The opinion
COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
February 27, 1998
MICHAEL EUGENE COPAS, ) C/A NO. 03A01-9708-CV-00375 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) SEVIER COUNTY CIRCUIT COURT
)
)
)
)
JULIE MARIE COPAS, )
) HONORABLE BEN W. HOOPER, II,
Defendant-Appellant.) JUDGE
For Appellant For Appellee
RICHARD T. WALLACE DWIGHT E. STOKES
Ogle & Wallace, P.C. Galyon & Stokes
Sevierville, Tennessee Sevierville, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
This is a divorce case. However, the issues presented
for our review pertain solely to the jurisdiction of the trial
court to hear and determine an interstate child custody dispute
under the Uniform Child Custody Jurisdiction Act (“UCCJA”). The
trial court held that it had jurisdiction under the Tennessee
version of the UCCJA to decide custody and visitation issues
pertaining to the parties’ only child, Carver Michael Copas
(“Carver”). The child’s mother, the defendant Julie Marie Copas
(“Mother”), appealed, arguing that the trial court lacked
jurisdiction under T.C.A. § 36-6-201, et seq., the Tennessee
version of the UCCJA, to address such custody and visitation
issues. Alternatively, Mother argues that the trial court erred
in failing to communicate with the Florida trial court where
Mother had sought a divorce and custody of Carver. She claims
that the Tennessee court was required by the provisions of T.C.A.
§ 36-6-207(c) to communicate with the Florida court. We find
Mother’s first issue to be dispositive of this appeal.
I. Procedural History
Michael Eugene Copas (“Father”) filed a complaint for
divorce in the trial court on April 6, 1995. Five days later, on
April 11, 1995, Mother filed a “Petition for Dissolution of
Marriage” in the Circuit Court for Collier County, Florida. Both
pleadings asked for custody of Carver. When Father’s complaint
was filed in Tennessee, Carver was 71 days old, having been born
on January 25, 1995.
2
In the instant case, Mother filed a motion to dismiss,
which, among other things, questioned the trial court’s
jurisdiction to address issues pertaining to Carver’s custody.
It was, and is, Mother’s position that the trial court lacked
jurisdiction under the pertinent provisions of T.C.A. § 36-6-201,
et seq., to resolve such custody issues. Each of the parties
filed “matters outside the pleadings” that were considered by the
trial court. See Rule 12.03, Tenn.R.Civ.P. Thus, the motion was
properly treated as a motion under Rule 56, Tenn.R.Civ.P. See
Rule 12.03, Tenn.R.Civ.P.
Following a hearing on June 9, 1995, the trial court
denied Mother’s motion. In so doing, it found that Tennessee was
the “home state” of Carver “as defined by T.C.A. [§] 36-6-203.”
The instant case was finally concluded following a
hearing on the merits on February 13, 1997. The court reiterated
its ruling that it had subject matter jurisdiction to decide
issues pertaining to Carver’s custody:
The Court further finds that the Court is
more convinced than ever after hearing the
proof in this cause...that this is the proper
jurisdiction to address the issues of child
custody and support, and therefore the
defendant’s motion to re-address the issue is
again overruled.
By order entered April 17, 1997, the trial court declared the
parties divorced; confirmed its earlier decree awarding the
parties joint custody of Carver with Mother as residential
3
custodian, subject to Father’s specified visitation rights; and
addressed other issues not germane to this appeal.
II. Facts
The parties were married in Sevier County on November
22, 1993. In November, 1994, they went to Naples, Florida. As
recited in Father’s response to Mother’s motion to dismiss, the
trip was made
for the purpose of allowing [Mother] to be
close to her mother during the final phase of
pregnancy.
Carver was born in Naples on January 25, 1995.
Father returned to Sevier County in February, 1995.
Mother remained in Florida with the parties’ child. The parties
agree on this appeal that Mother had planned to return, with her
infant son, to Tennessee to join Father, but there is a dispute
as to when this was to have occurred.
After Father returned to Tennessee, certain “long
distance” domestic disputes arose between the parties, resulting
in the divorce filings mentioned earlier in this opinion. Carver
continued to live in Florida with Mother, and was living there at
the time of the trial below.
III. Standard of Review
4
In this non-jury case, the record of the trial court’s
proceedings comes to us with a presumption of correctness as to
the trial court’s factual findings. We must honor this
presumption “unless the preponderance of the evidence is
otherwise.” Rule 13(d), T.R.A.P. The trial court’s conclusions
of law are not accorded the same deference. Campbell v. Florida
Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,
860 S.W.2d 857, 859 (Tenn. 1993).
IV. Pertinent Law
In 1979, Tennessee enacted its version of the UCCJA,
now codified at T.C.A. § 36-6-201, et seq. The UCCJA was
originally promulgated by the Uniform Commissioners
with the express intent of eliminating
interstate competition over custody matters,
child-snatching, and unauthorized holdovers
following authorized visitation periods.
