Facts: Mother and Father, the parents of Son, were divorced in 2001. After the divorce, Father moved to Memphis. The parenting plan provided Son would reside with Mother in Fairview, Tennessee during the school year and with Father in Memphis for eight weeks in the summer. Mother was designated the primary residential parent.

Knoxville divorce lawyersTwelve years later, Father sought to be designated the primary residential parent so Son could live with him in Memphis during the school year, attend Memphis University School (“MUS”), and swim for its team. Over the years, Son had become a nationally-ranked swimmer with a demanding practice schedule. Because of the time commitment required to excel at the sport, Son’s social circle was composed almost entirely of people who were involved in swimming. Son’s current high school did not have a swimming team, and Son’s opportunities to form friendships with his classmates were limited as a result.

The trial court found a material change in circumstance had occurred based on Son’s swimming expertise and the exceptional amount of time he devoted to training coupled with its impact on his social development. The trial court also found it was in Son’s best interest to designate Father as the primary residential parent. While most of the best interest factors favored neither parent, the trial court was greatly impressed by the testimony it heard from the 15-year-old Son about his desire to live with Father and attend MUS. The trial court afforded great weight to Son’s expressed preference, finding it was genuine, long-standing, and based on good reasons.

The trial court designated Father as the primary residential parent and reversed the residential parenting schedule so Son would spin the school year with Father and the summer with Mother.

Mother appealed.

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

A petition to change the primary residential parent requires a two-step analysis, and the petitioner bears the burden of proof in each step. First, the petitioner must prove by a preponderance of the evidence that a material change of circumstance has occurred. Second, the petitioner must show that a change of custody is in the child’s best interest.

Material Change. There is no bright line rule for determining when a change in circumstance is material enough to warrant changing an existing custody arrangement. Instead, when making this determination, courts should consider (1) whether a change has occurred after the entry of the order sought to be modified, (2) whether a change was not known or reasonably anticipated when the order was entered, and (3) whether a change is one that affects a child’s well-being in a meaningful way. Such a change includes circumstances that make the parenting plan no longer in the best interests of the child.

Mother argued the trial court erred in finding a material change of circumstance. After reviewing the record, the Court disagreed, explaining:

The trial court found that a material change in circumstance had occurred based on Son’s athletic development and its impact on his social development. The evidence does not preponderate against this finding. While both parties knew that Son was interested in swimming in 2011, neither party claimed it was reasonable to anticipate the degree to which he would excel in and become devoted to the sport at that time. The testimony at the evidentiary hearing demonstrated that Son practices for swimming nine times per week for several hours at a time. His close friendships are with others who share his devotion to swimming as well as this demanding schedule. Indeed, swimming has become the basis for all of Son’s extracurricular activities and social relationships. His current school, Fairview High School, does not have a swimming team, and Son has not developed a circle of friends there. Both Son and Mother testified that Son spent most of his time swimming and did not interact much with friends in Fairview. Son has developed a circle of friends who attend MUS and are involved in swimming, and he has developed a very strong relationship with his stepmother, who has a background in swimming.

Based on the foregoing, the Court concluded the evidence does not preponderate against the trial court’s finding and, therefore, the trial court’s determination that a material change in circumstance occurred was affirmed.

Child’s Preference. Mother also argued the trial court erred by allowing Son’s preference to control the outcome of the best interests determination.

The preference of a child 12 years or older is one of many factors to be given consideration in determining the child’s best interests. This preference is not controlling on the trial court, and it is error for a trial court to base its decision solely on a child’s preference. There is good reason for this rule. While a child’s expressed preference may reflect legitimate and wise reasons, it may just as easily reflect manipulation by a parent or a successful campaign by one parent to alienate the child from the other parent. However, when the trial court is reasonably satisfied that a child has not been manipulated and the child’s reasons for his preference are not frivolous, it is permissible to give significant weight to the child’s testimony regarding the parent with whom the child wants to live. Furthermore, it is not error for a trial court to state a child’s preference was a “deciding factor” in its decision as long as it clearly weighed other factors and circumstances in reaching its decision.

After examining the record, the Court concluded:

[T]he trial court clearly considered the source of and reasons for Son’s expressed preference as part of a larger inquiry involving all the relevant statutory factors. In its order, the trial court stated it was satisfied that Son genuinely wanted to live in Memphis with Father for good reasons, including his desire to cultivate a group of friends there and to attend a school that promotes swimming. The evidence does not preponderate against the finding that Son’s preference was genuine and based on good reasons.

