                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE


AMY (KELLEY) SMITH,

              Plaintiff/Appellee,
                                         )
                                         )                   FILED
                                         ) Williamson Chancery No. 24120
                                         )                    October 27, 1998
VS.                                      ) Appeal No. 01A01-9711-CH-00657
                                         )                   Cecil W. Crowson
ALTON WADE KELLEY,                       )                  Appellate Court Clerk
                                         )
              Defendant/Appellant.   )


               APPEAL FROMTHE CHANCERY C OURT O WILLIAMSON COU
                                               F              NTY
                             AT FRANKLIN, TENNESSEE
                  THE HONORABLE HENRY DENMARK BELL, CHANCELLOR




J. RUSSELL HELDMAN
Franklin, Tennessee
Attorney for Appellant



JAMES L. CURTIS
Nashville, Tennessee
Attorney for Appellee




AFFIRMED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
        Defendant, Alton Wade Kelley (“Appellant” or “Husband”), appeals the trial court’s order allowing

Plainitff, Am Kelley Smith (“Appellee” or “W
             y                              ife”), to relocate to Texas with the parties’ m child, Robert
                                                                                           inor

WadeKelley, declining to change custody of the minor child to Husband, declining to award Husband attorneys

fees, and declining to dismiss Wife’s motion under 12(b)(6). W appeals the portion of the trial court’s
                                                              ife

judgment which set the new visitation schedule for Husband.



                                 I. Factual and Procedural History



        Theparties in thisactionwere divorced on October 11, 1996. A Marital Dissolution Agreement (“MDA”)

was incorporated into the final decree of divorce. There w only one child born of the marriage. The decree
                                                          as

provided that the partieswould share joint custody of thechild, with W having actual physical custody of the
                                                                      ife

minor child. The Final Decree granted Husband liberal visitation privileges, providing him about 180 days of

visitation per year. The Final Decreealso stated that “the parties agree not tomove m than sixty miles from
                                                                                     ore

Nashville, Tennessee.”



        On July 4, 1997, Wife w married to Jim Sm (“Smith”). Smith w em
                               as                ith                as ployed by General Mills in

Dallas, Texas. Shortly after their marriage, W filed a Petition to M
                                              ife                   odify requesting that she be allowed to

move the parties’ child, then age 2 ½ to Texas to reside with her and her new husband. Husband filed a
                                     ,

motion to dism Wife’spetitionforFailureto Statea ClaimUpon WhichRelief Can Be Granted. The trial court
              iss

found that the petition was the proper way for W to exercise her desire to remove the child fromthe state
                                                ife

and dismissedHusband’s motion. Inresponse toWife’smotion,Husband filed a complaint to Change Custody,

Visitation and Child Support and for Injunction and Other Relief.



        At thetime of thehearing, W hadobtaineda new job with International Paper in Dallas with a $6,000
                                   ife

increase in pay plus additional bonuses. Wife and her new husband had made plans to purchase a house in

a city just north of Dallas. Also, Wife testified that she had checked into schools in the McKinney area and had

enrolled the child in a private day school. Wife contends that, at the time their MDA was written, she had no

plans to remarry or to move to another state. Husband contended otherwise.



        Both Wife andHusbandtestifiedthat they workedto accommodateeach other w attendingto their
                                                                               hile

                                                       2
child. Wife contends that she is the prim care giver. Wife further testified that she is ready to transport the
                                         ary

parties’ child however often is necessary to keep Husband involved in the child’s life.



        The parties’ child has febrile seizures on occasion. Husband is concerned that Smith has no idea of

howto handlesuchseizures. Also, Husbandtestifiedthat thechild’spediatricians are in Brentwood, Nashville,

and Columbia, and that these doctors arefam with the child’s condition. As such, Husband contends that
                                           iliar

this would not be in the child’s best interest and would be a material change in circumstances to uproot the

child fromTennessee to Texas. W testified that she had a referral for a doctor in a Dallas suburb, and that
                               ife

Smith could be taught how to deal with the child’s seizures.



