                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    March 10, 2009 Session

     ELIZABETH LEANNE HUDSON v. LARSON DOUGLAS HUDSON

                  Appeal from the Eighth Circuit Court for Davidson County
                            No. 06D-533    Carol Soloman, Judge



                   No. M2008-01143-COA-R3-CV - Filed November 3, 2009




D. MICHAEL SWINEY , J., concurring in part and dissenting in part.

                I respectfully dissent from the majority’s decision to affirm the Trial Court’s
judgment granting Mother’s request to relocate with the children. I agree with the majority’s
decision that the Trial Court erred in awarding attorney’s fees to Mother.

                I agree with almost all of the majority’s analysis concerning whether there was a
reasonable purpose for Mother’s relocation to Kentucky. I agree with the majority that Father’s
motivations regarding his resignation from his job are immaterial to the relocation issue for the
reasons stated by the majority. I agree with the majority that Mother’s purported economic reasons
for relocation as stated by Mother are woefully insufficient. I believe Mother’s complete failure to
even begin to look for employment in Nashville says much about not only the reasonableness of the
relocation but also her purpose in relocating in the first place. I further agree with the majority that
Mother’s complaints about the country club incident and the neighborhood gossip are nothing more
than social consequences of divorce and are not a reasonable basis to relocate.

                Where I part from the majority is its determination that Mother’s familial support in
Hopkinsville, by itself, is sufficient to provide a reasonable basis for the relocation. I believe the
evidence more than preponderates against this finding by the Trial Court. The record is clear that
there will be no great increase in family support to Mother by her moving to an area where her family
consists of a grandmother who, unfortunately, has dementia, a mother who runs her own business
and is the caregiver of Mother’s grandmother, and an aunt and uncle who are so busy in their lives
that they can provide even very little help in caring for their own mother. It appears to be
unquestioned that Father provided not only financial support but other support for the children. I am
especially troubled by, and find exceptionally revealing, the Trial Court’s statement that “There is
nothing negative about the move to Hopkinsville except that the children will not get to see their
Father quite as much as they do now....” The fact that the children will have to see their Father less
because of the move is a relevant fact that should not be dismissed as inconsequential.
                 Additionally, I agree with the majority when it states that Mother’s timing concerning
Father’s resignation and her decision to relocate is “slightly suspicious...”, although I would say it
is more than just “slightly.” The real purpose of Mother’s relocation is even more apparent in light
of the majority’s decision, with which I agree, “that the economic reasons for relocation presented
by Mother are insufficient.” A review of all the evidence present in the record, as set forth in the
majority’s Opinion, shows the evidence preponderates in favor of a finding that Mother’s relocation
is not for a reasonable purpose but instead is vindictive under the statute.

                Tenn. Code Ann. § 36-6-108 applies in this case because Mother is, in fact, moving
outside the state. That a move outside the state is a move of less than one hundred miles is
immaterial under the statute as enacted by our General Assembly. I disagree with the majority when
it agrees with the Trial Court’s having found that the short distance between Hopkinsville and
Nashville somehow militates towards the reasonableness of the relocation. Apparently the sixty
miles between Nashville and Hopkinsville is of a sufficient distance so as to prevent Mother’s family
in Hopkinsville from providing her any support in Nashville. Yet this same sixty miles is at the same
time such a short distance so as to support the move being for a reasonable purpose. I am at a loss
as to how the same sixty miles is such a barrier to Mother’s Hopkinsville family that it prevents their
providing her any support in Nashville, and yet at the same time is such a short distance as it actually
supports there being a reasonable purpose for Mother’s relocation. Both the Trial Court and the
majority in focusing on this “short distance” ignore the most obvious result of the move, the children
are being forced to spend less time with their Father even though the evidence, I believe,
preponderates in favor of a finding that the relocation is not for a reasonable purpose but instead is
vindictive under the statute.

                Finally, having found that the evidence preponderates in favor of a finding that
Mother’s relocation is not for a reasonable purpose and that it is, in fact, vindictive, I also would find
that the evidence preponderates in favor of a finding that the relocation to Hopkinsville is not in the
children’s best interest. While the children likely would have better access, at least to a small extent,
to additional members of Mother’s family, the children also would be forced to spend less time with
their Father. There is no proof in the record that this trade off would be beneficial to the children.
The evidence is clear that the children will be leaving a superior school in Nashville to attend a
different school in Hopkinsville. The children will have to spend additional travel time on the road
in order to spend what will be less time with their Father. I find nothing in the record that supports
any finding that it is in the children’s best interest to relocate.

               For these reasons, I respectfully dissent from the majority’s Opinion to the extent the
majority affirms the Trial Court’s decision to permit Mother’s relocation. I would reverse the
decision of the Trial Court and deny Mother’s request to relocate.



                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE


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