CHRISTINA RENEE KLINDT,                )
                                       )
     Petitioner/Appellee,              )    Appeal No.
                                       )    01-A-01-9606-CH-00250
v.                                     )
                                       )    Wilson Chancery
JOHN MICHAEL ROSS KLINDT,              )    No. 10261
                                       )
     Respondent/Appellant.             )
                                                                FILED
                                                                February 28, 1997
                     COURT OF APPEALS OF TENNESSEE
                                                               Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE            Appellate Court Clerk


     APPEAL FROM THE CHANCERY COURT FOR WILSON COUNTY

                             AT LEBANON, TENNESSEE


               THE HONORABLE C.K. SMITH, CHANCELLOR




CHRISTINA RENEE KLINDT, Pro Se
6001 Old Hickory Boulevard
Apt. # 224
Hermitage, Tennessee 37076



LARRY HAYES, JR.
Boult, Cummings, Conners & Berry
414 Union Street, Suite 1600
P. O. Box 198062
Nashville, Tennessee 37219
       ATTORNEY FOR RESPONDENT/APPELLANT




                             DISMISSED AND REMANDED




                                                 SAMUEL L. LEWIS, JUDGE
                                   OPINION
          The sole issue in this child custody matter is whether the Chancery Court
for Wilson County had jurisdiction to modify the custody provisions of a divorce
decree entered by the Circuit Court for Harrison County, Missouri.


          The facts out of which this matter arose are as follows. The parties were
married 22 December 1991 and as a result of that marriage have one child, Taylor
Elaine, born on 25 June 1992. In October 1993, petitioner, Christina Renee Klindt,
("the Mother"), and the minor child moved to Tennessee.            In January 1994,
respondent, John Michael Ross Klindt, ("the Father"), filed a divorce action in
Harrison County, Missouri. The Mother admitted that at the time the Father filed the
Missouri divorce action, she and the minor child had lived in Tennessee for only three
months.


          On 28 February 1995, the circuit court in Missouri entered an order granting
custody of the minor child to the Father, pending a final hearing. The court also
orally ordered the Mother to return physical custody of the minor child to the Father.
The record shows that the Mother knew of the court's oral order but refused to
immediately return the minor child to the Father in Missouri. Instead, she kept the
child in Tennessee during March and April 1995 and finally returned the child to
Missouri on 2 May 1995.


          On 5 June 1995, a judgment was entered in the Circuit Court for Harrison
County, Missouri dissolving the marriage and granting joint custody of the minor
child to the Father and the Mother. The record shows that the minor child remained
in Missouri with the Father during May 1995, and then, pursuant to the Missouri
divorce decree, the minor child came to Tennessee in June 1995.


          On 30 August 1995, some two months after the minor child arrived in
Tennessee and after the final decree was entered in Missouri, the Mother filed the
instant petition seeking to modify custody of the child in the Chancery Court for
Wilson County. The only issue is whether or not the Chancery Court for Wilson
County, Tennessee had jurisdiction to modify the Missouri Circuit Court's order.

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          In order to modify a custody decree from the court of another state,
Tennessee law requires that certain conditions must be met. The foreign decree can
not be modified unless
          (1) It appears to the court of this state that the court which
          rendered the decree does not now have jurisdiction under
          jurisdictional prerequisites substantially in accordance with this
          part or has declined to assume jurisdiction to modify the decree;
          and
          (2) The court of this state has jurisdiction.

Tenn. Code Ann. § 36-6-215 (1996). In other words, as we said in dismissing a trial
court's attempted jurisdiction under similar facts, the statute "prohibits modification
of [a foreign] custody decree unless 1) the other state no longer has jurisdiction or has
declined to exercise its modification jurisdiction, and 2) Tennessee has jurisdiction."
Wilcox v. Wilcox, 862 S.W.2d 533, 543 (Tenn. App. 1993). Both conditions must
be met or the courts of this state cannot modify another state's custody decree. Id.


          To determine whether Tennessee has jurisdiction, we must look to
Tennessee Code Annotated section 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
          (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

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          this state assume jurisdiction.
          (b) Except under subdivision (a)(3), physical presence in this state
          of the child, or of the child and one (1) of the contestants, is not
          alone sufficient to confer jurisdiction on a court of this state to
          make a child custody determination.
          (c) Physical presence of the child, while desirable, is not a
          prerequisite for jurisdiction to determine his or her custody
          (d) Jurisdiction shall not be exercised to modify an existing
          custody decree except in accordance with § 36-6-215.

