Knoxville divorce lawyersIt’s that time of year again — time for us to go on the road for the annual Tennessee Family Law Update seminar. This year John and I will return to Memphis, Nashville, Chattanooga, Johnson City and Knoxville.

Of course, the seminar will include my comprehensive review of the latest case law and new legislation every Tennessee family law attorney and mediator needs to know.

This year’s program will also include presentations on two special topics:

  • Civil and Criminal Contempt: Everything You Need to Know, and
  • Protecting Your Client from the Ex’s Post-Divorce Bankruptcy.

Lawyers and mediators who attended last year’s seminar said this:

  • This seminar is now being added to my CLE annual plan. – Rebecca S. Montgomery, Esq., Nashville
  • Always a great seminar! – Ellie Hill, Esq., Chattanooga
  • Great course! A must for family law attorneys! – Nicholas Craig Stevens, Esq., Cleveland
  • I wish you’d do it bi-annually. – Katy Harp, Esq., Knoxville
  • Very informative. I thoroughly enjoyed it. – Betty Stafford Scott, Esq., Medina
  • I learned so much. Best CLE I’ve attended this year! – McKenna L. Cox, Esq., Johnson City
  • One of the very best CLEs I have ever attended in over 20 years of practicing law. – Karen Fair, Esq., Alcoa

Don’t wait until the last minute to sign up! A $20 discount is available to those who register in the next two weeks.

Click here for more information.

Knoxville divorce lawyers

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

Posted by: K.O. Herston | September 26, 2014

Photo of the Week: Smoky Mountain Black Bear

Knoxville Divorce

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

Knoxville child custody lawyersFacts: A more detailed summary of the underlying facts of this case and my analysis of the 2-1 decision from the Court of Appeals can be found here in my blog post on that opinion.

The short version is the trial court in this divorce designated Mother as the primary residential parent of Son and Daughter. In so doing, the trial court heard telephonic testimony from a school counselor. The Court of Appeals — in a 2-1 decision — reversed the trial court after finding the school counselor’s testimony was not credible. The Court of Appeals then substituted its judgment for the trial court’s and designated Father as the primary residential parent of Son while Mother remained the primary residential parent of Daughter.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals.

This case presented an issue of first impression regarding the proper standard of review of the trial court’s decision regarding the credibility and weight that should be given to witness who testifies by telephone.

When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses. Appellate courts should not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary. In order for evidence to be clear and convincing, it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Whether the evidence is clear and convincing is a question of law that appellate courts review de novo without a presumption of correctness.

On the other hand, appellate courts are not required to give similar deference to a trial court’s findings of fact based on documentary evidence such as depositions, transcripts, or video recordings. When findings are based on documentary evidence, an appellate court’s ability to assess credibility and to weigh the evidence is the same as the trial court’s. Accordingly, when factual findings are based on documentary evidence, an appellate court may draw its own conclusions with regard to the weight and credibility to be afforded that documentary evidence.

Tennessee law permits testimony by telephone in only a handful of narrowly drawn circumstances. Testimony in civil cases is generally governed by Tennessee Rule of Civil Procedure 43.01, which states:

In all actions at law or equity, the testimony of witnesses shall be taken pursuant to the Tennessee Rules of Evidence. Also, for good cause shown in compelling circumstances and with appropriate safeguards, the court may permit presentation of testimony in open court by contemporaneous audio-visual transmission from a different location.

In addition to live testimony, this rule contemplates the use of contemporaneous audio-visual (but not audio only) transmissions. And even then, good cause, compelling circumstances, and adequate safeguards must be established before testimony by video conferencing may be allowed.

There are important reasons why live, in-person testimony is more desirable than remote testimony. One frequently cited list explains that a witness’s personal appearance in court (1) assists the trier of fact in evaluating the witness’s credibility by allowing his or her demeanor to be observed first-hand; (2) helps establish the identity of the witness; (3) impresses upon the witness the seriousness of the occasion; (4) assures that the witness is not being coached or influenced during testimony; (5) assures that the witness is not referring to documents improperly; and (6) in cases where required, provides for the right of confrontation of witnesses.

