Posted by: koherston | February 27, 2015

Photo of the Week: Snowflakes

 

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

Posted by: koherston | February 25, 2015

A Primer on Criminal Contempt in Tennessee

This recent article by Marlene Moses in the Tennessee Bar Journal may be of interest to readers of this blog.

Can Criminal Contempt Create Compliance?

How can a party or attorney in a family law case effectively use criminal contempt as a means of getting a positive result from the other party? When a person is determined to be in willful violation of an order of the court, that person may be held in either criminal or civil contempt. A contempt action in a family law matter is most often seen in the context of a failure to pay court-ordered child support, but a contempt petition[1] may be sought for any willful violation of a court order regardless of the content of the order. This article will focus on the necessity and use of criminal contempt to achieve the goals of a family law practitioner.

Knoxville divorce and family law attorneys“Criminal contempts … are intended to preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.”[2] Tenn. Code Ann. § 16-1-103 specifically provides “For the effectual exercise of its powers, every court is vested with the power to punish for contempt, as provided for in this code.”[3] Tenn. Code Ann. § 29-9-101. et. seq. describes in greater detail the types of behavior that will warrant the use of the court’s contempt power as well as the possible punishments that a court may inflict once it has made a finding of contempt and they are what one might expect.[4] The court may utilize its contempt power specifically for “willful disobedience … to any lawful writ, process, order, rule, decree or command of such courts.”[5] Contempt power grants the court the power to punish “by fine or by imprisonment, or both.”[6]

Tennessee Rule of Criminal Procedure 42 specifically provides for the process required for the implementation of a criminal contempt as a means of obtaining compliance from a party who is subject to a court’s lawful order. Unless the contempt takes place in the presence of the court, a direct contempt, in which case, the court may deal summarily with the issue without formal process, the party being accused of contempt is entitled to notice of the hearing date and time, the opportunity to be heard, the opportunity to prepare a defense and specific notice of the allegations that constitute the charge of contempt.[7] Furthermore, since the petitioning party is seeking to enforce the court’s orders through use of a petition for criminal contempt, the respondent must be notified of his/her Constitutional rights in addition to being served with the petition that describes the alleged infractions in detail. This notice should be provided by the petitioner along with the petition itself.

Additionally, Tenn. Code Ann. § 39-15-101 goes beyond mere contempt as a remedy for the specific issue of non-payment of court ordered support. The code provides that a person may be charged with an A misdemeanor for non-support or an E felony for flagrant non-support as a criminal offense. Non-support is defined as when a person “fails to provide support which that person is able to provide and knows the person has a duty to provide to a minor child or to a child or spouse who, because of physical or mental disability, is unable to be self-supporting.”[8] Further, “a person commits the offense of flagrant nonsupport who: leaves or remains without the state to avoid a legal duty of support; or having been convicted one (1) or more times of nonsupport or flagrant nonsupport, is convicted of a subsequent offense under this section.”[9] A private party may not seek such relief from the court in a family law context, but the possibility of criminal charges looms for those who willfully choose not to pay court ordered support.

Of course, since a criminal contempt is, by its very nature, criminal and the full Constitutional protections provided to a defendant in a criminal case are implicated by charging criminal contempt, practitioners should consider carefully their decision to seek criminal contempt. Often, the discovery process may be halted or eschewed since defendants need not answer any questions that might implicate themselves in a crime even if the possible punishment for a contempt of court is relatively minor. Though the potential punishment may be greater, the use of criminal contempt might actually slow down the resolution of the issues that gave rise to the contempt rather than hasten the road to a satisfactory resolution. On the other hand, a monetary fine or possible incarceration can, and often is, a strong motivation for a party to comply fully with a court’s order. However, attorneys or persons seeking contempt should keep in mind that “a court can also imprison and/or fine an individual simply as punishment for the contempt,” with no eye toward actually resolving the issue, but rather punishing an offending party as a means of guaranteeing future compliance.[10] Along the same lines, a person might choose to proceed with an action for non-payment of child support pursuant to Tenn. Code Ann. § 36-5-104, which provides that “Any person, ordered to provide support and maintenance for a minor child or children, who fails to comply with the order or decree, may, in the discretion of the court, be punished by imprisonment in the county workhouse or county jail for a period not to exceed six (6) months.”[1]1 However, the Tennessee Supreme Court has determined that the language of this statute actually describes a criminal offense and is not, in fact, a contempt statute. If a party proceeds under Tenn. Code Ann. § 36-5-104, the defendant is entitled to all Constitutional protections, including a jury trial should he or she so desire, a process that would not expedite a resolution to the issue of non-compliance.[12] Unlike civil contempt, where persons may be incarcerated only until they purge their contempt, the punitive nature of criminal contempt merely punishes prior disobedience and, even if a party is successful, the results that are most desired may not be achieved.

An important point to note within the language of the statute is that the “disobedience” must be “willful,” as indeed, each different variation of contempt must be. Though the statute Tenn. Code Ann. § 29-9-101, et. seq., does not distinguish in its description of contempt between civil and criminal contempt, it certainly stands to reason that if a petitioner is alleging a criminal contempt of court, that the element of intent in the offense must also be proven. Consequently, the act must be of a willful nature in order for the court to exercise its contempt powers and not merely a situation that is beyond the control of the contemnor.

A party who is seeking relief from a court for contempt must be both cognizant and wary of this hurdle. It is often more difficult to prove than expected that a person was “willful” in his or her failure to comply with a court order, particularly when the non-compliance relates to the non-payment of money for child support, alimony, or some other court-ordered payment that was not made by the infringing party. The burden is on the petitioner to prove, for example, that the inability to pay was due to a willful choice on the part of the respondent not to pay, not simply that they could not obtain employment, or a rate of pay sufficient to allow for the required payments to the petitioner as ordered by the court.