Both Son and the parties testified that Son had expressed this preference long before the evidentiary hearing took place. In part, Son’s preference was motivated by a desire to participate in a high school swimming team. While MUS has a swim team, Son’s current high school does not. Testimony revealed that there are benefits of being on a high school swim team including comradery, recognition from others, as well as the ability to win swimming awards and break records specific to high school swimming teams….

[T]he evidence does not preponderate against the trial court’s findings that Son’s expressed preference was genuine and based on sound reasons, including the promotion of his athletic and social development. As a result, the trial court did not err in giving significant weight to Son’s expressed preference….

We find that the trial court carefully examined the source of and reasons for Son’s expressed preference and, because it was satisfied that Son’s preference was genuinely his alone and based on good reasons, afforded that preference significant weight. However, the trial court did not base its decision solely on this important factor and instead included it as one of many other considerations. Because the trial court analyzed the reasons for Son’s preference and because that preference was only one of many factors considered, we find that the trial court did not err in its consideration of Son’s expressed preference.

Accordingly, the trial court was affirmed.

K.O.’s Comment: In their briefs, both parties cited the Tennessee Supreme Court decision in Armbrister v. Armbrister for the proposition that proving a material change in circumstance for purposes of changing the primary residential parent, i.e., changing custody, no longer requires a showing that the change was not reasonably foreseeable at the time the parenting plan was entered.

Both parties were wrong.

The issue in Armbrister was a modification of a residential parenting schedule rather than a modification of the designation of the primary residential parent. Because of this, the Armbrister opinion turned on the language of Tennessee Code § 36-6-101(a)(2)(C) rather than Tennessee Code § 36-6-101(a)(2)(B). Different sets of criteria exist for determining whether a material change in circumstances exists for a modification of a residential parenting schedule as compared to the standard that applies for a modification of custody.

To clear up any confusion, the Court in this opinion makes clear that the Tennessee Supreme Court decision in Armbrister, which applied directly to modifications of the residential parenting schedule, does not extend to modifications of the primary residential parent.

Robinson v. Robinson (Tennessee Court of Appeals, Middle Section, March 16, 2015).

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Posted by: koherston | March 27, 2015

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Knoxville grandparent visitation lawyersFacts: Mother and Father are the divorced parents of Child. Father was convicted of stalking mother and has no visitation with Child. Father has been in and out of jail throughout Child’s life.

Mother and Child resided with Paternal Grandparents for 12 months after Child’s birth. Father was incarcerated during much of this time. Even after Mother moved from Paternal Grandparents’ home, Grandmother would babysit Child three days a week. Paternal Grandparents enjoyed frequent visits with Child.

Paternal Grandparents filed a petition for grandparent visitation that alleging they had no overnight visitation with Child for over one year. Grandmother testified she frequently requested visitation with Child, but that Mother always responded that Child had plans.

Mother testified that Paternal Grandparents called infrequently to request visitation, but that when they did request visitation, Mother and Child’s schedule could not accommodate the visitation. In addition, Mother testified that Paternal Grandparents only requested overnight visitation with Child and when Mother would suggest visitation at a park or restaurant, Paternal Grandparents declined.

In their petition for grandparent visitation, Paternal Grandparents requested visitation for one weekend each month plus visitation during summer, spring and fall breaks.

Mother responded that the Paternal Grandparents’ petition was merely a subterfuge to allow Father to obtain visitation with Child. Mother further stated she never opposed visitation solely with Paternal Grandparents.

At trial, Mother testified there have been no adverse effects to Child since Child has been spending less time with Paternal Grandparents.

The trial court found Paternal Grandparents had established that Child had resided with them for 12 months prior to the cessation of the relationship by Mother. As such, the trial court ruled Paternal Grandparents were entitled to a rebuttable presumption that denial of visitation may result in irreparable harm to Child. The trial court concluded no evidence was presented that rebutted the presumption. The trial court further found continued visitation with Paternal Grandparents was in Child’s best interests. The trial court awarded Paternal Grandparents visitation with Child one Friday evening every month and one continuous five day period during the summer.

Mother appealed.

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

The decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal and state constitutions, explicitly prohibit any judicial assumption that grandparents/grandchild relationships always benefit the child, as contrary to the parents’ fundamental right to raise their children as they see fit.

To avoid such an assumption, the Tennessee Constitution and Tennessee’s grandparent visitation statute require a grandparents seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Both the federal Constitution and Tennessee’s grandparent visitation statute require the petitioning grandparent to show visitation was opposed or denied in order for the court to consider ordering visitation. A finding that the parent did not allow petitioning grandparents visitation whenever they requested it does not amount to a finding that visitation was opposed.

In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interests, and the court must accord special weight to the parent’s determinations.