        Husband testified that he wanted the child tohave continued contact with his family in Tennessee. He

stated that the child has a good relationship with both Wife’s and Husband’s family and that they all reside in

Tennessee. He also desires for the child to attend the schools that he attended in the Nashville area.



        Both parties testified on their ow behalf along with various other w
                                          n                                 itnesses. A great deal of the

testimony dealt with what is in the best interest of the parties’ child. At the close of all the evidence the trial

court renderedits decision. Thetrial court found that although the MDAlabeled the parties’ custody of thechild

as “joint custody,” the Husband’s periods of placement were referred to intheagreement as “Child Visitation”

and Husband was paying support for the child. The trial court therefore determined W to be the “custodial
                                                                                    ife

parent” and Husband w determ
                     as     ined to be the “non-custodial parent.” The trial court then ruled that Wife

should beallowedto rem the childto another state although Husband should be awarded the same amount
                      ove

of visitation as provided for in the M The trial court then ordered both parties to present visitation proposals
                                      DA.

to the court. The trial court at a subsequent hearing approved a visitation schedule which awarded the

Husband 170 days visitation with the child, and ordered Wife to provide all transportation costs.



        Husband appeals from this judgm Wife appeals the portion of the judgment which set visitation
                                       ent.

at 170 days.



                                  II. Husband’s Motion to Dismiss




                                                        3
        Husband contends that the Chancellor erred in failing to dismiss W Petition to Modify for failure
                                                                          ife’s

to state a claim upon w relief can be granted. He argues that nowhere in Wife’s petition does she ask the
                       hich

court to modify the Final Decree of Divorce to change the injunctive language therein. Rather, Wife’s petition

asks for permissionto m the m child totheState of Texas, andfor H
                       ove   inor                                usband’s visitationto be amended.

Husband argues that since wife has alleged no substantial or material change of circumstances according to

law which justifies any change in the locational restrictions found in the Final Decree of Divorce, a change

cannot be made, and therefore her petition should have been dismissed.



        Wife contends that Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993), specifically endorses this

procedure of requesting fromthetrial court, in advance, permissionto relocate. Wife alsopointsto Tenn. Code

Ann. §36-6-101(a) which states: “Such decree shall remain within the control of the court and be subject to

such changes or modifications as the exigencies of the case may require.”



        A prior order restricting movem of child may be modified by agreement on motion to court having
                                       ent

jurisdiction over matter, and subject to approval of that court, if noncustodial parent consents to removal of

child from state and parties can agreeonrevised visitationarrangement. Taylor at 332. “If agreement between

custodial parent and noncustodial parent regarding removal of child from state cannot be reached, burden of

proof falls on parent who filespetitionseekingrelief; noncustodial parent who seeks to prevent removal must

show by preponderance of evidence . . .” Id.



        In this case, W followed the proper procedureto seek the court’s approval to rem the m child
                       ife                                                              ove   inor

from the state. The requirement that Wife need show a change of circumstances is relevant to change of

custody determinations. Wife did not seek to change custody, but rather sought the court’s permission to

remove the m child to Texas. The trial court committed no error in refusing to grant Husband’s Motion to
            inor

Dismiss for Failure to State a Claim Upon Which Relief can be granted.



                     III. Removal of Minor Child and Altering Visitation



        Recent cases haveaddressedthelawof removal andattempted toset forth parameters to be followed

by the courts and the parties in such removal cases. In the case of Taylor v. Taylor, 849 S.W.2d 319 (Tenn.

                                                      4
1993), the Supreme Court of Tennessee was asked to reverse a decision of the trial court prohibiting the

custodial parent from moving out of state with her three-year-old daughter, which m had been objected to
                                                                                   ove

by the father of the child. The Suprem Court laid out the procedure to be followed in these cases and the
                                      e

burdens which must be carried by the parties.

                If there is no outstanding order restricting movement of the childor children,
                and the parties can agree to a revised visitation schedule, the custodial
                parent is free to rem    ove without seeking further court authorization.
                Likewise, if thenon-custodial parent consentsto the removal andtheparties
                can agree on a revised visitation arrangem a prior order of restriction
                                                               ent,
                may be modified by agreement on motion to the court having jurisdiction of
                that order and subject to the approval of that court.

