Posted by: K.O. Herston | April 18, 2014

Photo of the Week: Alum Cave Creek

 

Divorce Lawyers in Knoxville

Alum Cave Creek, Great Smoky Mountains National Park

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

Facts: Mother and Father lost custody of Child, who eventually ended up in the custody of an unrelated couple who wished to adopt Child (“Adoptive Parents”).

Adoptive Parents petitioned to terminate the parental rights of Father in Mother and to adopt Child. As grounds for the termination of parental rights, Adoptive Parents alleged that Mother and Father willfully failed to visit or support Child during the “four consecutive months immediately preceding the filing of this petition.”

After a hearing, the trial court found by clear and convincing evidence that Mother and Father neither visited nor provided financial support to Child “during the four months preceding the filing of the adoption.”

Only Mother appealed.

On Appeal: The Court vacated the trial court’s ruling.

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 Annotated § 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 Annotated § 36-1-113(I). Because no civil action carries graver consequences than a petition to sever family ties forever, both of the elements for termination must be proven by clear and convincing evidence.

The ground for termination most frequently relied upon is “abandonment.” Abandonment can be established by showing that a parent either willfully failed to visit or willfully failed to provide child support. Failure to visit or support a child is ‘willful’ when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.

If a parent is incarcerated when a termination action is commenced or if a parent is incarcerated during the four-month period preceding such commencement, the court, in considering abandonment, must look to the parent’s visitation and support during the four-month period preceding incarceration rather than to the four-month period preceding the petition. Consideration of the pre-incarceration period recognizes that an incarcerated parent has limited opportunities to visit or to earn money with which to pay support, making it difficult to show that such failures were willful.

After reviewing the record, the Court concluded:

The trial court made no factual findings regarding incarceration and it is not apparent from the record why the trial court considered the four-month period preceding the filing of the Petition notwithstanding Mother’s alleged incarceration during that period. Additionally, because the trial court focused upon the four-month period preceding the filing of the Petition, it made no findings as to whether Mother willfully failed to support or willfully failed to visit the child during the four-month period preceding incarceration. These omissions necessitate a remand for findings. On remand, the trial court should first determine whether Mother was incarcerated during the four-month period preceding the filing of the Petition. If so, it should then ascertain the first four-month period of non-incarceration preceding the filing of the Petition, and it should prepare findings regarding whether Mother willfully failed to visit and/or support the child during this period.

Accordingly, the trial court’s judgment was vacated and the matter remanded for further findings.

In re Karma S.C. (Tennessee Court of Appeals, Eastern Section, March 5, 2014).

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

Posted by: K.O. Herston | April 14, 2014

Increasing Numbers of Men Get Alimony From Their Ex-Wives

This article by Geoff Williams at Reuters.com might be of interest to readers of this blog.

Increasing Numbers of Men Get Alimony From Their Ex-Wives

If Hugh McSharry’s marriage had come to an end a generation ago, he might have felt uncomfortable accepting alimony.

But when his divorce was finalized almost two years ago, in February 2012, McSharry had no qualms about asking a court for spousal support. Nor did he receive any blowback from family or friends or even his ex-wife.

Knoxville Tennessee alimony lawyers“It wasn’t a big sticking point,” McSharry, 50, says of negotiating for alimony. “She knew obviously that she’s very successful and was the primary earner in our family.”

McSharry is the father of three and a partner in a small medical device company. Based in Nashville, Tennessee, he does OK financially, but his ex-wife is an orthopedic surgeon, and she does very, very well.

Divorce attorneys across the country are seeing a rise in men asking ex-wives for spousal support, also known as alimony.

Up-to-date numbers are hard, if not impossible, to come by. According to 2010 Census records, of the 400,000 people receiving spousal support, only 3 percent were men. Last year, the American Academy of Matrimonial Lawyers surveyed its 1,600 members and found that 47 percent had noticed an increase in the number of women who are paying alimony.

Still, as women increasingly become the chief breadwinners, and with the rise of stay-at-home fathers, that 3 percent number is likely to rise, if it hasn’t already.