After reviewing the record, the Supreme Court reasoned:

While we agree with [Father] that “telephonic testimony inhibits a trial court’s ability to gauge witness credibility,” we also believe that a trial court is better-situated to gauge the credibility of a telephonic witness than an appellate court. To the extent that the Court of Appeals majority rejected the weight the trial court ascribed to the counselor’s testimony solely because she testified by telephone, we find this lack of deference erroneous….

Affording the trial court the appropriate “considerable deference” in the weight it ascribes to witness testimony, we cannot conclude that clear and convincing evidence preponderates against any decision by the trial court to rely on the counselor’s testimony concerning [Son's] life and performance in school. To the extent that the trial court found the guidance counselor to be a helpful and reliable witness, we leave that credibility determination undisturbed….

Although Tennessee law does not expressly provide for live trial testimony via telephone, we have determined that when such testimony occurs, it should be reviewed on appeal using the same deferential standard as live in-person testimony.

Applying this newly-articulated standard of review to the facts of the case, the Supreme Court said:

We find no evidence in this record that the trial court abused its discretion in designating [Mother] as [Son's] primary residential parent….

In light of the trial court’s clearly articulated findings, we find no evidence that the court applied an incorrect legal standard, reached an illogical conclusion, or based its decision on a clearly erroneous assessment of the evidence…. The trial court applied the proper legal standards. Its custody ruling falls well within the spectrum of possible reasonable results. Granting the trial court the deference it deserves in ascribing credibility and weight to the witnesses’ testimony, we find no basis to overturn the trial court’s assignment of [Mother] as [Son's] primary residential parent.

Accordingly, the Court of Appeals was reversed and the trial court’s judgment affirmed.

K.O.’s Comment: First, this is the outcome I predicted one year ago. So there’s that.

Second, Tennessee law only permits telephonic testimony in limited circumstances in family law matters. When telephonic testimony occurs, it is usually by agreement of the parties as a matter of convenience and/or expense reduction. So when in family law matters are you allowed to present a witness’s testimony by telephone in the absence of an agreement to do so?

  • Child support payment records: Tennessee Code § 24-7-121(d) permits telephonic testimony regarding payment records in child support cases;
  • Out-of-state witnesses in conservatorship or guardianship matters: Tennessee Code § 34-8-106(b) permits telephonic testimony from witnesses located in other states to testify by telephone in conservatorship or guardianship proceedings;
  • Incarcerated parents in termination of parental rights matters: Tennessee Code § 36-1-113(f)(3) permits an incarcerated parent or guardian to participate by telephone in a hearing to terminate parental rights;
  • Out-of-state witnesses in UIFSA matters: Tennessee Code § 36-5-2316(f) (2010) permits a witness located in another state to testify by telephone in cases under the Uniform Interstate Family Support Act; and
  • Out-of-state witnesses in UCCJEA matters: Tennessee Code § 36-6-214(b) permits a witness located in another state to testify by telephone in cases under the Uniform Child Custody Jurisdiction and Enforcement Act.

Absent the parties’ agreement in this case for the school counselor to testify by telephone, they could have deposed the witness and could even have deposed her by telephone. Tennessee Rule of Civil Procedure 32.01(3) authorizes courts to receive testimony by deposition when the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a). Tennessee Rule of Evidence 804(a)(6), in turn, provides that a witness in a civil action is unavailable when the witness is more than one hundred miles from the place of trial. Here, the guidance counselor in Brentwood was more than one hundred miles from Chattanooga, the place of trial. Additionally, Tennessee Rule of Civil Procedure 30.02(7) provides that, by stipulation of the parties or by court order, a deposition may be taken by telephone.