In a different family law context, a court may order any number of provisions regarding the care of the parties’ minor children and failure to comply may be addressed by a contempt petition. However, when attempting to characterize many issues regarding non-compliance with the court’s instructions as “willful disobedience” of the court’s order, as they pertain to the minor children, success may not be as simple as it may appear at first glance.

Generally speaking, a private attorney seeking criminal contempt on behalf of a litigant is not entitled to an award of attorney’s fees. The logic behind this is two-fold. First, the punishment that a court may assign for an incident of contempt is specifically laid out by statute and attorney’s fees are not one of the powers granted to the court by statute.[13] Secondly, the punishment of a contempt action is primarily to reinforce the power of the court for acts committed contrary to the court’s instructions or rules.[14] Consequently, any benefit to a private party is only tangential and a party should not be awarded attorney’s fees for vindicating the court’s power. Conversely, an attorney filing a civil contempt for a client is seeking to enforce a client’s contractual or statutory rights and, therefore, is entitled to an award of attorney’s fees. As that is the case, this should be another factor to weigh when choosing whether a criminal contempt is the appropriate remedy.

Needless to say, the choice to file a petition by a party seeking contempt ought to be carefully considered before it is filed. The purpose of seeking relief through a contempt petition is that other options have previously been exhausted, or in rare situations, the actions are so flagrantly contemptuous of the court’s authority that they must be addressed by the judge. An attorney and his or her client need to examine what their goal is by filing a criminal contempt and assess if its few benefits are outweighed by its many detractors before making the decision to proceed.

Footnotes

1.  In some jurisdictions, a party may proceed with contempt proceedings by a motion to the court rather than a petition. Throughout this piece, the discussion will refer to a petition for contempt, but the term should be viewed as interchangeable with motion if your jurisdiction permits proceeding by motion.
2.  Black v. Blount, 938 S.W. 2d 394 at 397 (Tenn. 1996).
3.  Tenn. Code Ann. § 16-1-103
4.  Tenn. Code Ann. § 29-9-102, 103, 104, & 105
5.  Tenn. Code Ann. § 29-9-102(3).
6.  Tenn. Code Ann. § 29-9-103(a).
7.  Tenn. Rule of Criminal Procedure 42(b)(1).
8.  Tenn. Code Ann. § 39-15-101(a).
9.  Tenn. Code Ann. § 39-15-101(d).
10.  Ahern v. Ahern, 15 S.W. 3d 73 at 79 (Tenn. 2000).
11.  Tenn. Code Ann. § 36-5-104(a).
12.  Brown v. Latham, 914 S.W. 2d 887 at 888 (Tenn. 1996).
13.  Butler v. Butler, 1995 Tenn. App. Lexis 749.
14.  Understanding Contempt, Ronald D. Krelstein, http://www.tals.org/node/616/equal-justice-university-training-material.

Source: Can Criminal Contempt Create Compliance? (Tennessee Bar Journal, January 2015).

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

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Sad Cub Scout

Facts: When Mother and Father divorced, they entered an agreed parenting plan designating Mother as the primary residential parent of Child and awarding Father 100 days of parenting time.

Five years later, Father petitioned to modify the parenting plan and change custody. Father alleged a long list of material changes of circumstance, including his claim that Child missed an unreasonable amount of school with unexcused absences, that Mother exhibited irrational and unreasonable behavior (such as referring to Father’s second wife as a “slut” at a Cub Scout meeting where Child was present; Father also claimed when Child asked why both parents were not going on a Cub Scout camping trip, Mother responded, “Because your dad is a bastard”), that Mother did not meet Child’s basic needs such that Child was frequently dirty and foul-smelling, and that Mother made derogatory remarks about Father to Child, such as telling Child he could not be around Father’s coworkers because they were “sluts, homewreckers and a bad influence,” and telling Child that Father “f—ed another girl in high school.”

Mother denied Father’s allegations. The matter proceeded to a hearing where Mother and Father were the only witnesses.

The trial court questioned Mother’s credibility and concluded there had been a material change of circumstance. The trial court noted Mother’s “behavior has really been inappropriate in a lot of ways.” Despite this, the trial court found it was not in Child’s best interest to change custody, stating that Child is “thriving” in Mother’s custody and, as a result, the court was “really reluctant to disturb that.”

Father appealed.

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

A trial court’s determinations as to whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child’s best interests are factual questions. Because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are considered better positioned to evaluate the facts than appellate judges. Thus, a trial court’s decision regarding the details of a residential parenting schedule will not be reversed absent an abuse of discretion. A trial court abuses its discretion when its decision falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.

After painstakingly examining the record and the trial court’s findings as to each of the best interest factors in Tennessee Code § 36-6-106(a), the Court concluded:

We, like the trial court, are troubled by Mother’s conduct, but we cannot say that the evidence preponderates against the trial court’s finding that it was in the best interest of the child for Mother to remain the primary residential parent.

Accordingly, the trial court was affirmed.

Zahn v. Logan (Tennessee Court of Appeals, Middle Section, February 2, 2015).

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

Posted by: koherston | February 20, 2015

Photo of the Week: Merlin Playing in Snow

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Knoxville divorce and family law attorneysFacts: Husband and Wife executed a marital dissolution agreement (“MDA”) which was approved by the court and made part of their final divorce decree.

