John Daniel Rudd v. Debra Ann Gonzalez

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 24, 2013 Session

JOHN DANIEL RUDD

v.

DEBRA ANN GONZALEZ

Appeal from the Davidson County Circuit Court

No. 90D-1949 Philip E. Smith, Judge

No. M2012-02714-COA-R3-CV - Filed February 28, 2014

This appeal involves post-divorce parental relocation. The mother notified the father that she

intended to relocate outside Tennessee with the parties’ minor daughter. The mother asserted

that the relocation was for purposes related to her career as a surgeon. The father filed a

petition opposing the relocation on the grounds that the mother’s motive for the relocation

was vindictive and that the relocation did not have a reasonable purpose under Tennessee’s

parental relocation statute. After a bench trial, the trial court held that the father had not

carried his burden of proving the mother’s motive was vindictive or that the relocation was

not for a reasonable purpose, and so permitted the mother to relocate with the parties’ child.

The father now appeals. Discerning no error, we affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.

W.S., and D AVID R. F ARMER, J., joined.

Helen Sfikas Rogers and Lawrence J. Kamm, Nashville, Tennessee for Petitioner/Appellant,

John Daniel Rudd

Abby R. Rubenfeld, Nashville, Tennessee for Respondent/Appellee, Debra Ann Gonzalez

OPINION

F ACTS AND P ROCEEDINGS B ELOW

Petitioner/Appellant John Daniel Rudd (“Father”) and Respondent/Appellee Debra Ann

Gonzalez (“Mother”), both physicians, were married. They had one child, a daughter adopted

as a newborn in 1999.

Both parties are licensed physicians. Father was trained as an internist but began

experiencing complications from a life-long physical disability. Because of this, Father

stopped practicing medicine per se and began drawing disability benefits. After a time,

Father started a business in “administrative correctional medicine,” which utilizes health care

professionals to provide medical care to inmates in Rutherford County, Tennessee.

Mother is a board-certified otolaryngologist. She did clinical fellowship training in

microvascular reconstruction and head and neck oncology, a sophisticated surgical

subspecialty of otolaryngology. In May 2001, after Mother and Father married and adopted

their daughter, Mother was diagnosed with Relapsing-Remitting Multiple Sclerosis

(“RRMS”) which forced her to cease practicing medicine in her specialty. After that, Mother

began drawing disability benefits as well.

For several years, Mother explored other specialties in medicine that might better

accommodate her RRMS symptoms; for various reasons, none were satisfactory. In the

meantime, Mother tried a variety of measures to alleviate her RRMS symptoms; eventually

dietary changes greatly improved them. After Mother’s symptoms abated, she began more

aggressively seeking out opportunities to continue practicing medicine.

Eventually, the parties filed for divorce in the Circuit Court for Davidson County, Tennessee.

Substantial divorce proceedings ensued. While the divorce proceedings were pending,

Mother continued to pursue avenues to practice medicine in the Nashville, Tennessee area,

including discussions with representatives of Vanderbilt University about the prospect of

Mother doing general otolaryngology at a satellite office in Franklin, Tennessee. These

discussions were not fruitful.

On June 28, 2010, the trial court entered its final decree of divorce. The final decree

incorporated a marital dissolution agreement and an agreed parenting plan. The parties’

parenting plan designated Mother as the daughter’s primary residential parent and allocated

Father 120 days of alternate residential parenting time.

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About a year and three months later, on September 27, 2011, Mother sent Father a certified

letter to notify him of her plan to relocate with their daughter to Springfield, Illinois. After

an approximate 10-year absence from her specialty, Mother said that she planned to retrain

in her subspecialty, microvascular reconstruction and head and neck oncology, at Southern

Illinois University (“SIU”) School of Medicine. The dietary and other changes that Mother

made abated her RRMS symptoms enough to allow her to return to practicing in this area.

Father did not agree with Mother’s plan. On October 11, 2011, he filed a petition in

opposition to Mother’s relocation in the trial court. The petition asserted that Mother’s

contemplated relocation did not have a reasonable purpose, was vindictive, and posed a

substantial threat of harm to their daughter. Mother filed a counter-petition asking the trial

court to approve her proposed relocation.

In November 2011, Mother’s former attorney sent correspondence to Father, alluding to

possible tort claims against him for alleged actions that she discovered in the course of

discovery in the divorce litigation. Mother asserted that, in 2005, Father secretly took her

medical records to an expert in multiple sclerosis for evaluation; Mother claimed that the

expert suggested to Father that Mother’s diagnosis may have been incorrect, and that Father

did not disclose this information to Mother. Prior to a tort lawsuit being filed, in March

2012, Mother’s former attorney sent Father a letter offering to forego the tort lawsuit if he

elected to withdraw his petition opposing relocation.