Kelly v. Kelly (Tennessee Supreme Court, September 10, 2014).

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

Posted by: K.O. Herston | September 24, 2014

Too Good Not to Share

I read all the family law opinions from Tennessee’s appellate courts. Most don’t make it to the blog. This quotation from an otherwise non-blogworthy Court of Appeals opinion in a post-divorce custody modification case is too good not to share:

Mother questions whether Father can provide academic support by suggesting on appeal that Father will not be able to help the oldest son with higher level math classes because, according to Mother, Father had poor math grades in school. At trial, she introduced Father’s student progress reports going all the way back to middle school in an effort to prove that math was Father’s worst subject. However, Father testified that, since that time, he had earned an engineering degree in electromechanical engineering with a minor in math. Therefore, we are confident that Father will be able to assist the oldest child with his assignments.

One of the many things a lawyer must do in domestic relations cases is filter out those arguments that should not be made. This is one of those arguments that never should have made it out of the lawyer’s office.

Knoxville child custody lawyers

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

Knoxville alimony lawyersFacts: The parties divorced after 27 years of marriage.

Husband, 58, is a cardiologist earning $550,000 a year. Wife, 54, has been a stay-at-home parent and homemaker for 25 years.

Wife sought alimony at trial.

The trial court found Wife “has been forced to abandon her marriage relationship where she enjoyed significant security because Husband breached the marriage vows on a number of occasions and placed her in a position of having to give up her standard of living.” Wife was awarded alimony in futuro in the amount of $10,850 per month. The trial court further ruled the alimony “shall be included in Wife’s gross income for federal income tax purposes.”

After the trial, Wife filed a motion to increase the alimony award, stating “Wife has learned she will owe IRS taxes in the approximate amount of $24,000 annually on the alimony paid by Husband.”

The trial court increased Wife’s alimony in futuro award by $1000 per month, for a total of $11,850 per month.

Husband appealed.

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

A request to modify an alimony award requires a finding that there has been a substantial and material change in circumstances. In order to justify an alimony modification, the change in circumstances must have occurred since the original award, significantly affect either the obligor’s ability to pay or the obligee’s need for support, and was not anticipated or contemplated at the time of the original divorce. A trial court’s decision on a request to modify an alimony obligation is reviewed under an abuse of discretion standard.

After reviewing the record, the Court concluded:

We must conclude that the trial court erred in increasing Husband’s alimony obligation. Wife contends that she could not have “forsee[n] the amount of the tax liability prior to learning the amount of alimony the Trial Court would award.” This is unconvincing. It could not have been a shock to Wife to learn that she would have federal tax liability associated with her receipt of alimony. Indeed, the divorce decree refers to how taxes are to be paid and recites tax allocation as a factor in awarding alimony in futuro. In her request for alimony, Wife sought an award in excess of $15,500 per month in alimony and was awarded $10,850 per month. Nothing in her proof at trial appears to take into account potential tax liability, even for the amount of alimony Wife sought. It is hard, under the circumstances, to view the omission of estimated potential tax liability from Wife’s proof at trial as anything but an oversight….

It cannot be said that Wife’s tax liability on the alimony was a “change” or that it was not anticipated or contemplated at the time of the original divorce. Thus, Wife did not prove a substantial and material change in circumstances.

Accordingly, the trial court’s decision to increase Wife’s alimony award was reversed.

K.O.’s Comment: In a footnote, the Court added this truism: “‘[I]n this world nothing can be said to be certain, except death and taxes.’ Letter from Benjamin Franklin to Jean-Baptiste Leroy (1789) (reprinted in The Works of Benjamin Franklin, 1817).”

This case serves as a reminder to include the obligee’s potential tax liability in the proof establishing the obligee’s need for alimony. The Court goes so far as to suggest the standard of care requires it. Family law attorneys should pay attention.

Salvucci v. Salvucci (Tennessee Court of Appeals, Western Section, August 26, 2014).