After reviewing the record, the Court explained:

A thorough review of the record reveals . . . the trial court made no specific finding that Mother opposed visitation in this case….

The simple fact that there has been some deprivation of visitation is insufficient to support a finding that a custodial parent opposed visitation. Instead, the law is clear that the custodial parent is entitled to place reasonable limitations on a grandparent’s visitation with a child, as a reasonable limitations cannot be considered opposition to visitation. The issue of whether Mother offered [Paternal] Grandparents visitation with reasonable limitations, so as to defeat [Paternal] Grandparents’ claim that Mother opposed visitation, was a source of considerable dispute in the trial on this cause. This issue was left unresolved by the trial court’s order. The question remains, however, as to whether the trial court’s failure to make specific findings regarding this dispute is fatal to appellate review. We conclude that it is….

[T]he question of whether Mother, in fact, offered [Paternal] Grandparents [] visitation, whether that offer was reasonable, and whether [Paternal] Grandparents declined that visitation, must be resolved in order to determine whether Mother’s actions can be fairly characterized as opposing visitation, as defined by Tennessee case law.

Accordingly, the trial court was reversed and the case remanded to the trial court for further proceedings.

K.O.’s Comment: The opinion in Uselton v. Walton is particularly instructive on the issue of parental opposition to grandparent visitation. It is a must-read for lawyers litigating grandparent visitation cases in Tennessee.

Manning v. Manning (Tennessee Court of Appeals, Middle Section, March 10, 2015).

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Knoxville divorce and family law attorneysFacts: Mother was the unmarried parent of Child. Following the birth, Mother and Child lived with Grandparents in their home for over two years. Grandparents loved the child and they shared a close relationship.

One day Mother told Grandparents she was going shopping. When she left, she took Child with her. It was the last time Grandparents saw Child.

One month earlier, Mother began a relationship with a new boyfriend. After she left, Mother sent a text message to Grandparents saying she was not taking Child from them and she planned to be gone only one week.

After nearly a month, Grandparents had been unable to locate Mother and Child. They were worried about Child’s safety.

Mother’s boyfriend’s mother informed Grandparents that, according to her son, Child was no longer with the couple and that Mother may have given Child up for adoption.

Days later, Grandparents filed an emergency petition in juvenile court seeking custody of Child. At the initial hearing in that proceeding, they learned for the first time that Mother had already consented to the adoption of Child.

Grandparents then filed a petition in Chancery Court challenging Mother’s voluntary surrender of parental rights that precipitated the adoption. Grandparents alleged that awarding custody of Child to them was in Child’s best interest. They requested an order removing custody from the adoptive parents.

The trial court held Grandparents must prove by clear and convincing evidence that the removal of Child from the adoptive parents was in Child’s best interest. The trial court found Grandparents had not satisfied this burden of proof. In other words, the trial court held Grandparents did not have to prove the surrender or adoption was not in Child’s best interest; instead, they had to prove, by clear and convincing evidence, the removal of Child from the adoptive parents was in Child’s best interest.

Grandparents appealed.

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

In the context of adoptions involving a surrender or parental consent, Tennessee’s adoption laws permit biological parents to surrender their parental rights to a child in favor of a particular person or agency. The statutes allow a biological parent to surrender a child directly to a prospective adoptive parent chosen by the biological parent.

Although a biological parent has the right to make the initial choice of his or her child’s adoptive parent, the biological parent’s right to choose child’s adoptive parent is not absolute. In filing an adoption petition, the prospective adoptive parent must allege, among other things, that he or she is a fit person to have custody of the child and that it is in the best interest of the child for the adoption to occur. The trial court must then find the adoption is in the child’s best interest. Thus, the biological parent’s choice of an adoptive parent is always subject to the trial court’s determination that the proposed adoption is in the child’s best interests.

Tennessee’s adoption statutes contemplate different types of intervention by interested parties.

In cases involving a child who is the subject of a surrender, parental consent, or guardianship order, Tennessee’s adoption laws — specifically Tennessee Code § 36-1-111(u)(2) — authorize any person to intervene in a surrender or adoption proceeding for the purpose of presenting evidence regarding the best interests of the child.

After a trial, if the trial court finds by clear and convincing evidence that such action is in the best interests of the child, the trial court may enter an order removing the child from the prospective adoptive parents. In that event, the trial court may award custody of the child to any person.

Tennessee Code § 36-1-111(v)(4) provides in relevant part:

Upon the final hearing, and based upon clear and convincing evidence that the action is in the best interests of the child, the court shall have jurisdiction to enter an order removing the child from the prospective adoptive parents . . . and may award temporary legal custody giving any person . . . the care and custody of the child….

