Posted by: koherston | November 27, 2014

Photo of the Week: Gobble Gobble! Happy Thanksgiving!

I’m posting this week’s photo a day early. Enjoy the holiday!

Wild Turkey, Great Smoky Mountains National Park

Wild Turkey, Great Smoky Mountains National Park

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Facts: Grandparents petitioned to terminate the parental rights of Mother and Father so they could adopt Child.

Mother voluntarily relinquished her parental rights. Father went to trial.

The trial court found Father abandoned Child by the willful failure to visit and the willful failure to support. The trial court also found termination to be in Child’s best interest.

Father’s parental rights were terminated.

Father appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

The trial court’s findings as to grounds of abandonment by the willful failure to visit and termination being in Child’s best interest were affirmed.

The issue of interest to me is grounds of abandonment by the willful failure to support. The trial court’s reliance on that ground for termination was reversed.

Father admitted he had not paid child support for many years, but insisted it was not willful because he could not maintain a steady job because of his diabetes and other health conditions.

When the lawsuit was filed, Father testified he was living with his father in a trailer that had a hanging sheet for a door. By the time of trial, Father was living in a house with his father, although he slept in his aunt’s house at night because he suffers from diabetic seizures. He testified that his father pays for his $45 a month cell phone bill, and although he barely has enough money to pay his medical bills when he works, he admitted he has several recent tattoos that were paid for by family members. He also testified he was in the process of applying for disability benefits.

The trial court found Father was “able-bodied and capable of working and supporting” Child, and added this comment: “Instead of paying support, he paid to tattoo his body rather than provide food” for Child.

In order to prove that failure to pay child support was willful, petitioners must prove the parent is aware of his or her duty to provide support, has the capacity to provide support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. A parent who fails to support a child because he or she is financially unable to do so is not willfully failing to support the child.

After reviewing the record, the Court reasoned:

Father admits not paying child support during the relevant time period; however, he insists his failure to provide support was not willful because he was unable to pay child support due to his health. He testified that he suffers from juvenile diabetes, seizures, neuropathy in his legs, and lack of sensitivity to hot or cold, which went uncontested. He also stated that these conditions prevented him from maintaining a job, and, when he did work, he barely made enough to pay his medical bills.

Grandparents . . . challenge his claim that he could not pay support by noting he had enough money to have a cell phone, internet service, and numerous tattoos. Father, however, rebutted this testimony by stating that his father pays for his cell phone bill and that friends and other family members paid for his tattoos….

Based upon our review of the record, we find the evidence does not clearly and convincingly establish that Father’s failure to support the child was willful.

Accordingly, the trial’s reliance on abandonment by the willful failure to support as grounds for the termination of Father’s parental rights was reversed.

In re Andrew O. (Tennessee Court of Appeals, Middle Section, October 28, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Facts: Mother and Father are the parents of Child.

Father’s child support obligation was set at $55 per week. The order instructed Father to submit all child support payments to the clerk of the juvenile court. The order further stated any payments made directly to Mother in lieu of the clerk “will be considered a gift.”

For a period of time, Father paid his child support directly to the juvenile court clerk as directed in the order. Later, at Mother’s request, all child support payments were mailed directly to Mother, although the payments were sporadic and not always in the amounts specified in the child support order.

Years later, Mother sought a judgment against Father for the child support arrearage.

The trial court credited Father for all payments made directly to the juvenile court clerk and the payments made directly to Mother. A judgment was entered against Father for the $17,337 child support arrearage. Mother’s request for prejudgment interest on the arrearage was denied.

Both parties appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Two issues are of interest to me in this appeal: (1) crediting Father for payments made directly to Mother in contravention of the order requiring payments to be made directly to the court clerk, and (2) the denial of prejudgment interest on the child support arrearage.

Crediting Father’s payments to Mother. Mother argued the trial court erred in awarding Father credit for the child support payments made in contravention of the child support order because Father did not show the payments were used for “necessaries.”

First, credits against a child support arrearage do not violate the prohibition on retroactive modification of child support orders as long as the amount of child support is not altered.

Second, an obligor parent is generally not given credit for child support payments made in a manner other than that specified in the operative child support order. There are, however, two recognized exceptions that permit crediting the obligor parent for non-conforming payments: (1) the “necessaries rule,” and (2) the “equitable considerations rule.” Under either exception, the court may credit the direct payments toward support arrearages as long as there is proper evidentiary support.

The necessaries rule allows a credit for voluntary payments only when made for the child’s necessaries that are not being supplied by the custodial parent.

The necessaries rule has been applied to a variety of fact patterns, including when the obligor, non-custodial parent seeks credit for (1) voluntary expenditures on the child’s behalf, (2) child support payments made payable to the child, (3) expenditures when the child shares a primary residence with or is cared for by that parent, and (4) direct payments to the obligee, custodial parent.

