Facts: Mother and Father, parents of Child, divorced in 2011. They agreed that Mother be designated the primary residential parent. Father received reasonable visitation.

Two years later, Maternal Grandparents filed a petition for custody of Child on the grounds that Child was dependent and neglected in Mother’s care. Specifically, Maternal Grandparents alleged Mother is bipolar and was abusing prescription and nonprescription drugs. They claimed Mother had been in and out of several mental institutions but they did not help her at all.

Upon learning of the petition, Father filed a petition to modify the parenting plan, alleging that a material change in circumstances has occurred as evidenced by Maternal Grandparents’ petition for custody.

At the hearing on Father’s petition, Maternal Grandparents minimized and contradicted the allegations asserted in their petition for custody. The trial court denied Maternal Grandparents’ request to intervene in the child custody modification proceeding.

The trial court found a material change of circumstances had occurred that affected Child’s well-being in a meaningful way and that it was in Child’s best interest to designate Father as the primary residential parent. The trial court specifically found that Maternal Grandparents were not credible witnesses, but that Father was a credible witness whose “parenting had been undermined by the continuous interference by [Maternal Grandparents] and the bizarre behavior of [Mother].”

Mother appealed.

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

Mother argued she had addressed and corrected her behavioral issues prior to trial and, therefore, that was not a material change of circumstances justifying the change of child custody.

The determination of whether a “material change in circumstance” occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule. The Tennessee Code establishes a lower threshold for modification of a residential parenting schedule.

There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.

After reviewing the record, the Court concluded:

In this case, Mother’s behavior progressively deteriorated while she resided with Grandparents. Despite Grandparents’ retraction of their initial allegation that Mother was unfit, the record establishes that the Child’s living environment had simply become unsafe and contentious and involved regular police intervention. While Mother may have made efforts to address her behavioral issues, the trial court found that Grandparents were not credible witnesses. Additionally, Grandparents and Mother admitted to hiding her behavior from Father in an effort to preclude his involvement with the Child. The increasingly hostile environment in which the Child lived and the interference with Father’s ability to parent the Child was a material change in circumstances that was not reasonably anticipated and that affected the Child’s well-being in a meaningful way.

Having found a material change of circumstances, the Court proceeded to determine whether a change in custody was in Child’s best interest. On that issue, the Court wrote:

While Mother previously served as the primary caregiver for a number of years, the relevant factors are fairly equally weighted between the Parents. However, the record is clear that Mother’s ability to parent the Child by herself without interference from Grandparents and to facilitate and encourage a close and continuing parent-child relationship between the Child and Father is severely lacking. With all of the above considerations in mind, we conclude that the preponderance of the evidence supports the trial court’s naming of Father as the primary residential parent as being in the best interest of the Child.

Accordingly, the trial court’s judgment was affirmed.

Dickerson v. Cantrell (Tennessee Court of Appeals, Eastern Section, May 16, 2014).

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Posted by: K.O. Herston | July 18, 2014

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Facts: The parties were divorced by agreement in 2011. Their Marital Dissolution Agreement (“MDA”) provided for alimony, stating:

Wife is economically disadvantaged as compared to Husband. Husband shall pay Wife alimony at the rate of $929.00 per month, beginning August 15, 2011. Said alimony shall continue for a period of eight years.

The following year, Husband petitioned to terminate his alimony obligation because Wife had remarried, resided with a third party (her new husband), and no longer needed alimony.

Wife responded that the alimony award in the MDA constituted alimony in solido, which was non-modifiable.

The trial court found the MDA failed to specify whether the payments were to be considered alimony in solido or transitional alimony. The trial court further found the parties could have included specific exceptions or conditions in the alimony provision but chose not to. The trial court then denied Husband’s petition to terminate the alimony obligation.

Husband appealed.

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

The issue presented is whether the alimony at issue constitutes alimony in solido, which is not subject to modification, or transitional alimony, which is subject to modification.

Whether an alimony award is subject to modification depends upon the type of alimony involved, as determined from the language of the order or agreement establishing the award.

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 is a form of long-term support. An award of alimony in futuro 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.

By contrast, rehabilitative alimony is short-term support that enables a disadvantaged spouse to obtain education or training necessary to 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.

Wife argued the alimony at issue is alimony in solido. Alimony in solido is an award of a definite sum of money, and the total amount to be paid is ascertainable at the time of the award. It retains its character as alimony in solido even if paid in installments, provided the payments are ordered over a definite period of time and the total amount to be paid is definite and ascertainable. Alimony in solido promotes the twin goals of certainty and finality through the award of a fixed amount without conditions. The determinative factor in deciding whether an award of alimony is in solido is the intent of the parties (in an MDA) or the court (in a final order). A final award of alimony in solido is not subject to future modification.

