Facts: Husband and Wife divorced after 20 years of marriage. They have two children.

One issue at trial was the parties’ respective incomes for the purpose of determining child support.

Husband alleged Wife receives rent from her sister, who lives with Wife. However, Wife testified unequivocally at trial that she receives no rent from her sister because of her sister’s health problems.

There is no other proof in the record regarding whether Wife receives $500 per month in rental income from her sister.

When determining Wife’s income for child support purposes, the trial court found Wife receives $500 in rental income each month.

Wife appealed.

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

On appeal, Husband cited no proof in the record supporting the proposition that Wife receives $500 per month in rental income from her sister.

Because child support decisions retain an element of discretion, appellate courts review them using the deferential “abuse of discretion” standard. This standard is a review-constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court’s decision will be reversed. A trial court’s discretionary decision will be upheld as long as it is not clearly unreasonable and reasonable minds can disagree about its correctness. Discretionary decisions must, however, take the applicable law and the relevant facts into account. Accordingly, a trial court will be found to have “abused its discretion” when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party.

After reviewing the record, the Court stated:

This Court does indeed extend strong deference to trial courts’ credibility determinations, but here we are confronted with a specific finding of fact for which there is no evidence in the record which we can discern. That the Trial Court did not believe Wife when she denied receiving rent from her sister is not proof that Wife received $500 per month in rent from her sister. The mere allegation by Husband does not establish this as fact. Therefore, we reverse the Trial Court in its adding $500 per month in rental income to Wife’s income for child support purposes. Our holding on this issue requires that this case be remanded to the Trial Court for a new calculation of child support, this time excluding the $500 per month in alleged rental income from Wife’s sister for which there simply is no competent evidence in the record….

We reverse the Trial Court in its adding $500 in monthly rental income to Wife’s income for child support purposes as the evidence does not support this finding. We remand this case to the Trial Court for a new child support calculation.

Accordingly, the trial court’s determination as to Wife’s income for child support purposes was reversed.

Culver v. Culver (Tennessee Court of Appeals, Eastern Section, June 26, 2015).

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

Posted by: koherston | July 3, 2015

Photo of the Week: Wild Boar Encounter

I was hiking in the Smokies one day when I stumbled upon a family of wild boars who hadn’t detected my presence. This is the look I got when I stepped on a small stick and they discovered I was standing there. After a brief stare down (that felt like a long one), they ran away with their piglets in the opposite direction.

Wild Boar

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

Facts: Mother and Father are the parents of Child. They were divorced in 2012. Mother was named the primary residential parent with 256 days of parenting time. Father received 109 days of parenting time.

In 2013, Father petitioned to modify the parenting schedule to provide for equal time, i.e., 182.5 days to each parent. Father alleged a variety of material changes of circumstances, including that Mother had denied him the right to pick Child up from daycare and exercise parenting time with Child while Mother was working. In his petition, Father specifically stated he was not seeking to modify child support.

Tennessee child supportAfter a trial, the trial court granted Father’s petition, commenting that “[t]he Court views that the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

The trial court also modified the child support obligation.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court (2-1 on the child support modification).

Maximum participation and third party caregivers. The trial court stated its belief that “the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

Mother argued this finding is “unsupported by any statute or case law: it is not the law in Tennessee, nor should it be.”

Tennessee Code Annotated § 36-6-106(a) states that, “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 possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10) [i.e., the best interest factors], the location of the residences of the parents, the child’s need for stability and all other relevant factors.”

Like the trial court, the unanimous Court rejected Mother’s argument, reasoning:

At the time of the trial, the parties’ child was in daycare. Mother argued that it was best for the child to have a set schedule and for the Father not to visit or remove her from daycare when his schedule allowed. Father agreed that when the child started kindergarten, she would need to remain at the school during school hours, but given his schedule and the increased distance between his home and Mother’s new home, he would visit with the child at daycare whenever he could. The trial court agreed that this would foster the relationship between the Father and the child and that the child’s need for stability was not undermined by Father’s occasional visits to the daycare. Under Tennessee Code Annotated § 36-6-106(a), and from the totality of the circumstances, we conclude that the trial court did not err in allowing Father to visit the child while she is in daycare or with a third party caregiver.

Modification of child support. Mother argued the fact that Father did not specifically petition for modification of child support precluded the trial court from addressing that issue.

Tennessee Code Annotated § 36-5-101(f)(1) requires only that a party file an “action for modification” in order to trigger review of child support.