The types of “necessaries” that are usually considered include food, shelter, tuition, medical care, legal services, and funeral expenses.

In this case, however, the Court found the equitable considerations exception to be applicable, not the necessaries rule.

The equitable considerations rules applies in specific circumstances when, for example, (1) the obligee parent received the payments, directly or indirectly, and exercised control over the funds, or the obligee parent requested the support payments be paid to a third party and acquiesced in such payment, and (2) the specific circumstances demand a credit to avoid an injustice.

After reviewing the record, the Court commented:

[I]t is undisputed that Mother specifically asked Father to remit all support payments directly to her and that Father agreed to this non-conforming procedure.This procedure was followed for several years…. The documentary evidence established that the “memo” line on the checks confirmed that all such payments were for child support. Moreover, the check amounts were for increments of $55, which was Father’s weekly support obligation. Mother also testified she knew the checks were for support, she endorsed the checks upon receipt, deposited them into a separate bank account she had designated for child support, and that she used the funds for the child’s benefit.

The relevant factors weigh in favor of crediting Father for all child support payments remitted directly to Mother…for, to hold otherwise, would ‘unjustly enrich Mother and lead to an inequitable result.’ Therefore, we have concluded the specific circumstances in this case warrant crediting Father with all nonconforming child support payments Mother received.

Thus, the trial court was affirmed on this issue.

Prejudgment interest on the child support arrearage. Tennessee Code § 36-5-101(f)(1) states, in relevant part:

If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support. Computation of interest shall not be the responsibility of the clerk.

The Court has previously held that prejudgment interest for child support arrearages is mandatory, non-discretionary, and accrues from the date when the support was due, not from the date a judgment for the unpaid amounts is entered.

Accordingly, the trial court’s refusal to assess prejudgment interest on Father’s child support arrearage was reversed. The case was remanded to the trial court to award Mother prejudgment interest consistent with Tennessee Code § 36-5-101(f)(1).

K.O.’s Comment: A good case to review on the “necessaries rule” is State ex rel. DeBusk v. DeBusk.

Regarding when interest starts accruing on a child support arrearage, a divided Western Section reached the opposite conclusion in Jackson v. Jackson, holding that interest doesn’t start accruing until a judgment for the child support arrearage is entered. Knowledgable family law litigators have legal support for both arguments.

In re Jacob H. (Tennessee Court of Appeals, Middle Section, October 28, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 21, 2014

Tennessee Family Law Update 2014: Knoxville

Today we concluded an exhausting but rewarding week by presenting our annual seminar in Knoxville.

K.O. Herston in Knoxville

K.O. Herston in Knoxville

Some attendees had this to say about today’s presentation:

This seminar is, by far, the most helpful family law CLE each year. It is a “can’t miss” for me. — Melody Luhn, Esq., Knoxville

If you practice family law and don’t attend this CLE, you are doing yourself and your clients a disservice. — Christopher Seaton, Esq., Knoxville

This is a wonderful seminar balancing substance with humor. I always find it informative and entertaining. — Suzanne Masters, Esq., Knoxville

It is refreshing to attend a CLE that gets right to the point. I learned more applicable law in three hours than many seminars teach me in six. — Joshua Reed, Esq., Knoxville

Excellent! This information is very valuable to those practicing in the area of family law. — Rebecca Bell Jenkins, Esq., Knoxville

After returning to the office, we took the time to enjoy a cold beer before putting away our CLE materials until next year. Now we are ready to enjoy a relaxing weekend before getting back to the business of practicing law first thing Monday morning.

Another successful CLE tour!

Another successful CLE tour concluded!

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 20, 2014

Tennessee Family Law Update 2014: Johnson City

After spending a long overdue evening in our homes, we were rudely awakened this morning by alarm clocks set to go off way too early. That could mean only one thing: time to get on the road to Johnson City! The beautiful sunrise coming over the mountains made up for the lack of sleep (mostly).

John Weaver, Jr. breaking it down in Johnson City

As always, we had a really attentive group of lawyers and mediators show up in Johnson City. Some of our attendees had this to say about today’s seminar:

Most useful family law seminar I have ever attended. — Alice Alexander, Esq., Kingsport

Outstanding seminar! Not to be missed. — Bill Hampton, Esq., Elizabethton

Most informative CLE all year long. — Randy Kennedy, Esq., Bristol

This seminar makes me a better lawyer. Thank you! — McKenna Cox, Esq., Johnson City

Tomorrow our week-long tour ends right here in Knoxville before our hometown crowd. We’re looking forward to performing for our local colleagues. There’s still time to sign up if you haven’t already.

Click here for info about the Knoxville seminar.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 20, 2014

Tennessee Family Law Update 2014: Chattanooga

As always, we enjoyed visiting with our colleagues in Chattanooga yesterday.