Husband contended the alimony at issue is transitional alimony, which is subject to termination in certain limited circumstances. 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. Transitional alimony is payable for a definite period of time and may be modified only if: (1) the parties agree that it may be modified; (2) the court provides for modification in the divorce decree, decree of legal separation, or order of protection; or (3) the recipient spouse resides with a third person following the divorce.

After reviewing the record, the Court concluded:

[W]hen the obligor spouse is seeking a modification of transitional alimony based upon the alimony recipient’s cohabitation with a third party, as is the case in this appeal, there is no statutory requirement that either the parties or the court agree to this type of modification in the initial divorce decree or MDA. Instead, the obligor spouse’s right to seek modification based on the alimony recipient’s cohabitation with a third party is guaranteed by statute…. Therefore, the trial court incorrectly concluded that the parties’ failure to include modification terms in their agreed MDA was fatal to Husband’s request to modify or terminate his alimony obligation.

[A] finding that the obligee spouse is economically disadvantaged is a hallmark of transitional alimony…. In contrast, economic disadvantage is not a condition precedent to an award of alimony in solido….

[T]he plain language of the parties’ MDA, which includes a notation that the alimony is awarded because Wife is “economically disadvantaged” is clear evidence of the parties’ intention that the alimony at issue is properly considered transitional alimony, rather than alimony in solido.

From the totality of the circumstances, we conclude that the alimony at issue in this case is transitional alimony subject to modification pursuant to Tennessee Code Annotated § 36-5-121(g)(2)…. [T]he MDA specifically states that the purpose of the alimony is to provide for Wife, who is economically disadvantaged. This is the stated purpose of transitional alimony in the alimony statute.

Accordingly, the trial court’s judgment was reversed. The case was remanded for consideration of whether Husband is entitled to a modification or termination of his alimony obligation based on Wife’s remarriage and cohabitation.

K.O.’s Comment: This case reminds me of Averitte v. Averitte, another what-type-of-alimony-is-it case where the Court repeated the following advice:

Obviously, great care should be exercised by counsel and trial courts in crafting decrees. The decree should reflect the court’s findings with regard to the circumstances of the parties, the purpose or expected results of the relief granted, and the specific benefits granted to and obligations imposed upon the respective parties. In addition to the rights and obligations of the parties with respect to each other, the liability for taxes, the rights of creditors, and other significant consequences may depend upon the preciseness of the language employed in the decree. Construction by the courts of uncertain and ambiguous language is a poor substitute for careful articulation.

Miller v. McFarland (Tennessee Court of Appeals, Middle Section, May 23, 2014).

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Posted by: K.O. Herston | July 14, 2014

Tennessee Family Law Legislative Update 2014

Things were pretty quiet on the legislative front this year. When it came to family law matters, the 108th General Assembly of the State of Tennessee did not appear to make things worse, which means it was a pretty good year.

Below is a brief recap of the new family law statutes, all of which became effective on July 1, 2014.

Child Custody “Comparative Fitness” and Best Interest Factors: Public Chapter 617 consolidated the list of factors the trial court must consider when conducting a comparative fitness analysis or determining the child’s best interest in a child custody proceeding. Previously, courts had to consider different (but substantively similar) factors for initial custody determinations and custody changes (Tennessee Code § 36-6-106(a)) and changes to a parenting schedule (Tennessee Code § 36-6-404(b)).

As amended, Tennessee Code § 36-6-106(a) now contains the following best interest factors:

(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child;

(2) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;

(3)  Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;

(9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life in the length of time the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or frequent the home of a parent and such person’s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(14) Each parent’s employment schedule, and the court may make accommodations consistent with of those schedules; and

(15) Any other factors deemed relevant by the court.

Likewise, the sixteen factors in Tennessee Code § 36-6-404(b) have been deleted. Thus, there is now just one list of best interest factors instead of two.

K.O.’s Comment: This list is simply an effort to combine the two prior lists. Combining them makes sense. There is no substantive change in the best interest analysis.

Parental Bill of Rights: Public Chapter 617 also rewrote the “Parental Bill of Rights” in Tennessee Code § 36-6-101(a)(3). The new list of rights is as follows:

(i) The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in the parenting plan or other court order or, where days and times are not specified, at reasonable times;

(ii) The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order;

(iii) The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant healthcare providers with the contact information for the other parent;

(iv) The right to receive directly from the child’s school any educational records customarily made available to parents. Upon request from one parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child’s education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request which includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child’s report cards, attendance records, names of teachers, class schedules, and standardized test scores;

(v) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person;

(vi) The right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;

(vii) The right to be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular school, athletic, church activities and other activities as to which parental participation or observation would be appropriate, in the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order;

(viii) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than forty-eight (48) hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and

(ix) The right to access and participation in the child’s education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school’s day-to-day operations or with the child’s educational schedule.

