                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                             July 7, 2003 Session

                        BETH A. COLLINS v. JAMES B. COODE, III

                      Appeal from the Chancery Court for Montgomery County
                           No. 2001-10-0064    Michael R. Jones, Judge


                         No. M2002-02557-COA-R3-CV - Filed April 27, 2004


This appeal involves a dispute regarding the post-divorce move by a primary residential parent from
Clarksville to Knoxville. Upon receiving notice of the planned move, the non-residential parent
petitioned the Chancery Court for Montgomery County to prevent the move or to change custody.
The trial court conducted a bench trial and denied the petition. On this appeal, the non-residential
parent asserts that the court applied the wrong relocation standards because it mistakenly concluded
that the parents had not been spending substantially equal amounts of time with their children. We
conclude that the record supports the trial court’s conclusion that the parents had not spent
substantially equal time with the children, and therefore, we affirm the judgment.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellant, James B. Coode, III.

Carrie W. Gasaway, Clarksville, Tennessee, for the appellee, Beth A. Collins.

                                                     OPINION

                                                           I.

        James B. Coode, III and Beth A. Coode1 were married for approximately fifteen years. They
lived in Clarksville during the marriage where they had three children.2 On January 18, 2002, they
were divorced in the Chancery Court for Montgomery County on the ground of irreconcilable
differences. Their permanent parenting plan provided that Ms. Coode would be the primary


         1
          Ms. Coode has since remarried, and her surname is now Collins. For clarity’s sake, we will refer to her in this
opinion as Ms. Coode.

         2
         Their oldest daughter was born in October 1987. Their two sons were born in October 1989 and November
1992 respectively.
residential parent and that Mr. Coode would have residential time with the children every other
weekend from Friday night until Sunday night and every week from Monday night until Wednesday
morning.3 The plan also allowed Mr. Coode to have the children for his birthday, for the first part
of Christmas break,4 and for four weeks of vacation time to be exercised at any time in the year.

       On June 11, 2002, approximately five months after the entry of the divorce decree, Ms.
Coode accepted an unsolicited promotion that required her to move from Clarksville to Knoxville.
The promotion carried with it a $15,000 increase in her annual salary. Accordingly, she notified Mr.
Coode of her intent to move to Knoxville with the parties’ three children. Mr. Coode responded on
June 13, 2002, by filing a petition in the Chancery Court for Montgomery County seeking to prevent
Ms. Coode from moving the children to Knoxville.

        Tennessee’s parental relocation statute [Tenn. Code Ann. § 36-6-108 (2001)] contains
different decision-making standards depending on the amount of time each parent spends with the
children. Mr. Coode testified at trial that the three children spent substantially the same amount of
time with each parent. However, Ms. Coode testified that Mr. Coode had not exercised all of his
residential opportunities with the children. She also asserted that Mr. Coode had already missed
between twenty and thirty residential days between the date of the divorce decree and the date of the
hearing. The trial court determined that the parties had not spent substantially equal amounts of time
with the children and denied Mr. Coode’s petition. On this appeal, Mr. Coode asserts that the trial
court’s factual determination regarding the amount of time each parent spent with the children is
flawed.

                                                  II.
                                    THE PARENTAL RELOCATION STATUTE

        One of the most common post-divorce flashpoints occurs when the primary residential parent
decides to move with his or her child or children to another city or state. The farther the move, the
more intense the opposition because of the move’s effect on visitation and the ability of the other
parent to foster and maintain an appropriate relationship with his or her child or children. In 1998,
the Tennessee General Assembly enacted Tenn. Code Ann. § 36-6-108 to provide parents and the
courts with a framework for determining whether the move should be permitted.5

        Tenn. Code Ann. § 36-6-108 embodies a legislatively mandated presumption in favor of a
relocating custodial parent who spends substantially more time with the child than the non-custodial
parent. Elder v. Elder, No. M1998-00935-COA-R3-CV, 2001 WL 1077961, at *5 (Tenn. Ct. App.
Sept. 14, 2001) (No Tenn. R. App. P. 11 application filed); Caudill v. Foley, 21 S.W.3d 203, 211
(Tenn. Ct. App. 1999) (the statute creates a preference for parents actually spending a greater amount

         3
           The parties later agreed to change the weekdays to Tuesday night until Thursday morning, but this change did
not alter the amount of residential time allotted to M r. Coode.

