                IN THE COURT OF APPEALS OF TENNESSEE
                                                             FILED
                            AT KNOXVILLE                   January 29, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt
                                                              Clerk
JOSEPH RAY SIMMONS,                   )   C/A NO. 03A01-9805-CV-00158
                                      )
          Plaintiff-Appellant,        )
                                      )
                                      )
                                      )
                                      )   APPEAL AS OF RIGHT FROM THE
v.                                    )   BRADLEY COUNTY CIRCUIT COURT
                                      )
                                      )
                                      )
                                      )
TONYA MICHELLE SIMMONS,               )
                                      )   HONORABLE LAWRENCE H. PUCKETT,
          Defendant-Appellee.         )   JUDGE




For Appellant                             For Appellee

JIMMY W. BILBO                            RANDY SELLERS
Logan, Thompson, Miller, Bilbo,           Cleveland, Tennessee
 Thompson & Fisher, P.C.
Cleveland, Tennessee




                          O P I N IO N



REVERSED AND REMANDED                                       Susano, J.

                                  1
           This is a post-divorce proceeding concerning the

custody of Colby Curtis Ray Simmons (“Colby”) (DOB: March 25,

1991).   The trial court awarded “primary physical custody” of

Colby to the child’s mother, Tonya Michelle Cawood, formerly

Simmons (“Mother”), thereby modifying the divorce judgment that

had granted this custodial role to the boy’s father, Joseph Ray

Simmons (“Father”).   The Court did not disturb its previous grant

of joint legal custody.   Father appeals, arguing that the trial

court misinterpreted the principles enunciated by the Supreme

Court in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), and that

the evidence preponderates against the trial court’s

determination that Father’s move from White, Georgia, to

Somerset, Kentucky, was prompted by vindictiveness on his part.



                                I.



           The parties’ marriage was dissolved by final judgment

entered May 19, 1994.   The judgment incorporates a marital

dissolution agreement (“MDA”) executed by the parties on February

8 and 9, 1994.   The MDA vested the parties with joint legal

custody of Colby.   While it did not specifically award

residential custody of Colby to Father, it is clear from the

tenor of the MDA that this is what the parties intended, a fact

acknowledged by Mother throughout these proceedings.



           The MDA includes the following provision:



           [Father] and the child shall have the right
           to live in within a seventy-five mile radius
           of Bradley County, Tennessee. Each party
           shall provide transportation of either

                                 2
            picking up the child or delivering the child
            to the other party.



Additionally, the MDA provides that Mother is to have visitation

“on alternating weekends from 5:00 p.m. Friday until 6:00 p.m.

Sunday,” as well as summer visitation and visitation on specified

holidays.



            In or around August, 1996, Father moved with Colby and

his new wife to White, Georgia, to take a position as an

elementary school teacher with the Bartow County, Georgia, school

system.    His residence was within the required 75-mile radius of

Bradley County.    He taught in Bartow County for one school year.

During that year, sometime in or around February, 1997, he

learned that his contract would not be renewed for the next

school year.    He received written notification of this fact on

April 15, 1997.



            Father and his wife had purchased a home in White,

Georgia.    It was their desire to remain in that locale.

Accordingly, upon learning that his teaching contract was not

going to be renewed, Father applied for a teaching position in

four Georgia counties: Bartow, Cherokee, Gordon, and Cobb.      He

was not successful in securing a position in Georgia.      Had he

obtained employment in any of these counties, he would have

continued to reside within the 75-mile radius restriction.      He

testified that he did not make a new application for employment

in the Bradley County or Cleveland school systems because “me and

Ms. Cawood are not able to live in the same town without me being

badgered a lot, so I did not really want to move back to

                                  3
Cleveland.”    Even at that, he stated that prior to going to

Georgia, he had applied to the two Tennessee school systems; that

he assumed his applications were still on file; and that he would

have accepted a job there “if I had an offer.”    He reiterated

that his desire was to stay in Georgia “where we were purchasing

the home.”



          Father did not receive any job offers in Georgia; but

in June, 1997, he learned of a fifth-grade teaching position in

Pulaski County, Kentucky, some 200 miles from Bradley County.      He

accepted this position and moved to Somerset, Kentucky.    His new

wife’s parents -- her father is a minister who pastors a church

in the area -- live in an adjoining county.