“Ten years ago, when I was probably three years into my career, was the first time I saw a woman pay spousal support. This year alone, I’ve had seven cases where the woman is paying support,” says Justin Reckers, CEO of Pacific Divorce Management, a San Diego-based financial planning firm for people divorcing.

The change is because social mores are changing, says Penelope Hefner, an attorney in Charlotte, North Carolina, who is also seeing an increase in men asking for spousal support.

“More fathers stay at home, and more women earn more than their husbands,” Hefner says. “This shift in the economic balance naturally leads to a shift in the proportion of husbands seeking support.”

Society is starting to catch up to the law. In 1979, with Orr vs. Orr, the Supreme Court made it clear that there shouldn’t be gender bias when it comes to alimony. Yet anecdotal evidence suggests that some men don’t always have equal outcomes when it comes to receiving spousal support.

For one, the law may state that there shouldn’t be gender bias, but that doesn’t mean it isn’t there, says McSharry. “I absolutely believe the judge, who was a woman, had a kind of mentality where she didn’t feel I deserved alimony because I’m a man,” says McSharry, who receives $5,000 a month from his ex-wife.

And it isn’t just the judges who are skeptical that men deserve alimony. Hefner says that “men are often more willing to drop their requests in divorce negotiations than women are.”

PRIDE YIELDS TO MATH

Convincing some reluctant, prideful male clients to negotiate for alimony can take some doing, but it’s usually just a matter of showing them the math, according to Steven Eisman, a matrimonial attorney in New York. “He tends to want it when he realizes that without it he’s going to be living in a basement apartment,” Eisman says.

It’s safe to say that nobody enjoys paying alimony, and that some spouses, male or female, get alimony that they arguably don’t deserve. Reckers sees a lot of women preferring to give their ex-husbands a lump sum of money in lieu of ongoing alimony “because they don’t want to have a former husband on the payroll for an extended period of time.”

Sandy Arons, a certified financial divorce specialist in Brentwood, Tennessee, says that it seems to be easier for divorcing men with children to ask for alimony, but she recently helped a man without kids receive spousal support.

“She didn’t want to pay anything,” Arons says. “But the purpose of alimony in that case was to help him get on his feet. He wasn’t unemployed, but when you’re in a household with two incomes, you can afford to have a job where you’re happy and you like it and you don’t have to be in turbo-mode in your career.”

Now, Arons says, the alimony will allow her client to have a cushion while he finds a better job.

When a man works less, such as not chasing after a job that requires a lot of travel and time so he can run the household more efficiently while his wife goes after the big bucks, “it’s no different than a woman who compromises her career,” she says.

McSharry concurs. McSharry, who never wanted a divorce, says his ex-wife is a great mom, but she has a demanding career, and he purposely avoided a super-charged career so the kids wouldn’t have two parents who were always being called away by their jobs.

Alimony, no matter what the gender, is justified, McSharry says. “If you brought value into the relationship, you should be able to take that value out of it,” he notes.

Source: Increasing Numbers of Men Get Alimony From Their Ex-Wives (Reuters.com, December 24, 2013).

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

Posted by: K.O. Herston | April 11, 2014

Photo of the Week: Smoky Mountain Reflections

 

Divorce lawyers in Knoxville

Cades Cove, Great Smoky Mountains National Park

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

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

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

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

Father appealed.

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

The issue presented was whether the trial court erred by finding DCS was not required to make reasonable efforts to reunify Father with his Child prior to terminating his parental rights.

Under most circumstances where a child is placed in DCS’s custody, DCS is required to make “reasonable efforts” to assist the parent in matters of family preservation and reunification. This requires DCS to use its superior insight and training to assist parents in remedying the problems that led to DCS’s involvement.

“Reasonable efforts” are not required when a court has determined the parent subjected the child to “aggravating circumstances,” which is defined as “abandonment, abandonment of an infant, aggravated assault, aggravated kidnapping, especially aggravated kidnapping, aggravated child abuse and neglect, aggravated sexual exploitation of a minor, especially aggravated sexual exploitation of a minor, aggravated rape, rape, rape of a child, incest, or severe child abuse….”

“Abandonment” is defined to include, inter alia, when a parent has “engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.”

