Jon R. Ross v. Anna L. Rosswoods

This appeal involves a post-divorce parental relocation. The mother notified the father that she intended to relocate outside of Tennessee with the parties’ minor son. The father filed a petition opposing the relocation on the grounds that it would not be in the child’s best interest; the petition was filed outside the 30-day filing period set forth in Tennessee Code Annotated section 36-6-108. The trial court excused the untimely filing of the father’s petition, reasoning that the mother waived the defense by failing to plead it as an affirmative defense. After a hearing, the court found that the mother’s proposed move would not be in the child’s best interest. The mother now appeals. We conclude that the mother was not required to raise the untimely filing as an affirmative defense. Because the father failed to file a written petition opposing the mother’s relocation within 30 days of receiving notice of her proposed relocation, the trial court erred in conducting any further analysis under Section 36-6-108. We therefore reverse the judgment of the trial court and remand this case for such further proceedings as may be necessary and consistent with this Opinion.