, albeit in some measure to her benefit. Then, when it developed that mother and her new

husband found living quarters much sooner than expected, rather than honoring the agreement that

she initiated, she upset the apple cart by calling on father to return their child to her. This action

at least partially precipitated (in this court’s opinion) father’s action in seeking to bring about a

change of custody.

       There is little or no evidence in this record as to the background of both father and mother,

except it does seem apparent that there is little decent concern and affection for one another. They

must not--we repeat, must not use this child as a pawn to get at one another. This child is an

innocent victim of their inability or unwillingness to maintain a home in which to raise her with

tender loving care. They must exercise every effort to do so in the future. If not, we remind both

parents that a trial court, be it New York, Tennessee or Hawaii, would have the power under

appropriate circumstances to place this child in a home where she can find constant love and

affection and will be given the type of upbringing she deserves.

        The judgment of the trial court changing custody from mother to father is reversed and

father’s petition dismissed. Costs in this cause on appeal are taxed one-half to father and one-half

to mother, for which execution may issue if necessary.




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_________________________________________
TOMLIN, SR. J.


________________________________________
HIGHERS, J.             (CONCURS)


________________________________________
FARMER, J.                    (CONCURS)




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