After examining the contradictory holdings on this very issue by the Court of Appeals, this Court commented:

A plain reading of the statute demonstrates that reasonable efforts to preserve the family are required to be exercised by DCS both before the child is removed from a parent and after such removal. If aggravated circumstances are found to exist due to, inter alia, abandonment or abuse, DCS can be relieved of its duty to exercise reasonable efforts toward family reunification. A court of competent jurisdiction must make a determination that such aggravated circumstances exist, however, before DCS is relieved of its duty to exercise reasonable efforts to assist the parent….

[W]e conclude that the trial court erred in ruling that DCS did not have to make reasonable efforts to assist Father regarding reunification because DCS eventually proved, at the termination hearing, the allegation that Father abandoned [Child] by engaging in conduct exhibiting wanton disregard for her welfare prior to his incarceration.

In reversing the trial court, the Court noted (hint, hint) “the significance of this issue may sufficiently warrant review by the Tennessee Supreme Court.

Dissent: Judge Swiney dissented, writing:

The majority’s holding means that as to all aggravated circumstances, not just abandonment, DCS will be required to attempt to reunify the parent and the child unless there has been a prior determination by a court that such aggravated circumstances exist. In short, DCS will be required to prove the aggravated circumstances in some court hearing before it has to prove them in the termination proceeding….

I find nothing in the statutes requiring DCS to attempt to reunify the parent and the child in those aggravated circumstances which include not just abandonment but the entire list as detailed above such as aggravated sexual exploitation of a minor, aggravated rape, and incest, among others.

Given the language of the statute, there is no basis for treating the aggravated circumstances of abandonment differently from any of the other aggravated circumstances listed in that statute. If DCS is to be required to attempt to reunify a parent and a child if abandonment is alleged, then DCS also must attempt to reunify the parent and child when any of the other aggravated circumstances are alleged. The majority’s decision means that if DCS is going to rely upon any aggravated circumstances, DCS first must attempt to reunify the parent and the child at least up until the time a court of competent jurisdiction, likely the termination court itself in the termination hearing, makes the determination as to whether or not the aggravated circumstances have been proven by clear and convincing evidence. I do not believe it was the intent of the General Assembly to require DCS to attempt to reunify a child and a parent in those circumstances where aggravated circumstances serve as the basis for the termination.

Judge Swiney agreed with the majority that “this is an appropriate case for consideration by our Tennessee Supreme Court so as to resolve the conflict in the decisions of this Court on this issue.”

K.O.’s Comment: This case seems all but certain to be granted permission to appeal by the Tennessee Supreme Court.

If and when that happens, we’ll see whether pragmatism prevails, i.e., the Majority, or whether the strict construction of an inartfully drafted statute prevails, i.e., the Dissent. My money is on the Majority opinion being affirmed. If so, that will create an extra proceeding for DCS in its termination of parental rights cases.

The better solution would be for the legislature to remove “abandonment” from the list of “aggravating circumstances” that eliminates the requirement for DCS to make “reasonable efforts.” I don’t believe it belongs there.

In re Kaliyah S. (Tennessee Court of Appeals, Eastern Section, February 28, 2014).

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

Facts: Mother and Father were divorced in Memphis in 2008. While the parties had previously resided in Arlington, by the time of the divorce Mother and the children had moved to Illinois. In late 2010, Father moved from Tennessee to Pennsylvania.

Several post-divorce disputes arose concerning the parenting plan, all of which the parties elected to litigate in the Tennessee trial court despite the fact that neither the parties nor the children resided in Tennessee.

After a successful mediation in early 2012, the parties had the trial court enter an agreed order providing that Father would apply for and pay for the children’s passports. The agreed order further provided that “Mother will cooperate with execution of any documents necessary to accomplish this.”

Six months later, Father filed a petition for contempt alleging that he had taken the necessary steps to obtain passports for the children but mother refused to execute the necessary documents. Father alleged he was forced to cancel a family vacation because of Mother’s “contemptuous noncompliance.”