Tennessee Code Annotated § 36-6-405 specifically addresses “modifying permanent parenting plans.” The statute provides that, “[i]n a proceeding for a modification of a permanent parenting plan, a proposed parenting plan shall be filed and served with the petition for modification and with the response to the petition for modification.” Likewise, § 36-6-402(3) defines a “permanent parenting plan,” in relevant part, to mean “a written plan . . . including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support.” Once the trial court enters a parenting plan, it must also enter a child support worksheet.

In a 2-1 decision, the Majority concluded:

Based upon: (1) the requirement that a proposed parenting plan form must be filed with a petition for modification of a permanent parenting plan; (2) the fact that the proposed form requires disclosure of the parties’ incomes; (3) the plan requires disclosure of a proposed child support amount; and (4) the fact that the trial court is required to include a child support worksheet with its parenting plan, we conclude that the filing of a petition to modify child visitation and/or the child’s residential parenting schedule triggers a review of the parents’ respective child support obligations….

[I]n light of Father’s timely submission of a parenting plan form, we conclude that Mother had notice that a modification of child support was possible (and, in fact, was the trial court’s duty to establish upon modification of parenting time)….

Mother was on notice that the issue of modification of child support was before the court based upon Father’s petition to modify visitation and the income disclosures contained in the attached proposed parenting form.

Accordingly, the trial court’s judgment was affirmed.

Dissent: Judge Stafford concurred on the third party caregiver issue but dissented on the child support modification, writing:

I must [] dissent from the majority’s holding that the trial court did not err in modifying Mother’s child support obligation, where no pleadings were filed notifying Mother that the issue would be tried, no opportunity to conduct discovery on the issue, and no opportunity to present evidence to the trial court concerning modification of child support….

Tennessee Rule and Regulation 1240-02-04-.01 specifically outlines the situations where the Child Support Guidelines “shall be applied” to establish or modify a child support award. These situations include divorce or separate maintenance actions, paternity determinations, actions involving orders for custody of child, “any other actions in which the provision of support for children is established by law,” and actions involving interstate enforcement of custody awards involving the previous outlined actions. Notably missing from the list of actions is an action to modify a residential parenting schedule….

Because Mother was clearly not given sufficient notice that a modification of child support was at issue and she was given no opportunity to respond to the trial court’s sua sponte decision to modify child support, I must conclude that the trial court proceedings failed to comply with due process. Accordingly, even assuming arguendo, that the issue of child support modification was triggered by the substantial change in the parties’ residential schedule, I would vacate the trial court’s judgment and remand for additional discovery and an evidentiary hearing on this issue. For this reason, I must respectfully dissent in part from the majority Opinion.

K.O.’s Comment: (1) Mother’s argument that the trial court’s third party caregiver finding is unsupported by any statute or case law is flat wrong. As the Court noted here, the trial court’s finding is consistent with the “maximum participation” provision of § 36-6-106(a), which was itself simply a restatement of the longstanding policy set forth in § 36-6-401. Moreover, it is entirely consistent with case law that preceded the “maximum participation” provision, e.g., Miller v. Miller, which hold that a child’s time with a parent should not be diminished in favor of time with third parties.

(2) Judge Stafford’s dissent raises valid concerns about due process, particularly in in light of Father’s affirmative statement in his petition that he was not seeking to modify child support and Mother’s reasonable reliance on that representation. I agree with Judge Stafford that the case should have been remanded for additional discovery related to the child support modification, which discovery was requested by Mother and denied by the trial court.

Leonardo v. Leonardo (Tennessee Court of Appeals, Middle Section, June 18, 2015).

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

On Friday, the U.S. Supreme Court reversed the decision of the Sixth Circuit Court of Appeals and declared Tennessee’s ban on same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution.

My recap of the Sixth Circuit opinion can be found here.

The Supreme Court’s decision was 5-4, with Justice Kennedy writing for the Majority and being joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. The Court writes:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them it’s respect….

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

In other words, the Court says the Constitution is a “living” document intentionally written in broad and flexible terms such that contemporaneous society should be considered when interpreting key constitutional provisions.