                If agreement between the parties cannot be reached, under the procedural
                ruleannounced inSeessel and Nichols, the burden of proof fallsontheparty
                who files a petition seeking relief. In order to discharge that burden, the
                non-custodial parent who seeks to prevent removal must show by a
                preponderance of the evidence that removal is adverse to the best interest
                of the child or children involved. If, on the other hand, the custodial parent
                files for relief, seeking to lift a prior prohibition on removal or asking the
                court's permissionto move fromthejurisdiction, or both, thecustodial parent
                has the burden of proving that removal is in the child's best interest. That
                burden can be shifted by a prim facie showing of a sincere, good-faith
                                                     a
                reason for the move and a prima facie showing that the move is consistent
                with the child's best interest.
                Id. at 332.



        The Supreme Court in Taylor applied these substantive principles and procedural rules and came to

the conclusion that thejudgments of thetrial court and the Court of Appeals must be reversed. The custodial

parent properly petitioned the trial court to suspend its previously imposed restriction on removal and sought

permission to move with the child to Davenport, Iowa. The SupremeCourt stated that removal was warranted

based on a well-established reason for the move-her remarriage to someone who was living, for an equally

good reason, some distance fromMemphis. The Court also statedthat there w nosuggestionin the record
                                                                         as

that the mother was anything other than awholly fit person to have custody of child and there w noshowing
                                                                                               as

that the move would have adverse consequences to the child’s health or well-being. The Supreme Court then

stated as follows:

                It is obvious that the previously established schedule of visitation will have
                to be altered. There is no proof that this cannot be successfully
                accomplished to accommodate the interests of both parents, as well as the
                child's interest. There is nothing in the record to indicate that Deborah
                Mitten's conduct has been vindictive or that in proposing to move to
                Davenport, she intended to depriveSteve Taylor of his visitation rights or to
                interfere w his close relationship with his child.
                            ith
                Id. at 333.



                                                      5
        In thecase of Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), the custodial parent petitioned to move

out of statewith the child. The Suprem Court, inreversingthe decisions of thetrial and appellate courts, ruled
                                      e

that a custodial parent may remove a child to another jurisdiction unless noncustodial parent can show, by

preponderance of evidence, that custodial parent's motives for moving are vindictive. Id. at 623.



        The Supreme Court in Aaby stated that theultimate messageto begleanedfromTaylor is admittedly

obscure. They felt that was evidenced by the fact that both parties in Aaby put forth arguments which found

support in the text of the Taylor opinion, and by the trial court's obvious confusion as to its meaning. The

Supreme Court further stated that because they had failed to "m determinate an area of law that has
                                                               ake

become increasingly unsettled," they must dispel the ambiguity of Taylor and clarify its impact on the law of

removal. Aaby at 629.

                Although it drewupon authority from many other jurisdictions and dealt with
                a number of specific sub-issues, Taylor was fundamentally concerned with
                furthering two overarching goals in thelawof rem    oval: (1) "limiting judicial
                intervention in post-divorce family decision-making, and (2)
                making disputes easier of resolution if they must be litigated."
                Id. at 331 (emphasis added). We continue to believe that these goals must
                determine the law. Moreover, we believe that the traditional best interests
                of the child test, for the reasons enunciated in Taylor, makes these goals
                difficult or impossible to achieve. And we are convinced, again for the
                reasons stated in Taylor, that the interests of the custodial parent and the
                interests of the child are basically interrelated, even if they are not always
                precisely the same. Therefore, we conclude, as the mother insists, that a
                custodial parent will be allowed to rem      ove the child from the jurisdiction
                unless the non-custodial parent can show, by a preponderance of the
                evidence, that the custodial parent's motives for moving are vindictive--that
                is, intended to defeat or deter the visitationrights of thenon-custodial parent.
                Aaby at 629.