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

Posted by: K.O. Herston | September 19, 2014

Photo of the Week: Summer Shower

Knoxville Divorce

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

Knoxville divorce lawyersFacts: Mother lives in California. Father lives in Tennessee. Child was born in Tennessee. A few months after Child’s birth, Mother left Tennessee with Child and returned to California.

Mother requested — and the California court entered — an ex parte a restraining order against Father and an ex parte order granting temporary custody of Child to Mother.

Father filed an action in Maury County to establish Child’s paternity and enter a permanent parenting plan. The Tennessee court declared Tennessee to be Child’s “home state” pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

A jurisdictional challenge followed and a default judgment was entered against Mother in Tennessee. While Child was living with Mother in California, the Tennessee court issued an attachment for Child, stating, “An attachment for the body of [Child] shall immediately be issued. Upon securing the body of the minor child, temporary physical and legal custody of said child shall be immediately placed with [Father].”

Mother appealed.

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

Tennessee Code § 36-6-235 addresses a court’s authority to issue a warrant for the physical custody of a child:

(a) Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. .. .
(c) A warrant to take physical custody of the child must:
(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from this jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of the child immediately; and
(3) Provide for the placement of the child pending final relief….
(e) A warrant to take physical custody of a child is enforceable throughout this state.

After reviewing the record, the Court reasoned:

The warrant in this case is deficient in at least two respects. First there is no recitation of facts supporting a conclusion that the minor child was “imminently likely to suffer serious physical harm.” Tennessee Code § 36-6-235(b). Second, the court purported to make the warrant enforceable in California, whereas the statute contemplates that the warrants are only effective in this state.

The statutory text is clear that the warrants authorized by this section are enforceable only “throughout this state.” Accordingly, these warrants should not be directed to law enforcement officials nationwide. The UCCJEA does not provide state trial courts with license to issue nationwide orders to all state and federal law enforcement officials requiring them to snatch up children wherever and with whomever they may be found so that they can be spirited back to the state in which the enforcement proceeding is pending. Such an intrusive and potentially dangerous remedy would go far towards disrupting the interstate comity the UCCJEA was designed to promote.

Because of these deficiencies, we have concluded that the trial court erred in ordering the attachment of the minor child.

Accordingly, the trial court’s order ordering the attachment of the minor child was vacated.

In re Joel B. (Tennessee Court of Appeals, Middle Section, August 18, 2014).

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

Posted by: K.O. Herston | September 15, 2014

In Divorce, Who Gets Custody of the Debt?

The article by Charlie Wells in the Wall Street Journal may be of interest to readers of this blog.

In Divorce, Who Gets Custody of the Debt?

For many young couples today, marriage means more than loving, honoring and cherishing each other—it also means taking on a spouse’s student loans. And not only does educational debt make life together tougher for some, it can lead to surprises for those who end up divorcing.

Knoxville divorce lawyersWhile no generation is immune to the complications surrounding debt and divorce, the current one may be especially vulnerable: College students who took out loans and earned bachelor’s degrees in 2012 graduated with an average $29,400 in educational debt, according to the Institute for College Access and Success, and those earning advanced degrees were typically on the hook for even more. Multiply that by two, and student loans could outlast many a marriage.

Forever Yours

Legal experts say one of the most common misconceptions about dividing debt in a divorce is the belief that educational debt incurred before a marriage always becomes shared, marital debt once a couple gets hitched.

New York divorce attorney Cari Rincker says her mother once quipped that she couldn’t wait for Ms. Rincker to “get married because half of [her] student debt will be his.”

Ms. Rincker, who is single, had to correct her mother: Generally, educational debt incurred before a marriage is considered separate property and barring some predetermined contractual agreement, it stays that way after a divorce. “My law-school-loan debt is forever mine,” Ms. Rincker says. “No spouse will ever be liable” for it.

