Posted by: koherston | January 30, 2015

Photo of the Week: Swirling Leaves

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Posted by: koherston | January 28, 2015

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

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

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

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This is what duress looks like

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

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

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

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

Wife appealed.

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

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

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

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

After reviewing the record, the Court concluded:

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

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

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

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

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

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

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

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

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

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

Mother appealed.

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

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

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

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

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

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

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

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

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

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

Posted by: koherston | January 23, 2015

Photo of the Week: Buck Photobomb

Another photographer and I were photographing a big buck one day. We were apparently in the buck’s way so he solved that problem by walking between us. I was able to capture this photo of my friend during this encounter.

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Facts: Mother and Father divorced and agreed to Mother being the primary residential parent with Father having 115 days of parenting time.

After the divorce, Mother was allowed to relocate to Wisconsin. As a result of Mother’s relocation, a new parenting schedule was agreed to that, among other provisions, required Mother to transport the children to Tennessee to see Father at the beginning of the spring break holiday and the summer holiday each year.

Knoxville divorce lawyersMother did not bring the children to visit with Father during his 2013 spring break and summer vacation parenting time. In February 2013, the child welfare agency in Wisconsin began investigating allegations of abuse and neglect against Father. One of the agencies social workers recommended that the children’s visitation with Father be suspended until the investigation was complete. Based on this letter and her fears of sending the children to be with Father, Mother did not bring the children to visit Father over the spring break holiday.

The investigation by the child welfare agency in Wisconsin resulted in no findings against Father. Still, one of the children told a counselor of his continued fear that Father would touch him inappropriately. Soon thereafter, Mother moved for restraining orders in Wisconsin, seeking to enjoin Father from having contact with the children.

The Wisconsin court granted Mother’s application for temporary restraining orders and set the matter for hearing. Pursuant to the restraining orders, Father was ordered to avoid contact with the children.

Two days later, Father filed a petition in Tennessee requesting that Mother be found guilty of two counts of criminal contempt for failing to bring the children to Tennessee for his parenting time during the spring break and summer holidays.

Mother testified that it had never been her intention to disobey the court order. Under the circumstances, she said she did what she thought was the best thing to do in order to protect the children. Because of the Wisconsin restraining orders (which were entered a few days after Father’s summer parenting time was ordered to begin), Mother testified she believed she was not allowed to take the children to visit Father in Tennessee.

The trial court found Mother guilty of two counts of criminal contempt for violating its order with respect to Father’s spring break and summer visitation. Mother was sentenced to seven days in jail but the sentence was suspended for all but two days.

Mother appealed.

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

Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law. To establish a criminal contempt claim based on a party’s failure to comply with a court order, four elements must be established: (1) the order alleged to have been violated must be lawful; (2) the order alleged to have been violated must be clear, specific, and unambiguous; (3) the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and (4) the person’s violation of the order must be willful.

Although willfulness in the context of a civil contempt proceeding is identified by acts that are the product of free will rather than coercion, in the criminal context, a willful act is one undertaken for a bad purpose.

After reviewing the record, the Court of Appeals reasoned:

In this case, there is no dispute that Mother violated the order of the Davidson County Circuit Court. She did not bring the children to visit Father during their spring break, and she failed to transport the children to Nashville for Father’s summer visitation. The evidence adduced at trial, however, does not support the conclusion that Mother acted with a bad purpose.

With respect to the spring break period, it is important to emphasize that Mother had received a letter from [the Wisconsin child welfare agency] immediately prior to spring break recommending that Father’s visitation be suspended. During the contempt hearing, Mother testified that she did not send the children to visit Father because she thought she was doing the best thing she could do in light of the information she had received. She testified that she had feared for the safety of the children and stated that it had never been her intention to disobey any order.

Mother’s testimony indicates that she did not intend to flaunt the orders of the Davidson County court. Rather, it merely reflects that she had concerns about sending the children to be with Father in light of the recommendations made by the [Wisconsin child welfare agency]. Although in the future we would certainly direct Mother to secure relief from the courts before unilaterally deviating from the mandated parenting schedule, the evidence in this case is not indicative of a bad purpose….

With respect to the summer visitation period, . . . Father was subject to no-contact orders during the pendency of his summer visitation. Mother’s reliance on these orders is not indicative of a bad purpose.