The Suprem Court then proceeded to set out the appropriate procedure for rem
          e                                                                 oval.

                With regard to procedure, we concludethat if the partiescannot agree on an
                acceptablevisitation schedule, thecustodial parent seeking to removemust
                file a petition with the court to reapprove or revise, as the case may require,
                the existing visitation schedule. In the hearing on the petition, the
                non-custodial parent may, if he or she wishes, present evidence that the
                custodial parent's motives for moving are vindictive; also, any petition for a
                change of custody based on the above-discussed grounds shall be heard at
                this time.
                Id. at 630.



        In the case before this Court, there was a specific provision placed in the MDA which prohibited the

parties from moving more than sixty (60) miles from Nashville, Tennessee. Husband first contends that there



                                                       6
exists no new circumstances which justifya change inthe“sixty m residential restriction. He cites case law
                                                               ile”

which holds that the “remarriage of either parent does not of itself constitute a change of circumstance that

would warrant achangeof custody.” Tortorich v. Erickson, 675 S.W.2d190, 192(Tenn. Ct. App. 1984). While

this statement of the law is correct, we point out that Wife was not seeking to change custody, but rather

permission to rem the child from the state and a redetermination of visitation.
                 ove



         Husband contends that the removal language in the MDA is contractual in nature and should be

enforced aswritten. He arguesthat theonly waytheagreement can be modifiedis pursuant to the modification

clause in the MDA which states that the agreement can only be modified by the parties in writing. Husband

contends that the Chancellor was therefore without authority, absent the parties’ agreement, to perm this
                                                                                                    it

removal.



         In Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975), the Supreme Court of Tennessee held that

when a husband and wife contract with respect to the legal duty of child support, upon approval of that

contract, the agreement of the parties becomes merged into the decree and loses its contractual nature. The

Supreme Court stated that the reason for stripping the agreement of the parties of its contractual nature was

the continuing statutory power of the Court to modify its term when changedcircum
                                                              s                  stances justify. Id. at 224.

Trial courts have continued authority in post-divorce matters concerning the care, custody and control of

children. Tennessee Code Annotated§ 36-6-101(a) states: “Suchdecree shall remainwithinthe control of the

court and be subject to such changes or modifications as the exigencies of the case may require.” Provisions

which restrict where the child shall reside are provisions which concern the care, custody and control of the

child. Therefore, the removal provision in the MDA w merged into the decree and lost its contractual nature.
                                                    as

It may therefore be modified if the correct procedure is followed. Such procedures have been spelled out in

Taylor and Aaby.

         Husband contends that the Taylor and Aaby line of cases are not applicable to the case at hand. In

thiscase there was a specific provision placedin the M w
                                                      DA hich prohibited the partiesfrommovingmore than

sixty (60) miles fromNashville, Tennessee. Neither Taylor nor Aaby contained a sim provision. However,
                                                                                  ilar

in Taylor, there was a standing court order which prohibited the Mother fromremoving the child to another

state.




                                                     7
        Whenlaying out the procedural framework for removal in Taylor, theSupreme Court stated, “If, on the

other hand, thecustodial parent filesfor relief, seeking to lift a prior prohibition on removal or asking

the court’s permission to move from the jurisdiction, or both, the custodial parent has the burden

of proving that removal is in the child’s best interest.” Taylor at 332. (Emphasis added). While it was later

clarified in Aaby that theburden rests uponthe non-custodial parent to show a vindictive purpose for the move,

the language in Taylor states that a parent may seek relief in the courts to lift a prior prohibition on removal.

The Supreme Court did not limit such “prior prohibition onremoval” to one placedupon theparties bythe court

in a prior proceeding. The language used by the Supreme C is broad enough to encompass a prior
                                                         ourt

prohibition on removal found in an MDA.



        Additionally, in Hill v. Robbins, 859 S.W.2d 355 (Tenn. Ct. App. 1993), this Court reversed a trial

court’s decision to change physical custody to thefather until the mother relocated to the state of Tennessee.

