                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                Assigned On Brief February 22, 2008

       TRISHA ELLEN DILLINGHAM v. DAVID CLYDE DOWNARD

                    Direct Appeal from the Chancery Court for Madison County
                     No. 58975    Roger A. Page, Judge, Sitting by Interchange



                         No. W2007-01429-COA-R3-CV - Filed March 4, 2008


Mother sought court approval to relocate out-of-state due to a job transfer which would result in a
significant increase in pay. When the matter came on to be heard, the job opportunity was no longer
available. Father contends that the trial court should have dismissed the petition due to mootness.
We agree. The matter is remanded to the trial court for entry of an order of dismissal.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.

David Clyde Downard, Pro Se.

                                       MEMORANDUM OPINION1

       Trisha Ellen Dillingham (Mother) and David Clyde Downard (Father) were divorced in
Robertson County, Tennessee in June 2000. One child was born to the marriage on April 28, 1999.
The final decree of divorce provided that Mother be named the primary residential parent and Father
was awarded visitation. Mother and child subsequently moved to Madison County.

        On August 24, 2006, Mother filed a petition in the Chancery Court of Madison County to
modify the prior order of visitation and support and requested that the court adopt a new parenting
plan/visitation schedule and for court approval of her relocation to Atlanta, Georgia. The petition



       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
recites that Mother has received an opportunity to transfer with her job to Atlanta which would result
in a significant increase in pay.

        Father filed an answer and counter-complaint for contempt wherein he opposes the relocation
and asks the court to hold Mother in contempt. Father specifically is aggrieved by the fact that minor
child refers to the step-father as “Dad”.

        The record before us consists of what is commonly referred to as the Technical Record. The
record does not contain a transcript of the proceedings below or a statement of the evidence.
However, it is apparent from the trial court’s order of March 12, 2007, and the Findings of Fact and
Conclusions of Law attached thereto, that when the matter came on to be heard, that the job
opportunity in Georgia was no longer available. In the Findings of Fact and Conclusions, the trial
court stated as follows:

       I guess - - I don’t know how to properly legally - - I guess if you’re asking me to rule
       that you can go ahead and move to - - if you’re asking me to rule hypothetically that
       she can move anywhere in these four states, I’m not going to do that. I’m not
       prepared to do that. I hate that she missed this opportunity to move down to the
       Metro Atlanta area. It’s a nice place to live. Perhaps they can still accommodate her.
       If that’s where she’s asking to move, if you come back in here in two or three weeks
       or a month and ask me to do that, I would approve it with certain limitation or
       exceptions, whatever we need to do. If she gets an opportunity in Memphis, my
       understanding is you don’t need Court approval for that anyway because it’s in the
       state. Now, if you get one that’s in a different state, I’m not saying I may or may not
       approve it. We’ll just have to look at the factors. I don’t think I can apply the factors
       in the statute that I’m compelled to comply in a hypothetical situation, okay. Does
       that answer your question before me this afternoon?

              MS. KARNES: Your Honor, are you saying that if tomorrow she were to
       have a Duluth opportunity, that’s acceptable to the Court?

               THE COURT: Duluth, Georgia, based on what I’ve seen and read is
       acceptable to me. Anywhere in the Metropolitan Atlanta area, I think, is a reasonable
       distance from Nashville. I don’t think Alabama is one of the states, but Birmingham
       would be reasonable, somewhere like that. But if you’re asking me to allow you to
       move somewhere on the North Carolina or South Carolina coast, then that’s a
       different question. Okay?

       The order entered by the trial court states as follows:

       1.      That according to the Findings of Fact and Conclusions of Law (attached
               hereto as Exhibit “A”), the Plaintiff’s situation as to relocation was
               hypothetical at the present time; however, the Court did find that if the


                                                 -2-
                   Plaintiff were presented with a job opportunity in the Metro-Atlanta area
                   discussed earlier in the hearing, then the Court would approve same . . . .

         2.        That if an employment opportunity was presented to the Plaintiff to a location
                   outside Tennessee or the Metro-Atlanta area, the Court would require the
                   Plaintiff to schedule a brief hearing before the Court to address same.

         3.        That the Plaintiff’s request for attorney’s fees is denied.

         4.        That the Defendant’s request for attorney’s fees is denied.

         5.        That the Court would not enter an Order as to what the parties’ minor child
                   should call the step-father.

         Father filed a timely notice of appeal.2 Father contends on appeal that the trial court erred
in failing to enter an order dismissing Mother’s petition to relocate when it became apparent that the
basis for the petition, the job offer in Georgia, was no longer on the table. We agree. At that point,
Mother’s petition to relocate was moot and should have been dismissed. In the event circumstances
change materially, either party certainly may petition the court for relief.

        This cause is remanded to the trial court for entry of an order dismissing the Mother’s petition
to relocate. The trial court’s decision regarding the award of attorney’s fees for each party and his
ruling on what the minor child should call the step-father is affirmed. In our discretion, we tax the
costs of this appeal to the appellant, David Clyde Downard, and his surety.



                                                                   ___________________________________
                                                                   DAVID R. FARMER, JUDGE




         2
          Although both parties were represented by counsel in the trial court, Father appears in this Court Pro Se.
Correspondence in the file indicates that Father is an attorney. M other did not file a brief and this Court entered an order
on February 14, 2008, that, due to M other’s failure to submit a brief, the matter would be submitted for decision on the
record, appellant’s brief, and appellant’s oral argument, if requested. Oral argument was not requested. Mother’s trial
counsel filed a motion in this Court to withdraw which this Court granted.

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