Accordingly, the trial court’s order finding Mother in criminal contempt was reversed.

K.O.’s Comment: It is worth noting that even if the Tennessee court loses jurisdiction under the UCCJEA to modify custody, it can retain jurisdiction to enforce its order through contempt. For example, in Helig v. Heilig, the Western Section of the Court of Appeals held that even if the Tennessee court no longer had jurisdiction to modify a child custody order, it could still enforce the order in a contempt proceeding when no other court had assumed jurisdiction to enter a contrary order.

Miller v. Miller (Tennessee Court of Appeals, Middle Section, January 7, 2015).

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

Knoxville family law attorneysFacts: Mother and Father divorced after 12 years of marriage.

The proof at trial showed Mother received eight separate gifts of money from her parents over a seven month period after the parties’ separation. The combined value of the gifts was $5,010.

When determining child support, the trial court did not include the gifts from Mother’s parents when determining Mother’s gross income for child support purposes. Instead, the trial court attributed to Mother a gross monthly income of $400.

Father appealed.

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

The statutes and regulations governing child support are intended to assure that children receive support reasonably consistent with their parent or parents’ financial resources. Courts are required to use the child support guidelines developed by the Tennessee Department of Human Services to promote both efficient child support proceedings and dependable, consistent child support awards.

The child support guidelines provide that gross income “shall include all income from any source,” including “[g]ifts that consist of cash or other liquid instruments, or which can be converted to cash.”

Pursuant to the child support guidelines, a court may impute income “[i]f a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed.” Courts should increase an underemployed parent’s gross income to an amount that reflects the parent’s income potential or earning capacity based upon his or her educational level and previous work experience.

When discussing the trial court’s award of alimony to Mother, the Court of Appeals determined Mother’s average monthly income to be $1019.26.

After reviewing the record, the Court of Appeals commented:

It is apparent that the [trial] court did not consider Mother’s gifts in its determination of her monthly gross income as required by [the child support guidelines]…. As evidenced of our earlier discussion of Mother’s income [where the Court determined Mother’s average monthly income to be $1019.26], the financial gifts she received from her parents contribute to her monthly income…. Consequently, we vacate the award of child support and remanded the case for redetermination of the parties’ respective child support obligations.

Accordingly, the trial court’s ruling as to Mother’s gross monthly income for child support purposes was reversed and remanded for recalculation.

K.O.’s Comment: The gifts Mother received from her parents after the parties separated were sporadic and of wildly varying amounts. For example, her parents gave her $120 in April and over 23 times that amount ($2831) in May. Is this issue as clear as the opinion suggests? Consider Velez v. Velez, which holds it is improper to consider in the obligor’s income sporadic bonuses that are not guaranteed in the future because doing so is too speculative. Or Vivien v. Campbell, which says that while non-wage income such as inheritance, lottery winnings, etc., can be included in an obligor’s income, the court should look to the dependability of its continued receipt. Vivien says courts should be wary of increasing child support based on possible income that is merely speculative, instead focusing on income regularly received by the obligor. Does Mother have a viable argument on remand?

Howell v. Howell (Tennessee Court of Appeals, Middle Section, December 30, 2014).

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

Posted by: koherston | January 16, 2015

Photo of the Week: Elk in the Smokies

Great Smoky Mountains National Park

Great Smoky Mountains National Park

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Knoxville family law attorneysFacts: in 2010, Mother sought assistance in caring for Child after Mother lost her job. She signed a power of attorney and authorization of temporary guardianship stating Child would reside with another couple for approximately six months. During that period, the couple filed a petition alleging Child was dependent and neglected and seeking temporary custody of Child.

The juvenile court found Child dependent and neglected and granted custody to the couple.

Mother appealed to the circuit court, which found no clear and convincing evidence of dependency and neglect and ordered the juvenile court to reunify Child with Mother.

The couple appealed, but the Court of Appeals affirmed the circuit court.

Despite that procedural history, Child was never reunified with Mother because, in part, the trial court deferred to a psychologist who wanted to reunify Mother and Child over a period of two years. While this reunification process was occurring, the couple filed a petition in juvenile court to terminate Mother’s parental rights.