Brown v. Brown, 847 S.W.2d 496, 499 (Tenn. 1993). As the instant
case demonstrates, the UCCJA has not always had its intended
effect.
The following provisions of the Tennessee version of
the UCCJA are pertinent to the facts of this case:
T.C.A. § 36-6-202
As used in this part:
* * *
5
(2) “Custody determination” means a court
decision and court orders and instructions
providing for the custody of a child,
including visitation rights; it does not
include a decision relating to child support
or any other monetary obligation of any
person;
(3) “Custody proceeding” includes proceedings
in which a custody determination is one (1)
of several issues, such as an action for
divorce or separation, and includes habeas
corpus proceedings, but specifically excludes
Interstate Juvenile Compact matters and other
proceedings pursuant to title 37, except
proceedings to determine custody pursuant to
§ 37-1-104 and pursuant to § 37-1-103 as to
dependent and neglected children when an
original party or person acting as a parent
files the petition or when the petition
involves facts arising from another state;
* * *
(5) “Home state” means 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, and in the case of a
child less than six (6) months old the state
in which the child lived from birth with any
of the persons mentioned. Periods of
temporary absence of any of the named persons
are counted as part of the six (6) months or
other period;
* * *
T.C.A. § 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
6
(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
this state assume jurisdiction.
* * *
V. Analysis
In the landmark case of Brown v. Brown, 847 S.W.2d 496
(Tenn. 1993), the Supreme Court pointed out that under the
Tennessee version of the UCCJA, “jurisdiction exists in only one
state at a time.” Id. at 501. In Brown, the Supreme Court
clearly explained the appropriate jurisdictional analysis to be
undertaken by a trial court:
If Tennessee is not the child’s “home state,”
a Tennessee court may assume jurisdiction
only upon a finding that no other state
qualifies as the child’s “home state,” or
that the “home state” has declined to
exercise jurisdiction and deferred to
Tennessee as “the more appropriate forum to
7
determine the custody of the child.” T.C.A.
§ 36-6-203(a)(2)(A) and (3).
Id. at 500 (emphasis in Brown opinion).
In the instant case, when Father filed his complaint
for divorce in Tennessee on April 6, 1995, the minor child, whose
custody is at issue in this case, was less than six months old.
In fact, he was only 71 days old. Thus, when Father undertook to
invoke the jurisdiction of the trial court in the instant case,
he did so at a time when Florida was the child’s “home state” as
that concept is defined in T.C.A. § 36-6-202(5). We find this to
be the inescapable interpretation of subsection (5) of T.C.A. §
36-6-202, since that code provision provides that “in the case of
a child less than six (6) months old the state in which the child
lived from birth with any of the persons mentioned”1 is the
child’s “home state.” Florida law is to the same effect. See §
61.1306(5), Fla.Stat.
It is obvious from the context of T.C.A. § 36-6-202(5)
that the language -- “the state in which the child lived” --
pertains to the actual place of residence, as opposed to the
broader concept of domicile. Therefore, under the UCCJA, the
domicile of Carver and his parents during the child’s 71 days of
existence is not the significant area of inquiry. What is
important is the fact that the child lived, during this critical
statutory period, in the State of Florida.
1
The “persons mentioned” are the “child’s parents, a parent or a person
acting as parent.” See T.C.A. § 36-6-202(5).
8
Father relies upon the last sentence of T.C.A. § 36-5-
202(5) -- “[p]eriods of temporary absence of any of the named
persons are counted as part of the six (6) months or other
period” -- to support his position that the child’s “home state”
is Tennessee. His argument in this regard is not entirely clear.
Specifically, it is unclear whose “temporary absence” he is
relying upon and how that “temporary absence” impacts the “home
state” analysis under T.C.A. § 36-5-202(5). If he is arguing
that Mother established a domicile in Tennessee prior to the
birth of the parties’ child and that her stay in Florida was a
“temporary absence” from that domicile, we do not understand the
last sentence of T.C.A. § 36-5-202(5) to mean that her absence
from Tennessee prevents Florida from being the place where the
child lived during the critical period just prior to the
commencement of the proceedings in this case. On the other hand,
if Father is claiming that Carver had a “temporary absence” from
Tennessee, such a position is untenable in view of the fact that
Carver has never lived in Tennessee. We do not understand how a
person can have an absence from a state, temporary or otherwise,
if that person has never lived in that state. In any event, we
believe that Father misconstrues the import of the quoted
language. That language permits a “temporary absence” to be
“counted as a part of” the relevant period. (Emphasis added).
The language does not permit a “temporary absence” to be
subtracted from the “six (6) months or other period.” The facts
of this case simply do not bring into play the quoted language
under discussion.
9
Husband argues that the evidence clearly indicates that
the parties were domiciles of Tennessee during the entirety of
their marriage. He points to the substantial evidence in the
record reflecting the parties’ contacts with Tennessee. He
argues that a “rigid interpretation” of T.C.A. § 36-6-202(5)
“would defeat the purposes of the UCCJA.” He contends that
[i]t is ludicrous to suggest that the UCCJA
can be so easily circumvented so that an
incidental birth in another state or one
planned in another state for short term
convenience can outweigh all other
substantial commitments with the state of
residence.