When Father declined Mother’s offer to dismiss the tort claims in exchange for dropping his

objection to her relocation, she filed a separate tort lawsuit against Father in another division

of the Circuit Court of Davidson County. The lawsuit sought compensatory damages under

a variety of tort theories, including outrageous conduct, intentional misrepresentation,

negligent misrepresentation, and fraudulent concealment. Despite the fact that Father

declined to relent on his opposition to Mother’s proposed relocation, Mother eventually

nonsuited her tort lawsuit against Father.

The trial court below scheduled the trial on Mother’s proposed relocation for three days in

August 2012. In advance of the trial, Mother filed a proposed new parenting plan that

allocated Father 125 days of residential parenting time with the parties’ daughter.

A few days before the scheduled trial, Father changed his position on whether he and Mother

had substantially equal intervals of parenting time with their daughter. In prior court filings,

Father had not disputed that Mother spent more parenting time with their child than he did.

In Father’s trial brief, however, he took the position that he actually exercised substantially

more parenting time than the 120 days set forth in the parties’ parenting plan, and that he in

fact had only 12 days fewer than Mother during the previous year. Based on this, Father

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argued that the parties had substantially equal parenting time, which would affect the

standard used by the trial court under Tennessee’s parental relocation statute.1

At the outset of the trial, the trial court heard testimony on the number of parenting days each

party had with the child. The proof established that Mother agreed to Father having extra

parenting time with the parties’ child, over and above the parenting time allocated to Father

in the parties’ agreed parenting plan and that this was done at least in part to assist Mother.

The trial court made a preliminary finding that Father had had 154 days of parenting time

with the child during the previous year; thus, Father had approximately 42% of the total

parenting time and Mother had approximately 58%.

The trial court rejected Father’s argument that this amounted to substantially equal intervals

of time with the child. The remainder of the relocation proceedings were premised on the

trial court’s holding that Mother had substantially more parenting time with the child.

At the trial, the trial court heard testimony from Mother, Father, the parties’ daughter, and

other witnesses. The trial court also considered deposition testimony from Mother’s treating

physician, the chair of the Department of Otolaryngology at Vanderbilt University, and an

otolaryngologist employed by Vanderbilt who discussed employment opportunities with

Mother, as well as deposition testimony from two faculty members with the SIU School of

Medicine, both of whom discussed a retraining plan with Mother in her otolaryngology

subspecialty.

At trial, Father took the position that Mother’s separate tort lawsuit against Father

demonstrated that her proposed relocation was motivated by vindictiveness. In support,

Father sought to introduce into evidence the March 2012 correspondence from Mother’s

former attorney which Father contended was solely an attempt by Mother to get Father to

withdraw his opposition to Mother’s relocation, in exchange for Mother dropping the tort

claims against him. The trial court held that Mother’s separate tort lawsuit was not relevant

to the relocation proceedings, given the statutory definition of a “vindictive” motive in the

parental relocation statute. The trial court also held that correspondence from Mother’s

attorney constituted settlement or compromise negotiations, and thus, was inadmissible under

Rule 408 of the Tennessee Rules of Evidence.

Father also argued to the trial court that Mother’s proposed relocation was not for a

reasonable purpose. Father contended that Mother’s relocation was unnecessary because

1

As discussed in more detail below, under Tennessee Code Annotated § 36-6-108, the standard of proof for

the parent who opposes relocation is considerably less if both parents spend substantially equal intervals of

time with the child or children. See Tenn. Code Ann. § 36-6-108 (2008).

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Mother could have taken a position closer to Nashville. In her testimony, Mother described

her efforts to explore potential job positions, some with Vanderbilt University and its

affiliates in functional medicine, sleep medicine, and general otolaryngology. For example,

Mother discussed with Vanderbilt representatives a position doing general otolaryngology

at a satellite office in Franklin, Tennessee. None of Mother’s discussions led to a job offer;

Mother testified that she removed herself from consideration for the Franklin, Tennessee

otolaryngology job position because it involved primarily basic “tubes and tonsils”

procedures in a non-academic setting and did not utilize her advanced subspecialty training.

Mother said it was significant to her that she have a job position that allowed her to perform

the specialized procedures in which she had trained.