The Court holds the Fourteenth Amendment compels the conclusion that same-sex couples may exercise the right to marry. The rationale for this holding is fourfold:

1. The Court’s relevant precedents hold the right to personal choice regarding marriage is inherent in the concept of individual autonomy;

2. The Court’s relevant precedents hold the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;

3. Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and

4. The Court’s relevant precedents and the Nation’s traditions make clear that marriage is a keystone of our social order, noting the government bestows benefits to married couples on issues like taxation, inheritance and property rights, rules of intestate succession, spousal privilege in the law of evidence, hospital access, medical decisionmaking authority, adoption rights, the rights and benefits of survivors, birth and death certificates, professional ethics rules, campaign-finance restrictions, workers’ compensation benefits, health insurance, and child custody, support, and visitation rules.

On the third point above, the Court states:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also sever the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

Supporting the concept of a dynamic, “living” Constitution, the Court says:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era….

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.

Regarding the Fourteenth Amendment analysis, the Court concludes:

Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.

Addressing the dissenters’ argument that this fundamental right should be left to the democratic process, the Court responds:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights…. Thus, when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decisionmaking….

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act…. This is why fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.

Supreme court gay marriageIn other words, the very reason we have a Constitution is that some rights are too important to leave up to the democratic process. Moreover, same-sex couples should not have to wait to have their rights recognized. The children of same-sex couples are growing up without their parents being married.

The Court also notes “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

The Court concludes with what will surely be the most-quoted language from the opinion:

The Court, in this decision, holds that same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold — and it now does hold – that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may end your even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respected so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They asked for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.

The four dissenting Justices — Roberts, Scalia, Thomas, and Alito — each wrote separate dissenting opinions but everyone except Alito joined the dissent authored by Chief Justice Roberts. The main thrust of Roberts’s dissent is the philosophical disagreement over constitutional interpretation, i.e., “living” Constitution (a.k.a. loose constructionism) versus original intent (a.k.a. strict constructionism or originalism). Roberts writes:

The majority [] explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy….”

The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny then this right.” Whatever force that belief may have as a matter of moral philosophy, it has no [] basis in the Constitution….

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution injuring over all of recorded history cannot inhibit judicial policymaking, what can? … The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now….

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Justice Scalia embarrasses himself with a dissenting opinion not worthy of a Supreme Court justice. He characterizes the decision as a “judicial Putsch.” He says the Court’s reasoning “has descended from the discipline that legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” If he ever joined an opinion with such reasoning, he says he “would hide my head in a bag.”

Justice Thomas, himself an originalist, does no better, saying the concept of “liberty” in the Fourteenth Amendment refers “only to freedom from physical restraint,” which at least is (arguably) intellectually consistent with his belief in originalism. Later, he goes completely off the rails when he says “[s]laves did not lose their dignity (anymore than a lost their humanity) because the government allowed them to be enslaved… The government cannot bestow dignity, and it cannot take it away.” What planet is he on?

Justice Alito highlights the interpretive divide on the Court with this passage:

I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps a remediable corruption of our legal culture’s conception of constitutional interpretation.

K.O.’s Comment: (1) The 5-4 philosophical divide between the “living” Constitution justices and the “original intent” justices shows (a) how close we are to upending decades of constitutional law we now take for granted, e.g., the right to privacy, and (b) how much federal elections matter. A Republican president in 2016 is likely to appoint more originalists who will be confirmed by Republican senators and opposed by Democratic senators. Likewise, a Democratic president in 2016 is likely to appoint more “living” constitutionalists who will be confirmed by Democratic senators and opposed by Republican senators. Elections matter. Voter turnout matters.

(2) One curious aspect of this ruling is the Court did not spell out what constitutional test it was applying to a claim of marriage equality. The Sixth Circuit opinion (and those of the other Circuits who considered the issue) contained detailed analysis of “rational basis” review under the Due Process and Equal Protection Clauses. Although the Court relied on precedent that engaged in those analyses, the Court itself did not engage in such analysis like the inferior courts did.

(3) Tennessee lawyers should expect to see substantive changes in Tennessee family law, particularly in the areas of adoption and parental rights. Terrible cases like In re Hayden C. G-J. will thankfully be no more. In addition to the full panoply of parental rights, married same-sex couples will now be entitled to financial benefits such as Social Security survivor and disability benefits, joint tax returns, spousal health insurance rights, estate planning rights — the list goes on and on.

It is an exciting time to be a family law attorney in Tennessee.

(4) Check out Stephen Colbert’s lighthearted take on the opinion:

Tennessee flag

Tanco v. Haslam (United States Supreme Court, June 26, 2015).