         4
             The parties estimate that the time at Christmas amounts to about one week.

         5
             Act of April 22, 1998, ch. 910, 1998 Tenn. Pub. Acts 637 became effective on May 7, 1998.

                                                           -2-
of time with the child). If the parents are actually spending substantially equal amounts of time with
the child, Tenn. Code Ann. § 36-6-108(c) requires the courts to determine whether permitting the
relocation is in the child’s best interests. If, however, a parent’s actual time with the child is not
substantially equal to the primary residential parent’s, Tenn. Code Ann. § 36-6-108(d) requires the
courts to permit the primary residential parent to move unless the other parent can prove (1) that the
move does not have a reasonable purpose, (2) that the move poses a specific and serious harm that
outweighs the harm resulting from a change of custody, or (3) that the primary residential parent’s
decision to move is vindictive.6

         Determinations regarding the amount of time the parents are spending with a child are not
controlled by the custody and visitation provisions in the decree. Helton v. Helton, 2004 WL 63478,
at *7. Rather, they are based on the time each parent “actually” spends with the child. Tenn. Code
Ann. § 36-6-108(c), (d). Thus, evidence regarding the amount of time the parents have or are, in
fact, spending with a child takes precedence over the custody and visitation arrangements in a decree.
This court has consistently declined to approve various “rounding-up” theories proposed by non-
residential parents to inflate the amount of time they have spent with their children.7

                                              III.
                           THE TIME ACTUALLY SPENT WITH THE CHILDREN

        Mr. Coode asserts that the trial court applied the wrong standard when it authorized Ms.
Coode and their children to move to Knoxville. Instead of using the more permissive standard in
Tenn. Code Ann. § 36-6-108(d), he insists that the trial court should have employed the comparative
fitness analysis in Tenn. Code Ann. § 36-6-108(c). We have determined that the trial court properly
elected to invoke Tenn. Code Ann. § 36-6-108(d)’s relocation standard.

        Determining whether parents are spending substantially equal amounts of time with their
children is, in the first instance, the trial court’s prerogative. While the amount of time the parents
are actually spending and the other relevant circumstances are factual matters that will be reviewed
using the standard of review in Tenn. R. App. P. 13(d), a determination regarding whether the time
actually being spent is “substantial,” is an ultimate factual conclusion that is not entitled to the same
deference. Thus, the appellate courts must review a trial court’s conclusion regarding the substantial
equality of parents’ residential time without a presumption of correctness. Meaningful appellate
review requires us to make an independent decision regarding whether the residential time is
substantially equal.



         6
           The parent opposing the relocation has the burden of proving one or more of these circumstances, Elder v.
Elder, 2001 W L 1077961, at *5, and considerations of the child’s best interests do not come into play until at least one
of these circumstances is shown to exist. Helton v. Helton, No. M2002-02792-COA-R3-CV, 2004 W L 63478, at *7
(Tenn. Ct. App. Jan. 13, 2004) (No Tenn. R. App. P. 11 application filed).

         7
           This court has disapproved proposals to count portions of days as full days, Helton v. Helton, 2004 W L 63478,
at *8, or to consider only the child’s “waking hours.” Clark v. Clark, No. M2002-03071-COA-R3-CV, 2003 W L
23094000, at *5 (Tenn. Ct. App. Dec. 30, 2003) (No Tenn. R. App. P. 11 application filed).

                                                          -3-
        Tenn. Code Ann. § 36-6-108 does not define the term “substantially equal.” However, no
special definition is required because the common meaning of the words and the phrase are easily
understood. The word “substantially” means “essentially,” “to all intents and purposes,” or “in
regard to everything material.” 17 OXFORD ENGLISH DICTIONARY 68 (2d ed. 1989). Thus, the plain
meaning of the term “substantially equal” connotes a relationship that is very close to equality – so
close that it may be considered equal.

        The courts have not provided bright-line rules for determining whether parents are spending
“substantially equal” custodial time with their children.8 As convenient as a bright-line rule might
be, we see no need to adopt one because custody decisions, by their very nature, are inherently fact-
dependent. Courts must have flexibility to consider the parents as they find them. However, courts
called upon to determine whether parents are spending substantially equal amounts of time with their
children should consider, among other things: (1) the terms of the applicable custody and visitation
orders,9 (2) the number of days each parent has actually spent with the child or children, (3) whether
the parents are using the full amount of residential time provided them, (4) the length of the period
during which the comparison of residential time is being made,10 and (5) the particular exigencies
of the parent’s circumstances.

        When the circumstances permit, courts should use a twelve-month period to determine the
amount of time parents are actually spending with their children. Examining the twelve consecutive
months immediately preceding the hearing mitigates the skewed statistical results of shorter
comparison periods and enables the courts to factor in summer vacations, holidays, and other
extended visitation periods that are not evenly distributed throughout the year. However, in cases
like this one in which a twelve-month comparison period is not possible or feasible, the courts
should use the longest possible period of time.




         8
            In fact, the prior decisions construing Tenn. Code Ann. § 36-6-108(c)’s use of “substantially equal” are
difficult to reconcile. On two occasions, we have held that a 60% - 40% split of custodial time was not substantially
equal. Branham v. Branham, No. E2003-01253-COA-R3-CV, 2004 W L 716729, at *3 (Tenn. Ct. App. Apr. 2, 2004)
(Tenn. R. App. P. 39 petition for rehearing pending); Connell v. Connell, No. E1998-00731-COA-R3-CV, 2000 W L
122204, at *3-4 (Tenn. Ct. App. Jan. 25, 2000) (No Tenn. R. App. P. 11 application filed). However, we have also held
that a 57% - 43% split was substantially equal, Monroe v. Robinson, No. M2001-02218-COA-R3-CV, 2003 W L 132463,
at *4 (Tenn. Ct. App. Jan. 16, 2003) (No Tenn. R. App. P. 11 application filed). W e have even found a 65% - 35% split
to be substantially equal. Woolman v. Woolman, No. M2000-02346-COA-R3-CV, 2001 W L 1660714, at *5 (Tenn. Ct.
App. Dec. 28, 2001) (No Tenn. R. App. P. 11 application filed).