We believe that Husband’s arguments miss the mark.
The term “home state” is a term of art under the UCCJA
and its federal counterpart, the Parental Kidnapping Prevention
Act. It has a very specific meaning under the state and federal
legislative schemes pertaining to interstate custody disputes. A
court is required to apply that very specific meaning to such
disputes. A court is not at liberty to apply a definition of
home state that is at odds with the statutory definition. Thus,
a court cannot utilize a layman’s definition of home state or a
definition that equates home state with domicile or significant
contacts if to do so is to ignore the clear statutory definition.
The UCCJA contains a “home state” analysis, which focuses on the
place where the child lived during the pertinent period rather
than the place where a parent has significant contacts.
Contrary to Father’s assertion, our construction of the
UCCJA does not have the effect of encouraging a parent to go to a
10
state with absolutely no custody contacts in order to defeat the
jurisdiction of a state with substantial contacts with the child.
In the first place, we are not dealing, in this case, with a
state that has no custody contacts. On the contrary, there are
many witnesses in Florida whose testimony is relevant to the
issue of custody. Furthermore, it should be noted that Father’s
fear that a state with no custody contacts will be inclined to
decide custody, is addressed in the language of the UCCJA itself.
That statutory scheme sets up a mechanism by which a state, which
is the “home state” of a child under T.C.A. § 36-6-202(5) or its
UCCJA counterpart, can and should defer to a state that “is the
more appropriate forum to determine the custody of the child.”
See T.C.A. § 36-6-203(a)(2)(A) and (3). Certainly, our decision
should not be read as suggesting that a state with no real
custody witnesses or other relevant evidence should embrace a
custody determination based solely on a rigid interpretation of
the definition of “home state” when a state that is more
appropriate for such a determination is willing to assume
jurisdiction. In any event, we are not faced with that situation
in this case.
Tennessee does not qualify as Carver’s “home state”
under the provisions of T.C.A. § 36-6-203(a)(1). As previously
noted, Florida does. Since Florida has clearly expressed its
willingness to exercise jurisdiction in this case, it is likewise
clear that Tennessee cannot address custody issues pertaining to
Carver under T.C.A. § 36-6-203(a)(2)(A) and (3). Florida’s
willingness to act is reflected in the ruling of the Honorable
Hugh D. Hayes, Judge of the Collier County, Florida, Circuit
11
Court, pronounced on May 15, 1997, which we have considered
pursuant to Mother’s motion to consider post-judgment facts under
Rule 14, T.R.A.P. However, even if we were to ignore this
subsequent ruling, there is nothing in the record that
affirmatively reflects that a Florida court had ever refused to
exercise jurisdiction based on a finding that Tennessee is “the
more appropriate forum to determine...custody.” This is
important because such a finding is required to trigger
jurisdiction under T.C.A. § 36-6-203(a)(2)(A) and (3). We
recognize that the Florida trial court did decide, at an earlier
time -- and after the judge in the instant case had declared that
he had jurisdiction to make a custody determination -- that it
should defer to Tennessee; but that decision of the Florida trial
court was based upon its erroneous determination that the
Tennessee court had acted in “substantial conformity” with the
UCCJA. Significantly, that earlier judgment of the Florida court
was not predicated on the “more appropriate forum” rationale
contemplated by T.C.A. § 36-6-203(a)(2)(A) and (3).
It should be noted that the earlier judgment of the
Florida trial court was reversed by the Florida Court of Appeals,
Second District, in an opinion filed January 29, 1997.2 In that
opinion, the Florida Court of Appeals held that the Florida trial
court erred in deferring to the Tennessee proceedings. This was
held to be error because, according to the Florida appellate
court, the decision of the Florida trial court was based on the
erroneous conclusion that Tennessee was Carver’s “home state.”
2
The opinion of the Florida Court of Appeals was called to the attention
of the trial court in the instant case before the latter court held its final
hearing on February 13, 1997.
12
As we have previously indicated, following the decision of the
Florida appellate court, the Florida trial court expressed its
willingness to exercise its custody jurisdiction in this case. A
transcript of that ruling is in the record before us. Even
though that decision was made after the entry of the final
judgment in the instant case, we have considered it solely as
evidence of the fact that the Florida trial court has expressly
indicated its willingness to exercise its custody jurisdiction, a
fact that is clear from the transcript.
Since the trial court was without jurisdiction to make
a “custody determination” as defined in T.C.A. § 36-6-202(2), it
results that so much of the trial court’s judgment as addresses
custody and visitation issues pertaining to Carver Michael Copas
is hereby reversed. Costs on appeal are taxed to the appellee.
This case is remanded to the trial court for enforcement of the
remainder of the judgment and for the collection of costs
assessed below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Don T. McMurray, J.
13