K.O.’s Comment: These revisions place new burdens on on the primary residential parent that did not exist before. For example, the custodial parent now has the affirmative obligation to provide the non-custodial parent not only with notice of the child’s school, athletic or church activity activity but also the telephone number the school, athletic or church official who is “responsible for scheduling” the activity. For another example, the custodial parent now has the affirmative obligation to provide “healthcare providers with the contact information” of the non-custodial parent. Lawyers need to make sure their clients understand these new obligations.

Lawyers will also need to update their parenting plans, all of which recite the Parental Bill of Rights. The Administrative Office of the Courts has updated the parenting plan form to reflect these changes. You can access the updated parenting plan here.

Uniformed Deployed Parents Custody and Visitation Act: Public Chapter 798 permits parents to enter into a temporary agreement granting custodial responsibility during a parent’s military deployment. If the non-deploying parent has no custodial responsibility or if the operative court order prohibits contact between the child and that parent, the deploying parent may, via a power of attorney, delegate all or part of the custodial responsibility to a third party for the period of the deployment. Tennessee Code §§ 36-6-113 and 36-6-308 are deleted.

In Loco Parentis Healthcare Power of Attorney for a Minor Child: Public Chapter 696 requires an adult or organization acting in loco parentis (“in the place of the parent”) to sign an “in loco parentis affidavit” stating that the person has taken responsibility for the health care of the minor child.  This protects doctors and hospitals from civil and criminal liability if they rely on the in loco parentis affidavit when providing medical care to a child.

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Posted by: K.O. Herston | July 11, 2014

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Posted by: K.O. Herston | July 10, 2014

Electronic Surveillance in Tennessee Family Law

This article by Marlene Moses and Manuel Russ in the May 2014 issue of the Tennessee Bar Journal may be of interest to readers of this blog.

Electronic Surveillance in Family Law

As everyone is aware, the use of electronic technology in business as well as people’s personal lives has grown beyond anyone’s imagination in recent years. With this rise in the use of various forms of technology, people often forget that what you use a computer for and what you store on a computer are just as relevant, and just as easily documented, as the written or spoken word on paper or in conversation. This can be particularly relevant in family law where child custody and parental fitness are routine questions for the court.

Knoxville divorce lawyersFor several years now, use of information obtained on the Internet or other electronic media has been used in and out of court for a variety of reasons, not the least of which being impeachment material for testifying witnesses. But is all of the potential evidence obtained through computer searches fair game, or does the manner in which it was collected give rise to admissibility issues as well as ethical, or even criminal, concerns for lawyers who are advising their clients on the collection of such information? Can spouses who are still married and have access to their partner’s various computers, cell phones, emails, texts and other electronic devices take advantage of this opportunity with impunity, or are there regulations, guidelines or road signs as to what is permissible and what is not?

Tennessee and federal wiretapping laws restrict a party’s ability to intercept electronic communications. The United States Code makes it illegal for any party to intentionally intercept any wire, oral or electronic communication. Similarly, Tennessee statute prevents the intentional interception of such communication as well. It is unlikely that any party in a family law case would be able to lawfully intercept such communication, to say nothing of the difficulty in intercepting such communication, lawful or otherwise.

However, the above cited statutes only deal with the actual interception of such communication while en route, not communications that have already been received and stored, such as emails in an inbox that have already been viewed but not erased. A more plausible scenario in a family law case would be a spouse obtaining electronic communication from the other spouse’s storage device since they are still cohabitating, or they share household items like a computer. In such a situation, the manner in which that electronic communication was obtained becomes a matter of evidentiary and ethical importance to the party’s attorney, and the attorney must consider carefully whether to use these communications depending on the manner in which they were obtained by the client. The Tennessee Personal and Commercial Computer Act and the United States Code additionally make it a criminal offense to access stored communications without the requisite authorization. While these statutes may seem clear cut in an employment setting, or when an outside party hacks someone’s home email account, it is not nearly so certain in a divorce situation since the adverse parties have overlapping control, access and ownership of devices and, potentially, data as well.

In a guiding case from New Jersey, a wife in a divorce action had her private investigation firm take, copy and access emails from her husband’s email account that were located on the family computer to which they jointly had access. The wife did not use, nor ultimately did she need, the password to her husband’s email account to access his emails wherein she located evidence of infidelity on his part. The court ultimately ruled that this activity did not infringe on either federal or New Jersey wiretapping statutes, and it also ruled that, since the wife had not used the husband’s password without permission, but rather accessed the emails that had been stored on a computer that she did have permission to access, there was no improper conduct on her part and the communications were admissible. Conversely, there is a recent Florida case where a wife installed a spyware program on her husband’s computer, without his knowledge or consent, during a pending divorce proceeding, thereby obtaining emails and images being transferred to her husband’s computer as they were being transmitted. The trial court ruled, and the appellate court affirmed, that since the evidence was illegally obtained by the wife in violation of the Florida wiretapping act, the evidence was inadmissible in the proceeding before the court.