Father also argued that Mother’s proposed relocation did not have a reasonable purpose

because Mother did not have a job offer in Springfield, Illinois, only the hope of securing

one. The testimony of Mother’s contacts at the SIU School of Medicine indicated that both

were former colleagues of Mother. The testimony from Mother and the two SIU faculty

members indicated that the arrangement at SIU was that the School of Medicine would

develop a special program for Mother to retrain in her subspecialty; after that, a faculty

appointment at the School of Medicine was “highly likely.” The retraining position at SIU

would have a salary of approximately $58,000 per year, with a salary renegotiation for a

faculty appointment; such a faculty member would generally receive approximately $250,000

per year.

On October 29, 2012, the trial court issued an oral ruling granting Mother permission to

relocate to Springfield, Illinois with the child. The trial court entered a written order on

November 9, 2012. The written order adopted Mother’s proposed parenting plan and

attached and incorporated by reference the trial court’s earlier oral ruling. The written order

stated:

This Court finds that [Father] failed to meet his burden of proof under Tenn.

Code Ann. Sec. 36-6-108(d) establishing that [Mother’s] move to Springfield,

Illinois to take a position as a surgeon with Southern Illinois University was

not for a reasonable purpose. [Father] also presented no proof that the move

could cause substantial harm to the minor child. Finally, [Father] failed to

carry his burden of proof that the proposed move was vindictive.

The Court also finds that this is not a case where the parties had substantially

equal time. After a hearing on that issue on the first day of trial, this Court

finds that [Father], during the past twelve months, had visitation with the Child

for 154 days, or 42.19% of the time, which is not substantially equal time.

Therefore, the provisions of Tenn. Code Ann. Sec[.] 36-6-108(d) applied.

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Because of the trial court’s findings above, it was not necessary for the Court

to reach the issue of whether the relocation was in the best interests of the

minor child. This Court will allow [Mother] to relocate to Springfield, Illinois

with the parties’ minor child. . . .

The trial court’s holding in its written order was supported by more detailed findings of fact

in its oral ruling:

Additionally, the Court, after hearing the testimony of both parties, watching

the demeanor of the parties during their testimony and the way they testified,

the Court is giving great weight to the testimony of [Mother] and accepts her

testimony where it conflicts with [Father].

The Court finds that based on [Father’s] testimony in his deposition, the

testimony heard by the Court, and the evidence introduced, the desire of

[Mother] to retrain in her area of expertise is reasonable.

The Court further finds that retraining in her area of expertise is not available

in Nashville despite the efforts of [Mother] to attempt to have Vanderbilt to

retrain her in her area.

The Court further finds that the program at Southern Illinois University created

for her retraining is the only program available to her at this time.

Further, the Court finds that the significanc[e] of [Mother’s] retraining

substantially outweighs the gravity of [Father’s] loss of his schedule of

alternate parenting time that he previously exercised under the original

parenting plan.

Bottom line, the Court finds that [Father] failed to carry the burden of proof

that [Mother’s] proposed relocation does not have a reasonable purpose.

The Court further finds that there was no proof introduced by [Father] that the

relocation proposed a threat of specific and serious harm to the child that

outweighs the threat of harm to the child of change of custody.

Finally, [Father] argues that the move is vindictive. The basis of the argument

is that the move would dramatically decrease his number of days.

Additionally, [Father] claims that [Mother] is still angry towards him.

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The proof established that [Mother] has always encouraged the relationship

between the child and [Father]. One need not look beyond [Father’s] own

words in his amended petition where he states under oath, quote, he had 120

days of parenting time per year, but that the parties have also worked together

well and on many occasions the father has had additional time with the minor

child, end quote.

[Father] has failed to establish any sort of pattern by [Mother] to disrupt or

refuse any parenting time that he was entitled to. Quite frankly, the opposite

is true. The overwhelming proof establishes that[,] despite the differences

between [Father] and [Mother,] . . . they have worked well together for the

betterment of this minor child . . . .

[Father’s] other basis that the move is vindictive is that [Mother] is angry with

[him]. This, [Mother] admits; however, these parties were married and then

they got divorced. There is no requirement that they be friends.

Despite [Mother’s] anger towards [Father] she’s continued to work with him

in a positive way to ensure that he has a healthy and loving relationship with

[their daughter].

[Father] claims that he would be losing days with the child. In his amended

petition [Father] requests 120 days. [Mother] has offered him more than the

number of days that he is requesting in his petition.

According to the unreported case Helton versus Helton – which is found at

M2002-02792-COA-R3-C[V] – a Tennessee Court of Appeals case filed on

January 13, 2004 – an offer – the Court of Appeals states that an offer of

visitation with a schedule that would offer the same number of days or the

number of days requested combined with the finding of reasonable purpose is

sufficient to find that there is no vindictive motive.