The juvenile court found grounds of abandonment for failure to provide financial support and determined it was in Child’s best interest to terminate Mother’s parental rights. When the termination petition was filed, mother had not made a child support payment in four months and three days.

Mother appealed.

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

In Tennessee, proceedings to terminate a parent’s parental rights are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things.

First, they must prove the existence of at least one of the statutory grounds for termination, which are listed in Tennessee Code § 36-1-113(g). Several grounds for termination are listed in subsection (g), but the existence of any one of the grounds enumerated in the statute will support a decision to terminate parental rights.

Second, the petitioner must prove that terminating parental rights is in the child’s best interest, considering, among other things, the factors listed in Tennessee Code § 36-1-113(i).

The person seeking to terminate parental rights must prove all the elements of the case by clear and convincing evidence.

The grounds for termination at issue is abandonment by willful failure to make reasonable payments toward the support of the child during the four-month period immediately preceding the filing of the petition to terminate parental rights.

Willful failure to support or to make reasonable payments toward support means the willful failure to provide more than token payments toward the support of the child. Token support payments are not sufficient to preclude a finding of willful failure to support. Token support is support that under the circumstances of the individual case, is insignificant given the parent’s means. In termination proceedings, the term “token support” is a term of art. A finding that support was insignificant in light of the parent’s means must be based on evidence regarding both the parent’s actual financial support of his or her child and the parent’s means. In the context of token support, the word “means” connotes both income and available resources for the payment of debt. The definition of token support itself requires consideration of the circumstances of the individual case. The question of intent or willfulness depends on the totality of the circumstances.

Here, the proof showed the couple with custody told Mother not to pay them monetary child support because they wanted her to use those funds to pay for her supervised visits with Child and “to get her life back on track.” The Court commented:

During the pivotal four-month period, Mother did just that, directing her limited financial resources toward regaining custody of [Child]. She paid for the cost of supervised visits. She paid someone to transport her to and from visit and to and from court hearings. She paid for a drug and alcohol assessment recommended by DCS. She paid for parenting classes. She attempted to obtain reliable transportation and establish a stable home. She was in the midst of a four-day trial on the dependency and neglect petition and paying attorney’s fees incurred in that litigation. Mother used all of these funds in an attempt to comply with the responsibilities established by DCS and by the courts so that she could be you reunited with [Child]. Mother was aware that the [couple] were financially stable and that [Child’s] needs were being met. The [couple] had previously informed her that they could provide for [Child] without monetary support from mother. We also note that Mother had never been advised of the criteria and procedures for terminating her parental rights or the definition of abandonment….

The evidence in this case falls short of meeting [the] standard [for clear and convincing evidence]. The evidence presented by the [couple] simply does not produce a firm belief or conviction, in our minds, that Mother, during the four-month period, had the capacity to support [Child], made no attempt to do so, and had no justifiable excuse for not doing so. We hold that the evidence in this case does not support a finding that Mother intentionally abandoned [Child], and we therefore reverse the trial court’s finding that this ground for termination was proven by Clear and convincing evidence.

Accordingly, the termination of Mother’s parental rights was reversed and the matter remanded to the trial court to reunify Mother and Child without delay.

K.O.’s Comment: Reading this opinion will create flashbacks for any attorney who has witnessed a case languish in juvenile court far longer than it should have because a magistrate or judge implicitly (or sometimes explicitly) confers judicial authority on a third party not affiliated with the judicial system, such as a counselor or therapist. The Court of Appeals was certainly frustrated with the trial court’s delays in this case, commenting that “this case has been delayed far too long already.” They also characterized the juvenile court as being “extremely hesitant to reunify Mother and [Child],” noting that “[t]his record provides no basis for such hesitation, other than the general concern that exists in all reunification’s following a lengthy separation.” Lawyers who regularly practice in juvenile court should consider reading this opinion (but only after a few glasses of wine).

In re Alysia S. (Tennessee Court of Appeals, Middle Section, December 17, 2014).

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

Posted by: koherston | January 12, 2015

When Cheating Is the Issue, Remorse Helps

This article by Sona Patel in The New York Times might be of interest to readers of this blog.

When Cheating Is the Issue, Remorse Helps

For a couple faced with overcoming the effects of an extramarital affair, regaining trust is crucial.