Cases such as these appear to set some basic ground rules for admissibility and use of electronically stored information from another party without that party’s consent. However, they do little to instruct or help a lawyer trying to determine how to advise a client on the potential collection of such evidence and how to avoid running afoul of ethical and criminal entanglements. Clearly a lawyer who advises a client to obtain information from a spouse in a questionable manner is opening themselves up for sanctions. However, the above situations were created by the client without the knowledge or direction of their attorney (presumably). How should a family law practitioner advise a client who suggests copying a spouse’s hard drive for discoverable material? Is it possibly ineffective lawyering not to advise a client to attempt to access shared computers in the hopes of obtaining favorable or incriminating evidence against a soon to be ex-spouse? Additionally, attorneys advising clients must also emphasize that electronically stored evidence must not be removed or destroyed purposefully or a court can levy highly detrimental and punitive sanctions and penalties for spoliation of evidence.

Scenarios such as this are presuming that traditional discovery will be insufficient to obtain all of the electronically stored information in its original form. Both the Tennessee Rules of Civil Procedure and the Federal Rules of Civil Procedure provide for the discovery of electronically stored information. Certainly during the formal discovery process, an attorney should request, with specificity, that they are seeking disclosure of electronically stored material and tailor their request as narrowly as possible as unduly burdensome discovery production of electronically stored information has been excluded from discovery requirements. Given the volume of electronic data available, a cost-benefit analysis for the client needs to enter into the lawyer’s thought process when making a formal request. Additionally, a client should understand that whatever is requested of the opposing party will likely be requested from the client in return. In addition to formal discovery, a lawyer should advise a client to avail themselves of access to all social media and other information that is open to public viewing since this information is not protected by any privacy right, but may well be left out of the response to formal discovery, or the content, intentionally or otherwise, may be altered on a frequent basis.

From the case law and statutes, it appears that a lawyer would be on safe grounds advising a client to access any and all electronic storage devices to which they have shared access. Once possessed, anything stored on that device that is not protected by additional, personalized safeguards of an individual user, would be deemed properly obtained and admissible in court. Beyond that, it would be much safer for the client, the lawyer and the client’s case to access electronically stored information of the opposing party through formal channels like the discovery process.

Source: Electronic Surveillance in Family Law (Tennessee Bar Journal, May 2014).

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

Best Knoxville divorce lawyersFacts: The parties divorced after 13 years of marriage.

Husband worked throughout the marriage until he became disabled approximately four years before the divorce. Wife did not work until around the time Husband became disabled.

In 2006, Wife inherited money that she deposited into the parties’ joint checking account each quarter when it was received. In 2009, the parties paid $50,000 toward their mortgage from their joint checking account.

The trial court valued and divided the marital property. After first awarding $50,000 of the equity in the marital residence to Wife as “repayment” of her contribution of her separate property, the trial court equally divided the remainder of the marital estate. Thus, the overall property division was 68% to Wife and 32% to Husband.

Husband appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

In divorce cases, Tennessee recognizes two distinct types or classes of property, i.e., “marital property” as defined at Tennessee Code Annotated § 36-4-121(b)(1) and “separate property” as defined at Tennessee Code Annotated § 36-4-121(b)(2). This distinction is important because Tennessee Code Annotated § 36-4-121(a) provides only for the division of marital property. Implicit in the statute’s mandate is the concept that assets properly classified as “separate property” are not divided between the parties, but rather are set aside to the spouse to whom the property is “separate” in nature. Also implicit in the statutory scheme for the division and distribution of marital and separate property is the concept that the property upon which the trial court acts is, generally speaking, the property owned by the parties, individually or jointly, at the time of the divorce.

As a corollary to this principle, property once owned by a spouse, either as separate property or marital property, but not owned by either spouse at the time of divorce, is not generally subject to classification and division or distribution when the divorce is pronounced. This is because a court cannot generally divide and distribute what is “not there” — property no longer owned by the parties, individually or jointly, at the time of the divorce.

After reviewing the record, a majority of the Court concluded:

We hold that the $50,000 awarded to Wife does not, ipso facto, render the division of the marital estate inequitable. The record reflects that Wife’s contributions of separate property to the marriage far exceeded those of Husband….

[W]hat is clear beyond any doubt is that there came a time in this marriage when there was a balance in the parties’ checking account of at least $50,000. This could not have come from the parties’ relatively meager incomes. It had to have come from Wife’s separate property contributions. If Wife had not contributed [] separate property to the marriage, it is highly unlikely that the parties would have had much in the way of a net marital estate at the time of their divorce.

Accordingly, the trial court was affirmed.

Dissent: Judge Swiney dissented, writing:

I believe the evidence preponderates against the trial court’s property division . . . as being an equitable division of the marital property….

Despite what was found by the trial court and apparently agreed to by the majority, the $50,000 payment made by the parties on the mortgage from their joint checking account was not Wife’s separate property at the time the $50,000 payment was made. As found by the majority, it was marital property at that time as it already had been transmuted into marital property. In other words, Wife never made a payment of $50,000 from her separate assets on the mortgage.