The guidance of the Helton case combined with a complete lack of proof of

any ill or vindictive motive on the part of [Mother] establishes that [Father] has

failed to carry his burden of proof that the proposed move is vindictive.

Based on the findings and conclusions by this Court, the Court approves

[Mother’s] proposed relocation with the minor child . . . .

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Thus, the trial court specifically credited Mother’s testimony over that of Father. It held that

Mother’s desire to retrain in her field of expertise was a reasonable purpose to relocate, and

that such retraining was available in Springfield but not in Nashville. The trial court found

that Father had introduced no proof of vindictiveness and that the proof showed that Mother

had worked well with Father in the best interest of their child. The trial court emphasized

that Mother’s proposed parenting plan gave Father both more parenting days than the prior

parenting plan and more than Father requested in his petition, and thus, held Father had failed

to prove that Mother’s motive for the proposed relocation was vindictive.

For those reasons, the trial court permitted Mother’s proposed relocation. Given the income

disparity between Mother and Father, the trial court also awarded Mother a portion of her

attorney fees, an award of $60,000.2

A few days later, Father filed a motion to alter or amend the trial court’s order and for a stay

while the case was pending on appeal. In an order entered on January 8, 2013, the trial court

slightly altered the parenting schedule but otherwise denied the motion to alter or amend as

well as Father’s request for a stay. Father now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Father raises six issues:

(1) The trial court erred when it ruled that evidence regarding Mother’s tort

suit against Father was inadmissible.

(2) The trial court erred when it barred admission of evidence showing

Mother’s vindictiveness because she had purportedly proposed a parenting

plan offering [F]ather the same number of days of residential time.

(3) The trial court erred when it found that [M]other’s proposed relocation to

Springfield, Illinois, was not for a vindictive purpose.

(4) The trial court erred when it found there was a reasonable purpose for

[M]other’s relocation to Springfield, Ill.

(5) The trial court erred when it made credibility findings against the [F]ather.

2

The combined total of both parties’ attorney fees in this case was $195,817; the trial court noted that while

these fees were “higher than one might expect,” they were neither “unnecessary” nor “unreasonable” in this

case.

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(6) The trial court erred in awarding attorney fees to the [M]other.

We review the trial court’s findings of fact de novo, presuming those findings to be correct

unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Robinson v. Robinson,

No. M2003-02289-COA-R3-CV, 2005 WL 1541861, at *2 (Tenn. Ct. App. June 30, 2005).

We give great weight to the trial court’s credibility determinations, as the trial court is in the

best position to assess the demeanor of the witnesses. Robinson, 2005 WL 1541861, at *2;

Mitchell v. Mitchell, No. M2004-00849-COA-R3-CV, 2005 WL 1521850, at *1 (Tenn. Ct.

App. June 27, 2005). Issues of law are reviewed de novo, with no presumption of correctness.

Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

A NALYSIS

“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.” Collins v. Coode, No. M2002-02557-COA-R3-CV, 2004 WL 904097, at *2 (Tenn.

Ct. App. Apr. 27, 2004).

An overview of the relevant statute is helpful for resolution of the issues on appeal in this case.

In 1998, Tennessee’s legislature initially enacted the parental relocation statute, Tennessee

Code Annotated § 36-6-108, which set out the framework for courts to determine whether to

permit the primary residential parent to relocate with the child outside Tennessee or more than

100 miles away inside Tennessee.3 The statute provides that, when parents spend substantially

equal amounts of time with the child, “[n]o presumption in favor of or against the request to

relocate with the child shall arise,” and the trial court must determine whether permitting the

relocation is in the child’s best interest. Tenn. Code Ann. § 36-6-108(c).

In this case, Father argued in the trial court below that he and Mother spent substantially equal

intervals of time with their daughter. The trial court made a factual finding that Mother spent

more parenting time with the child, and Father has not appealed that finding. Therefore, we

3

Since 1998, this statute has been amended twice: once in 2007 to add subsection (i) which provides that

either parent may in the discretion of the court recover reasonable attorney fees and other litigation expenses

from the other parent; and again in July 2013, to be made applicable to situations in which a primary

residential parent sought to relocate 50 miles away within the state of Tennessee, as opposed to 100 miles.

See 2013 Tenn. Pub. Acts ch. 352; 2007 Tenn. Pub. Acts ch. 187. For purposes of this case, we rely on the

verison of Section 36-6-108 which was in place at the time the trial in this matter occurred. See Tenn. Code

Ann. 36-6-108 (2008).