“If they really do love each other and they really believe in the marriage, yes, I’ve seen it work,” said Molly O’Shea, a marriage and family therapist in San Francisco.

Research compiled by the Kinsey Institute from the early 1990s showed that infidelity was the single most cited cause of divorce in more than 150 cultures.

Knoxville divorce lawyersAnd in western countries, one research report estimated that 25 to 50 percent of people who split up cited a spouse’s infidelity as the primary cause of the divorce.

Ms. O’Shea considers spouses who are cheated on as people who are dealing with grief and loss. She will start by asking what they love and respect about their partner.

In the beginning, emotions are high and the therapist may suggest that they consult individually.

There is a no-secrets policy, however, that anything said by a spouse while alone with Ms. O’Shea will be discussed when everyone is together.

In Ms. O’Shea’s experience, a year or more of therapy is needed for a couple to start the healing process.

She asks the person cheated on what it would take to regain trust and what the cheating spouse can do to prove the affair was a mistake.

“Usually the person who has been cheated on says, ‘I don’t know what I need’ and ‘nothing is going to help,’ ” Ms. O’Shea said. “They’re just so angry.”

For the majority of Ms. O’Shea’s clients, the spouse who was cheated on will ask for specific details about the affair: where it happened, what happened and how long it lasted.

“They’re looking for consistency in the story,” Ms. O’Shea said.

At the same time, too much questioning can become unproductive, so Ms. O’Shea will set limits.

“I’m not going to let one person bash the other person,” she said. “But I will validate their feelings and their anger.”

“When you think of someone who has been traumatized, they have to tell their story over and over, and the person has to tolerate hearing it over and over,” Ms. O’Shea said. “Then you start talking about what’s working and why you want to stay connected.”

Chief among the issues is continuing suspicion, including becoming upset each time the spouse doesn’t answer the phone.

People who have cheated need to affirm their partner’s feelings, sympathize and put up with a lot of justifiable anger.

As for tracking a couple’s progression, that is partly just observing them. At the start, it can be something obvious about their behavior like sitting on opposite ends of a sofa, keeping their arms crossed or avoiding eye contact.

As they progress, they may speak up for each other, actually defending the partner to the therapist. “Maybe I’ll bring to attention the words that were used and question how hurtful they were,” Ms. O’Shea said, “and the other person will say, ‘I don’t think it was wrong’” to say that.

Still, while a couple may become stronger, rarely do they regain complete trust. “You forgive, but you don’t forget,” she said.

As for spouses who cheated, Ms. O’Shea prepares them for a rough path back.

“They need to be able to validate the pain and continue to show remorse,” Ms. O’Shea said. “Over and over and over again.”

Source: When Cheating Is the Issue, Remorse Helps (The New York Times, August 9, 2013).

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

Posted by: koherston | January 9, 2015

Photo of the Week: Elk Bugling

Knoxville divorce and child custody lawyer

Great Smoky Mountains National Park

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Knoxville divorce lawyersFacts: Mother gave birth to Child and died two days later. Father lived in California and was not present for Child’s birth. Mother and Father were not married.

Because Father had not yet been declared Child’s legal father, the Tennessee Department of Children’s Services gave temporary custody of Child to Maternal Grandmother. Father was advised he needed to establish paternity in order to receive custody of Child. Father took a DNA test that same day.

At a hearing several months later, Maternal Grandmother was awarded custody at a hearing Father failed to attend. Father also failed to present the DNA test results showing he is the biological father of Child..

Several months later, Maternal Grandmother petitioned to to terminate Father’s parental rights and adopt Child. Father counter-petitioned to establish paternity and obtain custody of Child.

Maternal Grandmother alleged Father abandoned Child by failing to visit or pay child support in the four months preceding the filing of her petition to terminate Father’s parental rights.

Father argued his failure to visit was not willful given his limited financial means and the fact that he lives in California. He claimed he tried to set up visits but had difficulty contacting Grandmother and obtaining her consent for him to visit. When he was able to contact her, she would either tell him it was not a good idea for him to visit or to wait until the next court date. During Maternal Grandmother’s testimony, she agreed it would be unreasonable for someone who is trying to visit his child to fly 3000 miles and stay in a hotel without a definite visit scheduled.