The MDA awarded a piece of real property to Husband but required him to satisfy the mortgage debt within 90 days such that Wife would no longer be liable on the mortgage. The MDA also contained an enforcement provision entitling the “prevailing party” in any action to enforce the MDA to his or her attorney’s fees.

Husband failed to remove Wife from the mortgage debt as directed in the MDA. Wife filed a motion to enforce the MDA and a motion for civil contempt. Wife also sought to recover her attorney’s fees.

One week prior to the hearing on Wife’s motion to hold Husband in contempt, Husband paid off the mortgage indebtedness in full, thereby removing Wife from that debt and finally complying with the MDA.

The trial court found the issue of civil contempt was rendered moot by Husband’s belated compliance. Under the enforcement provision of the MDA, the trial court determined Wife was the prevailing party and ordered Husband to pay $4000 of Wife’s legal fees. The trial court further found that but for Wife’s petition for civil contempt, Husband would not have adhered to the terms of the MDA.

Husband appealed.

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

Husband argued Wife was not the “prevailing party” because there was no evidentiary hearing on the merits or any finding by the trial court that he was in contempt.

Tennessee adheres to the “American Rule,” which provides that, absent a statute of agreement to the contrary, litigants are responsible for their own attorney’s fees. Tennessee courts have consistently held that marital dissolution agreements are a contract between parties contemplating divorce. After a divorce decree becomes final, a marital dissolution agreement becomes merged into the decree; however, the agreement, as a property settlement agreement, does not lose its contractual nature by merger into the decree of divorce and is not subject to later modification by the trial court.

An act of contempt is an intentional act that hinders, delays, or obstructs the court’s administration of justice. An action for civil contempt is designed to coerce compliance with a court’s order. Persons who have failed to make payments required by a court order may be held to be in civil contempt if the court concludes, by a preponderance of the evidence, that they have not made the payments even though they have the present ability to do so.

There are no bright-line rules in determining who is the “prevailing party.” Thus, these determinations are necessarily fact-intensive and fact-specific. The Tennessee Supreme Court has ruled that a party need not attain complete success on the merits of the lawsuit in order to prevail. Rather, a prevailing party is one who has succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Status as a prevailing party arises when the outcome of litigation materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

After examining the relevant case law, the Court concluded:

[A] party may be recognized as the prevailing party if that party achieves the primary benefit sought in instituting the legal proceedings and/or if the action modifies the opposing party’s behavior in a way that provides a direct benefit, regardless of the fact there was no hearing or judgment on the merits.

The majority further explained:

Wife’s primary purpose in filing the petition for contempt was to compel Husband to comply with [] the MDA by removing her from all liability on the mortgage. The record clearly establishes that, by filing and pursuing this action, Wife altered Husband’s behavior by forcing him to comply with [] the MDA by paying off the mortgage, and by altering Husband’s behavior, Wife achieved the benefit she sought. Moreover, as the trial court correctly concluded, but for Wife instituting legal proceedings to procure the enforcement of the provision requiring Husband to satisfy the debt on the mortgage, Husband would not have complied with the MDA.

For the foregoing reasons, we have concluded that Wife was the prevailing party even though the trial court did not address the merits of the case.

Thus, the majority of the Court of Appeals affirmed the trial court.

Dissent: Judge McBrayer dissented, arguing controlling precedent says to be a prevailing party, one must receive at least some judicially-sanctioned relief on the merits of his or her claim.

[R]ead in context, the material alteration [of the legal relationship of the parties] requirement is not an alternative to a judgment on the merits, but rather, an additional requirement to become a “prevailing party.” In other words, a party only “prevails” when “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”

K.O.’s Comment: The case law cited in both the majority and dissenting opinions appears confusing and subject to varying interpretations. This case present a pure question of law that appears well-suited for clarification by the Tennessee Supreme Court.

Williams v. Williams (Tennessee Court of Appeals, Middle Section, January 30, 2015).

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

Facts: Mother and Father are the married parents of several children.

Mother and Grandmother, both attorneys, worked together in Grandmother’s Kentucky law firm for several years. Their relationship began to deteriorate. Mother left Grandmother’s law firm. The relationship eventually became so acrimonious that Mother forbade Grandmother from contacting the children.

Knoxville family law and divorce attorneysGrandmother petitioned the Kentucky court for grandparent visitation. Mother moved to dismiss that action on the grounds that she and Father moved with the children to Tennessee one day prior to the filing of Grandmother’s petition. The Kentucky court denied Mother’s motion and ultimately awarded grandparent visitation to Grandmother.

The next day, Mother and Father filed a petition for legal separation in Tennessee. The Tennessee court subsequently granted the legal separation and entered the parents’ agreed temporary parenting plan.

Grandmother moved to intervene in the Tennessee case in order to enforce the Kentucky grandparent visitation order. Grandmother argued that Mother and Father had entered into a “sham separation” in order to undermine her grandparent visitation rights. The Tennessee court allowed Grandmother to intervene.

Grandmother then sought to register the Kentucky grandparent visitation order in the Tennessee case so the Tennessee court could enforce it.

Mother objected on the grounds that the Tennessee version of the Uniform Child Custody Jurisdiction and Enforcement Act (“Tennessee UCCJEA”) did not permit the registration of foreign grandparent visitation orders. Mother also argued it would violate her constitutionally-protected parental rights for a Tennessee court to enforce a foreign grandparent visitation order without a showing of substantial harm to the child.

The Tennessee trial court granted registration of the Kentucky grandparent visitation order and Grandmother’s request that it be enforced.

Mother and Father appealed.

