Tennessee Mom Relocation Granted After Dad Objected 3 Days Late
Tennessee parental relocation law case summary in Tennessee divorce and family law from the Tennessee Court of Appeals. Mother allowed to relocate with children.
Thomas Goodman Rutherford v. Melody Joice Lawson Rutherford – Tennessee divorce parental relocation granted
The mother and father of one child were divorced in Tennessee in 2007 after a seven-year marriage. Under the agreed parenting plan, the mother was allotted 214 days of parenting time and the father, 151 days. In 2012, the mother sent the father a certified letter announcing her plan to move to Omaha, Nebraska, since her company had transferred her there to a new position. The two parents met to discuss the matter, and the father expressed his opposition.
The father filed a petition in opposition to the proposed relocation, but did so 33 days after receiving the notice. Under the Tennessee Parental Relocation statute, such a petition must be filed within 30 days. Therefore, the petition was three days late under the statute. The trial court found that the purposes of the statute had been fulfilled, and that there was no proof of harm or prejudice to the mother because of the delay, and held that the delay would not prevent the father from contesting the relocation. The court held a trial, and ultimately concluded that there was no reasonable purpose for the move, because the new job was a voluntary lateral move with no discernible benefit to the mother’s career. It therefore held that the move was not in the child’s best interests, and denied the relocation. The mother appealed to the Tennessee Court of Appeals.
The Court of Appeals stated that it needed to construe the statute and determine whether the statute mandated or merely permitted the parent to file the opposition within 30 days. It identified the relevant language of the statute as: “In the event no petition in opposition is filed within 30 days after receipt of notice, the parent proposing to relocate with the child shall be permitted to do so.” The court emphasized the word “shall” in this provision.
The father pointed to other language of the statute that states that the objecting parent “may” file this opposition, and argued that these provisions made the statute permissive, and not mandatory.
The Court stated that it needed to look at the plain language that the legislature had used, and it focused on the word “shall.” It concluded that the language was mandatory, and that if the required opposition was not filed as stated in the statute, then the relocating parent “shall” be allowed to relocate. The court quickly dismissed the argument about the word “may” elsewhere in the statute: This language simply reflected the fact that not all relocations will be opposed, and that the non-relocating parent is not required to file an opposition if they don’t object.
Since the objection hadn’t been filed in time in this case, the Court applied the statute, and held that the mother “shall” be permitted to relocate to Omaha. Therefore, it reversed the trial court’s judgment.
Two judges filed separate opinions. Judge Kirby concurred with the result in this case, but would have also left the door open to the question of whether the neglect had been excusable. Judge Stafford dissented, and would have remanded the case for a determination of whether there was excusable neglect in this case.
No. M2012-01807-COA-R3-CV (Tenn. Ct. App. May 7, 2013).
JUDGE KIRBY CONCURRING: //tncourts.gov/sites/default/files/rutherfordt_concurrence_opn.pdf
JUDGE STAFFORD DISSENTING: //tncourts.gov/sites/default/files/rutherford_t._dissent_opn.pdf
See original opinion for exact language. Legal citations omitted.
Miles Mason, Sr. is the author of Tennessee Parent Relocation Law available on Amazon and Kindle. To learn more, see Tennessee Parent Relocation Statute Law | Modifying the Parenting Plan and the MemphisDivorce.com Tennessee Family Law Blog with more detailed cases sorted by relocation cases granted and denied.