          On June 19, 1997, Father filed a petition seeking to be

relieved of the 75-mile radius restriction so as to facilitate

his move, with Colby, to Somerset.    Mother filed an answer and

counterclaim, denying that Father was entitled to relief with

respect to the restriction.    In her counterclaim, she sought sole

custody or, in the alternative, primary physical custody.    The

gravamen of her counterclaim is found in the following

allegations:



          [Mother] avers that the move requested by
          [Father] in this matter, is a material change
          of circumstances, entitling [Mother] to ask
          this court to modify the marital dissolution
          agreement entered into by the parties, and to
          award full custody, or at least exclusive
          physical custody, of the parties’ minor child
          to [her].

          [Father’s] frequent moves and inability to
          maintain steady employment indicate a lack of
          responsibility necessary for the successful

                                  4
          raising of a child. Further, the frequent,
          almost nomadic, movement by [Father] is
          detrimental to the child’s mental, emotional,
          and physical well being.

          The majority of the minor child’s family
          resides in Cleveland, Tennessee or in the
          state of Georgia. Awarding custody to
          [Mother] would be in the best interest of the
          minor child.



The parties’ competing claims were heard by the trial court on

January 21, 1998, following which the court ordered that Mother

be designated as “primary physical custod[ian],” with custody to

be transferred at the end of the 1997-1998 school year.   The

rationale for the court’s decision is found in its opinion orally

rendered from the bench:



          COURT: Well, it’s a real difficult case. I
          think it was a difficult case all along from
          reading the file.

          Back in March when joint custody was granted
          by the Court I think the Court looked at the
          parties and found both of them fit persons to
          have custody. And I believe the marital
          dissolution agreement, of course, it’s merged
          into the order of the Court and it was made a
          part of the court, the 75-mile radius
          requirement, so I believe the Court in making
          this joint custody contemplated that that
          wouldn’t change. That order didn’t foresee
          that we’d be trying to operate with joint
          custody with primary physical custody with
          the father going beyond the 75-mile radius,
          but it’s happened in this case.

          I think there’s proof of vindictiveness
          insofar as -- I think vindictive is a very
          difficult word, a hard word. It would not be
          something I would normally apply to Mr.
          Simmons. But if vindictiveness means the
          desire to go against the Court’s prior orders
          of joint custody, at least the spirit of a
          joint custody agreement, and if it means to
          defeat the noncustodial parent’s rights to
          visitation and closeness to the child, at
          least to be within a certain mile radius,
          then I think the fact that he has said that

                                5
          he did not want to be close, he didn’t want
          to move any closer to you, meets that
          definition of vindictive.

          And this child needs to be in an environment,
          in the most stable environment, for its own
          best interest. And any time any changes are
          made it’s going to be disruptive for the
          short term but the Court’s convinced that in
          the long term the stability of the child and
          the best interest of the child would be
          served by a change of primary physical
          custody to the mother.



                                 II.



          In the 1996 case of Aaby v. Strange, 924 S.W.2d 623

(Tenn. 1996), the Supreme Court revisited its 1993 decision in

Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993).   The Court stated

that it wanted to “dispel the ambiguity of Taylor and clarify its

impact on the law of removal.”    Aaby, 924 S.W.2d at 629.   In

Taylor, the Supreme Court had attempted to “make determinate an

area of the law that ha[d] become increasingly unsettled,” id. at

326, i.e., the removal of a minor child by a custodial parent to

a locale away from that of the non-custodial parent.    The Taylor

Court had held that relocation, standing alone, was not a

sufficient basis for a change of custody.    Id. at 332.



          As the Aaby case points out, the Supreme Court in

Taylor



          was fundamentally concerned with furthering
          two overarching goals in the law of removal:
          (1) “limiting judicial intervention in post-
          divorce family decision-making, and (2)
          making disputes easier of resolution if they
          must be litigated.”