Grandparents argued the trial court erred in making them prove the surrender and proposed adoption of Child was not in Child’s best interest. Instead, they argued the trial court should have conducted a straightforward “best interest” analysis comparing their fitness to that of the adoptive parents. Grandparents’ argument turned on the meaning of the word “action” in the statute quoted above. Grandparents argued the statute placed the burden on them to show their complaint (i.e., “action”) and relief requested was in Child’s best interest and, therefore, that they need only show that awarding custody to them is in Child’s best interest.

The Court rejected this argument, explaining:

It is clear to us that the word “action” refers to the removal of the child from the prospective adoptive parents. In construing the provisions of Tennessee Code § 36-1-111(v)(4), we note that the introductory clause “based upon clear and convincing evidence that the action is in the best interests of the child” contemplates not the complaint or the cause of action alleged in that document, but rather the “order removing the child from the prospective adoptive parents.” That is the possible “action” granted to the trial court by statute. Thus, as the trial court correctly concluded, the burden was on Grandparents to show, by clear and convincing evidence, that it was in the best interest of the Child to remove her from the custody of the prospective adoptive parents.

As the trial court emphasized, Grandparents, despite their close relationship with the Child, are not on equal footing with [the adoptive parents] with respect to custody of the Child. As it stands, as a result of Mother’s choice to surrender the Child to [the adoptive parents] for adoption, Grandparents, as interested third parties, are saddled with the burden of proving that it is best for the Child to be removed from the prospective parents Mother has chosen for the Child. Stated differently, the law does not contemplate that Grandparents can easily “undo” Mother’s decision by simply asserting that it is best for the Child to be placed with them.

The trial court articulated and correctly applied the appropriate burden of proof with respect to Grandparents’ complaint. We reject Grandparents’ argument to the contrary….

[Mother] chose [the adoptive parents] to raise [Child]. It is harsh, but [Mother] made a second choice — she deliberately declined to select her own family, the family to which she was most familiar. [Mother] chose not to select the couple who raised her. The law in Tennessee allows a biological parent to offer the parent’s child to another family. The law does not require the biological parent to include or consult with extended family regarding this choice. The law requires the Court to give deference to the biological mother’s choice, unless by clear and convincing evidence the best interests of the child are fulfilled by disrupting this choice.

Accordingly, the trial court was affirmed.

K.O.’s Comment: This case illustrates well the painful emotional issues inherent in family law matters and how those emotions often must yield to the law.

In re R.S.M. (Tennessee Court of Appeals, Eastern Section, February 27, 2015).

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Posted by: koherston | March 20, 2015

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Knoxville family law attorneysFacts: Mother and Father divorced in 2010. Mother was named the primary residential parent and was awarded 223 days of parenting time to Father’s 142 days.

Two years later, Mother married an officer in the United States Navy. Mother’s husband received orders requiring him to move to Virginia.

Mother notified Father of her desire to relocate with Child to Virginia. Father filed a petition in opposition to the proposed relocation and requested a change of custody.

The main reason Father opposed Mother’s relocation was because of an incident of sexual abuse by Child’s stepbrother.

The proof at trial showed that Mother took appropriate steps to protect Child once she learned of the abuse. Mother and her husband fully implemented the safety plan Child’s therapist recommended — part of which required extra supervision of the children when Child and the stepbrother were together — and there have been no further incidents of abuse.

The trial court concluded Father had failed to prove that relocating to Virginia with Child would pose a specific threat to Child that outweighed the threat of harm from a change in custody. Thus, the trial court approved Mother’s request to relocate with Child.

The trial court entered a parenting plan awarding Mother 253 days of parenting time and 112 days for Father. Holidays were shared, and Father was awarded one weekend per month in Virginia during the school year. Child was to spend the majority of the summer with Father in Tennessee, with Mother to have one week at the beginning and end of the summer. During Child’s summer vacation with Father, Mother was awarded two four-day periods with Child in Tennessee.

Notably, the transportation costs incurred when Child flies to Tennessee to visit Father were allocated to Mother. The trial court explained its rationale for imposing Child’s transportation costs to Tennessee on Mother by noting that (1) Mother is the one who wanted to move, (2) Mother can afford to pay these costs, and (3) Child will not suffer any detriment as a result.

Mother appealed.

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

The trial court made Mother responsible for the transportation costs except for the nine weekends during the school year when Father may visit Child in Virginia. Mother argued the trial court improperly deviated downward from the presumptive child support amount Father should have been ordered to pay under the child support guidelines by requiring her to use a large portion of Father’s child support payments to pay for Father’s visitation.

