SUSAN MANQUELLA ADAMS,               )      Davidson Circuit
                                     )      No. 96D-1679
      Plaintiff/Counter-Defendant/   )


                                                           F L E
                                                             I D
      Appellant,                     )
                                     )
VS.                                  )
                                     )
EARNIE BRYAN ADAMS,                  )      Appeal No.
                                     )      01A01-9711-CV-00626 e r 1 6 , 1 9 9 8
                                                        O c to b
      Defendant/Counter-Plaintiff/   )
      Appellee.                      )           C e c il W . C r o w s o n
                                                   A p p e lla t e C o u r t
                 IN THE COURT OF APPEALS OF TENNESSEE
                                                           C le r k
                            AT NASHVILLE

       APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

                  HONORABLE MURIEL ROBINSON, JUDGE




Randle W. Hill, Jr., #12113
329 Union Street
P.O. Box 190632
Nashville, Tennessee 37219-0632
ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLANT

Robert L. Jackson, #2486
ROBERT L. JACKSON & ASSOCIATES
214 Second Avenue, North
Suite 103
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLEE,


                   MODIFIED, AFFIRMED AND REMANDED.



                                     HENRY F. TODD, JUDGE




CONCURS:
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
WILLIAM C. KOCH, JR., JUDGE
SUSAN MANQUELLA ADAMS,                        )      Davidson Circuit
                                              )      No. 96D-1679
       Plaintiff/Counter-Defendant/           )
       Appellant,                             )
                                              )
VS.                                           )
                                              )
EARNIE BRYAN ADAMS,                           )      Appeal No.
                                              )      01A01-9711-CV-00626
       Defendant/Counter-Plaintiff/           )
       Appellee.                              )


                                    OPINION

       Susan Manquella Adams, hereafter referred to as the wife, has appealed from the

judgment of the Trial Court declaring her and her husband, Earnie Bryan Adams, to be divorced,

awarding joint custody of two children with alternating physical custody in each parent, and

providing for child support and other incidentals.



       The parties were married in California on September 10, 1989, where the wife was

employed by General Motors Acceptance Corporation, and the husband was a motorcycle jump

performer. A child was born in 1990. In 1991, the parties moved to Tennessee where the wife

found employment with Toyota Credit Co., and the husband continued his efforts to become a

motorcycle jumping star. A second child was born in 1993. In March 31, 1996, the wife moved

out of their apartment leaving the children with the husband. The parties continued to occupy

separate apartments in the same apartment complex, both before and after the divorce, so that

the changes in physical custody did not affect the schooling or social contacts of the children.



       On June 7, 1996, the wife sued for divorce on grounds of irreconcilable differences and

inappropriate marital conduct. On August 23, 1996, the husband counterclaimed on the same

grounds.



       The judgment of the Trial Court contains the following provisions:

                      The Court does have concerns about the children’s
               residence being relocated to another state sincew the children

                                            -2-
                 have lived most of their lives in Davidson County and the
                 children are thriving here and in consideration of all the proof,
                 the Court finds as hereinafter provided:

                       It is further ORDERED, ADJUDGED, AND
                 DECREED by the Court that the children shall remain in
                 Davidson County, Tennessee.

                         It is further ORDERED, ADJUDGED, and
                 DECREED by the Court that in the event Mrs. Adams is not
                 happy residing in Davidson County and she wishes to remove
                 her residence, she may do so, but the children shall remain in
                 Davidson County, Tennessee. Should Mrs. Adams choose to
                 remove her residence to another county or state, then her
                 custodial period would be the months of June, July and
                 August of each year, it being the intention of this Court that
                 the children shall remain in Davidson County during the
                 school year should Mrs. Adams move to another location.


          The only issue raised by the appellant wife is:


                         Whether the trial court erred in awarding the parties
                 joint custody of the minor children and prohibiting the wife
                 from taking the children to California, instead of awarding her
                 exclusive custody, and allowing her to move with the
                 children.


          The husband presents the following issues:

                         1.      Whether the trial court’s awarded of joint legal
                 and split physical custody and whether the alternative custody
                 arrangements, if the mother/appellant chose to leave
                 Davidson County, Tennessee, should be affirmed because a
                 preponderance of the evidence shows that said judgment was
                 in the children’s best interest.

