                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 27, 2000 Session

   ELPIDIO PETE PLACENCIA v. LAUREN ROCHELLE PLACENCIA

                 A Direct Appeal from the Circuit Court for Shelby County
               No. 138164 R.D.   The Honorable George H. Brown, Jr., Judge



                   No. W1999-01812-COA-R3-CV - Filed December 27, 2000


This is a post-divorce action involving custody and relocation of the parties’ minor child. Father,
primary custodial parent, filed a petition to relocate, and Mother filed a petition for change of
custody. The trial court awarded custody of the child to Mother, and Father appealed. This Court
reversed the custody award and remanded the case to the trial court. Pending application for
permission to appeal to the Supreme Court, Mother filed a petition for stay of execution and a
temporary injunction and also requested a change of custody based on changed circumstances. After
the Supreme Court denied the application for permission to appeal, the trial court entered its order
denying Mother’s request for a hearing on her petition and denying other relief sought. Mother has
appealed to this Court.


     Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Vacated and
                                       Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. joined, and HOLLY KIRBY LILLARD , J. joined with separate concurring opinion

Robert A. Talley, Memphis, For Appellant, Lauren Rochelle Placencia

Edward M. Bearman, James M. Allen, Memphis, For Appellee, Elpidio Pete Placencia

                                              OPINION

         Elpidio Pete Placencia (“Father”) and Lauren Rochelle Placencia (“Mother”) were divorced
in May of 1992. The parties marital dissolution agreement, which was later incorporated into the
final divorce decree, provided that Father would have custody of the parties’ minor child, Megan
Placencia (“Megan”), and that Mother would have reasonable visitation with the child. Five years
later, Father filed a petition seeking to relocate to Georgia to accept a better-paying job. At that time,
Mother filed a petition to prevent Father from removing the child from Tennessee, and seeking a
change in custody. The trial court granted Mother custody of Megan, finding a change in material
circumstances, and Father appealed. This Court reversed the trial court1, and on September 13, 1999,
the Tennessee Supreme Court denied Mother’s application for permission to appeal.

        Following Placencia I, Mother filed the instant action in Shelby County Circuit Court,
alleging additional changes in circumstances warranting modification of custody, and seeking a
hearing on Father’s intention to relocate with Megan. The trial court denied Mother’s petition,
finding that the court “took into consideration all issues and factors in the Court’s original ruling and
the Court of Appeals has spoken to those issues.” During the three years the parties pursued legal
action in this matter, Megan resided with her mother pursuant to court order.

         The parties raise two issues on appeal: (1) Whether the trial court erred in refusing to grant
Mother a hearing on her petition to modify custody; and (2) Whether the trial court erred in refusing
to grant a hearing on the issue of the removal of the minor child. For the reasons below, we find that
the trial court erred in denying Mother a hearing on both petitions.

       The trial court’s denial of Mother’s request for a hearing is a question of law. As such, our
review of the trial court order is de novo upon the record with no presumption of correctness
accompanying the trial court’s conclusions of law. See Tenn. R. App. P. 13(d); Waldron v. Delffs,
988 S.W.2d 182, 184 (Tenn. Ct. App. 1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn. Ct.
App. 1998).

       Our Supreme Court has said, “Every man has a right to his day in Court, that is to have a
hearing after due notice. . . .” Real Estate Comm’n v. McLemore, 306 S.W.2d 683, 686 (Tenn.
1957). Additionally, the “Open Courts” section of the Tennessee Constitution provides:

                   That all courts shall be open; and every man, for an injury done him
                   in his lands, goods, person or reputation, shall have remedy by due
                   course of law, and right and justice administered without sale, denial,
                   or delay. Suits may be brought against the State in such manner and
                   in such courts as the Legislature may by law direct.

Tenn. Const. art. 1, § 17. The Tennessee Constitution also provides:

                   That no man shall be taken or imprisoned, or disseized of his
                   freehold, liberties or privileges, or outlawed, or exiled, or in any
                   manner destroyed or deprived of his life, liberty or property, but by
                   the judgment of his peers or the law of the land.

Tenn. Const. art. 1, § 8.



         1
          For purposes of this opinion, we will refer to our prior opinion in Placen cia v. Plac encia , 3 S.W.3d 497 (T enn.
Ct. App. 199 9), as “Placencia I”.

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        Tennessee has long recognized that a parent’s right to custody is a fundamental liberty
interest which may not be abridged absent due process of law. See, e.g., In re Knott, 197 S.W. 1097,
1098 (Tenn. 1917); State ex rel. Bethell v. Kilvington, 45 S.W. 433, 434 (Tenn. 1898); Neely v.
Neely, 737 S.W.2d 539, 542 (Tenn. Ct. App. 1987). Under the authorities cited above, therefore,
it would be a violation of Mother’s rights if she were denied her day in court on either the petition
to modify or the original petition to relocate in this matter. We must, therefore, determine if Mother
has been afforded an opportunity to be heard on the petitions which are the subject of this appeal.

        We first address the original Petition to Modify Final Decree of Divorce which Mother filed
on March 12, 1997 in response to Father’s Petition to Relocate. Mother argues that, in its initial
ruling on which parent should have custody of Megan, the trial court and this Court pretermitted the
issue of relocation. Mother explains that she has a right to be heard on the issue of whether
relocation is appropriate in this case. We agree.