Father also argued his failure to pay child support was not willful given his limited financial means and the fact that he has to support four other children.

The trial court did not accept Father’s reasons for not paying child support and not visiting more often. The trial court found Father had the financial means to support Child during the four months preceding the filing of the petition to terminate his parental rights and that he willfully chose not to do so. The trial court also found Father did not seek reasonable visitation with Child during the four months preceding the filing of the petition. Father’s parental rights were terminated.

Father appealed.

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

A parent has a fundamental right to the care, custody, and control of his or her child. The state may only interfere with parental rights if there is a compelling state interest. An order terminating parental rights has the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.

Terminating a parent’s fundamental parental rights results in severe consequences; therefore, termination cases require a higher standard of proof. To terminate parental rights, the court must find by clear and convincing evidence that at least one statutory ground for termination exists and that termination is in the child’s best interest. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

The ground for termination at issue in this case was “abandonment,” which here meant that Maternal Grandmother must prove by clear and convincing evidence that Father willfully failed to visit Child or pay child support during the four months immediately preceding the filing of her petition to terminate his parental rights.

Willful failure to visit. Willful failure to visit is defined as “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is visitation that, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child. For a parent’s failure to visit to be considered willful, the parent must have intended not to visit the child.

A parent who has tried to visit his or her child but has been thwarted by the acts of others and circumstances beyond his or her control has not willfully failed to visit. A parent’s failure to visit may be excused by a third party’s conduct if the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child.

Tennessee courts have determined the following circumstances amount to a significant restraint or interference with a parent’s efforts to develop a relationship with a child: (1) telling a man he is not the child’s biological father, (2) blocking access to the child, (3) keeping the child’s whereabouts unknown, (4) vigorously resisting the parent’s efforts to support the child, or (5) vigorously resisting a parent’s efforts to visit the child.

After reviewing the record, the Court of Appeals reasoned:

Both Father and Grandmother testified that Father called a number of times to speak to Child and set up visits. However, Grandmother often did not have a working phone, which made it difficult for Father to reach her, and Grandmother often told Father it was not a good idea for him to visit. Grandmother admitted that it would be unreasonable for Father to travel from California to Tennessee without speaking to Grandmother first and knowing that he would be able to visit Child. Grandmother’s hesitancy to arrange visits with Father, coupled with Father’s limited finances, the distance he had to travel, and his responsibilities as the father of four other children living in California made it extremely difficult for Father to visit Child.

In addition, both Grandmother and Father testified that Father was genuinely happy to have Child, and Father’s other children testified that Father loves them, takes care of them, and that they love him as well. This evidence, in addition to the hurdles that Father had to overcome to visit Child convinces us that the evidence is not strong enough to establish clearly and convincingly that Father willfully failed to visit Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to visit Child.

Willful failure to pay child support. Just like a parent’s failure to visit, failure to support a child financially can be grounds for terminating parental rights if the failure was willful. Simply proving that a parent did not support his or her children is not sufficient. Willful failure to support is “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” Token payments, or “token support,” are payments that, under the circumstances of the individual case, are insignificant given the parent’s means.

A parent’s failure to support is willful when he or she is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. A parent who does not support his or her child because he or she is financially unable to do so is not liable for willfully failing to support his or her child.

On this issue, the Court of Appeals concluded:

[N]o evidence has been introduced to establish Father’s actual income, expenses, or financial ability to support Child….

Father is completely disabled and unable to work, he lives in his mother’s guest house, and he is behind on child support payments for his four other children. Without any evidence of Father’s actual ability to support Child, we do not believe that there is enough evidence to establish clearly and convincingly that Father willfully failed to support Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to support Child.

Accordingly, the termination of Father’s parental rights was reversed. The case was remanded for the trial court to grant custody to Father pursuant to Tennessee Code § 36-1-117(4), which requires the trial court to grant custody to the legal parent in an adoption proceeding if no grounds for termination exist, unless the court determines by clear and convincing evidence that a legal parent is unable to provide the child with proper custodial care.

In re Lyric J. (Tennessee Court of Appeals, Middle Section, December 16, 2014).

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

Knoxville grandparents lawyerFacts: Mother and Father are the parents of Child. Mother had another child who was legally adopted by the Paternal Grandparents.