Paula Herston rolls out the welcome mat

Two of yesterday’s seminar attendees had this to say:

Always an excellent seminar. Informative and entertaining. — Tracy Cox, Esq., Chattanooga

Great job! Learned a lot. — Leslie McWilliams, Esq., Chattanooga

John Weaver, Jr. in action

John Weaver, Jr. in action

K.O. Herston telling it like it is

John and I are so privileged to to travel across Tennessee each year to discuss family law with other lawyers and mediators. We really look forward to it.

Today we’re in Johnson City. Tomorrow is the finale in Knoxville. Then comes the well-deserved weekend where we get to sleep in at home.

Today is the last day to register for tomorrow’s CLE in Knoxville! Click here for info.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 19, 2014

Tennessee Family Law Update 2014: Nashville

Yesterday we woke to find Nashville in the grip of an early season cold spell. The temperatures were in the upper teens. Fortunately there was no shortage of hot coffee on hand.

KOH_1726

K.O. and John staying warm indoors in Nashville

A good group of Middle Tennessee lawyers and mediators braved the frigid cold to see our CLE. These are some of the comments we received:

Loved the update! Very informative. — Michelle Houser, Esq., Murfreesboro

Very well done! — Scott Baker, Esq., Franklin

Very informative and helpful in family mediation practice. — Christina Frierson, Franklin

Today we present the seminar in Chattanooga. We’re finally back in the Eastern time zone where we belong!

It’s not too late to come see us. I’m looking at you, Johnson City and Knoxville!

Click here for more information.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 18, 2014

Tennessee Family Law Update 2014: Memphis

Yesterday our annual CLE tour officially began in the great city of Memphis. The best pork barbecue in all of Memphis — Central BBQ on Central Avenue — sent us off to bed with full stomachs.

We woke to find a thin layer of snow and ice outside. Despite the frigid weather, we had a good crowd make it safely to the seminar.

Memphis CLE

K.O. Herston in Memphis

These are some of the comments we received:

This was the best CLE on any subject I have attended. Useful, concise, and well presented. I will attend again in the future. — Pam Blair, Esq., Memphis

The presentation was organized, concise, and informative. The CLE was well worth my time. — Joni Roberts, Esq., Memphis

All materials were clear, concise, and useful. The shorter length of the programs made it much easier to stay focused on the subject matter. — Damon Earl Campbell, Esq., Union City

Great CLE. Very informative and well presented. — Jessica May Thomas, Esq., Memphis

After our traditional post-CLE lunch at Gus’s Chicken, we made our way to Nashville through spitting snow.

The Tennessee Titans played the Pittsburgh Steelers last night on Monday Night Football. Our hotel was filled with rabid Steelers fans who braved the frigid cold to attend the game. Those are some dedicated fans.

Today we’re excited to be presenting in my hometown of Nashville. There’s still time for lawyers and family law mediators in Chattanooga, the Tri-Cities, and Knoxville to sign up for presentations in those locations later this week. Come see us!

Click here for more information.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

After last week’s post on the Sixth Circuit opinion regarding same-sex marriage, I thought this opinion column by Scott Keyes in the Washington Post might be of interest to my readers.

Conservatives aren’t just fighting same-sex marriage. They’re also trying to stop divorce.

For years, social conservatives have been fighting to prevent certain people from getting married. But they’re waging a parallel battle, too: Trying to keep married couples together.

In cooperation with the Family Research Council and the National Organization for Marriage, socially conservative politicians have been quietly trying to make it harder for couples to get divorced. In recent years, lawmakers in more than a dozen states have introduced bills imposing longer waiting periods before a divorce is granted, mandating counseling courses or limiting the reasons a couple can formally split. States such as Arizona, Louisiana and Utah have already passed such laws, while others such as Oklahoma and Alabama are moving to do so.

If divorces are tougher to obtain, social conservatives argue, fewer marriages will end. And having more married couples is not just desirable in its own right but is a social good, they say. During his presidential campaign, former senator Rick Santorum (R-Pa.) emphasized finishing high school and getting married as cures for poverty. “If you do those two things, you will be successful economically,” he declared at a 2011 event in Iowa.

A legislative movement against divorce may seem like a non-starter in a country where half of married couples avail themselves of this right, but as with legal challenges to Obamacare and the rise of the tea party movement, today’s fringe idea can quickly become tomorrow’s mainstream conservatism.

Divorce has long been a cultural touchstone in America. Social conservatives regularly advocate a return to a more traditional system of divorce — namely that it be extraordinarily difficult to get. For example, the only way an Alabamian could get a divorce under the state’s original 1819 constitution: “No decree for such divorce shall have effect until the same shall be sanctioned by two thirds of both Houses of the General Assembly.” Even a battered wife — who, of course, couldn’t vote — would have to petition her all-male state legislature and get supermajority approval before being freed from matrimony.