[I]t is not equitable to give Wife what amounts to a dollar-for-dollar credit as to the $50,000 payment because it treats $50,000 of her once separate property, in effect, as if transmutation never occurred….

[T]he majority has placed an inordinately high importance on Wife’s contribution of separate property to the exclusion of other relevant factors….

This is a case where consideration of all relevant factors rather than focusing on only one mandates an even division of the marital estate to achieve an equitable division….

Here, the disabled spouse under the majority’s opinion receives less than one-third of the marital property while the spouse who is not disabled and owns rental property receives over two-thirds of the marital property. I believe that considering all relevant factors including the parties’ financial contributions to the marital estate, Husband’s disability, Wife’s not working during most of the marriage, Wife’s post-divorce ability to work, and Wife’s ownership of rental property, an equitable division of this marital estate would be for Husband and Wife each to receive fifty percent (50%) of the entire marital estate. For this reason, I respectfully dissent from the majority’s opinion.

K.O.’s Comment: Both opinions make valid points. While I personally agree with Judge Swiney’s position, I believe reasonable minds can differ such that the trial court should be affirmed in light of the deferential “abuse of discretion” standard of review.

Hoggatt v. Hoggatt (Tennessee Court of Appeals, Eastern Section, May 12, 2014).

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Posted by: K.O. Herston | July 4, 2014

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Facts: Husband and Wife separated after 16 years of marriage. Husband moved out of the marital residence. Wife filed for divorce.

After the separation but prior to the filing of the divorce complaint, Wife claims Husband assaulted her when he came to the marital residence and asked to pick up some tools and a guitar. Wife said she would not let him in and said the court should settle such issues. According to Wife, Husband became enraged, shoved his way into her home, grabbed her by her hair, threw her down some stairs, slammed her head against the steps, threatened her, swung a decorative statue at her, and told her he was going to “bash her brains in.” She claims she was finally able to get free from him and call 911 when she bit his finger.

Husband claimed the assault never happened and presented proof from a coworker that he was elsewhere at the time of the alleged assault.

In addition to seeking a divorce, Wife brought a spousal tort claim against Husband for damages arising from the assault. Wife’s dentist testified that one of Wife’s teeth was fractured and that her bridge required replacement. Wife’s treatment lasted several months and required a root canal and the placement of implants.

The trial court found Husband committed an assault and battery against Wife and awarded her compensatory damages of $38,284.10 and punitive damages of $10,000.

Husband appealed.

On Appeal:

Until 1983, the “domestic tranquility rule” prevented any tort action between married persons during or after divorce. Once the doctrine of interspousal immunity was abolished, damages for personal injuries that occurred during the marriage may be recovered in the divorce action or in a separate tort action.

After reviewing the record, the Court commented:

Wife testified that the assault was frightening and the injuries which she received were painful. She suffered permanent injury from a fractured tooth below her gumline. Protracted and long-term dental work was required, including extraction of the tooth, root canal, dental implantation and the construction of a new bridge. Wife testified that for a period of time she was unable to consume anything but liquids and that it was humiliating and difficult to go through the lengthy dental procedures that were required. Wife further related a loss of enjoyment of life in that she constantly was scared to the point that she obtained a surveillance system to monitor the outside of her home. The record before us reveals the determination of the trial court was supported by a preponderance of the evidence.

The Court also granted Wife’s request to consider post-judgment facts, namely the fact that Husband pleaded guilty to the aggravated assault against Wife after the appeal was taken. Considering this information, the Court stated:

Inasmuch as Husband had taken the position that the assault did not happen and was fabricated by Wife, and inasmuch as he stated in his guilty plea that restitution was to be paid as set out in the divorce action, we grant Wife’s motion to consider the post-judgment facts. The information further supports our finding that the compensatory and punitive damages awards were justified.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: The September 17, 2008 opinion in Cardella v. Cardella, No. M2007-01522-COA-R3-CV, is worth reviewing for lawyers dealing with or contemplating spousal tort claims.

Rayfield v. Rayfield (Tennessee Court of Appeals, Eastern Section, May 6, 2014).

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

Knoxville grandparent visitationFacts: Child lived with his Maternal Grandparents from birth until approximately age six, at which point he lived with Mother (Father is deceased). Less than two months later, Maternal Grandparents petitioned for court-ordered grandparent visitation of 138 days per year (after initially requesting that they be named the primary caregivers).

The proof showed that in the seven weeks between the time Child returned to Mother and the Maternal Grandparents filed their petition, the maternal grandparents had visitation with Child on seven different days, including two overnight visits. The proof also showed Mother allowed visitation even after being served with the petition. Mother testified she did not tell Maternal Grandparents they could not see Child, she did not oppose their having visitation with Child, and she wished for them to continue having a relationship with Child. The Maternal Grandparents testified they wanted a “regular” schedule.