Disagreements and hostilities developed between Mother and Father and the Paternal Grandparents, and Mother and Father decided it was in Child’s best interest not to have further visitation with Paternal Grandparents.

Paternal Grandparents filed a petition for grandparent and sibling visitation.

After a trial, the trial court awarded Paternal Grandparents visitation with Child every third weekend as well as telephone contact every other Sunday.

Mother and Father appealed.

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

Tennessee Code § 36-6-306(b)(1) provides:

In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.

It is only after there has been a finding of a danger of substantial harm to the child that the court proceeds to determine whether grandparent visitation is in the child’s best interests. The burden of proof is on the grandparents to show a danger of substantial harm.

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

To find substantial harm, there must be supporting evidence in the record that is specific to the particular child’s relationship with the particular grandparent.

After reviewing the record, the Court of Appeals concluded:

In the present case, the trial court failed to adhere to the required statutory analysis. There was no finding that there was a danger of substantial harm to [Child]. Rather, the trial court based its decision largely upon the need to maintain the relationship between [Child] and her half-sister, [which is] a consideration not authorized under Tenn. Code Ann. § 36-6-306. Moreover, the record in this case does not contain evidence that [Child] was in danger of substantial harm due to the cessation of the relationship with Grandparents. Mother and Father presented evidence that [Child] is a well-adjusted child who was not suffering serious emotional harm and that Mother and Father had sound reasons for terminating her relationship with Grandmother. To order grandparent visitation without a finding of substantial harm violates Tenn. Code Ann. § 36-6-306 and the fundamental right of parents to raise their children as they see fit.

Accordingly, the trial court’s award of grandparent visitation was reversed.

In re Camryne B. (Tennessee Court of Appeals, Middle Section, December 16, 2014).

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

Facts: Wife, 60, and Husband, 40, divorced after 14 years of marriage. At the time of their marriage, Wife had health problems, including a diagnosis of multiple sclerosis, that made it impossible for her to work outside the home.

The trial court awarded Wife the marital residence, valued at $130,000, and held her responsible for the balance of the mortgage, which was approximately $55,000. The trial court found Husband’s equity interest in the marital residence to be $75,000, and awarded Wife that entire amount as alimony in solido.

The division of marital property and debt resulted in a net award to Wife of $92,000 and to Husband a net award of negative $11,000.

Wife was ordered to refinance the mortgage on the marital residence out of the names of both parties and solely into her name.

The trial court found Wife is not capable of obtaining employment because of her age and health problems. Wife was awarded transitional alimony of $400 per month for four months, which would provide her an opportunity to apply for Social Security disability benefits and TennCare health insurance.

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

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

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

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

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

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

After reviewing the record, the Court concluded:

In this case, the reality is simply this: Wife is the economically disadvantaged spouse; she cannot achieve self-sufficiency; and she cannot be rehabilitated. All of this is not in dispute…. Wife’s earning capacity is clearly zero…..

We hold that the evidence preponderates against the trial court’s award of four months of transitional alimony. Considering all of the pertinent statutory factors and the totality of the circumstances, we modify Wife’s award to an amount of $150 per week as alimony in futuro, payable until Wife dies or remarries. While Wife will likely be entitled to Social Security disability benefits and TennCare, nevertheless, she is clearly in need of additional support, and Husband has the ability to pay this amount without undue financial hardship.

Wife also challenged the trial court’s ruling that she refinance the mortgage on the marital residence solely into her name. The Court agreed, writing:

Finally, Wife argues that the trial court erred by ordering her “to refinance the mortgage in her own name and . . . hold [Husband] harmless therefrom.” In her brief, Wife asserts that “[i]t would be impossible for her to refinance this mortgage given the fact that no lender would loan money to someone in her current physical and financial position.” We modify this decree of the trial court to provide that Wife shall apply for, and make reasonable efforts leading to, the possible refinancing of the mortgage on the residential property in her sole name.

Accordingly, the trial court’s award of transitional alimony was converted to permanent alimony and the amount increased. Wife was also relieved of her obligation to refinance the mortgage on the marital residence; instead, she must only attempt to do so.