                                  6
Aaby, 924 S.W.2d at 629 (quoting from Taylor, 849 S.W.2d at 331)

(emphasis in Aaby).   Because the Supreme Court decided that

“[t]he ultimate message to be gleaned from Taylor is admittedly

obscure,” Aaby, 924 S.W.2d at 629, it granted the petition of the

custodial mother in Aaby for permission to appeal so that it

could once again address the subject of removal.



          In Aaby, the Supreme Court substantially limited the

circumstances under which a non-custodial parent could prevent

removal or secure a change of custody based solely upon the

planned removal of a minor child.    The crux of the holding in

Aaby is found in the following language from that opinion:



          ...we conclude, as the mother insists, that a
          custodial parent will be allowed to remove
          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 visitation rights of the non-
          custodial parent.

          This conclusion does not mean, however, that
          a non-custodial parent’s hands are tied where
          removal 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
          emotional well-being of the child, Musselman
          v. Acuff, 826 S.W.2d 920 (Tenn.App. 1991),
          such a petition would not violate Taylor --
          which only prohibits a change of custody
          based solely on the fact of the move.

                                 7
Id. at 629-630 (footnote omitted)(emphasis in Aaby).




                                8
                                III.



          As a threshold determination, we must decide if there

are factual differences between the instant case and Aaby which

impact how -- if at all -- the precedent of that case is

applicable to the facts of this case.   Without question, there

are factual differences -- two of which are arguably pertinent to

the question now under consideration.   In the instant case, the

trial court was faced with a joint custody decree, while the

Court in Aaby was confronted with a decree of sole custody.

Furthermore, the instant case involves a specific provision

limiting the primary custodian’s place of residence to the area

within a 75-mile radius of Bradley County.   The judgment in Aaby

contained no such limitation.   Aaby, 924 S.W.2d at 624.   We will

address these two factual differences in reverse order.



                                IV.



          We do not believe that the 75-mile radius restriction

is an impediment to the applicability of the Aaby principles and

procedures to the facts of this case.   In Taylor, the Supreme

Court attempted to comprehensively address the issue of removal.

In doing so, the Court even addressed how a court should view an

order that prohibits or restricts relocation, even though there

was no such provision in the Taylor case.    Since the Court in

Aaby intended to refine, and untangle the ambiguity in, the

holding in Taylor, it is logical to assume that the Aaby Court

would have stated that its holding was not applicable to cases

with prohibitory language had it so intended.   It did not so

                                 9
state.   We conclude from this that the Aaby Court intended that

the principles and procedures enunciated in that case would apply

to cases with prohibitory provisions as well as to those cases

without such provisions.



          It is clear from the Aaby opinion that the Supreme

Court intended to cover the entire spectrum of removal cases.

While an appellate court’s decision must be read in the context

of the facts of the case, see National Life & Accident Ins. Co.

v. Eddings, 221 S.W.2d 695, 699 (Tenn. 1949), we cannot ignore a

broad pronouncement by the Supreme Court, especially one that is

obviously designed to cover, and clarify, the totality of an area

of the law.   See Holder v. Tennessee Judicial Selection

Commission, 937 S.W.2d 877, 881-82 (Tenn. 1996).



                                V.



           As to the argument that Aaby is not applicable to a

joint custody arrangement where one parent is the residential

custodian and the other has visitation rights, that position was

considered by us and rejected in Perry v. Perry, 943 S.W.2d 884

(Tenn.App. 1996).   In that case, Judge Lillard, speaking for the

Court, said the following:



           Father attempts to distinguish Aaby by
           arguing that the custodial parent in that
           case had sole custody, while the parties in
           this case have joint custody, with Mother
           having primary physical custody. This is a
           distinction without a difference.




                                10
Id. at 886.     (emphasis in Perry).      We adhere to our holding in

Perry.     Aaby is controlling here; hence, the procedures and

principles set forth in Aaby control the disposition of this

appeal.1



                                    VI.



             It is clear to us that Mother’s counterclaim for change

of custody was prompted by, and is essentially based upon, the

fact that Father was planning to relocate to Kentucky.2            The

trial court so treated it, and we believe this is the proper

interpretation of the issues made by the pleadings.