         9
           W hile the terms of a custody or visitation order are not controlling, Helton v. Helton, 2004 W L 63478, at *7,
they are relevant.

         10
            The length of the comparison period has a direct and pronounced effect on determining whether parents’
custodial time is substantially equal. Using a short period may produce a misleading comparison by exaggerating the
difference in the amount of time parents are spending with their children. For example, if the comparison period is two
weeks, a parent who spends seven of fourteen days with the child has spent 50% of the comparison period with the child.
If the parent spends six days with the child, the portion of the comparison period is reduced to 42.9%, and if the parent
spends five days with the child, the percentage is reduced to 35.7%.

                                                           -4-
        The permanent parenting plan incorporated in the final divorce decree envisioned that Mr.
Coode could spend 177 days per year with his children.11 However, the dispute regarding Ms.
Coode’s decision to move to Knoxville arose less than six months following the entry of the divorce
decree. Accordingly, the comparison period in this case must necessarily be less than one year. The
trial court decided to analyze that period from January 18, 200212 through July 30, 2002.13 We have
determined that this period is appropriate.

        Had Mr. Coode exercised all the residential time he was entitled to between January 18 and
July 30, 2002, he would have spent 43.5% of the time with the children. However, he did not
exercise at least twenty days of residential time during this period, and thus he actually spent no more
than 33.2% of the comparison period with the children. There is no evidence that Ms. Coode
interfered with Mr. Coode’s visitation, and Mr. Coode presented no other exigent circumstances that
prevented him from exercising his visitation. Accordingly, the only conclusion that can be drawn
from the evidence is that Mr. Coode and Ms. Coode were not spending substantially equal amounts
of time with their children between January 18 and July 30, 2002. Accordingly, we affirm the trial
court’s decision to analyze Ms. Coode’s contemplated move to Knoxville using Tenn. Code Ann.
§ 36-6-108(d).

        Mr. Coode characterizes this mode of analysis as “bean counting” and asserts that it is
inconsistent with the policies of cooperation and flexibility that undergird the recently enacted
parenting plan procedures. We do not consider Tenn. Code Ann. § 36-6-108 to be incompatible with
Tenn. Code Ann. §§ 36-6-401, -414 (2001 & Supp. 2003) as long as the courts consider the reasons
for a parent’s failure to exercise the residential time they have been provided.

                                                IV.
                           THE APPLICATION OF TENN . CODE ANN . § 36-6-108(d)

       As a final matter, we have determined that the trial court properly applied Tenn. Code Ann.
§ 36-6-108(d)’s standards to the evidence in this case. Ms. Coode has a reasonable purpose for
moving because the job in Knoxville offers an opportunity for career advancement as well as a
substantial increase in compensation. While two of the children desire to remain in Clarksville, the
record contains no evidence that moving to Knoxville will “pose a threat of specific harm.”14


         11
          On an annualized basis, Mr. Coode would have spent 48.5% of the time with the children, and Ms. Coode
would have spent 51.5%.

         12
              The date of the entry of the divorce decree.

         13
           The date of the first hearing on Mr. Coode’s petition to prevent Ms. Coode from moving to Knoxville with
the children.

         14
             Moving is the sort of “specific harm” contemplated by Tenn. Code Ann. § 36-6-108(d)(2). M oving is a fact
of life for many children, those with married parents as well as those whose parents are divorced. Allowing Ms. Coode
to move with the children will require them to adapt to a new school and new friends. However, the record shows that
these children are bright and well-adjusted, and this adaptation does not constitute a threat of specific and serious harm.

                                                             -5-
Finally, the record does not demonstrate or suggest that Ms. Coode was being vindictive when she
decided to move to Knoxville.

        While our decision to affirm the trial court favors Ms. Coode, it should not be construed as
reflecting in any way on the parenting skills of either Ms. Coode or Mr. Coode. Nothing in this
record suggests that the children are safer, happier, or healthier with one parent than with the other.
 Both Mr. Coode and Ms. Coode are good parents. However, because Ms. Coode is the parent who
spends substantially more time with the children, Tenn. Code Ann. § 36-6-108(d) requires the courts
to permit her to move with the children when her employment opportunities require it.

                                                  V.

       We affirm the judgment and remand the case to the trial court for whatever further
proceedings may be required. We tax the costs of this appeal to James B. Coode, III for which
execution, if necessary, may issue.



                                                       _____________________________
                                                       WILLIAM C. KOCH, JR., J.




                                                 -6-