That can come as a rude awakening for those used to getting help with loan payments.

Such was the case when Devon Montgomery, a program manager for the Bryn Mawr College Alumnae Association in Pennsylvania, split from her husband of two years. The 29-year-old says she had racked up big student loans from various schools, and it was a challenge dealing with all of that debt by herself after her divorce.

Ms. Montgomery says she had to “reallocate all of the debt and change the repayment terms to make it more affordable.”

Couples who took out student loans while they were single but living together should expect a similar outcome.

“It’s generally like roommates,” says June Carbone, an expert in family law at the University of Minnesota Law School. “The roommate doesn’t pick up student debt.…It doesn’t matter if you’re sleeping together.”

It’s Complicated

Debt division can get a little trickier when the student loans are taken out during the marriage. The person responsible for paying the loans isn’t necessarily the person whose name is on them. Indeed, how educational debt is divided may depend on where you live and who benefited from the borrowed money.

In many states, divorce courts have the discretion to divide marital property in a holistic way. That means that if the educational debt is considered marital property, they have the option of taking into account contextual issues, such as each spouse’s ability to pay it off, Ms. Carbone says.

So while student loans generally will go to the person who incurred them, there may be exceptions, she says.

For example, if it seems like one spouse will have high income after a divorce and another will struggle to make debt payments, the higher earner may end up having to fork over some temporary spousal support to cover the ex’s debt payments.

But debt division is complicated and can vary, depending on whether the state applies equitable-distribution, community-property or marital-property rules, Ms. Carbone says. As such, student loans in some circumstances could be split down the middle, even if one spouse has a much different financial situation than the other after divorce.

In a related issue, in a few jurisdictions such as New York, a professional degree earned during the marriage can be considered marital property, says Rachel Rebouché, an associate professor who teaches family law at Temple University Beasley School of Law.

That can lead to situations where the degree earner has to compensate a spouse for supporting his or her educational pursuits. Support for a spouse could mean time spent cooking meals, driving the degree earner to campus or even the supporter delaying his or her own educational pursuits, Ms. Rebouché says. In some cases, courts have awarded more property to the supporter to offset the value of a partner’s degree, she says.

Two Steps

Those in the field say couples can take two basic steps to avoid surprises related to college debt.

First: Get a prenuptial agreement and make sure it clearly specifies how you and your partner want to allocate any student debt accrued during a marriage in a divorce, says Naomi Cahn, a professor who researches family law at George Washington University.

Second: Ask a partner about the extent of his or her debt and be honest about yours. When discussing finances, couples tend to “focus so much on the assets, but they forget that there’s often a lot of debt,” Ms. Cahn says.

Source: In Divorce, Who Gets Custody of the Debt? (Wall Street Journal, April 15, 2014)

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

Posted by: K.O. Herston | September 12, 2014

Photo of the Week: Bear Cub in the Smoky Mountains

Knoxville Divorce

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

Facts: Never-married Mother and Father are the parents of Child. A parenting plan was entered designating Mother as the primary residential parent and awarding Father 130 days of parenting time.

Subsequent to the entry of the parenting plan, Mother and Father resided in the same residence for 14 months, during which time they worked opposite shifts and shared equal parenting time and acted as Child’s primary caregivers.

After 14 months, Mother moved into her own apartment. Mother and Father continued to share equal parenting time for almost a year until Mother suddenly insisted the schedule return to that which was set out in the parenting plan because she missed Child and “wanted to spend a little more time with her.”

A few months later, the parties returned to sharing equal parenting time during the summer before going back to the original schedule in the parenting plan.

Father petitioned to modify the parenting plan to provide for equal parenting time.

The trial court found there had not been a material change of circumstances and dismissed Father’s petition.

Father appealed.

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

The relevant statute with respect to a change in the residential parenting schedule (and not a change in primary residential parent) is Tennessee Code § 36-6-101(a)(2)(C), which states:

If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.