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

Mother and Father argued that the Tennessee UCCJEA does not support the registration and enforcement of foreign grandparent visitation orders for two reasons: (1) the definition of “child custody proceeding” in the Tennessee UCCJEA excludes proceedings seeking enforcement of grandparent visitation orders; and (2) the Tennessee Grandparent Visitation Statute, Tennessee Code § 36-6-306, is the sole remedy for grandparents seeking visitation under a foreign order.

Tennessee Code § 36-6-229(a) (the “registration provision”) provides that a “child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement,” provided certain requirements are met. A “child custody determination” is defined in pertinent part as an “order of a court providing for . . . visitation with respect to a child.” The Tennessee UCCLEA does not specifically reference foreign grandparent visitation orders.

The Tennessee Grandparent Visitation Statute, however, specifically references foreign grandparent visitation orders at Tennessee Code § 36-6-306(a)(4) and -306(b)(1). It reads in pertinent part:

(a) Any of the following circumstances, when presented in a petition for grandparent visitation . . . necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
. . . .
(4) The court of another state has ordered grandparent visitation;
. . . .
(b)(1) In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.

After applying the rules of statutory construction and examining the official commentary to the Tennessee UCCJEA, the Court concluded the Tennessee Legislature did not intend to exclude grandparent visitation proceedings from the Tennessee UCCJEA’s definition of “child custody proceeding.”

The score thus far: Grandmother 1, Mother and Father 0.

That does not end the inquiry, however. The remaining issue is whether a foreign grandparent visitation order may be registered and enforced under the Tennessee UCCJEA provision or if visitation must be sought under the Tennessee Grandparent Visitation Statute.

After examining the law and applying the rules of statutory construction, the Court reasoned:

[The] canons of statutory construction convince us that the Legislature intended to require grandparents seeking visitation rights in Tennessee to utilize the Grandparent Visitation Statute rather than the Tennessee UCCJEA registration provision. First, where a conflict is present, “a more specific statutory provision takes precedence over a more general provision.” The Tennessee UCCJEA registration provision applies to an order providing for “visitation with respect to a child,” a broader and more general reference than the Grandparent Visitation Statute’s specific reference to where “[t]he court of another state has ordered grandparent visitation.” Because the Grandparent Visitation Statute is specifically applicable to instances of grandparent visitation, it overrides the Tennessee UCCJEA registration provision where the two conflict.

Second, we assume the Legislature is aware of its prior enactments; therefore, as a general rule, a more recent enactment will take precedence over a prior one to the extent of any inconsistency between the two…. [T]he Grandparent Visitation Statute . . .  is the more recently adopted statute. This lends further weight to application of the Grandparent Visitation Statute where the two conflict. Furthermore, as the Tennessee UCCJEA has never been held to apply to foreign grandparent visitation orders in Tennessee, a holding that the Grandparent Visitation Statute precludes its application to such orders would not constitute an implied repeal.

Finally, when faced with two equally plausible interpretations, one of which poses constitutional concerns, the canon of constitutional avoidance directs us to adopt the other interpretation….

Article I, Section 8 of the Tennessee Constitution requires that a finding of substantial endangerment be made before a non-parent can overcome the presumption of superior parental rights. Application of the Tennessee UCCJEA registration provision to grandparent visitation presents serious constitutional concerns. Tennessee Code § 36-6-229 does not provide adequate constitutional protection to our citizens—it does not require a court to find a substantial risk of harm to the child prior to registration and enforcement of a foreign grandparent visitation order. It also does not require the foreign court to have made such a finding. The Grandparent Visitation Statute, however, has been revised to explicitly require that a Tennessee court determine whether there is a risk of substantial harm to the child. Only then may the court proceed to consider whether grandparent visitation is in the child’s best interest.

Because registration of a foreign grandparent visitation order that does not comply with our State’s constitutional guarantees would present serious concerns, we conclude that the Tennessee UCCJEA registration provision does not apply to foreign grandparent visitation orders.

Accordingly, the trial court’s order registering and enforcing the Kentucky grandparent visitation order was reversed.

K.O.’s Comment: The Court notes that courts in other states (e.g., Michigan, Georgia, Alabama) have reached the opposite conclusion. The distinguishing feature is the grandparent visitation statutes in those states do not explicitly apply to a situation where the grandparent has a foreign visitation order, like Tennessee’s grandparent visitation statute does. Because those states lack an alternative avenue for recognizing grandparent visitation rights, registration and enforcement of the foreign grandparent visitation order provides the only option in those states for grandparents to seek relief. In Tennessee, however, grandparents with visitation orders from other states can (and now must) proceed under Tennessee’s Grandparent Visitation Statute.

Moorcroft v. Stuart (Tennessee Court of Appeals, Middle Section, January 30, 2015).

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

Posted by: koherston | February 13, 2015

Photo of the Week: Icy River

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Knoxville family law attorneysFacts: Mother and Father married and had three children. After nine years of marriage, they separated and never lived together as husband and wife following their separation.

Four years after their separation, Mother filed for divorce.

Almost two years after filing for divorce, Mother was tragically shot and killed in the line of duty as a police officer with the Memphis Police Department while serving a search warrant.

The children’s maternal grandmother filed a petition seeking to be appointed guardian for the children. Grandmother asserted that Father had a history of domestic abuse and had failed to pay child support or participate in the children’s lives for the past three years.

Father filed a counter-petition seeking guardianship of the children.

The trial court emphasized the proceeding was “not a custody proceeding” and, therefore, the trial court proceeded with a best interest analysis under the guardianship statutes at Tennessee Code § 34-2-101, et seq.