In Hill, the final decree incorporated the marital dissolution agreem in which the wife agreed not to move
                                                                     ent

from the state of Tennessee with the children during their minority. O appeal this Court stated that “any
                                                                      n

agreement or arrangement concerning the custody of m children is subject to modification . . .” citing
                                                    inor

Rogero v. Pitt, 759 S.W 109 (Tenn. 1988).
                       .2d



        For the foregoing reasons, the trial court was at liberty to lift the prohibition on removal found in the

final decree. W followed the proper procedure outlined in Taylor and Aaby by petitioning the court to allow
               ife

her to remove the child from Tennessee and asking for a new visitation schedule for Husband. The burden

then wasupontheHusbandto show, bya preponderanceof the evidence, that Wife’smotives for moving were

vindictive, that is, intended to defeat or deter Husband’s visitation rights. Aaby at 629.

        Wife testified to her reasons for desiring to m to Texas with the m child. W stated that she
                                                       ove                 inor     ife

had remarried and her husband lived and worked in Texas. Wife was able tofindemployment there w apay
                                                                                               ith

increase of $6,000.00 and additional bonuses. Smith, W current husband, testified that he would not be
                                                      ife’s

able to move to Tennessee as his employment was in Texas and he also has two minor children in Texas and

has regular visitation with them Smith testified that if the court did not allow Wife to move with the child to
                                .

Texas, W and Sm w
        ife    ith ould be forced to carry on a long distance marriage.



        Wife testified that she was willing to work with Husband, if the court allows her torem to the State
                                                                                               ove

                                                       8
of Texas, to transport the child back and forth to Husband in Tennessee.

                 Q:       Now, tell Judge Bell what you are willing to do.
                 A:       Well, I want Alton to have every opportunity to spend as
                          much time with him as he can. And we are - I am            prepared
                 to bring him back at my expense every six           weeks for nine days and
                 transport the child at my          expense.
                 Q:       Now, are there any other times that you would propose for there
                 to be visitation between the father and the         child?
                 A:       Yes, sir. We would like to have him spend a week with hi m at
                 Christmas and two separate two-week periods during the summer and
                 then any weekend out of the        month that he would like to come to Dallas.
                 Q:       So you don’t object to him visiting at least once a month in Dallas
                 if he wants to come or can come?
                 A:       I encourage it.

When W was questioned about whether her move was done to defeat or deter visitation, Wife stated that
      ife

it was not and that she encourages visitation between Husband and the child.



        Husband testified as to numerous and substantial reasons why he would like the child to remain in

Tennessee. While this Court admires and encourages the bond Husband seeks to maintain by keeping the

child in close proximity toHusbandand the child’s extendedfam this Court is bound by the holdingin Aaby.
                                                             ily,

The custodial parent will beallowed to m with the childunless the non-custodial parent proves a vindictive
                                        ove

purpose. There was simply no proof in this case that Wife was seeking to defeat or deter Husband’s visitation

rights. Quite the contrary, the proof showed that Wife was willing to undertake the rather costly expense of

transporting the child to and from Tennessee at six-week intervals for visitation periods with Husband. Wife

also expressedthat Husbandwaswelcom totravel to D
                                   e             allas for periods of visitation as well. ThisCourt holds

that the trial court was not in error in allowing Wife to rem the m child from the state.
                                                             ove   inor



                                        IV. Visitation Schedule



        Both parties object to the visitation schedule ordered by the trial court. In Taylor the Supreme Court

discussed the visitation issue.

                 [R]emoval of the child from the jurisdiction m require rescheduling of the
                                                                   ay
                 non-custodial parent's visitation; . . . that the courts must be sensitive to the
                 non-custodial parent's efforts to maintain his or her relationship with the
                 children, and that visitation should be arranged in a manner most likely to
                 enhance that relationship . . . These factors, and any related factual
                 circumstances found by the court to be significant in a given situation, must
                 be weighed individually and collectively.
                 Taylor at 332.