This statute sets a very low threshold for establishing a material change of circumstances. Indeed, merely showing the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstance test. The statute reflects the General Assembly’s policy decision to make it easier to establish a material change in circumstances has occurred when a party seeks to modify a residential parenting schedule.

First, the Court reversed the trial court’s ruling on the issue of the foreseeability of a material change under Tennessee Code § 36-6-101(a)(2)(C), writing:

The court declined to find that [Child's] enrollment in preschool constituted a material change in circumstances because it was “anticipated” by the prior court order. The Tennessee Supreme Court recently considered whether a change in circumstances could justify a modification of a parenting plan even when the change was one that could have been anticipated when the initial parenting plan was established. The Court held that it could . . . “so long as the party seeking modification has proven by a preponderance of the evidence ‘a material change of circumstance affecting the child’s best interest.'” See Armbrister v. Armbrister. We conclude that the trial court applied an incorrect standard and incorrect reasoning in determining whether [Child's] enrollment in preschool constituted a material change in circumstances affecting her best interest.

Next, the Court reversed the trial court’s ruling on whether a material change must adversely affect Child, writing:

As to significant changes in Mother’s and Father’s living or working conditions, the trial court found “a change in the parents’ living and working conditions several times since the decree was entered,” as the proof clearly established. However, the court reasoned that one of the significant changes, Mother’s moving into and out of the Grandparents’ home, did not “rise to the level of a material change in circumstances” because it was “beneficial” and not “detrimental” to [Child] and because the parties agreed to it. The court also reasoned that another change, Mother’s beginning a full-time work schedule, did not “rise to the level of a material change in circumstances” because it was “not a negative reflection on [Mother].” We conclude that the trial court applied an incorrect standard by implicitly requiring Father to prove that changes in the parties’ living and working conditions were detrimental to the child or reflected negatively on Mother.

Finally, the Court reversed the trial court’s ruling on whether the long intervals of equal parenting time constituted a material change:

As to failure to adhere to the parenting plan, the trial court found “that there was a change in parenting time, as [Mother] allowed [Father] to have more time than the parenting plan required,” but found that “[Mother] has not failed to adhere to the parenting plan.” The testimony clearly established that, even though a parenting plan allowing Mother and Father to enjoy 235 and 130 days of respective yearly parenting time was in effect, for over a year, both parents lived together with [Child] while they each provided care for her equally. Thereafter, for almost ten months, they continued to share equal parenting time while living apart. Given the low threshold for establishing a material change in circumstances for a proposed modification to a residential parenting schedule, we have determined that the evidence in the record preponderates against the trial court’s finding that “the change in parenting time does not rise to the level of a material change in circumstances that would justify changing the residential parenting time in the best interest of the child.”

Accordingly, the trial court was reversed and the case remanded for consideration of Child’s best interests in accordance with the statutory factors in Tennessee Code § 36-6-106.

K.O.’s Comment: As to the foreseeability issue, this is the first appellate opinion where a trial court was reversed for not following the new standard explained in Armbrister v. Armbrister.

As to the parties’ deviation from the parenting schedule, the Court has been inconsistent on this question. Compare Graham v. Graham (deviation from parenting schedule is material change) with Greenwood v. Purrenhage (deviation from parenting schedule is not material change) or Pace v. Pace (deviation from parenting schedule is not material change absent proof of effect on child). Lawyers should note Greenwood is a memorandum opinion.

In re Lauren S. (Tennessee Court of Appeals, Western Section, August 5, 2014).

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

Posted by: K.O. Herston | September 8, 2014

Tennessee Family Law Update CLE Videos Now Online

Knoxville divorce lawyersWe are finalizing the details for the upcoming Tennessee Family Law Update 2014 continuing legal education seminars. Registration will open soon. Check this blog or the Seminars page for the latest information.

