                  COURT OF APPEALS OF TENNESSEE

                          AT KNOXVILLE               FILED
                                                     February 27, 1998

MICHAEL EUGENE COPAS,         )   C/A NO. 03A01-9708-CV-00375 Jr.
                                                  Cecil Crowson,
                              )                      Appellate C ourt Clerk
          Plaintiff-Appellee, )
                              )
                              )
                              )
v.                            )   APPEAL AS OF RIGHT FROM THE
                              )   SEVIER COUNTY CIRCUIT COURT
                              )
                              )
                              )
                              )
JULIE MARIE COPAS,            )
                              )   HONORABLE BEN W. HOOPER, II,
          Defendant-Appellant.)   JUDGE




For Appellant                         For Appellee

RICHARD T. WALLACE                    DWIGHT E. STOKES
Ogle & Wallace, P.C.                  Galyon & Stokes
Sevierville, Tennessee                Sevierville, Tennessee




                         O P I N IO N




REVERSED AND REMANDED                                           Susano, J.

                                  1
          This is a divorce case.     However, the issues presented

for our review pertain solely to the jurisdiction of the trial

court to hear and determine an interstate child custody dispute

under the Uniform Child Custody Jurisdiction Act (“UCCJA”).    The

trial court held that it had jurisdiction under the Tennessee

version of the UCCJA to decide custody and visitation issues

pertaining to the parties’ only child, Carver Michael Copas

(“Carver”).   The child’s mother, the defendant Julie Marie Copas

(“Mother”), appealed, arguing that the trial court lacked

jurisdiction under T.C.A. § 36-6-201, et seq., the Tennessee

version of the UCCJA, to address such custody and visitation

issues.   Alternatively, Mother argues that the trial court erred

in failing to communicate with the Florida trial court where

Mother had sought a divorce and custody of Carver.     She claims

that the Tennessee court was required by the provisions of T.C.A.

§ 36-6-207(c) to communicate with the Florida court.     We find

Mother’s first issue to be dispositive of this appeal.



                       I.   Procedural History



           Michael Eugene Copas (“Father”) filed a complaint for

divorce in the trial court on April 6, 1995.     Five days later, on

April 11, 1995, Mother filed a “Petition for Dissolution of

Marriage” in the Circuit Court for Collier County, Florida.        Both

pleadings asked for custody of Carver.     When Father’s complaint

was filed in Tennessee, Carver was 71 days old, having been born

on January 25, 1995.




                                  2
          In the instant case, Mother filed a motion to dismiss,

which, among other things, questioned the trial court’s

jurisdiction to address issues pertaining to Carver’s custody.

It was, and is, Mother’s position that the trial court lacked

jurisdiction under the pertinent provisions of T.C.A. § 36-6-201,

et seq., to resolve such custody issues.   Each of the parties

filed “matters outside the pleadings” that were considered by the

trial court.   See Rule 12.03, Tenn.R.Civ.P.   Thus, the motion was

properly treated as a motion under Rule 56, Tenn.R.Civ.P.     See

Rule 12.03, Tenn.R.Civ.P.



          Following a hearing on June 9, 1995, the trial court

denied Mother’s motion.   In so doing, it found that Tennessee was

the “home state” of Carver “as defined by T.C.A. [§] 36-6-203.”



          The instant case was finally concluded following a

hearing on the merits on February 13, 1997.    The court reiterated

its ruling that it had subject matter jurisdiction to decide

issues pertaining to Carver’s custody:



          The Court further finds that the Court is
          more convinced than ever after hearing the
          proof in this cause...that this is the proper
          jurisdiction to address the issues of child
          custody and support, and therefore the
          defendant’s motion to re-address the issue is
          again overruled.



By order entered April 17, 1997, the trial court declared the

parties divorced; confirmed its earlier decree awarding the

parties joint custody of Carver with Mother as residential




                                 3
custodian, subject to Father’s specified visitation rights; and

addressed other issues not germane to this appeal.



                              II.   Facts



            The parties were married in Sevier County on November

22, 1993.    In November, 1994, they went to Naples, Florida.   As

recited in Father’s response to Mother’s motion to dismiss, the

trip was made



            for the purpose of allowing [Mother] to be
            close to her mother during the final phase of
            pregnancy.



Carver was born in Naples on January 25, 1995.