The parental relocation statute, Tennessee Code § 36-6-108(f), addresses transportation costs and provides:

The court shall assess the costs of transporting the child for visitation, and determine whether the deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.

The child support guidelines that specifically address deviations for parenting time-related travel expenses as follows:

If parenting time-related travel expenses are substantial due to the distance between the parents, the tribunal may order the allocation of such costs by deviation from the [presumptive child support obligation], taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.

Deviation from the child support guidelines is within the discretion of the trial court and must serve the best interest of the child. Before deviating from the presumptive child support amount, trial courts are required to consider “all available income of the parents” and are required to find that an amount of child support other than the amount calculated under the Guidelines is reasonably necessary to provide for the needs of the child.

After reviewing the record, the Court concluded:

We disagree with Mother that the trial court deviated downward to lower her child support order when it made her responsible for [Child’s] travel expenses to Tennessee. Instead, we believe the court simply followed the statute’s direction to “assess the costs of transporting the child for visitation” and chose not to deviate from the guidelines after considering the relevant factors in this case. Mother was permitted to relocate with [Child] to Virginia, as she requested, and the trial court did not abuse its discretion by requiring her to share Father’s cost of exercising his visitation with [Child] once he was there.

Mother also argued the trial court erred in denying her request for an award of attorney’s fees.

Tennessee Code § 36-6-108(i) gives the trial court discretion to award attorney’s fees and other litigation expenses to either parent in a relocation matter. In this case, the trial court exercised its discretion not to award Mother her fees. The trial court commented:

[T]he reason we’re here . . . is because the mother married a gentleman and at the time she knew full well . . . that she was going to take the child away from the natural father. Just by virtue of the fact of marrying the man, she knew that was a consequence, so then to come back into court and request attorney’s fees is absurd. It is her fault that we’re here and we need to clearly understand that.

The Court rejected the trial court’s reasoning but affirmed the result, stating:

We disagree with the trial court’s reasoning that Mother was “absurd” to request her attorney’s fees under the facts of this case. Mother had every right to marry whomever she chose and to follow her husband to a different state when his work required him to relocate. We disagree with the trial court’s use of the word “fault” in its judgment. However, the statute does not grant Mother the right, as the prevailing party, to recover her fees, either. The trial court found Father had legitimate concerns regarding Mother’s relocation and [Child’s] continued safety….

[W]e cannot say under the facts of this case that the court abused its discretion in denying Mother’s request for her fees.

Accordingly, the trial court’s judgment was affirmed.

Dahl v. Young (Tennessee Court of Appeals, Middle Section, February 24, 2015).

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Knoxville child custody lawyersFacts: Mother and Father are the unmarried parents of Child.

Father petitioned for parenting time with Child.

After hearing the proof at trial, the trial court awarded Father parenting time of alternating weekends and three hours every Tuesday night. Holiday time was to be shared and Father was awarded one week of continuous parenting time during the summer in the first year, two weeks the following year, and three weeks each year thereafter.

Notably, the trial court did not make specific findings of fact or state the statutory factors upon which it relied in setting the parenting time schedule. In its oral ruling, the court stated only:

Let me tell you why I am doing this, sir. You got to — you go to work at six o’clock. I hate when a child has to get up at 4:30 or whatever or — whatever and get over there, and you don’t have any time with the baby.

The trial court further observed that “both parties are honest, caring and loving people…. Father is a good man and a good father and the Mother is a good lady and a good mother.”

Father appealed.

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

Father argued the parenting schedule failed to provide him the maximum amount of parenting time. He suggested the evidentiary record “supports a more balanced parenting schedule.”

Tennessee Code §§ 36-6-106 and 36-6-404 specify factors a court must consider in making a child custody arrangement and in designing a permanent parenting plan. Tennessee Code § 36-6-106(a) requires that any such determination be made in the best interest of the child and provides:

In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation in the life of the child consistent with the factors set forth in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.

Tennessee Code § 36-6-404(b) requires that each parenting plan include a residential schedule which, among other things, “encourage[s] each parent to maintain a loving, stable and nurturing relationship with the child.”

After reviewing the record, the Court concluded:

In the absence of [specific findings of fact], we have reviewed the testimony . . . and conclude that the evidence preponderates against the parenting time schedule adopted by the court. The reason given by the court is, standing alone, insufficient justification to limit Father’s parenting time, particularly at times when Father is not at work. In addition, we fail to see any justification for limiting Father’s continuous parenting time during the summer months in the manner ordered.