Just prior to the beginning of the hearing on Father’s petition, Mother signed the necessary passport documents. Despite this last-minute attempt at compliance, the trial court found Mother in both criminal and civil contempt of court for failing to execute the documents at an earlier date. Mother was sentenced to stay in jail until 10:00 PM the evening of the hearing. She was also ordered to pay $3000 toward Father’s attorney’s fees.

Mother appealed.

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

Mother argued that Tennessee lacked subject matter jurisdiction because the children had lived in Illinois since 2008.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Tennessee Code Annotated § 36-1-201, et seq., governs jurisdiction between Tennessee and other states over child custody proceedings. The UCCJEA defines a “child custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue,” and it includes such proceedings as those for “divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue [of custody or visitation] may appear.” The Act similarly defines a “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.”

Tennessee Code Annotated § 36-6-217 provides that a Tennessee court that has made an initial custody determination retains continuing, exclusive jurisdiction over the custody matter until, among other things, a court determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. Jurisdiction attaches at the commencement of a proceeding. If Tennessee had jurisdiction at the time a modification proceeding was commenced, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. Because the modification proceeding that led to the 2012 agreed order was filed prior to Father’s move to Pennsylvania, the trial court had jurisdiction under the UCCJEA to enter the 2012 consent order, addressing, among other things, custody issues, even though none of the parties lived in Tennessee at the time the order was entered.

After reviewing the record, the Court commented:

Father filed the petition for contempt, seeking to enforce the 2012 consent order, after all the parties had moved from Tennessee. Even if this fact means that the Tennessee court would not have had jurisdiction to modify the 2012 consent order, it could still enforce the order in the contempt proceeding. No other court had assumed jurisdiction to enter a contrary order. In conclusion, the UCCJEA would not deprive the trial court of jurisdiction to enforce the 2012 consent order even though the parties had moved from Tennessee.

Accordingly, the unanimous Court affirmed the trial court.

Dissent: Judge Kirby dissented on the propriety of the trial court’s contempt finding. The majority declined to address this issue, deeming it waived because Mother did not argue the issue in her initial appellate brief. After noting that an order that is the subject of a contempt petition must be “clear, specific, and unambiguous” and interpreted in favor of the alleged contemnor, Judge Kirby wrote:

[T]he 2012 consent order has no deadline and cannot be fairly characterized as “clear, specific and unambiguous.” The typical path with such an order would have been for Father to get an order from the trial court specifying that Mother was required to execute the documents by a certain date or risk being held in contempt of court. Here, however, Mother hurriedly executed the passport documents shortly before the trial court’s contempt hearing. Apparently exasperated with Mother, the trial court went ahead and held her in contempt of court, in spite of the fact that she belatedly executed the documents. While the trial court’s frustration with Mother is understandable, it erred in holding Mother in contempt of an unspecific, unclear order that merely directs Mother to “cooperate” with Father….

I must respectfully dissent [] from the majority’s decision to decline to address the issue of whether the trial court erred in holding Mother in contempt of the 2012 consent order where the order had no deadline for her execution of the passport documents. I would address the merits of this issue, hold that the 2012 consent order lacked the clarity or specificity for the trial court to hold Mother in contempt of it, and reverse the trial court’s contempt order on that basis.

K.O.’s Comment: I am not sure I agree with Judge Kirby on the merits of the underlying contempt issue. Mother was ordered to execute the documents necessary for the issuance of the children’s passports. The trial court specifically found she had willfully “refused” to do so. Is it necessary to write a specific deadline into the agreed order? Marital dissolution agreements routinely require parties to cooperate in executing the documents necessary to carry out the terms of the agreement, e.g., executing documents necessary to effectuate the transfer of property. Must drafters now include a specific deadline to avoid the expense and delay of seeking a subsequent order to compel a party who is willfully refusing to execute documents they have already been ordered to execute? That seems to be what Judge (now Justice) Kirby is suggesting.

Heilig v. Heilig (Tennessee Court of Appeals, Western Section, February 28, 2014).