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

Posted by: koherston | June 26, 2015

Photo of the Week: Portrait of a Wasp


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

Facts: Father and Mother were not in a relationship. Father testified they were not a regular couple. According to Father “It was just, you know, no couple things – just we were having sex. You know what I’m saying.”

Father violated probation and was re-incarcerated in May 2007. Mother gave birth to Child in January 2008.

While Father admitted he understood that “when you’re having unprotected sex, then people can get pregnant,” he maintained he “didn’t know she was pregnant until after the fact.” Father claimed he didn’t learn of Mother’s pregnancy until two or three days after Child was born. When he was specifically asked whether he had any knowledge that Mother was pregnant during her pregnancy, father replied, “Sir, I didn’t [have] no knowledge until after she had the baby.”

The trial court terminated Father’s parental rights on the grounds of wanton disregard for the welfare of the child.

Father appealed.

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

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines abandonment as follows:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

The term “child” is defined in Tennessee Code Annotated § 36-1-102(13) as “any person or persons under eighteen (18) years of age.” In the context of “wanton disregard for the welfare of the child,” Tennessee courts have extended the definition of “child” to include the period of pregnancy.

This case presents an issue of first impression in Tennessee, namely whether a Father can exhibit a wanton disregard for the welfare of the child if he does not know the child exists. The Court concluded he cannot, reasoning:

Logically, a person cannot disregard or display indifference about someone whom he does not know exists. In our opinion, while the statutory reference to “the child” can mean a child in utero, the wanton disregard language of Tennessee Code Annotated § 36-1-102(1)(A)(iv) must be construed to require that the father has knowledge of the child at the time his actions constituting wanton disregard are taken. In this case, the guardian ad litem did not prove that Father had such knowledge.

Accordingly, the trial court’s termination of Father’s parental rights was reversed.

In re Anthony R. (Tennessee Court of Appeals, Middle Section, June 9, 2015).

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

Facts: This 47-page (!!!) opinion begins with the following statement: “This is an appeal from an extremely contentious divorce.”

The parties married in 1994 and had one child together. In July 2013, they were divorced. Among other things, the trial court found Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse that amount to Wife.

The trial court also entered a permanent parenting plan designating Wife as the primary residential parent and provided a residential parenting schedule.

Husband appealed those rulings, among others.

non-partyPrior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plants growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests.

The trial court modified the parenting plan and incorporated Wife’s proposed restrictions.

Husband filed a separate appeal from that order.

The two appeals were consolidated and heard together. Although virtually every possible issue was challenged on appeal, I think the only issues are worth mentioning (1) dissipation, and (2) conditioning Husband’s parenting time based on his girlfriend’s compliance with the parenting plan.

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

Dissipation. A party’s dissipation of marital or separate property is one of many factors a trial court may take into consideration in making an equitable division of a marital estate. While there is no statutory definition of dissipation, the term typically refers to the use of marital property for a purpose unrelated to the marriage, often to “hide, deplete, or divert” marital property after a marriage is irretrievably broken. The concept of dissipation is based on waste. In determining whether dissipation has occurred, the court must distinguish between dissipation and discretionary spending. While discretionary spending may be ill-advised, it is typical of the parties’ expenditures throughout the course of the marriage. Expenditures that constitute dissipation, on the other hand, are so far removed from normal expenditures that they can be characterized as wasteful or self-serving.

In determining whether dissipation occurred, Tennessee courts should consider the following: (1) whether the evidence presented at trial supports the alleged purpose of the various expenditures, and if so, (2) whether the alleged purpose equates to dissipation under the circumstances. The first prong is an objective test. To satisfy this test, the dissipating spouse can bring forward evidence, such as receipts, vouchers, claims, or other similar evidence that independently support the purpose as alleged. The second prong requires the court to make an equitable determination based upon a number of factors. Those factors include: (1) the typicality of the expenditure to this marriage; (2) the benefactor of the expenditure, namely, whether it primarily benefited the marriage or primarily benefited the sole dissipating spouse; (3) the proximity of the expenditure to the breakdown of the marital relationship; (4) the amount of the expenditure.

The evidentiary record contained copies of 41 checks Husband wrote to his girlfriend totaling $15,633.06. Husband was ordered to repay all of those monies to Wife. The Court reversed that ruling, reasoning:

Notwithstanding our conclusion that the evidence supports the trial court’s finding that the checks Husband wrote to [his girlfriend] constituted dissipation, we note that the trial court ordered Husband to reimburse Wife for the full amount of the checks. The trial court’s award ignores the fact that Husband also had an interest in the money. Here, because the trial court divided the parties’ marital assets equally, we conclude that Husband is entitled to one-half of the assets he dissipated. Therefore, we modify the amount of the trial court’s dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated assets.