We therefore reverse the residential parenting schedule and remand the case for the court to adopt a schedule that affords Father more parenting time, considering that Tennessee Code § 36-6-106(a) favors a parenting schedule that gives each parent the maximum amount of time in accordance with the child’s best interests.

Accordingly, the trial court’s parenting schedule was reversed and the matter remanded for a schedule that gives Father more parenting time.

K.O.’s Comment: I hesitate to read too much into this case because the lack of factual findings or any discussion of the statutory factors by the trial court can distinguish this case from others. Nonetheless, family law litigators should take note that a fairly common parenting schedule has been reversed for running afoul of the “maximum participation” provision in Tennessee Code § 36-6-106(a). This case may be helpful to those advocating for more parenting time at the trial court level.

In re Blaklyn M. (Tennessee Court of Appeals, Middle Section, February 24, 2015).

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Posted by: koherston | March 13, 2015

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Posted by: koherston | March 11, 2015

Herston on Tennessee Family Law is Five Years Old!

Knoxville divorce lawyersIt just dawned on me that I’ve been blogging on Tennessee family law for five years now.

My first post was on February 18, 2010. You can read it here.

Hopefully the quality of the posts has improved since those early days.

It’s been fun watching the readership grow from one (me) to to the tens, to the hundreds, and now the thousands. The blog is followed by lawyers and judges throughout Tennessee and beyond. Posts are viewed all over the world and shared on social media every day.

I hope to keep this blog going for at least another five years. Although it requires a significant time commitment, I think it is a worthwhile endeavor for me personally, for my colleagues in the family law bar, and for laypeople interested in Tennessee divorce and family law issues.

If nothing else, I hope this blog sheds some light on a challenging (and changing) area of Tennessee law.

Here’s to another five years!

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Knoxville divorce lawyersOn February 12, 2015, the Tennessee Supreme Court adopted an amendment to the ethics rules that will ban written, electronic, telephonic, or in-person solicitation of potential divorce clients within 30 days of the filing of a divorce.

The Tennessee Supreme Court added the following Comment 5[A] to RPC 7.3:

RPC 7.3(b)(3) includes a prohibition against any solicitation of a prospective client within thirty (30) days of the filing of a complaint for divorce or legal separation involving that person, if a significant motive for the solicitation is the lawyer’s pecuniary gain. Some divorce or legal separation cases involve either an alleged history of domestic violence or a potential for domestic violence. In such cases, a defendant spouse’s receipt of a lawyer’s solicitation prior to being served with the complaint can increase the risk of a violent confrontation between the parties before the statutory injunction’s take effect. See Tennessee Code § 36-4-106(d) (2014) (imposing specified temporary injunctions, including “[a]n injunction restraining both parties from harassing, threatening, assaulting or abusing the other,” that take effect “[u]pon the filing of a petition for divorce or legal separation, and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent”) (emphasis added). The prohibition in RPC 7.3(b)(3) against any solicitation within thirty (30) days of the filing of a complaint for divorce or legal separation is intended to reduce any such risk and to allow the plaintiff spouse in such cases to take appropriate steps to seek shelter, an order of protection, and or any other relief that might be available.

The Tennessee Bar Association strongly objected to the proposal, citing serious reservations about the constitutionality of the ban.

The amendment to Rule 8, RPC 7.3, is effective May 1, 2015.

In re Rule 8, RPC 7.3(b)(3) (Tennessee Supreme Court, February 12, 2015).

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Posted by: koherston | March 6, 2015

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Knoxville divorce lawyersFacts: Mother and Father divorced in 2003. Father had regular, unsupervised parenting time with their children.

In 2006, Mother petitioned to modify the parenting plan and temporarily suspend Father’s parenting time because Mother alleged Father was addicted to drugs and alcohol. She also requested recovery of her reasonable attorney’s fees and expenses.

After discovery had been completed and the case scheduled to proceed to trial, Mother’s legal expenses totaled $16,277. During discovery, Father admitted abusing alcohol and drugs. Father proposed a settlement that was rejected by Mother.

Mother changed lawyers. The trial was subsequently continued at various times at the request of both parties.

Additional discovery took place, during which Father admitted he continued to abuse alcohol and drugs. Despite these admissions, Mother continued to incur substantial private investigator fees to survey Father and report on his alcohol use. The parties then entered into a settlement agreement, which was similar to the original settlement offer previously rejected by Mother.

Mother filed her petition for attorney’s fees and expenses. At this time, Mother’s legal expenses totaled $49,594.

Despite the settlement, Mother again incurred fees related to the use of a private investigator. This time, the surveillance was not just limited to Father, and also to Father’s counsel, ostensibly to show that Father’s counsel improperly asked to we schedule a deposition.