The case was first heard by a Juvenile Court Magistrate who awarded the Maternal Grandparents 80 days of visitation per year.

Mother requested a rehearing before the Juvenile Court Judge, who dismissed the Maternal Grandparents’ petition because they failed to prove Mother opposed their visitation with Child.

The Maternal Grandparents appealed.

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

Parents have a superior right over all others to direct the upbringing of their children, including decisions regarding with whom the child interacts. The Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306, identifies circumstances in which grandparents are entitled to court-ordered visitation with a minor grandchild. In order for the Grandparent Visitation Statute to be implicated, visitation by grandparents must be opposed by the custodial parent or parents. The grandparents bear the burden of proving the parent has opposed their visitation.

After reviewing the record, the Court commented:

Although Mother allowed the Grandparents to act as [Child's] primary caregivers for a number of years, they are not legally recognized as his parents, and the statute does not provide the relief that they seek. The Grandparent Visitation Statute cannot be used by grandparents who think they are entitled to more or different visitation in the absence of a finding that the parents actually or effectively opposed visitation. The evidence does not preponderate against the trial court’s finding that Mother does not oppose visitation as contemplated by Tennessee Code Annotated § 36-6-306(a). Accordingly, Tennessee Code Annotated § 36-6-306 is not implicated, and the court did not err in dismissing this case.

K.O.’s Comment: For a case that discusses parental opposition to grandparent visitation in greater detail, see Uselton v. Walton.

In re Landon R. W. (Tennessee Court of Appeals, Middle Section, May 2, 2014).

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

Posted by: K.O. Herston | June 27, 2014

Photo of the Week: Butterfly

Knoxville divorce lawyers

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

Facts: The parties were divorced by agreement. Their Marital Dissolution Agreement provided, in relevant part: “Husband and Wife expressly certify and acknowledge they have entered this Agreement upon mature consideration, that they have each fully disclosed all of their assets, and that all of said assets have been distributed herein.” The trial court incorporated the Marital Dissolution Agreement into the Final Judgment of Divorce by reference.

Eleven months later, Wife filed a Rule 60.02 motion to alter or amend alleging that the Marital Dissolution Agreement failed to divide Husband’s pension, which pension is marital property. Wife alleged, “[T]his oversight certainly must have resulted from a mistake, inadvertence, or excusable neglect.”

The trial court denied Wife’s motion, finding “there was no mutual mistake, only a unilateral mistake on the part of the Wife.”

Wife appealed.

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

Tennessee Rule of Civil Procedure 60.02, provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court.

Tennessee courts have characterized relief under Rule 60.02 as an “exceptional remedy” designed to strike a proper balance between the competing principles of finality and justice. Rule 60.02 provides an “escape valve” that is not easily opened. Courts have reversed relief granted under Rule 60.02 where the judgment was not oppressive or onerous. Relief under Rule 60.02 is not meant to be used in every case in which the circumstances of a party change after the entry of a judgment or order, nor by a party who is merely dissatisfied with a particular outcome.

A party seeking relief under Rule 60.02 must substantiate the request with clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In other words, the evidence must be such that the truth of the facts asserted is highly probable. In general, the bar for attaining relief is set very high and the burden borne by the movant is heavy.

All motions for relief based on Rule 60.02 must be made within a reasonable time. Motions based on Rule 60.02(1) or (2) shall be made “not more than one year after the judgment, order or proceeding was entered or taken.” In other words, one year is the outer limit on the time allowed for filing the motion under 60.02(1) or (2). Rule 60.02 does not permit a litigant to slumber on her claims and then belatedly attempt to relitigate issues long since laid to rest.

A marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. An MDA is to be looked upon and enforced as an agreement, and is to be construed as other contracts as respects its interpretation, its meaning and effect. Moreover, generally speaking, the parties are not entitled to a marital dissolution agreement that is different from the one they negotiated.

After reviewing the record, the Court commented:

The trial court found that wife had ample time to review the MDA before she signed it; that she did in fact review it; and that she told husband’s attorney that she was going to take it to her attorney to review. Wife does not dispute these findings. It is obvious that husband did not hide the existence of his pension, because wife testified that she was aware of it but mistakenly thought it would be divided later. A cursory reading of the MDA, however, should have put wife on notice that this document is designed to finally and forever conclude the parties’ rights growing out of their marriage… There is no indication in the record that wife was deceived or misled in any way before she signed the MDA. Wife has not established any ground for reopening the final divorce judgment under Rule 60.02.

Accordingly, the trial court’s judgment was affirmed.

Worgan v. Worgan (Tennessee Court of Appeals, Eastern Section, April 30, 2014).

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

Facts: After 19 years of marriage, the parties divorced. They have two children.

Husband is a medical doctor earning approximately $360,000 a year.

Wife is a high school graduate who was a homemaker and stay-at-home parent throughout the marriage. By the time of trial, Wife had obtained a real estate license and was working as an assistant property manager earning $36,000 per year.