The trial court found Father had very little interaction with his children following his separation from Mother; that he received $30,000 following the death of Mother but failed to pay child support, instead opting to purchase an extended cab pickup truck; that he pleaded guilty to stalking and served 11 months in jail, and that he had a history of physical altercations with others. The trial court further found the maternal grandmother was not an appropriate guardian for the children.

Instead, the court determined that the children’s maternal grandfather — who did not even petition for guardianship — should be appointed guardian inasmuch as he had been a primary support giver for the children after Mother and Father separated.

Father appealed.

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

Father argued the trial court deprived him of his constitutional right to the care and custody of his children without first finding that he posed a substantial risk of harm to the children or is an unfit parent.

A parent has a fundamental liberty interest in making decisions concerning the care, custody, and control of his or her children.

In disputes between a parent and a non-parent, parents are afforded a presumption of “superior parental rights.” Furthermore, these superior parental rights continue without interruption unless they parent consents to relinquish them, abandons the child, or forfeits parental rights by conduct that substantially harms the child.

Absent a finding of substantial harm, the deprivation of the custody of a child would result in an abridgment of the parent’s fundamental right to privacy protected by the United State and Tennessee Constitutions.

Accordingly, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of the child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then made court engage in a general “best interest of the child” evaluation in making a determination of custody.

While circumstances that constitute substantial harm are difficult to define precisely, Tennessee courts say the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm is more likely than not to occur.

After reviewing the record, the Court of Appeals reasoned:

We disagree with the trial court’s interpretation that appointing a guardian pursuant to Tennessee Code § 34-2-103 requires nothing more than a best interest analysis when the choice of guardian is between a biological parent and a non-parent. Where a parent is not appointed as the guardian of his or her children, that parent’s fundamental constitutional rights to the care, custody, and control of his or her children are implicated….

Here, the trial court failed to make an express finding that there was a risk of substantial harm to the children should Father be named their guardian. Therefore, we find that the trial court acted prematurely in awarding guardianship of Father’s [] children . . . to Grandfather based solely on a best interests inquiry.

Accordingly, the trial court’s award of guardianship to the children’s maternal grandfather was reversed and the case remanded to the trial court for a determination of whether Father poses a risk of substantial harm to the children..

In re Guardianship of Taylour L. (Tennessee Court of Appeals, Western Section, January 29, 2015).

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

Knoxville family law attorneysFacts: Husband and Wife divorced after 39 years of marriage.

Prior to their lengthy marriage, Husband served in the Vietnam War. A few months before Wife filed for divorce, Husband received a lump sum award from the Department of Veterans Affairs (“VA”) in the amount of $125,399. The benefits were awarded to Husband as a result of his exposure to Agent Orange during the Vietnam War. The award letter explained that $15,399 of the retroactive benefits were attributable to Husband’s marriage status.

The lump sum VA benefit was automatically deposited into their joint checking account. Husband and Wife subsequently purchased a certificate of deposit in the amount of $110,000 from the VA benefit proceeds. This allowed Wife equal access to the money.

The trial court classified the certificate of deposit opened with Husband’s retroactive VA benefits as marital property as a result of transmutation. The trial court then divided the marital assets.

Husband appealed.

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

Husband argued his retroactive VA benefits were not subject to division by the trial court because they never were transmuted into marital property. He explained he purchased the certificate of deposit solely to ensure that the funds would transfer to Wife in the event of his death. He notes he did not transfer the amount that was attributable to Wife, namely $15,399, because he sought to separate his benefits from Wife’s portion.

Wife responded by noting the VA benefit was used to purchase a joint certificate of deposit that allowed her equal access to the funds, thereby expressing Husband’s intent that the VA benefit be treated as marital property.

Because Tennessee is a “dual property” state, a trial court must identify all of the assets possessed by the divorcing parties as either separate or marital property before dividing the marital estate.

Separate property is not part of the marital estate and is therefore not subject to division.

Separate property can become part of the marital estate due to the parties’ treatment of the separate property. The doctrines of transmutation and commingling provide an avenue whereby separate property can become marital property.

Transmutation occurs when separate property is treated in such a way as to give evidence of an intention that it become marital property. One method of causing transmutation is to purchase property with separate funds but to title it jointly. This may also be done by placing separate property in the names of both spouses. The rationale underlying this doctrines is that dealing with property in this way creates a rebuttable presumption of a gift to the marital estate. This presumption is based also upon the provision in Tennessee’s marital property statutes that property acquired during the marriage is presumed marital. The presumption can be rebutted by evidence of circumstances or communications clearly indicating an intent that the property remain separate.

After reviewing the record, the Court concluded:

While the retroactive VA benefits were awarded for Husband’s service prior to the marriage, Husband used the funds to purchase a joint certificate of deposit with Wife, thereby creating a rebuttable presumption that the certificate of deposit was marital property. Husband argues that he only intended for the funds to transfer to Wife upon his death. However, the certificate of deposit allowed Wife equal access to the money throughout Husband’s lifetime and required both signatures for either party to access the money. Husband simply submitted no evidence to establish that he ever intended to keep the retroactive VA benefits as his separate property during the marriage. On the contrary, Husband’s intent to keep the benefits as his separate property surfaced only after the demise of the marriage. Accordingly, the evidence supports the determination of the trial court that the certificate of deposit purchased with the VA benefits was marital property.

Accordingly, the trial court’s property classification was affirmed.

Phipps v. Phipps (Tennessee Court of Appeals, Eastern Section, January 27, 2015).

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

Posted by: koherston | February 6, 2015

Photo of the Week: Large Bear in the Neighborhood!

My very creative wife made this attachment to her shoes...