The parties eventually went before a Special Master for hearing on the issue of attorney’s fees and expenses. The total requested by Mother at this time was $354,872. The Special Master found that Mother’s request was excessive. Mother was awarded $124,824 in attorney’s fees and expenses. Both parties appealed to the trial court.

The trial court further reduced Mother’s award of fees and expenses to $42,277. The trial court commented:

There has been an ongoing conflict between not only the parties to this case but also between Mother’s counsel and opposing counsel and the guardian ad litem. This Court believes that this unfortunate conflict has caused Mother’s counsel to use every litigation arrow in his quiver in pursuit of Mother’s goals. Mother can certainly engage in such a strategy but she must recognize that she cannot expect the other side to pay for it.

The trial court further commented that the “vast majority” of the fees and expenses incurred by Mother were neither reasonable nor necessary “for purposes of requiring the opposing party to pay them in their entirety.” Thus, the total amount awarded for Mother’s fees and expenses was a $42,277.

Mother appealed.

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

Typically, Tennessee courts follow the American rule regarding attorney’s fees and require litigants to pay their own attorney’s fees unless there is a statute or contractual agreement providing otherwise. Tennessee Code § 36-5-103(c) provides a statutory mechanism for the recovery of attorney’s fees in certain situations. Section 36-5-103(c), in relevant part, provides:

[T]he spouse or other person to whom custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change in custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

Thus, Tennessee Code § 36-5-103(c) allows a party to recover his or her reasonable and necessary attorney’s fees in cases involving child support modification and custody.

The appropriate factors Tennessee courts must consider when fixing a reasonable attorney’s fee are:

1. The time devoted to performing the legal service.
2. The time limitations imposed by the circumstances.
3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
4. The fee customarily charged in the locality for similar legal services.
5. The amount involved and the results obtained.
6. The experience, reputation, and ability of the lawyer performing the legal service.

After reviewing the record, the Court reasoned:

Mother points to no specific errors in the trial court’s judgment other than the reduction in the award attributable to non-attorneys and associates. Taking the trial court’s ruling in the light most favorable to it, we discern no abuse of discretion in the trial court’s decision. First, the trial court pointed to specific facts justifying the reduction in fees. For example, [Mother’s counsel] wrote a letter to Father’s counsel indicating that he would be prepared for trial shortly after Mother retained him, presumably based on Father’s condemnatory admissions to his substance abuse. Despite the fact that Mother’s original attorney believed that the matter was nearing conclusion, an opinion that [Mother’s counsel] initially shared, Mother and [Mother’s counsel] proceeded to incur hundreds of thousands of dollars of additional fees and expenses. Furthermore, even though Father continued to admit his alcohol and drug use, Mother hired private investigators to follow Father.

In addition, although we have no doubt of [Mother’s counsel’s] excellent representation, the results obtained by [Mother’s counsel] are similar to the settlement offer made by Father’s prior counsel in 2006…. While similar results obtained at trial are not always indicative that a fee is unreasonable, this fact does tend to show that the parties’ positions were not so diametrically opposed as to require hundreds of thousands of dollars of legal fees to reach an agreement.

Accordingly, the Court held the trial court did not abuse its discretion in declining Mother’s request for reimbursement of over $350,000 in legal expenses.

K.O.’s Comment: You know it is not going to end well when the Court begins its analysis with this sentence: “As an initial matter, we must first discuss the deficiencies in Mother’s brief.” *gulp*

After discussing specific deficiencies, the Court adds, “[T]his Court might be inclined to overlook the deficiencies in Mother’s brief [] had the brief contained appropriate citations to authority.” After discussing how “no relevant legal authority is cited” as to various issues raised by Mother on appeal, the Court says:

Again, Mother cites no legal authority . . . nor constructs any legal argument as to why this issue must be reversed. [W]e remind litigants that judges are not like pigs, hunting for truffles buried in briefs. It is not the function of the appellate court to research and construct the parties’ arguments.


The Court went on to award Father “frivolous appeal damages” for his attorney’s fees incurred responding to the issues the Court determined were waived by Mother “due to deficient briefing.”

Coleman v. Coleman (Tennessee Court of Appeals, Western Section, February 4, 2015).

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

Posted by: koherston | March 2, 2015

Tennessee Divorce and Family Law Legislative Preview 2015

Knoxville divorce and family law attorneysThe Tennessee Legislature has begun its 2015 session. Several bills affecting family law have been introduced. Below is a brief summary of some pending family law legislation.