Conditioning parenting time on actions of non-party. Husband argued the trial court erred in conditioning in his parenting time on his girlfriend’s compliance with the modified parenting plan. He argued that because his girlfriend is not a party to the lawsuit and, therefore, the trial court lacked jurisdiction to order her to submit to drug tests, it erred in requiring her compliance as a condition of his ability to exercise parenting time.

In a previous Tennessee case, Marlow v. Parkinson, 236 S.W.3d 744 (Tenn. Ct. App. 2007), the trial court enjoined the father from allowing the stepmother to interfere with the mother’s parenting obligations. On appeal, the Court reversed, stating the better practice would’ve been to join the stepmother as a party and issue an injunction against her. The Marlow Court noted that while many cases impose an obligation on a parent to police the activities of others while in the home where the child resides or in other locations when a parent is present with the child, the injunctions in those cases are tempered by the fact that the parent must have the ability to prevent the act that the trial court has prohibited.

Relying on this reasoning, the Court concluded:

[T]he trial court has essentially ordered Husband to police [his girlfriend’s] activities and require her compliance with the [parenting plan]. There is no evidence in the record that Husband has the authority or the ability to prevent [his girlfriend] from contacting the child. Likewise, there is no evidence that Husband has the authority or ability to require [his girlfriend] to submit to the drug tests or to prevent her from engaging in activities outside of his presence that would cause her to fail the drug tests. The better practice would have been to join [Husband’s girlfriend] as a party and issue an injunction against her. Thus, we conclude that the trial court erred in imposing restrictions on Husband that conditioned his parenting time on [his girlfriend’s] actions. On remand, the trial court is instructed to modify the [parenting plan] so that Husband’s parenting time is not conditioned on the actions of a non-party.

Accordingly, the trial court’s rulings on those two issues were reversed.

K.O.’s Comment: The appeal wasn’t all good news for Husband. As I mentioned above, there were many issues raised on appeal. One issue involved whether the girlfriend growing marijuana on Husband’s property constituted a material change sufficient to reconsider the parenting schedule. At the time of the underlying divorce trial in July 2013, the trial court found Husband’s girlfriend used marijuana. In the subsequent modification proceeding, Husband argued the discovery that his girlfriend grew her own marijuana rather than purchasing it was not a material change. Then the Court notes:

Perhaps more boldly, Husband contends that even if discovery of the marijuana plant is evidence of a material change in circumstance, is evidence of a positive change because [his girlfriend] is no longer buying drugs from drug dealers.

Surprisingly, that beautiful argument didn’t get very far with the Court, which concluded: “Our review of Husband’s testimony supports the trial court’s finding that Husband ‘has completely lost touch with reality.'”

Holdsworth v. Holdsworth (Tennessee Court of Appeals, Western Section, June 3, 2015).

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

Posted by: koherston | June 19, 2015

Photo of the Week: Sunrise in the Smokies


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

Posted by: koherston | June 17, 2015

Prenups: Not just for the wealthy

This article by Elizabeth Renter in USA Today may be of interest to readers of this blog.

Prenups: Not just for the wealthy

Talking about money is never easy, especially with someone you love and especially when you’re talking about keeping it for yourself.

While we commonly think of prenuptial agreements as contracts for the soon-to-wed wealthy, you don’t always enter a marriage with riches, or guarantees that the bliss will last. And even if differences or difficulties don’t arise, it might not be a bad idea to have such a plan in place.

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce. They may touch on things like spousal support (alimony), ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

“Since getting into the business and seeing what can happen to family relationships in a divorce, I’m not sure there is an instance where a prenup would be a bad thing,” says financial adviser Jeffery Cortright, president of Phase 2 Investment Advisers in Jenison, Mich.

While prenuptial agreements are normally thought of as a matter of assets, there are many other concerns that can be addressed in the contract, such as: the costs of raising a child, caring for a parent or going back to school; shopping habits and matters like credit card debt; the costs and proceeds of business ownership; tax liabilities; spousal and child support from previous relationships; and even how death or disability could affect the finances of your family.

A prenup, Cortright says, isn’t only for the wealthy, though having significant assets are certainly cause for such an agreement. Even when couples have less than they need or eventually want, the effort that goes into a prenuptial agreement can have benefits far beyond the financial.