             In general terms, Aaby focuses on two aspects of a

planned move: the relocating parent’s motive in moving and

whether the proposed move “could pose a specific, serious threat

of harm to the child.”      Aaby, 924 S.W.2d at 629.       (emphasis

added).     In the instant case, Mother did not allege, nor did the

proof show, the type of specific, serious threat of harm

contemplated by Aaby.      Thus, the narrow question for us is

whether Father’s motive for relocating -- the reason for his move

from Georgia to Kentucky -- was “to defeat or deter the

visitation rights of” Mother.       Id.    The question is not whether



     1
       After this case was heard and decided on January 21, 1998, with an
order entered February 18, 1998, confirming the change of custody, the
legislature enacted Chapter 910, Public Acts of 1998, with an effective date
of May 7, 1998. That Chapter is now codified at T.C.A. § 36-6-108. That Act
is not applicable to this case and has not been considered by us.
     2
       Mother makes a general reference in her counterclaim to Father’s
frequent moves and “inability to maintain steady employment.” The evidence
regarding his moves is, at best, inconclusive. Her allegation with respect to
Father’s employment is not substantiated by the proof. In any event, there
was absolutely no proof that Colby was adversely affected by any of this.

                                     11
the planned move will adversely affect Mother’s visitation

rights.   Such moves frequently do; rather, the real question is

whether Father’s motive -- his state of mind -- was to defeat or

deter Mother’s visitation with Colby.



                                VII.



          Father’s motive for relocating must be viewed in the

context of his circumstances.   He received his degree from Lee

College subsequent to the parties’ divorce.   His teaching job in

Georgia was his first position in his new profession.   He first

learned in or around February, 1997, that his teaching contract

was not going to be renewed.    Father testified that most teaching

positions for the next school year had already been filled by

that time of the year.   When the school term ended in the May-

June, 1997, time frame, Father was facing the prospect of

supporting his wife and Colby in a new house with no job and only

one year’s experience in his chosen profession.



          It is reasonable to assume that Father decided to move

to Kentucky because he needed a job.    The teaching position in

that state had the added advantage of placing Father and his

family near his in-laws.   There was absolutely no proof that

Father had other job opportunities in Georgia, Tennessee, or

elsewhere when he decided to move to Kentucky.



          It is important to note that, prior to the move, Father

had afforded Mother more, rather than less, visitation than was

required by the trial court’s judgment.   From the time of the


                                 12
divorce until March, 1995, Father and Mother alternated weeks

with their minor child.    Since the move to Kentucky, there had

been only two occasions when Father was unable to strictly comply

with Mother’s every-other-weekend entitlement.    On both

occasions, Father gave Mother other days of visitation to make up

for the missed days.



          The trial court admitted that the word “vindictive” was

not a word that it would normally apply to Father.    However, it

then concluded that the “definition of vindictive” was met in

this case because Father went “against the Court’s prior orders

of joint custody, at least the spirit of a joint custody

agreement.”   He further found that Father was “vindictive” in not

desiring to live in Mother’s county of residence.    With all due

respect to the trial court, this is not the issue.    The issue,

under the teachings of Aaby, is whether the relocating parent’s

motive for the move is to defeat or deter the other parent’s

visitation rights.     The preponderance of the evidence in this

case is that Father’s motive for moving outside the area

encompassed in a 75-mile radius of Bradley County was to pursue

gainful employment.    There is nothing about his actions or words

to indicate that he wanted to hinder Mother’s visitation rights.

On the contrary, the record is replete with evidence that Father

has fostered Mother’s time with Colby.     This Court finds

particularly significant the fact that Father voluntarily split

the child’s time equally with his former wife for a period of 10

months immediately following the divorce even though Mother was

only entitled under the trial court’s judgment to every-other-

weekend visitation.


                                  13
            In the final analysis, we find that the evidence

preponderates against the trial court’s judgment changing the

custodial arrangement that existed prior to the order of February

18, 1998.    See Rule 13(d), T.R.A.P.



            The judgment of the trial court is reversed.    This

matter is remanded to the trial court for the entry of an order

consistent with this opinion.    The order will provide that the

physical custody of Colby will be transferred to Father within

one week of the end of the 1998-1999 school year.      Costs on

appeal are taxed against the appellee.



                                        __________________________
                                        Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
William H. Inman, Sr.J.




                                 14