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must treat it as undisputed on appeal that Mother spends the greater amount of time with the

child.

Where the parents do not spend substantially equal intervals of time with the child, Tennessee

Code Annotated § 36-6-108 has “a legislatively mandated presumption in favor of [the]

relocating custodial parent. . . .” Collins, 2004 WL 904097, at *2. See also Elder v. Elder, No.

M1998-00935-COA-R3-CV, 2001 WL 1077961, at *5 (Tenn. Ct. App. Sept. 14, 2001).

Under Tennessee Code Annotated § 36-6-108(d)(1), the trial court must grant the primary

residential parent permission to relocate unless the parent opposing relocation proves at least

one of three enumerated grounds: (1) that the relocation does not have a reasonable purpose;

(2) that the relocation poses a threat of specific and serious harm that outweighs the risk of

harm that would result from a change of custody; or (3) that the primary residential parent’s

motive for the relocation is vindictive. Tenn. Code Ann. § 36-6-108(d)(1)(2008); Webster v.

Webster, No. W2005-01288-COA-R3-CV, 2006 WL 3008019, at *8 (Tenn. Ct. App. Oct. 24,

2006). The parent opposing the relocation bears the burden of proof to establish one of these

three grounds, and if he or she fails to do so, the relocation must be permitted. Webster, 2006

WL 3008019, at *14; In re Iyana R. W., No. E2010-00114-COA-R3-JV, 2011 WL 2348458,

at *3 (Tenn. Ct. App. June 8, 2011). If the parents do not spend substantially equal intervals

of time with the child, the trial court will not address the issue of whether the relocation is in

the best interest of the child until and unless one of the statutory grounds is proven. See Tenn.

Code Ann. § 36-6-108(e); Kawatra v. Kawatra, 182 S.W.3d 800, 803 (Tenn. 2005). We now

address the arguments Father raises on appeal.4

Vindictive Motive

Several of Father’s issues center on the ground for opposing relocation set forth in Section 36-

6-108(d)(1)(C), that the primary residential parent’s motive for relocation is “vindictive.”

Father argues overall that Mother’s anger toward him over various issues showed

vindictiveness. In particular, Father points to Mother’s separate tort lawsuit against him,

Mother’s actions related to the sale of the marital home, and Mother’s accusations that Father

was “racially insensitive” and that he prescribed a “controlled substance” for their minor child.

Specifically, Father contends that the trial court erred in excluding from evidence

correspondence from Mother’s attorney offering to drop the tort claims if Father dropped his

opposition to Mother’s move, as well as evidence that Mother filed a purportedly false

affidavit in connection with the sale of the marital home. Father also maintains that the trial

court erroneously relied on Helton v. Helton, No. M2002-02792-COA-R3-CV, 2004 WL

4

We note that Father has also not raised as an issue on appeal whether the trial court erred in finding that

the relocation did not pose a threat of specific and serious harm that outweighed the risk of harm that would

result from a change of custody, thus we do not address it.

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63478 (Tenn. Ct. App. Jan. 13, 2004), because Mother’s proposed parenting plan allocated to

Father less parenting days than he actually received in the previous year, in light of the fact that

he got more parenting time than was stated in the parties’ parenting plan.

As noted by the learned trial judge below, the term “vindictive” is a defined term under the

parental relocation statute. Under Section 36-6-108(d)(1)(C), the trial court may hold that the

primary residential parent’s motive for the proposed relocation is “vindictive” only if the

parent who opposes relocation proves that the relocation “is intended to defeat or deter

visitation rights of the non-custodial parent or the parent spending less time with the child.”

Tenn. Code Ann. §36-6-108(d)(1)(C)(2008). Where the legislature defines a term, courts

applying the statute must utilize the statutory definition. State v. Goodman, 90 S.W.3d 557,

565 (Tenn. 2002) (“[T]his Court must presume that the legislature says in a statute what it

means and means in a statute what it says.”).

From our review of the transcript of the trial proceedings and the trial court’s ruling and order,

it appears that the trial court held first that the evidence Father sought to introduce was not

relevant in light of the statutory definition of the term “vindictive.” In addition, as to the

correspondence from Mother’s attorney on the tort claims, the trial court excluded it as

attempts to settle or compromise a claim within the meaning of Rule 408 of the Tennessee

Rules of Evidence.5 The trial court was of course aware of its own factual finding at the outset

of the trial that Father actually received more parenting days than was allocated to him under

the parties’ parenting plan and pointed out that this fact showed that Mother had supported

Father’s relationship with the child and had consistently cooperated with Father to co-parent.