The trial court awarded Wife transitional alimony of $3000 a month for five years because she “has a significant need wherein she is economically disadvantaged and needs to adjust to the economic consequences of her divorce.”

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court and modified the alimony award.

There are four types of spousal support, or alimony, available in Tennessee: (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.

Alimony in futuro is intended to provide support on a long-term basis and is to continue until the recipient dies or remarries. Tennessee Code Annotated § 36-5-121(f)(1) provides that this type of alimony is appropriate when

there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse….

Alimony in solido is another form of support and is typically paid in one lump sum or else paid in installments over a period of time. Alimony in solido may be awarded in place of, or in addition to, another alimony award, for the purpose of providing support, including attorney’s fees, where appropriate.

Rehabilitative alimony is meant to assist an economically disadvantaged spouse to acquire additional education or training in an effort to achieve a standard of living comparable to the standard of living that existed during the marriage or the post-divorce standard of living expected to be available to the other spouse. The legislature has expressed a preference for this type of alimony in those situations when the economically disadvantaged spouse is reasonably able to obtain an earning capacity that is reasonably comparable to the economically advantaged spouse.

Transitional alimony is appropriate when a court determines that rehabilitation is not necessary, but the economically disadvantaged spouse needs help adjusting to the economic consequences of a divorce. This type of alimony has been described as assisting a person in transition become adjusted to the status of living as a single person.

Tennessee courts have stated frequently that when making alimony determinations, the two most important considerations are the disadvantaged spouse’s need and the obligor spouse’s ability to pay. All of the factors can be found at Tennessee Code Annotated § 36-5-121(I).

On appeal, Wife argued that regardless of any effort on her part, she will never be able to earn enough to match the standard of living she enjoyed during her marriage, or the standard of living Husband will continue to enjoy post-divorce.

After reviewing the record, the Court agreed, reasoning:

The proof shows that Wife is 45 years old and that, with the agreement of Husband, she stayed at home to take care of the parties’ children while Husband pursued his education and career as a doctor. Although Wife is able-bodied, it is not realistic to believe Wife can be rehabilitated to the extent that she will be able to achieve a standard of living comparable to the standard of living of the parties prior to the divorce or to the standard of living Husband is expected to enjoy post-divorce. Consequently, Wife is not capable of rehabilitation as defined by statute….

The evidence shows that Wife has taken steps to make herself more marketable by becoming a licensed real estate agent and earning her certification as a surgical technologist. However, the best job she has been able to find pays just 1/10 of the amount Husband earns in a year as a physician.

Having determined that Wife is not able to be rehabilitated, we find that the trial court erred in failing to award Wife alimony in futuro. The trial court failed to apply the correct legal standard to the facts….

We find Wife has a need for alimony in futuro and that Husband has the ability to pay Wife $4,500 per month. Accordingly, we modify the trial court’s judgment and award Wife alimony in futuro in the amount of $4,500 per month.

Accordingly, the trial court’s judgment was reversed and the alimony award modified.

Jirjis v. Jirjis (Tennessee Court of Appeals, Middle Section, April 30, 2014).

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

Posted by: K.O. Herston | June 20, 2014

Photo of the Week: Lake Outing with the Babies

Fontana Lake, Great Smoky Mountains National Park

Fontana Lake, Great Smoky Mountains National Park

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

Knoxville child custody lawyersFacts: This is the second interlocutory appeal in this case.

In this child custody dispute, the parties agreed to engage Dr. Clement as an evaluating psychologist for the purpose of making a parenting recommendation to the trial court. Dr. Clement was expressly authorized to speak with the parties’ respective counselors.

Later, upon Mother’s request, the trial court ordered Father to undergo a Rule 35 forensic examination, which examination was performed by Dr. Ciocca. Father authorized the release of certain medical and psychological records to Dr. Ciocca. When Mother sought to obtain copies of those records and the trial court ordered that they be produced to her, Father appealed.

In the first appeal, the summary of which can be found here, the Court ordered that Husband’s privileged psychological records be disclosed to the trial court for an in camera review for the purpose of conducting the comparative fitness analysis.

On remand, the trial court held Father waived the psychologist-client privilege by maintaining he was mentally and emotionally fit, and that Mother should have available to her Father’s mental health records for cross-examination and for review by Mother’s own expert witnesses.

Father again sought and received a second interlocutory appeal.

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

The Court of Appeals’ opinion is a whopping 60 pages long. Because it covers so much ground, it would be impossible to summarize it in a concise blog post. Instead, I will post what I think are the most important excerpts and holdings that Tennessee divorce lawyers and litigants need to know.

1.  Seeking custody does not, by itself, amount to an automatic waiver of the psychologist-client privilege. Denying allegations of mental instability and abuse – or, in other words, asserting mental stability in response to the other party’s allegations of mental instability — without more, does not amount to automatic waiver. Otherwise, there would be no psychologist-client privilege in child custody cases; a party seeking privileged mental health records could obtain them simply by alleging the mental instability of his or her adversary.