My very creative wife made this attachment to her shoes…

...with "bear paws" on the bottom....

…with “bear paws” on the bottom.

They made large bear tracks in the snow.

They made large bear tracks in the snow.

The boy next door set out to locate the mysterious bear...

The boy next door set out to locate the mysterious bear…

...only to find a tiger (my wife) bearing gifts!

…only to find a tiger (my wife) bearing gifts!

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

This recent article by Stacy Barchenger in The Tennessean may be of interest to readers of this blog.

Attorney group seeks to delay divorce notifications

The Tennessee Bar Association is pushing to change when divorce filings become public in order to close what association leaders say could be a dangerous gap.

At issue: When someone files for divorce, the case becomes a public record. That sometimes happens before the responding husband or wife has been notified and served with a protective order, TBA Executive Director Allan Ramsaur said.

Knoxville family law attorneysAttorneys fear the timing of notification could create a risk of retribution, and through the TBA, will ask legislators to consider a law in the coming session to initially make filings secret.

“Respondents find out that their spouse has filed for divorce before safety plans can be put in place or before restraining orders can be served,” TBA President Jonathan Steen said in a statement. “We think a targeted solution to this problem is that information about the filing of divorce should be delayed until the respondent is served.”

Ramsaur said the association of legal professionals, which includes more than 13,000 members, will propose a law exempting divorce filings from public record “until served or 10 days, whichever occurs first.”

More than 29,700 divorces were filed in the fiscal year spanning 2012 and 2013, the most recent year for which data was available, according to the Tennessee Administrative Office of the Courts. Law requires a protective order when each case is filed, and if there is a threat of harm, people can also seek a more stringent restraining order, Ramsaur said.

In some areas, such as Memphis, Ramsaur said, there are newspapers that publish new filings the next day, making the risk of early notification a greater concern. He was not aware of any that do so in Nashville, but said gossip could also allow someone to find out about a filing before being served.

Ramsaur could not recall a specific example of violence, but said the TBA’s family law section honed in on this issue because of the possibility of harm.

Peter Macdonald, a member of the board of the YWCA of Nashville and Middle Tennessee and a retired Kentucky judge, said delaying public notification could be especially valuable if the divorcing couple has a history of domestic violence. Macdonald was not aware of the proposed law until contacted by The Tennessean.

Divorce is pretty much a finality, the relationship is over,” he said. “That’s when most homicides occur.”

Deborah Fisher, director of the Tennessee Coalition for Open Government, said though it was not yet on her radar, the proposed bill could warrant watching.

“Any legislation that seeks to change the public records law or the open meetings act, we would want to track and look at and see how it would impact the public’s right to know,” she said.

Source: Attorney group seeks to delay divorce notifications (The Tennessean, December 28, 2014)

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

Knoxville family law attorneys

Are these DCS case workers and trial lawyers after this opinion was released?

Facts: While Father was incarcerated, the Department of Children’s Services (DCS) petitioned to terminate his parental rights on the statutory ground of abandonment by wanton disregard for the child’s welfare.

The trial court concluded DCS was not required to make reasonable efforts to assist Father regarding reunification with Child because the statutory ground of abandonment by wanton disregard had been proven by clear and convincing evidence.

The trial court went on to find grounds for termination and that termination was in Child’s best interest. Father’s parental rights were terminated.

In a 2-1 decision, a divided Court of Appeals reversed the trial court.

The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Court of Appeals was reversed.

In the courts below, the issue was when DCS was relieved of its duty to make reasonable efforts to reunify families.

On appeal to the Tennessee Supreme Court, however, DCS argued for the first time that Tennessee Code § 37-1-166(g) — which requires DCS to make reasonable efforts to unify the family after a child is removed from the home based on dependency and neglect — is generally not applicable in proceedings to terminate parental rights.

The Tennessee Supreme Court exercised its discretion to address the larger issue of whether DCS is required to prove that it made reasonable efforts under Tennessee Code § 37-1-166 as a precondition to termination of parental rights.

The Supreme Court begins its analysis with a detailed history of the law on termination of parental rights in Tennessee and the statutory references to “reasonable efforts” in both dependency and neglect and termination of parental rights matters.

The Supreme Court concludes that Tennessee Code § 37-1-166(g) imposes a duty on DCS in dependency and neglect proceedings to make reasonable efforts to prevent the removal of children from their homes and to reunify parents and children if removal becomes necessary. This statute does not impose a duty on DCS in termination of parental rights matters.

The only statutory reference to “reasonable efforts” in termination of parental rights matters comes from Tennessee Code § 36-1-113.

Tennessee Code § 36-1-113(c) provides that, in order to obtain termination of the parental rights of a biological parent, a petitioner must prove two elements by clear and convincing evidence: (1) at least one of the listed grounds for termination, and (2) that termination of parental rights is in the child’s best interest.

Tennessee Code §  36-1-113 does not include DCS’s reasonable efforts to reunify as a required element to be established along with grounds and best interest. Rather, reasonable efforts is referenced in one of the factors to be weighed in determining whether termination of parental rights is in the child’s best interest. Specifically, § 36-1-113(i)(2) directs a court to consider whether the parent “has failed to effect a lasting adjustment after reasonable efforts” have been made.

Apart from the reference in one of the best-interest factors, the phrase “reasonable efforts” appears only tangentially in § 36-1-113. The definition of one ground for termination, abandonment by failure to provide a suitable home, mentions reasonable efforts at §§ 36-1-113(g)(l) and -102(1)(A)(ii). In addition, § 36-1-113(h)(2)(C) provides that DCS may elect not to file a petition to terminate parental rights if it has not yet made reasonable efforts to reunify the parent and child. Section 36-1-113 does not otherwise refer to DCS’s obligation to make reasonable efforts to reunify the child with the parent.