In our view, the trial court’s analysis was spot on. First and foremost, we are not at liberty to

broaden the definition of “vindictive” provided by the legislature in the parental relocation

statute. None of the evidence Father sought to offer tends to show vindictiveness within the

5

Rule 408 states:

Evidence of (1) furnishing or offering to furnish or (2) accepting or offering

to accept a valuable consideration in compromising or attempting to

compromise a claim, whether in the present litigation or related litigation,

which claim was disputed or was reasonably expected to be disputed as to

either validity or amount, is not admissible to prove liability for or

invalidity of a civil claim or its amount or a criminal charge or its

punishment. Evidence of conduct or statements made in compromise

negotiations is likewise not admissible.

Tenn. R. Evid. 408 (2013).

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meaning of the statute. See Tenn. R. Evid. 401.6 Mother’s anger at Father over specific

divorce-related issues, or indeed her general anger at him in the wake of the divorce, does not

in and of itself demonstrate vindictiveness. If vindictiveness could be established merely by

proving that the primary residential parent retained bad feelings toward the other parent in the

wake of the divorce, few divorced parents would ever receive court permission to relocate with

the parties’ child. As the trial court wryly observed, “[T]hese parties were married and then

they got divorced. There is no requirement that they be friends.”

We also find no error in the trial court’s decision to exclude the correspondence from Mother’s

attorney about the possibility of dismissing Mother’s separate tort claims under Rule 408 of

the Tennessee Rules of Evidence. See White v. Vanderbilt Univ., 21 S.W.3d 215, 222-223

(Tenn. Ct. App. 1999)(trial court’s evidentiary decisions reviewed under an abuse of discretion

standard.”).

We agree with the trial court that Father “failed to establish any sort of pattern by [Mother] to

disrupt or refuse any parenting time that he was entitled to. Quite frankly, the opposite is true.”

The undisputed evidence shows that, whatever residual ill feelings Mother may have had

toward Father after the dissolution of their marriage, she put them aside to support Father’s

relationship with the child and to give Father more parenting time than was allocated to him

under the parties’ agreed parenting plan. Under all of these circumstances, we affirm the trial

court’s holding that Father failed to carry his burden of proving that Mother’s motive for

relocating was vindictive.

Reasonable Purpose

Father also argues that the trial court erred in holding that Mother’s proposed relocation was

for a reasonable purpose. He emphasizes that the evidence showed that, at the time of trial,

Mother had not received an actual job offer from SIU; rather, she had only the hope of a job

offer after her retraining. Father insists that the evidence does not show that SIU created a

retraining program for Mother. He contends that the evidence does not support the trial court’s

finding that neither retraining nor a job were available in the Nashville area, because Mother

removed her name from consideration for a job with Vanderbilt. Father argues that re-entering

her otolaryngology subspecialty would be financially detrimental to Mother because she would

lose her disability payments and that the stress that would accompany Mother’s re-entry into

her subspecialty would increase the probability of a relapse of her RRMS. For all of these

6

Rule 401 of the Tennessee Rules of Evidence defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Tenn. R. Evid. 401 (2013).

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reasons, Father argues, the trial court erred in holding that Mother’s proposed relocation was

for a reasonable purpose.

This Court has previously discussed the “reasonable purpose” ground for opposing a proposed

relocation:

Although the statute does not elaborate on the meaning of the ground that the

relocation “does not have a reasonable purpose,” since the statute was apparently

enacted with reference to the court’s opinion and dissent in Aaby v. Strange, we

interpret the statute against that backdrop. In her dissent, Justice White

obviously emphasized the seriousness of the loss, to the child as well as the

non-custodial parent, of the opportunity for the non-custodial parent to

participate in the child’s activities, such as soccer games and recitals, even if the

activities do not fall within the non-custodial parent’s designated “parenting

time.” Aaby [v. Strange], 929 S.W.2d [623], 631 [(Tenn. 1996)]. She

advocated requiring the parent who proposes to relocate to establish “some

reason” for the move, observing that such a rule would oblige the custodial

parent to“deliberate” and “evaluate” a decision to move, without impeding “the

custodial parent’s freedom of movement. . . .” Id. She advocated an approach

that would “not destroy the efforts” of non-custodial parents “to participate more

fully in their children’s lives. . . .” Id.