Tenn. Code Ann. § 36-6-203 (1996).


          Basically, Tennessee has jurisdiction in two situations: One, Tennessee is
at the beginning of the proceeding or has been within the past six months the “home
state" of the minor child or; two, all other states with “home state” jurisdiction have
declined to exercise jurisdiction in deference to Tennessee.          Tennessee Code
Annotated section 36-6-202(5) defines home state as "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." The record in this
case shows that the Mother and the minor child moved to Tennessee in October 1993;
that the Father filed a divorce action in Missouri on 24 January 1994; and that on 5
June 1995, a final decree of divorce was entered in the circuit court in Missouri.


          On 30 August 1995, the Mother filed the instant suit seeking to modify the
Missouri Circuit Court's custody order. At the time of filing this suit, the minor child
had in fact lived in Tennessee for more than six months. However, the issue in this
case arises from the fact that the parties' Missouri divorce action was ongoing when
the Mother and the minor child moved to Tennessee and the Missouri Circuit Court,
as the child’s home state, was validly exercising its child custody jurisdiction up to
the time it entered its final decree on 5 June 1995.


          The time period between the entry of the Missouri final decree and the date
the Mother filed her modification petition in Tennessee was less than three months.
In order for us to find that Tennessee is the minor child's "home state" under
Tennessee Code Annotation section 36-6-203(5), we would have to count
approximately three months which preceded the entry of the Missouri final decree.
We are cited no case nor have we found one that has addressed this precise issue.


                                           4
Thus, we must answer the question of first impression: "when does the six month
period mentioned in Tennessee Code Annotated section 36-6-202(5) begin to run
when another state is validly exercising child custody jurisdiction?"


          In support of his contention that finding Tennessee to be the minor child's
"home state" would be improper, the Father cites Boyd v. Boyd, 653 S.W.2d 732
(Tenn. App. 1983). In Boyd, the minor child had resided in New York with his
mother for several years when the father filed a custody modification proceeding in
Tennessee while the minor child was visiting his father in Tennessee. Id. at 733. The
trial court granted the father temporary custody by extending the child's physical
presence in Tennessee. Id. This court reversed the trial court, and in denying the
father’s petition to rehear, we rejected the father's attempt to count "the period during
which [the] child resided in this state pending resolution of a custody dispute" for
purposes of attaining "home state" status. Id. at 738. Likewise, in the instant case,
we conclude that the period the minor child spent in Tennessee with the Mother,
pending final resolution of the Missouri divorce, should not be counted as part of the
six months necessary to achieve home state status in Tennessee.


          Missouri was properly exercising child custody jurisdiction from the date
the Father filed his divorce action in January 1994 until the date the Missouri Circuit
Court entered its final judgment and decree of divorce on 5 June 1995. The Missouri
Court of Appeals found that Missouri had subject matter jurisdiction over the issue
of child custody and the Missouri Circuit Court found likewise in its final decree.
There was no appeal from the Missouri final decree; however, by filing a
modification proceeding in Tennessee less than three months after entry of the
Missouri final decree, the Mother was, in essence, attempting to appeal the Missouri
decree to the Tennessee Appellate Court.


          Under the facts in this case, Tennessee is not the minor child's home state
and Tennessee cannot assert jurisdiction under Tennessee Code Annotated section
36-6-203(a)(1). In addition, Tennessee does not have jurisdiction under subsection
(a)(2) or (a)(3) of section 36-6-203 as the record fails to show that Missouri has
declined to exercise its valid home state jurisdiction in this case. In the judgment and
decree of dissolution of marriage entered by the Missouri Circuit Court, it specifically

                                           5
found that "this court has jurisdiction over the subject matter and the parties in this
cause, including jurisdiction over the minor child born of this marriage, Taylor Elaine
Klindt." In the decree, the court also retained jurisdiction over the issue of custody
until further orders of the court by stating that "revolving four (4) months cycle of
exchanging physical custody of the child shall continue until further order of this
court." We think it is clear that the Missouri Circuit Court has no intention to decline
to exercise its continuing jurisdiction.


          It is therefore ordered that this case be dismissed for lack of subject matter
jurisdiction and the cause be remanded to the trial court for entry of an order
dismissing the case in its entirety. Costs on appeal are assessed to the Mother,
Christina Renee Klindt.



                                                      _________________________________
                                                      SAMUEL L. LEWIS, JUDGE

CONCUR:



_________________________________
HENRY F. TODD, P.J., M.S.



_________________________________
BEN H. CANTRELL, JUDGE




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