2.  With either the attorney-client privilege or the psychologist-client privilege, when the holder of the privilege discloses privileged information in testimony, this can constitute a waiver of the privilege…. Likewise, if a party puts his mental health “at issue,” this too can constitute waiver of the psychologist-client privilege.

3.  Father’s reliance on the reports of the evaluating experts does not constitute a waiver of the privilege as to the records of Father’s treating psychologists.

4.  A party’s oral communications with a court-appointed evaluator are neither privileged or confidential.

5.  Neither Father’s consent to giving Dr. Clement or Dr. Ciocca access to his treating psychologist nor his voluntary disclosure of some of his mental health records to Dr. Clement or Dr. Ciocca constitute a full and general waiver of the psychologist-client privilege as to all of Father’s mental health records.

6.  If an evaluating psychologist requests access to privileged information, in the absence of a court order compelling such disclosure, the party to be evaluated may decline the examiner’s request for the privileged information…. The party to be examined may be concerned that there will be a strategic cost to refusing the examiner’s request for access to privileged records. Absent a court order requiring disclosure, however, the decision on whether to proceed to the examiner’s request is a strategic one…. Absent compulsion by the court, the party holding the privilege remains free to decline the examiner’s request for access to privileged mental health records.

7.  If the disclosure (absent court order) of privileged information to an evaluating psychologist for a court-ordered evaluation is voluntary, it must necessarily constitute a waiver of the privilege with respect to the information actually disclosed.

8.  The psychologist-client privilege attaches to personal communications made by the patient to his treating psychologist, not to the treating psychologist’s opinion, observations, diagnosis, or treatment alternatives. If Father’s treating psychologists disclosed only non-privileged information, then there is no waiver arising from the evaluating psychologists’ contact with Father’s treating psychologists. If any of Father’s treating psychologists disclosed privileged information to either Dr. Clement or Dr. Ciocca, this would constitute a waiver after the particular privileged information disclosed only if the disclosure was pursuant to the express permission of Father, the privilege-holder, for such disclosure. Likewise, Father’s voluntary disclosure of mental health records to Drs. Clement or Ciocca would constitute a waiver of the privilege only as to the records actually disclosed to either of the evaluators with Father’s express permission.

9.  If Father voluntarily disclosed privileged information to either Dr. Clement or Dr. Ciocca, he waived the privilege as to the information that was actually disclosed by Father or with Father’s express permission…. In the record before us, we are unable to ascertain whether information subject to the psychologist-client privilege was voluntarily disclosed by Father to either Dr. Clement or Dr. Ciocca, and thus are unable to determine the extent to which Father waved the psychologist-client privilege. We are left with little choice but to remand the case to the trial court for factual findings….

The Court of Appeals then modified its ruling in the first interlocutory appeal. Considering that both Dr. Clement and Dr. Ciocca will be available to testify about Father’s mental health and, on remand, Mother will have access to any documents that father voluntarily disclosed to either Dr. Clement or Dr. Ciocca, the purpose for the in camera review ordered in the first appeal has been removed. On remand, the trial court may, in its discretion, perform an in camera review of the documents deemed to be within the limited waiver for the purpose of screening out any that are not relevant to the issues or unduly prejudicial. But the trial court is no longer either directed or authorized to conduct an in camera review of Father’s privileged mental health records for the general purpose of conducting its comparative fitness analysis.

Opining that the trial court’s actions after the first appeal show the trial court “demonstrates little inclination to follow the appellate court’s ruling,” the Court expressed “little hope that another remand to the trial judge below would yield compliance with this Court’s directive” in the first appeal. Because “it appears that the trial judge had difficulty putting his previous views aside and complying with the holding” in the first appeal, the Court found “that reassignment to a different trial judge is advisable to preserve the appearance of justice.”

Accordingly, the case was remanded and assigned to a different trial court.

K.O.’s Comment: This lengthy (!!!) opinion affirms that Tennessee follows the more protective view of the psychologist-client privilege. A parent’s mental health is not automatically at issue just because the parent is seeking custody of the children or because one parent alleges the other is mentally unstable. A party’s mental health records remain privileged unless they are voluntarily disclosed by the party.

The Court also declined to interpret the recent amendment to Tennessee Code Annotated § 36-6-106(a)(5), which authorizes a trial court to order the disclosure of a party’s confidential mental health information “if necessary for the conduct of the proceedings,” because the amendment was not in effect when the trial court entered its order and there is no reason to believe the legislature intended the amendment to be applied retroactively. The Court did provide some guidance, however, noting “[t]he phrase ‘necessary to the proceedings’ obviously means substantially more than simply ‘relevant to the proceedings.’”

Culbertson v. Culbertson (Tennessee Court of Appeals, Western Section, April 30, 2014).

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

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