TN Mom Can’t Take Kids to Live With New Husband in Affluent Wisconsin

Tennessee law case summary on parent relocation after divorce and family law from the Court of Appeals.

David Andrew Thorneloe v. Cheree Anne Osborne  – Tennessee relocation after divorce

The mother and father were married in 2000 and had two children, who were ages ten and seven at the time of this appeal.  At the time of their 2007 divorce, they were residing in Clarksville, Tennessee, and the father was in the military and stationed at Fort Campbell.  As part of their divorce, they agreed to a parenting plan in which the mother had 265 days per year with the children and the father, 100.  The mother was named the primary residential parent.

The mother and children moved to Blountville to live with her parents, and the father was deployed to Afghanistan for a year.  After being discharged, the father got a job with the U.S. Attorney’s Office in Asheville, North Carolina, and purchased a home in Weaverville, North Carolina, about 75 miles away from Blountville.

In 2008, the mother remarried, but that marriage lasted less than a year.  The father also remarried and lived with his new wife in North Carolina.  In July 2011, the mother notified the father that she intended to move to Wisconsin to live with a new husband.  The father opposed that request, and the trial court denied the mother permission to relocate with the children.  The court also allowed a modification to the parenting plan proposed by the father.  It also adjusted his child support obligation and awarded him $6000 in attorney fees.  Dissatisfied with this result, the mother appealed to the Tennessee Court of Appeals.

The Tennessee parental relocation statute comes into play whenever a parent decides to relocate out of the state or more than a hundred miles “from the other parent within the state.”  The mother first argued that the statute did not apply because the father lived in a neighboring part of North Carolina, and not “within the state.”  The Court of Appeals quickly rejected this argument, pointing out that the “within the state” language meant the location of the proposed move, not the location of the other spouse.  It cited earlier cases in which spouses living outside of Tennessee had been allowed to object.

The Court then turned to the merits of the move.  Under the relocation statute, if the parents are not spending substantially equal time with the children (as the parties agreed was the case here), then the opposing parent must show that the move does not have a reasonable purpose, would cause a threat of harm, or was brought about by a vindictive motive.  In this case, the trial court had found that there was no reasonable purpose and that there was a threat of specific and serious harm.

On the reasonableness of the proposed move, the mother pointed out that the move was reasonable because it promised the possibility of a better teaching job in Wisconsin, support from her new husband, better family support, and life in an “affluent” area.  The father, on the other hand, pointed out that the children had a strong family network in the Tennessee-North Carolina area, and that the mother’s new marriage had “shallow roots”.

The Court of Appeals agreed that the proposed Wisconsin home was “very nice,” there was no evidence that it was superior to the home in Tennessee.  The mother testified that she thought the public schools in Wisconsin were better, but she offered no further evidence to support this claim.

The mother earned $42,000 per year as a teacher in Kingsport, and she estimated that she would be able to earn $5,000 to $8,000 more in the Badger State.  But the evidence also showed that the cost of living was also higher in Wisconsin, and despite applying for numerous teaching jobs, she had received no offers nor even a request for an interview.

The evidence also showed that the children’s maternal grandparents had provided strong support for the children in Tennessee, and they also had strong relationships with nearby cousins and uncles.  The father also had family members near his home.

And despite the mother’s claim that her new husband would provide financial support, the evidence revealed a marital property agreement under which the newlyweds vowed to maintain their own financial independence.  The Court of Appeals agreed that the mother “would be trading employment for unemployment” with no apparent intent for the new husband to provide for the mother as her own family had been doing.

For these reasons, the Court concluded that the evidence supported the trial court’s conclusion of no reasonable purpose for the move.  The Court then went on to examine the trial court’s finding that the move was not in the best interest of the children, and similarly agreed with the trial court on this point.

The Court of Appeals also agreed with the trial court that the parenting plan should be modified in favor of the father, that the child support should be modified, and that the father was properly awarded his attorney fees.  The costs of the appeal were taxed against the mother.

After the trial court’s judgment had been entered, the father had been temporarily deployed to Egypt in connection with his National Guard service.  The mother sought to introduce these post-judgment facts, but the Court of Appeals held that it would be improper to do so.

No. E2012-02004-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2013).

See original opinion for exact language.  Legal citations omitted.

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