        T.C.A. § 36-6-108(d) governs the issue of relocation in a situation where one parent spends
greater time with the child than the other parent. That section provides, in relevant part:

                        (d) If the parents are not actually spending substantially equal
               intervals of time with the child and the parent spending the greater
               amount of time with the child proposes to relocate with the child, the
               other parent may, within thirty (30) days of receipt of the notice, file
               a petition in opposition to removal of the child. The other parent may
               not attempt to relocate with the child unless expressly authorized to
               do so by the court pursuant to a change of custody or primary
               custodial responsibility. The parent spending the greater amount
               of time with the child shall be permitted to relocate with the child
               unless the court finds:

                       (1) The relocation does not have a reasonable purpose;

                      (2) The relocation would pose a threat of specific and
               serious harm to the child which outweighs the threat of harm to
               the child of a change of custody; or

                       (3) The parent's motive for relocating with the child is
               vindictive in that it is intended to defeat or deter visitation rights
               of the non-custodial parent or the parent spending less time with
               the child.

               Specific and serious harm to the child includes, but is not limited to,
               the following:




                                                 -3-
                      (1) If a parent wishes to take a child with a serious medical
               problem to an area where no adequate treatment is readily available;

                      (2) If a parent wishes to take a child with specific educational
               requirements to an area with no acceptable education facilities;

                      (3) If a parent wishes to relocate and take up residence with
               a person with a history of child or domestic abuse or who is currently
               abusing alcohol or other drugs;

                      (4) If the child relies on the parent not relocating who
               provides emotional support, nurturing and development such that
               removal would result in severe emotional detriment to the child;

                       (5) If the custodial parent is emotionally disturbed or
               dependent such that the custodial parent is not capable of adequately
               parenting the child in the absence of support systems currently in
               place in this state, and such support system is not available at the
               proposed relocation site; or

                       (6) If the proposed relocation is to a foreign country whose
               public policy does not normally enforce the visitation rights of
               non-custodial parents, which does not have an adequately functioning
               legal system or which otherwise presents a substantial risk of specific
               and serious harm to the child.

T.C.A. § 36-6-108(d) (Supp. 2000)(emphasis added).

       In Placenia I, neither the trial court nor this Court based their rulings on the issue of the
propriety of Father’s relocation, but disposed of the case on the custody issue of changed
circumstances. See 3 S.W.3d at 502-503. Father argues that both courts addressed the relocation
by implication in addressing the issue of custody. While, at first glance, this argument has appeal,
we feel that the issues involved in allowing a custodial parent to relocate with a child are too
important to leave to “implication.”

        The statute governing relocation specifically sets out three considerations which factor into
a court’s decision to allow the custodial parent to relocate: (1) a reasonable purpose for the
relocation; (2) whether the relocation would pose a threat of specific and serious harm to the child;
and (3) whether the parent’s motive for the relocation is vindictive. See T.C.A. § 36-6-108(d). The
only issue this Court addressed in Placencia I was whether Father’s motive for relocating was
vindictive. See 3 S.W.3d at 500. This Court noted that it was not. Id.




                                                -4-
        T.C.A. § 36-6-108(d) does not appear to require specific findings as to the three elements
listed above, and we have found no Tennessee case which directly addresses whether such findings
are required. However, given the fundamental nature of the interests involved, we hold that the trial
court ruling should at least have addressed the issues of “reasonable purpose” and “specific and
serious harm” in its opinion in this matter.

         Further, we hold that, even if the trial court had addressed all three prongs of the applicable
statute, Mother’s second Petition to Modify, dated May 25, 1999, should be considered as an
amendment to her original response to Father’s Petition to Relocate. Mother has alleged certain
facts, specifically: (1) that Husband has left his job in Georgia and is attending law school in Topeka,
Kansas;2 and (2) that, for the past two years, Megan has resided with her Mother in Tennessee.
Whether the proof under these allegations has a bearing on Father’s right to relocate is a matter for
the trial court to determine. We hold only that Mother should be allowed an evidentiary hearing on
Father’s proposed relocation.

        Even assuming, arguendo, that Mother has had her day in court on the issue of relocation,
we hold that the trial court erred in denying her request for a hearing pursuant to her Petition to
Modify filed May 25, 1999. As we noted, that petition alleges a material change in circumstances
warranting modification of custody. This is a new petition, and alleges new facts which the trial
court must consider under T.C.A. § 36-6-101(a)(1)(Supp. 2000), which provides that the issue of
custody “shall remain within the control of the court and be subject to such changes or modifications
as the exigencies of the case may require.” Id. As we noted in Placencia I:

                           When considering a petition to modify custody, the threshold
                  issue is whether there has been a material change in circumstances
                  occurring subsequent to the initial custody determination. If the trial
                  court determines that there has, in fact, been a material change in
                  circumstances, the court then seeks to devise a custody arrangement
                  that is in the best interests of the child. Absent a material change in
                  circumstances, however, the petition to modify custody must be
                  denied.

3 S.W.3d at 499 (citations omitted). Again, we do not hold that Mother’s allegations amount to a

material change in circumstances warranting modification of the original decree. We only hold that

Mother has a right to present evidence in support of her petition.




         2
          The parties appear to dispute why Husband left his employment with Wal-mart. Mother alleges that Father
left voluntarily, while Father argues he left because of his unwillingness to participate in “something that endangered
individuals an d was con trary to the law.”

                                                         -5-
        Accordingly, the order of the trial court is vacated and the case is remanded to the trial court
for an evidentiary hearing on the issue of Father’s relocation and on the issue of custody because of
changed circumstances subsequent to the date of the Court of Appeals Opinion. Costs of the appeal
are assessed to appellee, Elpidio Pete Placencia.



                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                  -6-