K.O.’s Comment: (1) The trial court found this 14-year marriage to be “a marriage of relatively short term.” In a footnote, the Court commented, “Given the current culture, this Court does not believe a 14-year marriage should be considered ‘relatively short-term.'” Really? Three years ago this same Court held a 17-year marriage is neither short nor long for purposes of the alimony analysis. See Garman v. Garman.

(2) The Court’s decision to reverse the trial court’s requirement that Wife refinance the mortgage on the marital residence — instead requiring only that she attempt to do so — is the first such holding in Tennessee of which I am aware and is inconsistent with the Court’s prior rulings in several cases, e.g., Dobbs v. Dobbs and Mobley v. Caffa-Mobley. Unfortunately, the Court offers little in the way of explanation. The entirety of its analysis is contained in the block quote above.

Berkshire v. Berkshire (Tennessee Court of Appeals, Eastern Section, December 1, 2014).

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

Posted by: koherston | December 31, 2014

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

Knoxville divorce attorneysFacts: Husband and Wife divorced after 38 years of marriage.

Wife was 58 years old at the time of trial and earned approximately $60,000 as a schoolteacher. Husband was 59 years old and earned approximately $134,000 as a welding inspector.

Wife was granted a divorce on the grounds of Husband’s adultery. Wife was awarded the marital residence and Husband’s one half share of the equity in the marital residence as alimony in solido. Wife was also awarded alimony in futuro until age 65 in the amount of $200 per month.

After accounting for the alimony in solido award, Wife received approximately 77% of the marital estate to Husband’s 23%. In other words, Wife left with somewhere over $400,000 more of the marital estate than did Husband.

Wife was also awarded a portion of her attorney’s fees as alimony in solido.

Husband appealed.

On Appeal: The Court of Appeals reversed the trial court’s award of alimony in futuro and attorney’s fees.

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

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

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

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

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

After reviewing the record, the Court affirmed the award of alimony in solido, reasoning:

The record reflects that Wife is, in fact, disadvantaged relative to Husband in terms of annual income. Husband has shown an ability to regularly earn in excess of $100,000 per year, whereas Wife earns around $60,000 per year as a schoolteacher. We are aware that Husband’s income depends in large measure on outages occurring allowing him to work overtime and that his income fluctuates as a result. Nevertheless, even considering the fluctuations, the evidence is clear that Husband earns much more money than Wife. In order for Wife to preserve some degree of the lifestyle she had come to enjoy, some accommodation was appropriate to reflect her economic disadvantage. We also are cognizant of the some 38 year length of this marriage.

We find that the Trial Court did not err in assigning Husband’s one-half interest in the marital residence to Wife as alimony in solido. In reaching this conclusion, we are guided primarily by the relative economic conditions of the parties, not Husband’s adultery. The Trial Court’s award of alimony in solido is a reasonable one that accords with the evidence.

However, the Court reversed the trial court’s award of alimony in futuro, stating:

We next address whether the Trial Court erred in awarding Wife $200 per month as alimony in futuro until she reaches the age of 65. To resolve this issue, we must assess Wife’s status once she received the award of alimony in solido….

[U]pon receiving Husband’s one-half interest in the marital residence, Wife is no longer economically disadvantaged compared to Husband. There is no valid economic reason to award her additional spousal support. Husband’s conduct in this case, unsavory as some may find it, does not erase the economic facts between the parties. We reverse the Trial Court in its award to Wife of $200 per month until she reaches age 65, irrespective of whether one classifies it as alimony in futuro or transitional alimony.

The trial court’s award of a portion of Wife’s attorney’s fees was also reversed. The Court explained:

Our reasoning on this issue is substantially similar to ours regarding the alimony in futuro award. Once Wife received Husband’s interest in the marital residence as alimony in solido, she no longer was economically disadvantaged compared to Husband. Given this record, Wife has the ability to pay her own attorney’s fees, and no award of attorney’s fees to her as alimony in solido is appropriate.

Thus, the trial court was affirmed in awarding Husband’s one half share of the marital residence to Wife as alimony in solido. However, upon receiving that award, Wife was no longer economically disadvantaged as compared to Husband. For that reason, the Court of Appeals reversed the trial court’s awards to Wife of alimony in futuro and attorney’s fees.

Calloway v. Calloway (Tennessee Court of Appeals, Eastern Section, November 26, 2014).

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

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