In the meantime, Tennessee divorce and family law attorneys and mediators should go ahead and hold one of these dates on your calendar:

  • Memphis: Monday, November 17, 2014
  • Nashville: Tuesday, November 18, 2014
  • Chattanooga: Wednesday, November 19, 2014
  • Johnson City: Thursday, November 20, 2014
  • Knoxville: Friday, November 21, 2014

For those of you who haven’t been to the seminars before, you can find two videos from last year’s seminar below. These videos were recorded in Nashville on December 4, 2013.

The first video is last year’s case law update regarding grounds for divorce and child custody issues.

The second video is last year’s case law update for all other issues, i.e., termination of parental rights, child support, property division, alimony and miscellaneous issues.

We work very hard year round to present a program relevant to attorneys and mediators involved in Tennessee divorce and family law. I look forward to seeing many readers of this blog again this year as we travel across Tennessee.

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

Posted by: K.O. Herston | September 5, 2014

Photo of the Week: Male Black Bear

Knoxville Alimony

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

Facts: Mother and Father married in 2008, had Child in 2009, separated in 2010, and divorced in 2011. The trial court approved their agreed parenting plan with a schedule that provided for equal time while designating Mother as the primary residential parent.

Around three months after the divorce, Mother petitioned to modify the parenting schedule to reduce Father’s time. Father counter-petitioned to change custody and increase his parenting time.

Much of the testimony at trial focused on the difficulties the parties had experienced with the equal time parenting schedule. Both parties submitted proposed parenting plans with a residential schedule that provided the other parent with alternating weekends and one night a week during alternating weeks.

After hearing the proof, the trial court ruled there was “absolutely” no material change of circumstances warranting a change of custody  (i.e., change in the primary residential parent designation) from Mother to Father.

The trial court also found it had “become evident the visitation schedule is a hardship for this three-year-old child” such that changing the equal time parenting schedule was in Child’s best interest. The trial court commented to the parties, “You all are probably poster children for who I wish would go before the legislature and talk to them about what happens when you try to divide a child in half, especially a young child.” Father’s parenting time was reduced to alternating weekends and one evening during alternating weeks in addition to summer and holiday time.

Father appealed.

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

Decisions involving the custody of a child are among the most important decisions faced by the courts. When faced with a request to modify custody, courts generally favor the existing custody arrangement, on the premise that children tend to thrive in a stable environment.

Tennessee courts have repeatedly recognized that a child custody determination — once made and implemented — is res judicata upon the facts in existence or those that were reasonably foreseeable when the decision was made. At the same time, the courts may modify an award of child custody as intervening changes in circumstances and the exigencies of the case may require.

A party seeking a change in custody must prove two things — that a material change in circumstances has occurred and that a change of custody is in the best interest of the child. The determination of whether a material change in circumstance occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule.

Although there are no bright-line rules for determining when such a change has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

Not all changes in the circumstances of the parties and the child warrant a change in custody.

After reviewing the record, the Court wrote:

In our view, the evidence presents a picture of two parents who struggled to comply with the schedule they had imposed on themselves in an effort to have equal time with the Child….

The end result was a tired, often sick child, and parents who had grown frustrated with the schedule and each other’s apparent inability or unwillingness to accommodate the other’s need or desire for more flexibility in the parenting arrangement. The parties returned to the court after their own efforts to equally divide the parenting time had failed….

Given Mother’s role as the primary caregiver, the trial court reasonably ordered an increase in Mother’s parenting time under the day-to-day schedule. While this meant a corresponding decrease in Father’s parenting days, Father was additionally granted specific parenting time during holiday and vacation periods and for two weeks each summer.

Finding the trial court did not abuse its discretion, the Court of Appeals affirmed the trial court’s modification of the parenting schedule.