As mentioned above, Tennessee Code § 37-1-166(g)(1), found in the dependency and neglect statutes, defines “reasonable efforts” and outlines DCS’s obligation to make reasonable efforts to assist the biological parent in order to reunify the parent with the child. Section 37-1-166 does not explicitly reference the termination statute.

After reviewing the record, the Supreme Court reasoned:

[N]othing in the plain language of Section 36-1-113 indicates that a petitioner in a proceeding to terminate parental rights is in fact required to put on proof of DCS’s reasonable efforts to assist the respondent parent. Rather, the language of the statute indicates only that the trial court is to consider DCS’s reasonable efforts, or the lack thereof, in determining whether termination of the parent’s rights is in the child’s best interest. Likewise, Section 37-1-166, which details DCS’s obligation to make reasonable efforts in a dependency and neglect proceeding, contains no language indicating that proof of reasonable efforts is required in a termination proceeding. In cases in which DCS removes a child from the home, Section 37-1-166 generally directs DCS to make reasonable efforts to reunify the parent with the child unless DCS can show that it is not required to do so. Nothing in Section 37-1-166, however, addresses proof on reasonable efforts in a termination proceeding….

Section 37-1-166 does not apply to “any proceeding,” but rather it applies only in “any proceeding of a juvenile court.” While the juvenile court has exclusive original jurisdiction over dependency and neglect proceedings, circuit and chancery courts have concurrent jurisdiction with the juvenile court in actions to terminate parental rights. Limiting the application of Section 37-1-166 to juvenile court actions indicates legislative intent that it apply only in dependency and neglect actions….

In addition, Section 36-1-113 does not include reasonable efforts in the grounds for termination or otherwise require proof of reasonable efforts as a precondition to termination….

The Legislature’s choice to include reasonable efforts only in the factors to be considered in the best-interest analysis evidences an intent not to make proof of reasonable efforts a precondition to termination of parental rights. This is so even if reasonable efforts to reunify were required in the related dependency and neglect proceedings. We read Sections 37-1-166 and 36-1-113 in pari materia, but we must also respect the clear language of each provision. Accordingly, we overrule the holding [of a previous case to the extent it] required DCS to prove by clear and convincing evidence, as a precondition to obtaining termination of parental rights, that it made reasonable efforts to reunify the family.

In addition to its reliance on the plain language of the statutory scheme, [DCS] argues that it is anomalous to interpret Section 36-1-113 to require DCS to prove reasonable efforts by clear and convincing evidence, but not require similar proof from a private party who files a petition for termination of parental rights, because the same statute applies regardless of whether DCS is the petitioner. We agree. Nothing in the statutes or the legislative history indicates that the Legislature intended to create an additional barrier to permanency for children in termination cases in which DCS is the petitioner. This is further indication that the Legislature did not intend for Section 36-1-113 to be interpreted to require proof of reasonable efforts in a termination proceeding.

For these reasons, we hold that, in a termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent. As with other factual findings made in connection with the best-interest analysis, reasonable efforts must be proven by a preponderance of the evidence, not by clear and convincing evidence. After making the underlying factual findings, the trial court should then consider the combined weight of those facts to determine whether they amount to clear and convincing evidence that termination is in the child’s best interest….

In a given parental termination case, the best-interest factor regarding DCS’s efforts to assist the respondent parent may be determinative, i.e., DCS’s lack of reasonable efforts may weigh heavily enough to persuade the trial court that termination of the parent’s rights is not in the best interest of the subject child. Nevertheless, the extent of DCS’s efforts remains a factor to be weighed in the best-interest analysis, not an essential element that must be proven in order to terminate the parental rights of the respondent parent.

Accordingly, the Tennessee Supreme Court reinstated the trial court’s termination of Father’s parental rights.

K.O.’s Comment: (1) This case represents a substantial change in the law governing termination of parental rights cases initiated by DCS. It is a must-read for lawyers who handle termination of parental rights cases. DCS trial attorneys should raise a glass in honor of the lawyers who represented the Department in this appeal.

(2) The legal analysis for statutory construction upon which this case relies is based on the fallacy that the Legislature has some coherent vision for how these often inter-connected statutes should work. It doesn’t.

(3) Lawyers and judges may understandably be confused by the differing standards of proof inherent in the best-interest analysis, e.g., factual findings regarding reasonable efforts must be proven by a preponderance of the evidence while the “combined weight of those facts” are analyzed under the clear and convincing evidence standard.

(4) This opinion is the first family law opinion written by Justice Kirby since her elevation to the Tennessee Supreme Court. She remains the reigning “World’s Most Awesome Judge” and has been for two years running. Two years is a long time to hold such a prestigious honor. It is time for the other appellate judges to step up their game.

In re Kaliyah S. (Tennessee Supreme Court, January 22, 2015).

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

Posted by: koherston | January 30, 2015

Photo of the Week: Swirling Leaves

Knoxville family law attorneys

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

Posted by: koherston | January 28, 2015

No Duress in Knoxville, Tennessee Divorce: Janoyan v. Janoyan

Facts: During their divorce litigation, Husband and Wife agreed up and signed a marital dissolution agreement (“MDA”) and parenting plan.

Two weeks later, Wife filed a pleading indicating she wanted to rescind her previous agreement to the MDA and parenting plan. Husband subsequently filed a motion to enforce the agreements.