                                                        9
The Suprem Court also addressed the visitation issue in Aaby.
          e

                  With regard to procedure, we concludethat if the partiescannot agree on an
                  acceptablevisitation schedule, thecustodial parent seeking to removemust
                  file a petition with the court to reapprove or revise, as the case may require,
                  the existing visitation schedule . . . As is the case in the initial proceedings,
                  neither party shall bear the burden of proof on the visitation issue; rather,
                  the trial court shall, in its sound discretion, fashion an acceptable revised
                  visitation arrangement. Any prior lawinconsistent with these conclusions is
                  expressly overruled. Aaby at 630.



         It is apparent that the trial court had discretion to fashion an acceptable visitation schedule. Due to

the distance of the m in this case, it would be highly impractical to retain the original visitation schedule.
                     ove

Husband’s visitation proposal requested that he havethechild at least two weekendsper monthandthe entire

time he is out of school during the summ Wife proposed a visitation schedule consisting of 111 days while
                                        er.

Husband’s schedule requested 184 days. The trial judge decided to keep the visitation at the same level as

it had previously been exercised. The trial judge ultimately approved a visitation schedule patterned after

Wife’s schedule, but consisting of 170.5 days per year.



         Wife contends that the trial court failed to import into its visitation schedule the current law in

Tennessee. She claims the trial court incorrectly concluded that Husband was necessarily entitled to “the same

kind of visitation” he had in the Marital Dissolution Agreement. Wife contends that her original visitation

proposal, which provides approximately 111 days of visitation, requiressignificantly lesstravel. Sheclaims that

while this has a positive impact on her, it is also beneficial to the child.



         It is clear from the language of Taylor and Aaby quoted above that the trial court is free to modify the

visitation schedule and is not restricted to the same kind of visitation originally provided for. However, there

is nothing in the record which convinces this Court that the trial judge was not aware of this fact when it

fashioned the new visitation schedule. The trial court was equally at liberty to increase or decrease the amount

of visitation. In setting the new visitation schedule the Chancellor made the following comment. “I think he is

entitled to, and I think in the interest of the child, half and half forever is not going to work. Half and half for the

foreseeable future I hope will work.” This language evidences the trial court’s recognition that it was not

required to award the same amount of time Husband previously had, but that for now, the split of time would

continue to work. For the reasons stated, we hold that the trial court did not commit error in granting Husband



                                                          10
170 days of visitation, with Wife providing all transportation costs.



                            V. Husband’s Request for Attorney Fees



        Paragraph Three of the Marital Dissolution Agreement reads in pertinent part:

                 NON-COMPLIANCE. Should either party incur any expense for legal fees as
                 a result of the breach of any portionof this Marital Dissolution Agreement by
                 the other party, the Court shall award reasonable attorney’s fees and suit
                 expenses to the non-defaulting party which are reasonably incurred.

Husbandargues that W breachedthe“sixty mile provision” andtheestrangem provision of the MDA, and
                    ife                                               ent

that he should therefore be awarded his fees and expenses pursuant to Paragraph Three of the MDA and

Tenn. Code Ann.§36-5-103(c). Thetrial courtfoundthat Wife followedthecorrect procedurein com to court
                                                                                            ing

to get permission to m and as such she did not breach the agreement.
                      ove



        If Wife had removed the child from the jurisdiction and subsequently filed this petition, or by her

removal actions caused Husband to file a petition for relief, we would have a clear case of breach of the

agreement. However, Wife was aware of this provision in the agreement, and sought the court’s approval in

order to avoid breaching the agreement. Wife followed the correct procedure to avoid violating the “60 mile

provision.” For reasons that will be explained hereinbelow, Wife also did not violate the “estrangement”

provision of the M For the foregoing reasons, this Court finds that the trial court did not commit error in
                  DA.

declining to award attorney fees to Husband.