For most of American history, to obtain a divorce, one party had to prove to a judge that the other party was at fault, meaning he or she had committed certain grievous acts that irreparably harmed the marriage, such as adultery or being convicted of a felony. Emotional or physical abuse wasn’t always enough; even adultery or abandonment could be insufficient if a spouse reluctant to get divorced convinced a judge that his or her partner was similarly culpable. And as historian Glenda Riley showed in her 1991 book “Divorce: An American Tradition,” loveless couples often found creative ways to persuade judges to end their marriages: As recently as the 1950s, some couples would stage a bust, complete with hotel room, “mistress,” photographer and private detective who would testify in court about the husband’s (or wife’s) supposed illicit deeds.

This system began to crumble during the 1960s. In 1969, California became the first state to legalize no-fault divorces — permitting divorce without requiring proof of wrongdoing such as adultery — in the Family Law Act, signed by Gov. Ronald Reagan. Within a decade, 45 other states had joined California. By 1985, 49 states had legalized no-fault divorce; New York did just four years ago.

No-fault divorce has been a success. A 2003 Stanford University study detailed the benefits in states that had legalized such divorces: Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent, and the number of women committing suicide declined between 11 and 19 percent. A recent report from Maria Shriver and the Center for American Progress found that only 28 percent of divorced women said they wished they’d stayed married.

Yet the conservative push for “divorce reform” is finding sympathetic ears in statehouses, where Republican lawmakers have regularly introduced bills to restrict the practice. Their rationales range from the biblical (God bemoans divorce in Malachi 2:14-16) to the social (divorce reduces worker productivity) to the financial (two households are more expensive to maintain than one). Leading conservatives such as Sen. Marco Rubio (R-Fla.) and Rep. Paul Ryan (R-Wis.) have also argued that marriage is a solution to poverty.

The cause earned national support in 2011 when three Republican presidential candidates — Texas Gov. Rick Perry, Rep. Michele Bachmann (Minn.) and Santorum — signed a pledge from the Family Leader, a conservative organization in Iowa, that urged “cooling-off periods” for people seeking what it called a “quickie divorce.” Last year, seven GOP lawmakers in Iowa introduced HF 338, which would have prohibited no-fault divorces for couples who have children under 18. Under the bill, parents could divorce only in cases of adultery, imprisonment due to a felony, abuse, abandonment or if the couple has been separated at least two years. The lead sponsor, Rep. Tedd Gassman, argued that this bill would “ensure that divorce is not the first option for married couples with children.”

While some studies show that children of divorced parents do experience worse life outcomes — including diminished math and social skills, a higher chance of dropping out of school, poorer health, and a greater likelihood of divorce themselves — Stanford sociologist Michael Rosenfeld points out that there is no way to test definitively whether children of divorced parents were already more likely to experience such outcomes. And as Stephanie Coontz, a historian and the author of “Marriage, a History,” explains, what’s most critical is the high-conflict environment that kids grew up in before their parents separated.

Ultimately, HF 338 failed last year not because of its content but because of bizarre public comments Gassman made. The lawmaker argued that with divorced parents, teenage girls would be “more promiscuous.” He also linked divorce and the shootings in Newtown, Conn., blaming the shooter’s mind-set on “family problems.” Wary of controversy, GOP leaders dropped the bill.

At least a dozen other states since 2011 have tried to make divorce more difficult. Along with Iowa, New Hampshire and Oklahoma have tried to eliminate no-fault divorce for parents. In Oklahoma, lawmakers are also considering a bill that would virtually prohibit no-fault divorce but preserve divorce as an option in cases of “impotency.” Other states are pushing legislation to lengthen the waiting period before a judge can grant a divorce, including up to two years in North Carolina. Currently, most states have a two- or three-month waiting period before a divorce is finalized, though it is longer in a handful of mostly Southern states, including Louisiana, North Carolina, South Carolina and Virginia.

Such waiting periods are “fairer to the spouse who is being left,” the Family Research Council contends in a brochure titled “Deterring Divorce.” But inherent in that argument is an unfortunate and unavoidable reality: Making divorce less accessible harms women most. The right to divorce was a victory women fought for in the culture wars of the 1970s, and women today are twice as likely as men to ask for a divorce, according to Rosenfeld.

For more than a decade, three states have tested the appeal of more-restrictive divorces. Louisiana was the first, in 1997, to pass a “covenant marriage” law, which allows marrying couples to choose between a standard license (allowing no-fault divorce) and a covenant license (heavily restricting the reasons a couple may divorce). Arizona and Arkansas soon followed. If social conservatives were looking to show that no-fault divorce was unpopular, they could not have picked better testing grounds than these three deep-red states.

But the experiment has proved disastrous for their cause. Between 2000 and 2010, there were 3,964 covenant marriages in Louisiana — roughly 1 percent of the 373,068 marriages performed in the state. The rates were even lower in Arizona and Arkansas. Nevertheless, state legislators are undeterred: Since 2011, lawmakers in Alabama, Mississippi, Oklahoma, Texas and Kansas have tried to enact covenant marriage.