While the Aaby dissent advocated requiring the relocating parent to prove “some

reason” for the move, the statute ultimately enacted incorporated a more rigid

structure. First, the parent seeking to relocate with the child must notify the

other parent of the proposed move. T.C.A. § 36-6-108(a) (2005). The notice

must contain, inter alia, the relocating parent’s “reasons for the relocation. . . .”

T.C.A. § 36-6-108(a)(3) (2005). If the parties cannot agree, the parent opposing

relocation must file a petition stating such opposition. T.C.A. § 36-6-108(d)(1)

(2005). The parent seeking to relocate may not do so until he or she has received

the court’s permission. Id. The statute then provides that the court “ shall ” grant

such permission to relocate unless it finds one of the enumerated grounds for

denial of permission, such as the fact that the relocation does not have a

reasonable purpose. Id.

Therefore, in sum, the parent seeking to relocate is required initially to state his

or her reasons for the proposed relocation. T.C.A. § 36-6-108(a)(3) (2005). The

burden then is on the parent opposing the move to prove that the proposed

relocation “does not have a reasonable purpose.” T.C.A. § 36-6-108(d)(1)(A)

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(2005). If this burden of proof is not carried, the trial court is obliged to grant

permission for the relocation. Id.

In context, it is clear that the “reasonable purpose” of the proposed relocation

must be a significant purpose, substantial when weighed against the gravity of

the loss of the non-custodial parent’s ability “to participate fully in their

children’s lives in a more meaningful way.” Aaby, 924 S.W.2d at 631.

However, the statute clearly includes a presumption in favor of permitting

relocation, which appears to reflect the Aaby majority’s observation that “the

interests of the custodial parent and the interests of the child are basically

interrelated, even [if] they are not always precisely the same.” Id. at 629.

Moreover, the statute is plainly structured so that the issue of the best interest of

the child is not reached unless and until a ground to deny relocation is

established. This structure suggests that the “reasonable purpose” ground is not

intended to be a guise under which the trial court goes directly to the question

of whether the move is in the child’s best interest, as was the common law under

cases preceding Aaby v. Strange. This statutory structure facilitates the goals,

reiterated in Aaby, of limiting judicial intervention and making disputes easier

to resolve if they must be litigated. Id.

Webster, 2006 WL 3008019, at *13-14. Thus, the parent who seeks to relocate must state the

reasons for the proposed relocation in the notice to the other parent. The parent who opposes

relocation then has the burden of proving that the proposed relocation is not for a reasonable

purpose. Id. at *14; see also Mann v. Mann 299 S.W. 3d 69, 74 (Tenn. Ct. App. 2009).

There are no bright-line rules with regard to what constitutes a reasonable purpose for a

proposed relocation. In re H.L.B-K., No. M2010-00561-COA-R3-JV, 2010 WL 4940586, at

*3 (Tenn. Ct. App. Nov. 30, 2010). “[D]eterminations concerning whether a proposed move

has a reasonable purpose are fact-intensive and require a thorough examination of the unique

circumstances of each case.” Lima v. Lima, No. W2010-02027-COA-R3-CV, 2011 WL

3445961, at *7 (Tenn. Ct. App. Aug. 9, 2011)(citing In re Spencer E., No. M2009-02572-

COA-R3-JV, 2011 WL 295896, at *11 (Tenn. Ct. App. Jan. 20, 2011)). “[R]elevant economic

factors that are typically considered include, without limitation, the relative significance of the

increase, the cost of living in the proposed location compared to the present location, the

firmness of the job offer, opportunity for career advancement and economic betterment of the

family unit.” Slaton v. Ray, No. M2004-01809-COA-R3-CV, 2005 WL 2756076, at *3 (Tenn.

Ct. App. Oct. 24, 2005)(citing Mitchell v. Mitchell, No. M2004-00849-COA-R3-CV, 2005

WL 1521850, at *3 (Tenn. Ct. App. June 27, 2005)). “Doubtless, relocation because of a

better job opportunity, greater salary, and career advancement opportunities, establishes a

“reasonable purpose” within the meaning of the statute.” Butler v. Butler, No. M2002-00347-

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COA-R3-CV, 2003 WL 367241, at *2 (Tenn. Ct. App. Feb. 20, 2003). On the other hand,

under the circumstances presented in other cases, the court has found when there is no firm job

offer and no proof of better job opportunities that the move was not for a reasonable purpose.

Rogers v. Rogers, No. M2008-00918-COA-R3-CV, 2009 WL 1034795, at *6 (Tenn. Ct. App.