Senate Bill 101/House Bill 90: This would allow a child support obligor and the obligee to enter into a written settlement to forgive accrued principal and interest on a child support arrearage with the approval of the court. It requires the court to find the forgiveness of the child support arrearage is in the best interests of the child. This bill is part of Governor Haslam’s legislative package.

K.O.’s Comment: I would love someone to explain a scenario where it would it be in the child’s best interest to forego financial support to which it is entitled.

Senate Bill 161/House Bill 609: This bill requires the premarital value of retirement, pensions, and other employment benefits together with the marital appreciation be treated as separate property for purposes of division of property in a divorce. It further provides the court should use “any reasonably reliable method” to determine the amount of postmarital appreciation of premarital accounts, regardless of whether contributions were made to the account and contributions have appreciated in value during the marriage.

Senate Bill 400: This is the *sigh* “EGG and SPERM Act,” which stands for Egg Guidelines and Governance and Sperm Provider Effective Record Management Act. First, please stop with the forced acronyms. Second, the bill defines various terms as they relate to egg and sperm donation, and assisted reproductive technology (ART). It requires oocyte collection agencies, sperm banks, and ART programs to report certain information to department of health. It also requires the establishment of collection and reporting rules, and the maintenance of contact information for oocyte collection agencies, sperm banks, and ART programs.

Senate Bill 809/House Bill 950: This bill establishes certain disclosure and information and data reporting requirements regarding assisted reproductive technologies.

K.O.’s Comment: These bills could be the Legislature’s initial response to the Tennessee Supreme Court’s pleas for action in last year’s surrogacy case In re Baby. They still don’t address the issues presented in In re Baby but perhaps they’ll get around to that someday after they establish the Bible as the State’s official book, establish a military assault weapon as the State’s official gun, authorize exploding targets, eliminate “no-go zones,” and solve other imaginary problems.

Senate Bill 440/House Bill 445: This bill removes a parent’s right to to revoke the voluntary surrender of the parent’s child for adoption. At present, a parent has 10 days to revoke a voluntary surrender. The bill would allow a judge to revoke or invalidate a voluntary surrender if the judge determines by clear and convincing evidence that the surrender involved duress, fraud, or intentional misrepresentation or if revocation is in the child’s best interests.

K.O. Comments: After certain decisions are made, Tennessee law provides a “grace period” whereby people can change their minds, e.g., contracts to join a gym/health club can be revoked within three days. Why should a parent’s decision to voluntarily surrender a child for adoption not be afforded the same consideration? The 10-day period is already extremely short in order to provide stability for the adoptive family. While I realize those 10 days are filled with anxiety, the permanent cessation of the parent-child relationship is too consequential to be treated like just any other ordinary decision. I believe this bill should be defeated.

Senate Bill 668/House Bill 829: This bill requires that where an order of protection or restraining order is granted against an offender arrested for stalking, aggravated stalking, or a domestic violence offender prior to the offender’s release from custody, the offender must be served with the order prior to release.

Senate Bill 812/House Bill 960: This bill would allow a divorce court to divide marital property without regard to marital fault (which is the current law) or, in its discretion, with regard to marital fault.

K.O.’s Comment: It should be self-evident that injecting fault considerations into the equitable division of marital property is a terrible idea. Marital fault can be considered in the subsequent alimony analysis where, if appropriate, the court can award marital assets to a party as alimony in solido.

Senate Bill 1206/House Bill 565: This bill clarifies the legislative intent of the foster care statute is to place a child in a permanent home at an early date if an early return to the child’s parents is not appropriate or possible under the current statute.

Senate Bill 1231/House Bill 737: This bill abolishes the common law “doctrine of necessaries,” thereby establishing that no spouse shall be liable for the other spouse’s debt arising solely by reason of the marriage.

K.O.’s Comment: The doctrine provides that, for example, a provider of medical services can recover a debt under the necessaries doctrine by proving that (1) it provided medical services to the receiving spouse, (2) the medical services were necessary for the receiving spouse’s health and well-being, (3) the person from whom recovery is sought was married to the receiving spouse when the services were provided, and (4) payment for the services has not been made. I predict the medical service providers will kill this bill.

Senate Bill 1393/House Bill 1369: This bill requires that the post-adoption services provided by the Department of Children’s Services (e.g., counseling, crisis intervention, support groups, respite services, case management services, etc.) be offered to all families of adopted children and biological families of adopted children, regardless of whether the children were adopted through DCS.

K.O.’s Comment: Please forgive me for doubting the Legislature’s willingness to increase DCS’s budget to expand these services to all adoptive families regardless of their financial means.

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

Posted by: koherston | February 27, 2015

Photo of the Week: Snowflakes


Knoxville divorce lawyers

Knoxville family law attorneys

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.


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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