Knoxville family law attorneys

This is what duress looks like

At the hearing, Wife alleged she was under duress when she signed the agreements. Wife claimed financial and emotional pressure caused her to enter into the agreements. At the time the agreements were signed, the parties’ marital home had been sold, and Wife had less than one month to move out of the home and find her own residence. Wife was also unemployed and concerned she had no means of support. Additionally, Wife claimed Husband told her “if she ever had any hope of reconciliation or continuing a relationship, she had to reach an agreement that day.”

The trial court found Wife was not under duress when she entered into the agreements. Specifically, the trial court found:

There is no indication that [Wife’s] decision-making was so unduly influenced by any action of [Husband] so as to practically destroy her free agency and cause her to do an act and make a contract not of her own volition. Indeed, her own testimony was that part of the reason she agreed to this was so that it would be done early and she would be able to avoid the delays associated with going to trial and would not have to be facing financial uncertainty, as she needed to leave the marital residence and purchase her own residence. That hardly sounds like one who is acting not of their own volition but is weighing the circumstances and deciding that: Even though it might be a bad situation, I’m willing to take it.

The trial court entered a judgment of divorce approving the MDA and parenting plan.

Wife appealed.

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

“Duress” is defined as a condition of mind produced by the improper external pressure or influence that practically destroys the free agency of a party, and causes the party to do an act or make a contract not of the party’s own volition, but under such wrongful external pressure.

When determining whether a party experienced duress, the court has to consider the age, sex, intelligence, experience and force of will of the party, the nature of the act, and all the relevant facts and circumstances.

If proven, duress would be sufficient to justify rescission of the MDA.

After reviewing the record, the Court concluded:

Wife claims that Husband compelled her to sign the settlement agreement and MDA because he told her there would be no hope for reconciliation between them if she did not sign the settlement agreement. Although this ultimatum may have put emotional stress on Wife, it does not amount to legal duress.

Additionally, the record does not indicate that the disparity between Husband’s and Wife’s incomes was sufficient to constitute legal duress. Although Wife’s financial situation at the settlement conference certainly could have created a sense of urgency, the pressure was not wrongfully created by Husband to overcome Wife’s will. The record indicates that at the time she signed the MDA, Wife was willing to accept a lower financial settlement in order to avoid extensive divorce proceedings. Her decision to enter into the MDA was a voluntary and calculated one, not one made under improper pressure. Perhaps most importantly, Wife was represented by independent counsel who was capable of explaining the terms of the contract to her.

Accordingly, the trial court was affirmed and the agreements upheld.

K.O.’s Comment: It is worth nothing the MDA contained a common provision requiring an award of attorney’s fees to the prevailing party in an action to enforce the MDA. Pursuant to this provision, the trial court ordered Wife to pay nearly $33,000 to Husband for his attorney’s fees. That attorney fee award was also upheld on appeal.

Janoyan v. Janoyan (Tennessee Court of Appeals, Eastern Section, January 21, 2015).

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

Facts: Mother and Father, who were never married, entered an agreed parenting plan establishing a long-distance parenting schedule because of Mother’s and Children’s moved to Ohio. The agreed parenting plan designated Mother as the primary residential parent.

Knoxville family law attorneyVery shortly thereafter, Father petitioned to change custody on the grounds that the agreed parenting plan had been procured by fraud. Specifically, Father claimed Mother represented in their negotiations that she was working as an “independent contractor.” Father belatedly learned that Mother actually was working as a licensed prostitute in Nevada at the Moonlight Bunny Ranch.

At the hearing, the proof showed the Children were not exposed to Mother’s occupation. Furthermore, by the time of trial, Mother was out of the prostitution business and doing social work in Nevada after having received her master’s degree in social work and her provisional license from the state of Nevada for social work.

The trial court found the was a material change in circumstances for the children because of Mother’s deceit and Mother’s occupation as a prostitute. The trial court further found it was in the Children’s best interest that custody be awarded to Father. Notably, the trial court did not conduct a statutory best interest analysis of any sort.

Mother appealed.

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

When assessing a petition to modify a permanent parenting plan, Tennessee courts must first determine if a material change in circumstances has occurred and then apply the “best interest” factors of Tennessee Code § 36-6-106(a).

A child custody determination is a fact-intensive issue that requires detailed findings of fact and conclusions of law by the trial court.

After reviewing the record below, the Court of Appeals concluded:

This Court has previously held that the General Assembly’s decision to require findings of fact and conclusions of law is not a mere technicality. Instead, the requirement serves the important purpose of facilitating appellate review and promoting the just and speedy resolution of appeals. Without such findings and conclusions, this court is left to wonder on what basis the court reached its ultimate decision….

We decline to overlook the absence of a best interest analysis and search for evidence in the record supporting the Juvenile Court’s decision. Instead, we vacate the Juvenile Court’s judgment and remand this case for the Juvenile Court to enter a permanent parenting plan after considering all relevant factors and making a best interest analysis. We decline at this stage to render any decision regarding whether the Juvenile Court erred in finding a material change in circumstances.

Accordingly, the trial court was reversed and the matter remanded for further hearing.

K.O.’s Comment: For reasons I cannot fathom, the Court chose to include in the opinion the fake name Mother used in her former employment, which makes it very easy to find on the Internet photographs and video of Mother in her former employment. Including this information is wholly unnecessary and, in my opinion, indefensible. It carries the very real possibility of harm to the children in the future if they should ever find this opinion online. Surely this was an oversight. The opinion should be withdrawn and replaced without this information.

Hendricks v. Smith (Tennessee Court of Appeals, Eastern Section, January 8, 2015).

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

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