Would making divorce less accessible encourage partners to stay together, as conservatives hope? Probably not. Waiting periods and mandatory classes “add a new frustration to already frustrated lives,” Rosenfeld notes. In other words, a cooling-off period isn’t cooling anybody off.

More problematic, these roadblocks “could easily exacerbate the situation and harm kids,” Coontz says, noting that divorcees are “more likely to parent amicably if they haven’t been locked into a long separation process.”

The push to restrict divorce is a form of paternalism — expanding government in pursuit of socially conservative ends. Marriage is a conservative institution, the thinking goes, and married straight couples provide a backstop against the creep of government. Any public policy that encourages the creation and persistence of married straight couples therefore merits support; any policy that deviates, including same-sex marriage or no-fault divorce, is hostile to the institution.

The Family Research Council sees no contradiction in the state playing an active role in such private decisions. “As the grantor of both marriage licenses and divorce decrees, the state has already established the right to regulate the disbursement of each,” argues Peter Sprigg, senior fellow for policy studies at the council.

But if new divorce restrictions fail to pass, it may be for a self-interested reason: Republicans get divorces, too. Two of the five states with the highest percentages of divorced residents are red states. In Oklahoma, the state with the largest share of women who have been married three or more times, Republican lawmakers killed a 2010 bill making divorce more difficult to obtain. “How far do I want government to come into my home and your home about private personal matters?” asked GOP Rep. Leslie Osborn.

And if conservatives actually believe that divorcing couples might have a change of heart, there’s another solution besides longer waiting periods: remarriage. However, only about 6 percent of divorcees ultimately remarry each other. Reconciliation certainly happens; divorce doesn’t have to be forever. But it’s impossible to pass legislation that stops spouses from lying or cheating.

Alabama: A bill under consideration would mandate a four-hour class for divorcing parents with children younger than 16.

Arizona: A law passed in 2011 enables one party in a divorce to extend the process by up to four months.

Georgia: A bill under consideration would mandate classes for parents seeking to divorce.

Iowa: A bill that failed last year would have prohibited no-fault divorces in most cases for couples with children under 18.

Kansas: A bill under consideration would effectively eliminate no-fault divorce.

Louisiana: A law that went into effect in 2007 extended the waiting period for parents from six months to one year.

New Hampshire: A bill voted down in February would have gotten rid of no-fault divorce for parents of minor children.

North Carolina: A bill under consideration would double the waiting period to two years and require couples to receive conflict-resolution counseling, as well as additional counseling if they have children.

Oklahoma: Bills under consideration would eliminate no-fault divorce; get rid of no-fault divorce for parents of minor children, for couples married more than 10 years and in contested divorces; and double the waiting period from three to six months.

Utah: In 2012, the state restored a 90-day waiting period. Starting in July, parents with children under 18 must take a class before a court may grant custody or financial orders.

Washington: A bill under consideration would quadruple the waiting period from 90 days to one year.

K.O.’s Comment: Tennessee already has mandatory waiting periods for those desiring to divorce (90 days for couples with children, 60 days for those without) and mandatory parenting classes for divorcing parents.

Source: Conservatives aren’t just fighting same-sex marriage. They’re also trying to stop divorce. (Washington Post, April 11, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 14, 2014

Photo of the Week: Bear Surprise!

This is one of my favorite photos. I had been photographing some bears in the woods. When I was finished, I started walking across an overgrown field to get back to where I started. Thinking all the bears were behind me, I let my guard down and was completely relaxed. As I made my way through the field, this curious bear suddenly stood up directly in my intended path and nearly scared me to death. He was around 20 feet away. He just wanted to see who was walking toward him. I slowly backed away while calmly talking to him. Once I regained my senses, I quickly snapped this photo. He and I left in different directions. Looking at this photo always takes me back to that moment and gets my heart racing to this day.

Knoxville divorce and child custody lawyer

Surprise!, Great Smoky Mountains National Park

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 12, 2014

Last Chance to Register for Tennessee Family Law Update 2014

Knoxville divorce lawyersPresentations are being rehearsed, handouts are being sent to the printer, bags are being packed — around here that can only mean one thing: our annual CLE tour across Tennessee is here once again!

Next week John and I will present this year’s iteration of our annual Tennessee Family Law Update CLE to lawyers and family law mediators in Memphis, Nashville, Chattanooga, Johnson City, and Knoxville.

As always, I will present my comprehensive annual survey of the latest caselaw and new legislation every Tennessee family law attorney and mediator needs to know.

John will present this year’s two special topics:

  • Civil and Criminal Content: Everything You Need to Know, and
  • Protecting Your Client From the Ex’s Post-Divorce Bankruptcy.