            Father returned to Sevier County in February, 1995.

Mother remained in Florida with the parties’ child.    The parties

agree on this appeal that Mother had planned to return, with her

infant son, to Tennessee to join Father, but there is a dispute

as to when this was to have occurred.



            After Father returned to Tennessee, certain “long

distance” domestic disputes arose between the parties, resulting

in the divorce filings mentioned earlier in this opinion.    Carver

continued to live in Florida with Mother, and was living there at

the time of the trial below.



                      III.   Standard of Review




                                    4
          In this non-jury case, the record of the trial court’s

proceedings comes to us with a presumption of correctness as to

the trial court’s factual findings.       We must honor this

presumption “unless the preponderance of the evidence is

otherwise.”   Rule 13(d), T.R.A.P.       The trial court’s conclusions

of law are not accorded the same deference.        Campbell v. Florida

Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,

860 S.W.2d 857, 859 (Tenn. 1993).



                        IV.       Pertinent Law



          In 1979, Tennessee enacted its version of the UCCJA,

now codified at T.C.A. § 36-6-201, et seq.        The UCCJA was

originally promulgated by the Uniform Commissioners



          with the express intent of eliminating
          interstate competition over custody matters,
          child-snatching, and unauthorized holdovers
          following authorized visitation periods.



Brown v. Brown, 847 S.W.2d 496, 499 (Tenn. 1993).        As the instant

case demonstrates, the UCCJA has not always had its intended

effect.



          The following provisions of the Tennessee version of

the UCCJA are pertinent to the facts of this case:



                         T.C.A. § 36-6-202

          As used in this part:

                              *      *     *



                                     5
(2) “Custody determination” means a court
decision and court orders and instructions
providing for the custody of a child,
including visitation rights; it does not
include a decision relating to child support
or any other monetary obligation of any
person;

(3) “Custody proceeding” includes proceedings
in which a custody determination is one (1)
of several issues, such as an action for
divorce or separation, and includes habeas
corpus proceedings, but specifically excludes
Interstate Juvenile Compact matters and other
proceedings pursuant to title 37, except
proceedings to determine custody pursuant to
§ 37-1-104 and pursuant to § 37-1-103 as to
dependent and neglected children when an
original party or person acting as a parent
files the petition or when the petition
involves facts arising from another state;

                  *   *    *

(5) “Home state” means the state in which the
child immediately preceding the time involved
lived with such child’s parents, a parent or
a person acting as parent, for at least six
(6) consecutive months, and in the case of a
child less than six (6) months old the state
in which the child lived from birth with any
of the persons mentioned. Periods of
temporary absence of any of the named persons
are counted as part of the six (6) months or
other period;

                  *   *    *

              T.C.A. § 36-6-203

(a) A court of this state which is competent
to decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if:

(1) This state:

(A) Is the home state of the child at the
time of commencement of the proceeding; or

(B) Had been the child’s home state within
six (6) months before commencement of the
proceeding and the child is absent from this
state because of the child’s removal or
retention by a person claiming custody or for
other reasons, and a parent or person acting
as parent continues to live in this state; or



                      6
         (2)(A) It appears that no state has
         jurisdiction under subdivision (a)(1), or
         each state with jurisdiction under
         subdivision (a)(1) has declined to exercise
         jurisdiction on the ground that this state is
         the more appropriate forum to determine the
         custody of the child; and

         (B) The child and at least one (1) contestant
         have a significant connection with this
         state; and

         (C) there is available in this state
         substantial evidence concerning the child’s
         present or future care, protection, training
         and personal relationship; and

         (D) It is in the best interest of the child
         that a court of this state assume
         jurisdiction; or

         (3) It appears that no state has jurisdiction
         under subdivision (a)(1) or (2) or each state
         has refused jurisdiction on the ground that
         this is the more appropriate forum to
         determine child custody, and it is in the
         best interest of the child that a court of
         this state assume jurisdiction.