                        2.      Whether the Appellant’s appeal of the Trial
                 Court’s ruling is frivolous.


          The wife argues that the quoted ruling of the Trial Court forces her to choose between

equal time of custody of the children and living where she wants to live in California with her

family.



          On May 7, 1998, Chapter 910 Public Acts of 1998, became effective as T.C.A. § 36-6-

108. Said section contains the following pertinent provisions:




                                                 -3-
                      36-6-108. Parental relocation. - (a) If a parent who
               is spending intervals of time with a child desires to relocate
               outside the state or more than one hundred (100) miles from
               the other parent within the state, the relocating parent shall
               send a notice to the other parent at the other parent’s last
               known address by registered or certified mail. Unless
               excused by the court for exigent circumstances, the notice
               shall be mailed not later than sixty (60) days prior to the
               move. The notice shall contain the following:

                       (1)    Statement of intent to move;

                       (2)    Location of proposed new residence;

                       (3)    Reasons for proposed relocation; and

                       (4)    Statement that the other parent may file a
                              petition in opposition to the move within thirty
                              (30) days of receipt of the notice.
                                            ----
                      (c )    If the parents are actually spending
               substantially equal intervals of time with the child and
                      the relocating parent seeks to move with the child, the
                      other parent may, within thirty (30) days of receipt of
                      notice, file a petition in opposition to removal of the
                      child. No presumption in favor of or against the
                      request to relocate with the child shall arise. The court
                      shall determine whether or not to permit relocation of
                      the child based upon the best interests of the child.
                      The court shall consider all relevant factors including
                      the following where applicable:
                                            ----
                      (2)     Whether the primary residential parent, once
                              out of the jurisdiction, is likely to comply
                              with any new visitation arrangement;

                       (3)    The love, affection and emotional ties existing
                              between the parents and child;
                                            ----
                       (5)    The importance of continuity in the child’s life
                              and the length of time the child has lived in a
                              stable, satisfactory environment.


        The husband argues that the quoted legislation applies to post-divorce proceedings and

is not applicable to the judgment in the present case which was entered before enactment of the

legislation.



        Remedial statues may not be applied retrospectively if they impair vested rights. Shell

v. State, Tenn. 1995, 893 S.W.2d 416. State Department of Human Services v. Defriece, Tenn.

App. 1996, 937 S.W.2d 954.

                                               -4-
        Statutes which are remedial, procedural or interpretive, declaring the public policy of the

state and not impairing any vested right do apply retrospectively unless they expressly provide

otherwise or the retroactive application would produce an unjust result. Kee v. Shelter Ins. Co.,

Tenn. 1993, 852 S.W.2d 226; Pacific Eastern Corp. v. Gulf Life Holding Co., Tenn. App. 1995,

902 S.W.2d 946.



        This Court has determined that the quoted 1998 legislation is remedial, procedural and

interpretive; that it does not impair any vested right; that it contains no prohibition of

retrospective application; and that it declares the public policy of the State as to its subject matter

and should apply to the present appeal.



        Accordingly, the above quoted portions of the judgment of the Trial Court are vacated.

In all other respects, the judgment is affirmed. If either party desires to remove either or both

of the children out of the State or for a distance of 100 miles from their present domicile, such

party may seek permission to do so under the provisions of T.C.A. § 36-6-108.



        The foregoing disposes of the issue presented by the wife.



        The evidence does not preponderate against the award of joint custody with alternate

physical custody under the conditions above stated. As stated above, this portion of the

judgment is affirmed. Modification of custody remains within the control of the Trial Court.

Removal of the children out of the State or for a distance of 100 miles is controlled by T.C.A.

§ 36-6-106.



        This disposes of the husband’s first issue.



        In response to the husband’s second issue, this Court finds that the appeal is not

frivolous.



                                                 -5-
     Costs of this appeal are taxed equally. That is, each party shall pay one-half of said costs.



     The cause is remanded for further proceedings.



              MODIFIED, AFFIRMED AND REMANDED.



                                              ___________________________
                                              HENRY F. TODD, JUDGE




CONCUR:


___________________________
BEN H. CANTRELL, P.J., M.S.


___________________________
WILLIAM C. KOCH, JR., JUDGE




                                             -6-