It is not too late to sign up (yet) but that window is closing. Sign up now and we’ll see you there!

Click here for more information.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 10, 2014

Sixth Circuit Upholds Tennessee’s Ban on Same-Sex Marriage

In 1996, the Tennessee legislature passed Tennessee Code § 36-3-113(a), which provides the only legally recognized marital contract are those made between one man and one woman. In 2006, 80% of Tennessee voters voted to add Article XI, § 18 to Tennessee’s Constitution, which amendment reaffirms the definition of marriage as being between one man and one woman and provides that same-sex marriages from other states will not be recognized in Tennessee. Without explanation, the amendment says same-sex marriages are “contrary to the public policy of this state.”

Three Tennessee same-sex couples, all in lengthy, committed relationships, sued to challenge the constitutionality of Tennessee’s ban on same-sex marriage. The Federal District Court in Nashville concluded Tennessee’s ban was likely unconstitutional and, therefore, preliminarily enjoined the law. Tennessee appealed. The appeal was consolidated with similar cases from the other states within the Sixth Circuit, i.e., Michigan, Ohio, and Kentucky.

Four other federal appeals courts — the Fourth Circuit, Seventh Circuit, Ninth Circuit, and Tenth Circuit — have issued opinions in similar cases arising out of other states, all of which conclude that bans on same-sex marriage are unconstitutional. The U.S. Supreme Court declined to hear those appeals (except for the Ninth Circuit’s opinion, which hadn’t been issued when the Supreme Court denied certiorari) because there was no difference of opinion among the lower courts. Until last week, the only federal court to have upheld a ban on same-sex marriage was a District Court in Louisiana. That changed last week.

Last week a divided panel of the Sixth Circuit issued an opinion upholding Tennessee’s ban on same-sex marriage, becoming the first Court of Appeals to do so. The 64 page opinion covers a lot of constitutional ground and contains a lot of nuanced arguments. I will not attempt to summarize them here. Instead, I will attempt to merely scratch the surface on the main arguments I think will be of interest to those interested in this particular legal question.

I urge my readers to read the Sixth Circuit’s opinion for themselves. It can be found here. Likewise, here are links to the opinions from the Fourth Circuit, Seventh Circuit, Ninth Circuit, and Tenth Circuit.

Judge Sutton writes the majority opinion, which is joined by Judge Cook, both of whom were appointed by President George W. Bush.

Rational basis review. Put very simply (perhaps too much so), to satisfy Due Process or Equal Protection analysis, a law must rationally advance a legitimate government interest. To support its finding that the government has a legitimate interest in defining marriage in order to regulate sex, the Majority writes:

It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children….

[A] reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them….

People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. They may well need the government’s encouragement to create and maintain stable relationships within which children may flourish….

By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for the purposes of rearing offspring….

How could it be irrational for a State to decide that the foundation of its domestic-relations law will be its definition of marriage, not somebody else’s? … How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?

The other rational basis found by the Majority is that a state “might wish to wait and see” how same-sex marriages have worked in other states before changing the law to allow it.

518472362-jpgOther arguments. The Majority addresses other constitutional arguments, including animus, the fundamental right to marry, etc. I think they are less important than the Due Process and Equal Protection arguments so I will not discuss them here. Feel free to read the opinion to see those arguments.

The Majority raises the specter of polygamous marriage, writing: “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.”

The Majority also references principles of federalism as being supportive of a “lenient review” of state marriage definitions.

Notably, the Majority writes at length about the policy reasons supporting its belief that same-sex marriage is an issue best left to voters, not courts:

Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in the court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Dissent: Judge Daughtrey (from Tennessee), appointed by President Clinton, writes a dissenting opinion that has been described by legal commentators in the media as “epic” and “sharp tongued.” The dissent begins as follows:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise — that the question before is is “who should decide?” — and leads us through a largely irrelevant discourse on democracy and federalism….

For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of his absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit….

How ironic that irresponsible, unmarried, opposite sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior of being denied the right to marry.

The Dissent says the arguments asserted by the Majority have already been thoroughly refuted by the four other Courts of Appeals in their opinions such that the rejoinder to those arguments need not be restated in detail. In fact, the Dissent goes so far as to accuse the Majority of effectively manufacturing its disagreement for the purpose of soliciting Supreme Court review:

Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws and threatens.

Nonetheless, the Dissent felt obligated to respond briefly to the Majority’s arguments. It characterized the “rational bases” found by the Majority as “first, ‘let the people decide’ and, second, ‘give it time.'” The Dissent responds:

Under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite….

[T]he framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulse, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims….

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, proved to be nothing but shams.