                           *       *    *



                           V.     Analysis


          In the landmark case of Brown v. Brown, 847 S.W.2d 496

(Tenn. 1993), the Supreme Court pointed out that under the

Tennessee version of the UCCJA, “jurisdiction exists in only one

state at a time.”   Id. at 501.    In Brown, the Supreme Court

clearly explained the appropriate jurisdictional analysis to be

undertaken by a trial court:



          If Tennessee is not the child’s “home state,”
          a Tennessee court may assume jurisdiction
          only upon a finding that no other state
          qualifies as the child’s “home state,” or
          that the “home state” has declined to
          exercise jurisdiction and deferred to
          Tennessee as “the more appropriate forum to


                                   7
            determine the custody of the child.”         T.C.A.
            § 36-6-203(a)(2)(A) and (3).



Id. at 500 (emphasis in Brown opinion).



            In the instant case, when Father filed his complaint

for divorce in Tennessee on April 6, 1995, the minor child, whose

custody is at issue in this case, was less than six months old.

In fact, he was only 71 days old.         Thus, when Father undertook to

invoke the jurisdiction of the trial court in the instant case,

he did so at a time when Florida was the child’s “home state” as

that concept is defined in T.C.A. § 36-6-202(5).            We find this to

be the inescapable interpretation of subsection (5) of T.C.A. §

36-6-202, since that code provision provides that “in the case of

a child less than six (6) months old the state in which the child

lived from birth with any of the persons mentioned”1 is the

child’s “home state.”      Florida law is to the same effect.          See §

61.1306(5), Fla.Stat.



            It is obvious from the context of T.C.A. § 36-6-202(5)

that the language -- “the state in which the child lived” --

pertains to the actual place of residence, as opposed to the

broader concept of domicile.        Therefore, under the UCCJA, the

domicile of Carver and his parents during the child’s 71 days of

existence is not the significant area of inquiry.            What is

important is the fact that the child lived, during this critical

statutory period, in the State of Florida.




      1
       The “persons mentioned” are the “child’s parents, a parent or a person
acting as parent.” See T.C.A. § 36-6-202(5).

                                      8
            Father relies upon the last sentence of T.C.A. § 36-5-

202(5) -- “[p]eriods of temporary absence of any of the named

persons are counted as part of the six (6) months or other

period” -- to support his position that the child’s “home state”

is Tennessee.   His argument in this regard is not entirely clear.

Specifically, it is unclear whose “temporary absence” he is

relying upon and how that “temporary absence” impacts the “home

state” analysis under T.C.A. § 36-5-202(5).    If he is arguing

that Mother established a domicile in Tennessee prior to the

birth of the parties’ child and that her stay in Florida was a

“temporary absence” from that domicile, we do not understand the

last sentence of T.C.A. § 36-5-202(5) to mean that her absence

from Tennessee prevents Florida from being the place where the

child lived during the critical period just prior to the

commencement of the proceedings in this case.    On the other hand,

if Father is claiming that Carver had a “temporary absence” from

Tennessee, such a position is untenable in view of the fact that

Carver has never lived in Tennessee.    We do not understand how a

person can have an absence from a state, temporary or otherwise,

if that person has never lived in that state.    In any event, we

believe that Father misconstrues the import of the quoted

language.    That language permits a “temporary absence” to be

“counted as a part of” the relevant period.     (Emphasis added).

The language does not permit a “temporary absence” to be

subtracted from the “six (6) months or other period.”    The facts

of this case simply do not bring into play the quoted language

under discussion.




                                  9
            Husband argues that the evidence clearly indicates that

the parties were domiciles of Tennessee during the entirety of

their marriage.    He points to the substantial evidence in the

record reflecting the parties’ contacts with Tennessee.    He

argues that a “rigid interpretation” of T.C.A. § 36-6-202(5)

“would defeat the purposes of the UCCJA.”    He contends that



            [i]t is ludicrous to suggest that the UCCJA
            can be so easily circumvented so that an
            incidental birth in another state or one
            planned in another state for short term
            convenience can outweigh all other
            substantial commitments with the state of
            residence.


We believe that Husband’s arguments miss the mark.



            The term “home state” is a term of art under the UCCJA

and its federal counterpart, the Parental Kidnapping Prevention

Act.   It has a very specific meaning under the state and federal

legislative schemes pertaining to interstate custody disputes.    A

court is required to apply that very specific meaning to such

disputes.    A court is not at liberty to apply a definition of

home state that is at odds with the statutory definition.    Thus,

a court cannot utilize a layman’s definition of home state or a

definition that equates home state with domicile or significant

contacts if to do so is to ignore the clear statutory definition.