K.O.’s Comment: When changing from equal time to unequal time and there is no change in the primary residential parent (as was the case here), the standard for determining whether a material change of circumstances exists is set forth in Tennessee Code § 36-6-101(a)(2)(C), which is considered a “very low threshold.” See, e.g., Taylor v. Knott. Also remember the Supreme Court’s opinion in Armbrister v. Armbrister disposes of the foreseeability requirement for a material change under the § 36-6-101(a)(2)(C) standard. To change the parenting schedule, one need only show the existing arrangement has proven unworkable. Here, both parties agreed that was the case. They also agreed it was best for Child if one of them had significantly increased parenting time. The trial court just had to decide which parent it would be.

Taylor v. Taylor (Tennessee Court of Appeals, Eastern Section, July 30, 2014).

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

Knoxville child custody lawyersFacts: Mother and Father had a one-night stand that produced Child. Mother did not list Father’s name on the birth certificate and openly asserted that another man was Child’s father.

Later, Child was adjudicated as dependent and neglected in Mother’s care. Father was incarcerated on a one-year prison sentence followed by 11 years of probation when he learned that he might be Child’s father. After a DNA test confirmed paternity, the Department of Children’s Services (“DCS”) petitioned to terminate Father’s and Mother’s parental rights to Child.

The trial court found that termination of Father’s parental rights was supported by the statutory ground of confinement under a sentence of 10 years or more. The trial court further found that termination of Father’s parental rights was in Child’s best interest.

Father appealed.

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

Father argued the trial court erred in terminating his parental rights based upon his incarceration when he was only ordered to serve one year in jail followed by 11 years of probation.

Tennessee Code § 36-1-113(g)(6) provides as follows:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
* * *
(6) The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court[.]

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

In this case, the requirements of the statute have also been met, namely Father has been confined under a sentence of 10 or more years when the Child was less than 8 years of age. While the statute requires some period of confinement, the legislature did not expressly provide that the actual period of confinement must amount to 10 or more years. We decline to insert such a meaning into the statute when the obvious intention of the statute was to achieve permanency for children whose parents are subjected to the possibility of lengthy prison sentences….

As Father is well aware from his past experience, his probation could be revoked at any time following his release, thereby subjecting the Child to an unending quest for permanency.

Accordingly, the trial court’s judgment terminating Father’s parental rights was affirmed. It is worth noting that the trial court terminated Father’s parental rights on a separate, independent ground (not covered in this blog post) that was affirmed by a unanimous Court of Appeals.

Dissenting Opinion: Judge Swiney wrote a dissenting opinion in which he said the following:

The majority interprets this statute to say that if a parent is sentenced even just to one day of confinement and then probation for ten or more years and the child is under eight years old, this statutory ground for termination is met. The majority’s position then also must be that if a parent is sentenced not to that one day of confinement but only to the ten years of probation with no sentence of confinement, this statutory ground for termination is not satisfied. I disagree with the majority’s interpretation of this statute as I cannot accept that this Draconian distinction was what the General Assembly intended when it enacted Tenn. Code Ann. § 36-1-113(g)(6)….

Furthermore, while it is clear that a parent who is incarcerated is physically unable to parent, it does not follow that a parent who is sentenced to probation is physically unable to parent a child while on probation. Practically, there is a distinction between a parent who has been sentenced to confinement or incarceration for a period of ten years or more and a parent who has been sentenced to a brief period of confinement followed by a period of probation that when combined totals ten years or more. A parent who is incarcerated is physically unable to parent, a parent serving probation is not necessarily physically unable to parent.

K.O.’s Comment: I agree with Judge Swiney’s legal analysis and reasoning here. Unfortunately, Father has little incentive to seek review by the Tennessee Supreme Court since there was another basis for the termination of his parental rights that was affirmed by a unanimous Court of Appeals. For that reason, this may be the last word on this issue (for now).

In re Chandler M. (Tennessee Court of Appeals, Eastern Section, July 21, 2014).

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

Posted by: K.O. Herston | August 29, 2014

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Knoxville Divorce

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

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