When a prenup is a must-have

There are certain situations when a prenuptial agreement is a no-brainer. If one person is entering the marriage with significantly more money or assets than the other, or if one or both individuals have family money or inheritances, common knowledge says that a prenup is necessary.

But Cortright also suggests considering a prenup when couples plan on keeping parts of their finances separate. Many couples opt to have separate bank accounts and one joint account for paying household bills, for instance.

“It is important to honor the prenup in continuing separate maintenance of the accounts once married, however, because anything moved to joint ownership will be difficult to maintain accounting for access and growth or depletion,” says Cortright.

In other words, if assets (like money in the bank) are mixed, accounting for increases or losses in the event of divorce could get messy.

Why all couples may want to consider a prenup

Prenups may be the stuff of the wealthy, but perhaps they shouldn’t be. Settling on the terms of a prenuptial agreement takes uncomfortable discussions and ultimately a greater transparency between mates. These difficult talks about money can uncover things that could be disastrous if put off until several years into the marriage.

Arguments about money are a top predictor of divorce, according to a study from Kansas State University. No matter how much you make or how much debt you have, the researchers found, these arguments last longer, take longer to recover from, and include some of the harshest language.

“When a couple is ‘evenly yoked’ financially, having a prenup can help determine if there are any differences in money attitude,” Cortright says. “When one is a significant saver and the other a significant spender, it may be better to spell out the issues that could arise from those differences beforehand.”

Children can also present justification for a prenup. If one spouse enters the marriage with a child from a previous relationship, the prenup can stipulate financial responsibilities when it comes to the costs of raising a child. The same goes if one spouse is a caretaker for an aging parent.

For the most productive and civil pre-marital money conversations, a professional may be able to help.

“Meet with a non-biased financial professional — a fiduciary adviser would be best — and a couples counselor for coping with the transition to married life,” suggests Cortright. “Each meeting has the potential to show greater depth of your connection with your soon-to-be spouse.”

Although talking about money may be difficult, the conversations often pay off. The wooing and honeymoon phase of courtship can conceal potential problem areas like differing financial philosophies. Uncovering these differences could bring couples closer together when it matters most and lessen the chances of financial arguments and misunderstandings down the road.

Source: Prenups: Not just for the wealthy (USA Today, December 28, 2014).

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

dissipationFacts: Husband and Wife divorced after approximately 25 years of marriage.

Wife presented evidence at trial that, during the four years the parties were separated, Husband deposited $1,131,738 into his accounts. Husband presented evidence that his expenses totaled $959,144 during that time. Thus, the sum of $172,594 was not accounted for.

Husband testified he had no “hidden money” and he had “given [Wife] every wage statement, checking account, credit card statement, [and] investment account.” Wife acknowledged receiving those documents from Husband and said she had reviewed each document.

The trial court found Husband did not dissipate the missing $172,594. The trial court made the following findings in its oral ruling from the bench:

This issue of dissipation has been bothersome to the Court. There are funds that I’m satisfied have not been accounted for. But on the one hand, there’s so much income coming in here and being used for legitimate purposes that I can’t find that [Husband] has willfully done anything that would be considered wasteful during the pendency of this divorce.

And that is, as has been pointed out, the concept of dissipation is based on the idea of waste. Can’t find that there’s anything in the proof that would support that he’s wasted any of their assets.

There is some question about where a big chunk of this money has gone, a sizable chunk, but I can’t find that there’s any proof that would support that it has been used for some purpose unrelated to the marriage and that it was used in a way for intentional or purposeful misconduct….

Wife appealed.

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

In dividing marital property, Tennessee courts must consider whether either party has dissipated any of the marital assets. Dissipation of assets requires a showing of intentional, purposeful, and wasteful conduct.

The burden of proof in showing dissipation is on the party making the allegation that marital funds have been dissipated.

A party alleging dissipation cannot meet his or her burden simply by arguing that “since he or she does not know how the money was spent, dissipation must have occurred.”

Courts must also differentiate between dissipation and discretionary spending. Courts must distinguish between what marital expenditures are wasteful and self-serving and those which may be ill-advised but not so far removed from “normal” expenditures occurring previously within the marital relationship to render them destructive.

After the party alleging dissipation establishes a prima facie case that marital funds have been dissipated, the burden shifts to the party who spent the money to present evidence sufficient to show that the challenged expenditures were appropriate.