The UCCJA contains a “home state” analysis, which focuses on the

place where the child lived during the pertinent period rather

than the place where a parent has significant contacts.



            Contrary to Father’s assertion, our construction of the

UCCJA does not have the effect of encouraging a parent to go to a

                                 10
state with absolutely no custody contacts in order to defeat the

jurisdiction of a state with substantial contacts with the child.

In the first place, we are not dealing, in this case, with a

state that has no custody contacts.   On the contrary, there are

many witnesses in Florida whose testimony is relevant to the

issue of custody.   Furthermore, it should be noted that Father’s

fear that a state with no custody contacts will be inclined to

decide custody, is addressed in the language of the UCCJA itself.

That statutory scheme sets up a mechanism by which a state, which

is the “home state” of a child under T.C.A. § 36-6-202(5) or its

UCCJA counterpart, can and should defer to a state that “is the

more appropriate forum to determine the custody of the child.”

See T.C.A. § 36-6-203(a)(2)(A) and (3).   Certainly, our decision

should not be read as suggesting that a state with no real

custody witnesses or other relevant evidence should embrace a

custody determination based solely on a rigid interpretation of

the definition of “home state” when a state that is more

appropriate for such a determination is willing to assume

jurisdiction.   In any event, we are not faced with that situation

in this case.



          Tennessee does not qualify as Carver’s “home state”

under the provisions of T.C.A. § 36-6-203(a)(1).   As previously

noted, Florida does.   Since Florida has clearly expressed its

willingness to exercise jurisdiction in this case, it is likewise

clear that Tennessee cannot address custody issues pertaining to

Carver under T.C.A. § 36-6-203(a)(2)(A) and (3).   Florida’s

willingness to act is reflected in the ruling of the Honorable

Hugh D. Hayes, Judge of the Collier County, Florida, Circuit


                                11
Court, pronounced on May 15, 1997, which we have considered

pursuant to Mother’s motion to consider post-judgment facts under

Rule 14, T.R.A.P.     However, even if we were to ignore this

subsequent ruling, there is nothing in the record that

affirmatively reflects that a Florida court had ever refused to

exercise jurisdiction based on a finding that Tennessee is “the

more appropriate forum to determine...custody.”            This is

important because such a finding is required to trigger

jurisdiction under T.C.A. § 36-6-203(a)(2)(A) and (3).               We

recognize that the Florida trial court did decide, at an earlier

time -- and after the judge in the instant case had declared that

he had jurisdiction to make a custody determination -- that it

should defer to Tennessee; but that decision of the Florida trial

court was based upon its erroneous determination that the

Tennessee court had acted in “substantial conformity” with the

UCCJA.    Significantly, that earlier judgment of the Florida court

was not predicated on the “more appropriate forum” rationale

contemplated by T.C.A. § 36-6-203(a)(2)(A) and (3).



            It should be noted that the earlier judgment of the

Florida trial court was reversed by the Florida Court of Appeals,

Second District, in an opinion filed January 29, 1997.2              In that

opinion, the Florida Court of Appeals held that the Florida trial

court erred in deferring to the Tennessee proceedings.               This was

held to be error because, according to the Florida appellate

court, the decision of the Florida trial court was based on the

erroneous conclusion that Tennessee was Carver’s “home state.”


      2
       The opinion of the Florida Court of Appeals was called to the attention
of the trial court in the instant case before the latter court held its final
hearing on February 13, 1997.

                                      12
As we have previously indicated, following the decision of the

Florida appellate court, the Florida trial court expressed its

willingness to exercise its custody jurisdiction in this case.     A

transcript of that ruling is in the record before us.   Even

though that decision was made after the entry of the final

judgment in the instant case, we have considered it solely as

evidence of the fact that the Florida trial court has expressly

indicated its willingness to exercise its custody jurisdiction, a

fact that is clear from the transcript.



          Since the trial court was without jurisdiction to make

a “custody determination” as defined in T.C.A. § 36-6-202(2), it

results that so much of the trial court’s judgment as addresses

custody and visitation issues pertaining to Carver Michael Copas

is hereby reversed.   Costs on appeal are taxed to the appellee.

This case is remanded to the trial court for enforcement of the

remainder of the judgment and for the collection of costs

assessed below, all pursuant to applicable law.



                               __________________________
                               Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
Don T. McMurray, J.




                                13