K.O.’s Comment: There is now a split between the Ninth Circuit and the Sixth Circuit. Lawyers for both sides in the Sixth Circuit case have said they will not seek en banc review by the entire Sixth Circuit; instead, both sides will ask for immediate review by the Supreme Court in the hopes of getting the case heard this term. Otherwise, they would have to wait until the Supreme Court’s next term, which would likely mean an opinion would not arrive until 2016.

I had the opportunity to meet Judge Sutton a few years ago when he was the speaker at the annual dinner held by the Knoxville chapter of the American Inns of Court. I found him to be a very engaging, likable, and highly intelligent person. As a young (by appellate court standards), ideologically conservative judge, he was reportedly on the short list for the Supreme Court appointment that ultimately went to Justice Alito. He is widely regarded to be a front runner for a Supreme Court appointment if a vacancy should occur during the term of a Republican president. Against that backdrop, I find it interesting that, when discussing a lower court’s deference to Supreme Court decisions, Judge Sutton says the lack of such deference would “return[] us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court.”

I think both opinions were written for specific audiences within the Supreme Court itself. The Majority plays to the conservative justices in its discussion of federalism and the originalist approach to constitutional interpretation. For example, the Majority not-so-subtly signals the originalists when it writes, “Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”

Likewise, much of the Dissent consists of arguments about how bans on same-sex marriage cause deleterious effects on children raised by same-sex couples, an obvious nod to Justice Kennedy, the tie-breaking vote in the Supreme Court’s opinion declaring unconstitutional a provision in the Defense of Marriage Act, who bemoaned how different treatment of same-sex couples “humiliates tens of thousands of children now being raised by same-sex couples.”

This case is all but guaranteed to be reviewed by the Supreme Court. Once again, it may all come down to Justice Kennedy. Stay tuned.

Tanco v. Haslam (United States Court of Appeals for the Sixth Circuit, November 6, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: koherston | November 7, 2014

Photo of the Week: Great Smoky Mountains

Great Smoky Mountains National Park

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Facts: In this marriage of approximately 30 years, Wife, 49, had been a homemaker and stay-at-home parent to the parties’ three sons. Husband, 54, was employed working on boilers throughout the marriage. Both are high school graduates.

Husband earned approximately $130,000 per year. Wife had no earnings history but was found capable of earning minimum wage..

In the division of property, Wife was awarded assets valued at $143,000 while Husband was awarded $167,000 in assets.

The trial court ordered Husband to pay alimony in solido of $1300 per month for five years.

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

Wife argued the trial court erred by not awarding her permanent alimony, a.k.a. alimony in futuro.

Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.

Alimony in futuro, a form of long-term support, is appropriate when the economically disadvantaged spouse cannot achieve self-sufficiency and economic rehabilitation is not feasible.

Alimony in solido, another form of long-term support, is typically awarded to adjust the distribution of the marital estate and, as such, is generally not modifiable and does not terminate upon death or remarriage.

Rehabilitative alimony is short-term support that enables a disadvantaged spouse to obtain education or training and become self-reliant following a divorce.

Where economic rehabilitation is unnecessary, transitional alimony may be awarded. Transitional alimony assists the disadvantaged spouse with the “transition to the status of a single person.”

Rehabilitative alimony is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, whereas transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. Consequently, transitional alimony has been described as a form of short-term “bridge-the-gap” support designed to smooth the transition of a spouse from married to single life.

Tennessee statutes concerning spousal support reflect a legislative preference favoring rehabilitative or transitional alimony rather than alimony in futuro or in solido.

After reviewing the record, the Court concluded:

Regarding the two primary factors, Wife’s need and Husband’s ability to pay, we note that Husband’s income was approximately $130,000 per year and Wife’s was zero. Clearly Wife has substantial need and Husband has the ability to pay a significant amount with minimal economic hardship….

The difference in the parties’ relative earning capacities is large. The $16,000 per year imputed to Wife approximates the amount she would likely earn at a minimum wage job. There is scant evidence in the record suggesting that Wife has a greater earning capacity than that. She has only a high school education and very little work experience after staying at home for most of this 30-year marriage. In this regard, the long-term duration of the marriage is a significant factor. Wife also is limited by her physical and mental health problems, including chronic pain, depression, and anxiety issues. Her dependency on pain medication will make it harder for her to find employment. Wife was nearly 50 years old at the time of the divorce. The evidence fully supports the conclusion that Wife, the economically disadvantaged spouse, cannot achieve self-sufficiency, and that economic rehabilitation for her is not feasible. Even if she was able to acquire additional education or training, by the time she did, Wife would be nearing retirement age. If the in solido alimony award were to be upheld, in five years when alimony stops, Wife would likely be in serious financial trouble and subject to being a “ward” of the State…. When considered in toto, the evidence preponderates against the trial court’s decision to limit alimony to five years. Because Wife has demonstrated a need for long-term spousal support, this is an appropriate case to change the trial court’s award of alimony in solido into an award of alimony in futuro.