After reviewing the record, the Court stated:

[O]n the record presented we see no need to alter the burden placed upon Wife to prove that Husband dissipated marital funds. Husband produced all information he had available, which Wife acknowledged that she received, and Husband was subjected to cross-examination on the same. The court implicitly found the any unaccounted for funds were used for purposes related to the marriage and for the children and not for purposeful or intentional misconduct; significantly, the court did not find that Husband had done anything that would be considered wasteful…. [T]he absence of an explanation for absent funds does not establish dissipation.

The record does not preponderate against the court’s determination that the money was used primarily for familial purposes and that no dissipation occurred by either party.

Accordingly, the trial court’s ruling was affirmed.

Pair v. Pair (Tennessee Court of Appeals, Middle Section, May 29, 2015).

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

Posted by: koherston | June 12, 2015

Photo of the Week: Synchronous Fireflies at Elkmont

Synchronous Fireflies

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

Facts: Mother and Father are the parents of Child.

After they married, Mother discovered Father had a serious drinking problem. After several discussions, rehabilitation facilities, and warnings concerning Father’s addiction, Mother relocated with Child to New York to be near her family.

Several months later, the parties began divorce proceedings.

Father testified Mother should be responsible for payment of his travel expenses to visit Child because she decided to move to New York with Child; in the alternative, he testified the parties should equally split the cost of transportation.

The trial court designated Mother as the primary residential parent and awarded Father 80 days of parenting time per year, which amounted to one weekend per month with extended time during the summer and winter holiday. Father was ordered to pay child support in the amount of $697 per month. Mother was ordered to pay all costs associated with transporting Child to and from Tennessee for Father’s parenting time. Specifically, the trial court stated:

Although the Court understands that Mother moved out of the State of Tennessee using a very common-sense analysis, the Court still has to enter the analysis that she chose to have a child in the State of Tennessee and that she is bound to this state for that purpose. The Court does not begrudge Mother from moving and the Court finds that Mother did not make the wrong decision in moving. The Court finds that Mother acted in a way that she thought was appropriate to benefit the child. If a party moves out of the jurisdiction of this Court, it is generally accepted that the party moving will be responsible for the transportation of the child back to the state….

Mother appealed.

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

Mother argued the cost of transporting Child for visitation will exceed her annual award of child support. She contended she moved for Child’s benefit, that Father’s income is far greater than Mother’s, and both parties testified at trial that an equitable solution to the transportation expenses would be for each party to pay one-half of those expenses.

Assigning travel expenses for visitation is an issue on which the relative financial resources of the parties may be considered. Trial courts are vested with broad discretion in making determinations regarding transportation.

After reviewing the record, the Court concluded:

The trial court found that Father’s annual income totaled $75,000 based on his employment, and imputed an annual income of $50,000 to Mother based on her education, ability to secure a job, and the money donated from her relatives. Based on the relative financial status of the parties, the fact that both parents recommended to the court that they equally share the costs of transporting the child to facilitate Father’s parenting time, and realizing that requiring Mother to pay all costs of transportation will significantly deplete, if not exceed, the annual award of child support, which creates an unjust result upon Mother, … we modify the parenting plan to the extent that the parties shall share equally the costs of transporting the child.

Accordingly, the trial court’s ruling was reversed and modified to allocate the transportation expenses one-half to each party.

Keown v. Keown (Tennessee Court of Appeals, Middle Section, May 29, 2015).

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

Posted by: koherston | June 8, 2015

Facebook and Divorce

This story by WFTS News in Tampa Bay may be of interest to readers of this blog.

“Till death do us part,” unless Facebook causes you to divorce first

Logging onto Facebook numerous times daily has become a common routine for many people.

“There’s so much conversation going back and forth on Facebook,” St. Petersburg resident Janet Landt said.

For married couples, some of that conversation could lead to divorce.

“I can see where a lot of people would get themselves in trouble,” Landt said.

New research from Lake Legal, a law firm in the UK, shows Facebook is being cited in a third of all divorces.

“The very best evidence comes from Facebook,” divorce attorney Howard Iken said.

Iken is an attorney for Ayo and Iken Law Firm in Tampa Bay. He said he has seen a rise in cases using Facebook as a reason for divorce.

“I would say 30 to 40 percent of the cases have some sort of Facebook involvement,” Iken said.

In most cases infidelity is the main driver behind divorces and split-ups. With most people having smartphones loaded with social media apps like Facebook, it makes it easier for a spouse or a significant other to cheat even when they’re right next to each other.