                                    VI. Change of Custody Issue



        Husband contends that the trial court erred in failing to award Husband sole and exclusive custody

of the child. He claims that W violated the estrangement provision of the MDA w
                              ife                                              hich states that “Neither

party shall do anything which may estrange the child from either parent or hamper the natural development

of their [sic] love for either parent.” He claim W violatedtheestrangem provision by becom engaged
                                                s ife                  ent                ing

to a m and not telling him until after she was married that she had decided to m
      an                                                                        ove. He claim that this
                                                                                             s

shows that Wife does not want in good faith to exercise joint custody of the m child and that she would
                                                                              inor

rather “estrange” or alienate the child from Husband. He cites cases in which this Court has refused to permit



                                                       11
the alienating parent to have custody of the children and insured that the parent who has suffered alienation

because of the other parent’s actions is awarded custody so that no further alienation occurs.



        In this case, there was absolutely no evidence offered to support the contention that W has
                                                                                               ife

attempted to alienate the child from Husband. There has never been any problem with Husband exercising

his visitation. There have been no allegations that either party has criticized or otherwise talked poorlyabout

the other parent in the presence of the child. Rather there was evidence by both parties that they shared in

the upbringing of the child. Both parties testified that the other w a fit parent. Husband appears to base his
                                                                    as

estrangement claim on the fact that Wife desires to move with the child to Texas.



        Relocation, standing alone, does not constitute a basis for a change of custody. Taylor at 332. The

Supreme Court subsequently discussed what is necessary for a change of custody in removal situations in

Aaby v. Strange.

                 This conclusion does not mean, however, that a non-custodial parent's
                 hands are tied where rem    oval could pose a specific, serious threat of harm
                 to the child. In these situations the non-custodial parent may file a petition
                 for change of custody based on a material change of circumstances. The
                 petition would state, in effect, that the proposed move evidences such bad
                 judgment and is so potentially harmful to the child that custody should be
                 changed to the petitioner. Because Tennessee law allows custody to be
                 changed if the behavior of the custodial parent clearly posits a danger to the
                 physical, mental or em   otional well-being of the child, Musselman v. Acuff,
                 826 S.W 920 (Tenn.App.1991), such a petition would not violate
                           .2d
                 Taylor--which only prohibits a change of custody based solely on the fact of
                 the move. However, expert psychological and/or psychiatric testimony that
                 removal could be generally detrimental to the child will usually not suffice to
                 establish an injury that is specific and serious enough to justify a change of
                 custody. A move in anychild's life, w   hether heor she israised inthe context
                 of a one or two parent home, carries with it the potential of disruption; such
                 comm phenomena--both the fact of moving and the accompanying
                        on
                 distress--cannot constitute a basis for the drastic measure of a change of
                 custody. Aaby at 629-30.



        Husband did not offer any evidence that the proposed move evidenced such bad judgment and was

so potentially harmful to the child that custody should be changed to Husband. No evidence was introduced

that the behavior of Wife clearly posits a danger to the physical, mental or emotional well-being of the child.

In fact, theevidence inthiscaseshowedthat Wife hadfound a higher paying jobin Texas, sheandSm were
                                                                                             ith

in the process of purchasing a home, she had made arrangements for a suitable day school program for the

child, and she had gotten references for doctors in the Dallas area who could treat child for his medical

                                                      12
condition. Wife further agreed to pay the cost to transport the child, accompanying him both to and from

Tennessee, for his scheduled visitation with Husband. It appears that Wife is doing everything possible to

ensure a smooth transition for the child and facilitate ample visitation with Husband.



        Custody will not bechanged to the Husband basedsolely on the fact of Wife’s move. Husband did not

offer sufficient evidenceto support his estrangem claim, nor did he offerevidence that the m would posit
                                                 ent                                        ove

a danger to the child’s physical, mental or emotional well-being. Furthermore, thelanguage inAaby suggests

a very strong showing of danger would need be shown, as expert testimony that the move itself would be

generallydetrimental to the child will not usually suffice. Such a showing was not made by Husband. The trial

court did not commit error in failing to award Husband sole and exclusive custody of the minor child.




                                            VII. Conclusion



        The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to the Husband, for

which execution may issue if necessary.




                                                                   HIGHERS, J.




                                                     13
CONCUR:




FARMER, J.




LILLARD, J.




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