The Court found an award of $1000 per month of alimony in futuro, payable until Wife’s death or remarriage, was appropriate under the circumstances. Accordingly, the trial court’s judgment was reversed and modified.

The Court also awarded Wife her attorney’s fees at the trial court level and on appeal as alimony in solido, finding:

Wife has demonstrated that she lacks sufficient funds to pay counsel, and would be required to deplete her relatively meager resources to pay attorney’s fees. The marital assets awarded to her are illiquid. Her earning capacity is relatively small. As noted, Husband is financially able to pay. We hold this is an appropriate case for an award of reasonable attorney’s fees, at trial and on appeal, as alimony in solido.

The case was remanded to the trial court to determine the amount of Wife’s reasonable attorney’s fees.

Ruiz v. Ruiz (Tennessee Court of Appeals, Eastern Section, October 27, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Knoxville divorce lawyersFacts: The parents of three children were divorced. Much post-divorce litigation ensued culminating in this 54 page (!!!) opinion.

While the opinion delves into numerous issues and disputes, the only one I am going to address on this blog concerns civil contempt.

At the time of divorce, the trial court ordered:

[Father] shall continue to be responsible for any additional non-school associated extracurricular activities’ expense (including summer camps, baseball, dance and gymnastics) not to exceed $500 per month per child. Whenever possible, [Father] shall pay these expenses directly to the school or supplier or [Father] shall reimburse [Mother] within 30 days of receipt of the bill from [Mother]. These obligations will terminate with each child as he or she reaches the age of 18 or graduates from high school, whichever occurs last.

Shortly after the divorce, Mother moved to have Father found in civil contempt of court for failing to pay some of the children’s extracurricular activities and school summer camp expenses.

Father took the position that he was not required to pay any amount for extracurricular activities or summer camp until shortly before the activity or summer camp was to take place. He also argued that he was not required to pay more than $500 towards that activity or summer camp. According to Father, even at the cost of a camp or activity exceeds $500, he is required to pay no more than $500 for that activity or camp.

Alternatively, Father argued the court order was ambiguous such that he cannot be held in contempt.

Mother argued the provision at issue requires Father to pay up to $6000 per child, per year for extracurricular activities and camps without regard for the dates when the cost is incurred or the activity takes place.

The trial court ruled its order was “sufficiently clear” such that Father should be found in civil contempt of court. Father was ordered to pay Mother $10,693.21 — the sum of the expenses owed — within 10 days in order to purge himself of contempt.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce rights under the order that has been violated. Punishment for civil contempt is designed to coerce compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of rights.

A finding of civil contempt requires four elements: (1) the order allegedly violated was lawful; (2) the order was clear and unambiguous; (3) the individual charged did in fact violate the order; and (4) the individual acted willfully in so violating the order.

The only issue in this case as to civil contempt was whether the order was clear and unambiguous.

Vague or ambiguous orders that are susceptible to more than one reasonable interpretation cannot support a finding of civil contempt. Although orders need not be immune from all vagueness challenges, they must leave no reasonable basis for doubt regarding their meaning. Furthermore, any ambiguities in an order alleged to have been violated are interpreted in favor of the party facing the contempt charge.

After reviewing the record, the Court reasoned:

We find the provision of the Final Decree of Divorce relative to extracurricular activities is susceptible to more than one reasonable interpretation. Orders should be construed objectively by considering the language of the order, the circumstances surrounding the issuance of the order, and the order’s intended audience. The language “not to exceed $500 per month” can be read either as setting a limit on Father’s responsibility for payment or a limit on the rate at which expenses for extracurricular activities can be incurred. If read as limit on Father’s responsibility for payment, the provision could be interpreted to mean that Father would not be obligated to pay or reimburse Mother for any expense beyond the first $500, or the provision could limit the rate at which Father would be required to pay or reimburse Mother for the expense, irrespective of the total amount of the expense. We do not perceive the circumstances surrounding the issuance of the order, a hotly contested divorce, or the order’s intended audience as clarifying the meaning.

Because there is a reasonable basis for doubt regarding the provision’s meaning, the provision cannot support a finding of civil contempt. In so finding, we do not disturb the court’s interpretation of its order or the portion of the judgment awarding Mother $10,693.21 for extracurricular expenses plus post-judgment interest.

Accordingly, the trial court’s finding of civil contempt was reversed.

K.O.’s Comment: I would be remiss if I failed to mention the trial court awarded Mother her attorney’s fees and discretionary costs in the amount of $678,933.05 (!!!), which award was affirmed on appeal.

The case also is notable for its findings on Father’s persistent efforts to destroy the children’s relationships with Mother. The trial court heard extensive expert proof as to Father’s “parental alienation” and imposed rather extreme limitations on his parenting time as a result. If that subject interests you, consider reading this lengthy opinion.

Duke v. Duke (Tennessee Court of Appeals, Middle Section, October 3, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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