Apr. 16, 2009) (citing cases). Non-economic factors must be considered as well. In all cases,

the reason for the proposed relocation must be “substantial when weighed against the gravity

of the loss of the non-custodial parent’s ability ‘to participate fully in their children’s lives in

a more meaningful way.’ ” Webster, 2006 WL 3008019, at *14 (quoting Aaby, 924 S.W.2d

at 631).

In the case at bar, the trial court held that Mother’s “desire . . . to retrain in her area of expertise

is reasonable.” It also made a factual finding “that retraining in her area of expertise is not

available in Nashville despite [Mother’s] efforts . . . to attempt to have Vanderbilt to retrain

her in her area.” As to Mother’s arrangement with SIU, the trial court found “that the program

at Southern Illinois University created for her retraining is the only program available to her

at this time.” From our review, these findings are supported by the evidence in the record.

On appeal, Father rightly emphasizes that Mother does not have an actual job offer or a

guarantee that she will get a faculty position at SIU once she completes her retraining. Mother

testified that some of the terms of her employment offer were still evolving, that SIU was

working on a formal offer to pay her a modest salary during her retraining, and then upon

completion, offer her a faculty position with an accompanying raise in pay. The SIU faculty

members testified that SIU had proposed an offer “to come on board in a fairly unstructured

situation” and that the chances of Mother obtaining a faculty position were “highly likely.”

While we recognize that Mother’s job offer was not guaranteed, it is also important to note that

non-economic factors are part of the equation. In this case, Mother is a highly trained medical

professional who practiced in a sophisticated subspecialty and was then forced to give up her

chosen profession for many years because of a debilitating disease. After gaining a measure

of control over the symptoms of her disease, and after exhaustive efforts to find retraining in

her subspecialty, she found an opportunity to complete the retraining and practice her chosen

medical subspecialty again. As the trial court found, Mother’s desire to retrain in her area of

expertise is reasonable.

The burden that Mother’s proposed relocation would place on Father’s relationship with the

parties’ daughter must be weighed in the overall determination of whether the relocation has

a reasonable purpose. The trial court did just that, and found “that the significanc[e] of

[Mother’s] retraining substantially outweighs the gravity of [Father’s] loss of his schedule of

alternate parenting time that he previously exercised under the original parenting plan.” Under

the totality of the circumstances, the trial court held that Father failed to carry his burden of

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proving that Mother’s proposed relocation was not for a reasonable purpose. From our review

of the record, we must conclude that the trial court did not err in this holding.7

“Parental relocation cases are frequently heartbreaking, with profound competing

considerations and impact on both parents and the subject children.” Rutherford v.

Rutherford, No. M2012-01807-COA-R3-CV, 2013 WL 1928542, at *9 (Tenn. Ct. App. May

7, 2013)(Kirby, J., concurring separately). We must affirm the trial court’s decision to grant

Mother permission for the proposed relocation to Springfield, Illinois.

Attorney Fees

Finally, Father argues that the trial court erred in awarding Mother $60,000 in attorney fees,

a portion of the attorney fees she incurred in the relocation proceedings. He contends that he

and Mother both contributed to the delay and the number of issues brought to the trial court.

Father acknowledges that he makes between $300,000 and $400,000 per year, compared to

Mother’s disability income of $9,240 per month. He notes, however, that Mother obtained

considerable assets in the division of the parties’ marital property and argues that she is able

to pay her own attorney fees. He characterizes the trial court’s award of attorney fees as

punitive.

“Either parent in a parental relocation matter may recover reasonable attorney fees and other

litigation expenses from the other parent in the discretion of the court.” Tenn. Code Ann. §

36-6-108(i)(2008). We review a trial court’s decision to award such fees under an abuse of

discretion standard. Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001); see also

Lima, 2011 WL 3445961, at *9 (citing In re H.L.B-K., 2010 WL 4940586, at *6). As such,

we are obliged to affirm the trial court’s award so long as reasonable minds could disagree

about its correctness. Id.

We have reviewed the voluminous record in this case and find no error in the trial court’s

observations emphasizing the parties’ income disparities. “[W]e are not permitted to substitute

our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App.

2007). Under all of the circumstances in this case, we find no abuse of discretion in the trial

court’s attorney fee award, and so affirm that as well.

7

Father argues on appeal that the trial court erred in finding Mother’s testimony more credible than that of

Father. Our holdings on vindictive motive and reasonable purpose are based largely on undisputed facts, so

we find it unnecessary to consider this issue on appeal.

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C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are assessed against

Petitioner/Appellant John Daniel Rudd and his surety, for which execution may issue if

necessary.

___________________________

HOLLY M. KIRBY, JUDGE

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