“People multi-task,” Iken said. “People can be in close proximity and doing things that are completely unacceptable and completely inconsistent with being married.”

Things like getting back in touch with an old flame.

“It’s giving people the courage, the initiative, and the motivation to move forward with something else,” Iken said.

Iken also said Facebook may be the smoking gun needed in divorce cases.

“I personally have done some cases where I’ve submitted very thick books containing 100 percent Facebook posts to court, and a lot of the times it proves the exact point we’re trying to make in the case,” Iken said.

So next time you log in, just remember, what you do in the online fantasy world could have a very real effect on your home life and marriage.

Source: “Till death do us part,” unless Facebook causes you to divorce first (WFTS News, January 21, 2015).

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

Posted by: koherston | June 5, 2015

Photo of the Week: There’s Always One in Every Group


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

Facts: When Mother and Father divorced, Mother was designated the custodial parent of their two children and Father was awarded visitation. Father was ordered to pay child support of $350 per month.

Almost immediately, the parties began exercising equal parenting time via alternating weeks. They agreed to cut Father’s child support obligation in half because they were equally dividing parenting time, but never obtained a court order approving the child support modification.

Shortly thereafter, Mother moved to Nashville. The parties’ son moved in with Father and their daughter continue to live primarily with Mother. From October 2003 through December 2009, Father paid no child support, nor did he file a petition to modify child support.

In December 2009, the parties’ son moved to Nashville and began living with Mother. In January 2011, Father resumed paying child support of $433 per month.

Mother petition for contempt and modify child support. She alleged a child support arrearage of $52,956, comprised of $29,350 in unpaid child support plus interest in the amount of $23,606.

Father alleged that he made child support payments directly to the parties’ son in the amount of $725 per month through December 2009. Father alleged these direct payments to the parties’ son were for his housing, food, clothing, transportation, healthcare, and education.

The trial court gave Father a $250 monthly credit for “necessaries” during the 76 month period when the parties’ son lived primarily with Father. Applying this credit, the trial court awarded Mother child support arrears in the amount of $23,983.

Mother appealed.

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

A child support order is a judgment, enforceable in the same manner as any other judgment issued by a court of law. Tennessee Code Annotated § 36-5-101(f)(1) provides:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state, and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed…. If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support.

Thus, once child support payments become due, they cannot be altered, reduced, or forgiven by Tennessee courts.

Although a trial court may not retroactively modify a parent’s support obligation, numerous Tennessee appellate court decisions grant trial courts the authority to offset child support arrears based on the obligor’s expenditures to provide necessaries for the child.

In order to maintain a successful claim for necessaries, the child support obligor must prove: (1) that the child needed the particular goods or services that were provided, (2) that the obligee had a legal obligation to provide the goods or services, (3) that the obligee failed to provide the goods or services, and (4) the actual cost of these goods or services.

The rationale is that a credit against the a child support arrearage is not a retroactive modification of support but is given in recognition that the obligor parent provided the support the court ordered in the first place.

After reviewing the record, the Court reasoned:

Mother further argues that Father did not prove that Mother had a legal obligation to provide necessaries for son. However, the original Divorce and Judgment clearly states that “the parties shall enjoy joint legal custody of the parties’ minor children with [Mother] having physical custody of the parties’ minor children.” Moreover, in Tennessee, children have a right of support from both parents, who are equally and jointly charged with their care, nurture, welfare, education and support. Parents have a duty to support their children until the children reach the age of majority or graduate from high school, whichever occurs later. Under Tennessee law, Mother has a legal obligation to support her son, and Mother’s testimony clearly reflects the parties’ agreement for each to provide support and necessaries for the child in his or her custody….

[A]ny credit for necessaries sounds in contract and must be commenced within six years after the necessaries were provided…. Because Mother’s petition to modify support was filed in April 2013, Father is time-barred from receiving any credit for necessaries prior to April 2007. The trial court credited Father $250 per month for 76 months beginning in October 2003 and ending in January 2010. Because Father is not entitled to receive a credit prior to April 2007, we vacate the award and remand to the trial court to make a fresh determination of the arrearages from April 2007 forward.

Accordingly, the trial court’s judgment was reversed and the matter remanded for reconsideration.

K.O.’s Comment: By my calculations, this decision will increase the principal balance of Father’s arrearage by $10,250.

Martin v. Martin (Tennessee Court of Appeals, Western Section, May 20, 2015). In a

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

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