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

Posted by: K.O. Herston | April 4, 2014

Photo of the Week: Scouting the Nantahala

 

Knoxville child custody lawyers

Nantahala River, North Carolina

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

Facts: The parties are the parents of one child. Both parents are licensed physicians. Mother is a board-certified otolaryngologist. She did clinical fellowship training in microvascular reconstruction and head and neck oncology, a sophisticated surgical subspecialty of otolaryngology.

During the marriage, Mother was diagnosed with multiple sclerosis, the symptoms of which forced her to cease practicing medicine. Over the years, Mother tried a variety of measures to alleviate her symptoms. Eventually, dietary changes greatly improve them. After her symptoms abated, she began aggressively seeking out opportunities to continue practicing medicine.

The parents divorced after 17 years of marriage. The parenting plan designated Mother as Primary residential parent and allocated Father 120 days of parenting time.

A little over a year after the divorce, Mother notified Father of her intent to relocate with Child to Illinois. Mother planned to retrain in her subspecialty so she could return to practicing medicine in that subspecialty. Father opposed the relocation.

The proof showed that Mother had an opportunity to retrain in her subspecialty at a medical school in Illinois. The retraining position would have a salary of approximately $58,000 per year, which was significantly less than the income Mother received from disability insurance. After completing the training, however, a faculty appointment at the medical school was “highly likely.” As a faculty member, Mother expected to receive approximately $250,000 per year, which would be a substantial increase in Mother’s income.

The trial court found that Mother’s desire to retrain in her field of expertise was a reasonable purpose to relocate, and that such retraining was available in Illinois but not in Tennessee. The trial court permitted Mother’s relocation.

Father appealed.

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

Father argued that Mother’s proposed relocation lacked a reasonable purpose because, at the time of trial, Mother had not received an actual job offer from the medical school; instead, she had only the hope of a job offer after her retraining.

Where the parents do not spend substantially equal intervals of time with the child, Tennessee Code Annotated § 36-6-108 has a legislatively mandated presumption in favor of the relocating custodial parent. Under Tennessee Code Annotated § 36-6-108(d)(1), the trial court must grant the primary residential parent permission to relocate unless the parent opposing relocation proves at least one of three enumerated grounds: (1) that the relocation does not have a reasonable purpose; (2) that the relocation poses a threat of specific and serious harm that outweighs the risk of harm that would result from a change of custody; or (3) that the primary residential parent’s motive for the relocation is vindictive. The parent opposing the relocation bears the burden of proof to establish one of these three grounds, and if he or she fails to do so, the relocation must be permitted. If the parents do not spend substantially equal intervals of time with the child, the trial court will not address the issue of whether the relocation is in the best interest of the child until and unless one of the statutory grounds is proven.

There are no bright-line rules with regard to what constitutes a reasonable purpose for a proposed relocation. Relevant economic factors that are typically considered include, without limitation, the relative significance of the increase, the cost of living in the proposed location compared to the present location, the firmness of the job offer, opportunity for career advancement and economic betterment of the family unit. Relocation because of a better job opportunity, greater salary, and career advancement opportunities, establishes a “reasonable purpose” within the meaning of the statute. On the other hand, under the circumstances presented in other cases, the Court of Appeals has found when there is no firm job offer and no proof of better job opportunities that the move was not for a reasonable purpose. Non-economic factors must be considered as well. In all cases, the reason for the proposed relocation must be substantial when weighed against the gravity of the loss of the non-custodial parent’s ability to participate fully in their children’s lives in a more meaningful way.

After reviewing the record, the Court concluded:

While we recognize that Mother’s job offer was not guaranteed, it is also important to note that non-economic factors are part of the equation. In this case, Mother is a highly trained medical professional who practiced in a sophisticated subspecialty and was then forced to give up her chosen profession for many years because of a debilitating disease. After gaining a measure of control over the symptoms of her disease, and after exhaustive efforts to find retraining in her subspecialty, she found an opportunity to complete the retraining and practice her chosen medical subspecialty again. As the trial court found, Mother’s desire to retrain in her area of expertise is reasonable.

Accordingly, the trial court was affirmed.

Rudd v. Gonzalez (Tennessee Court of Appeals, Middle Section, February 28, 2014).

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

Knoxville alimony lawyersFacts: The parties divorced after a 21-year marriage. In the divorce, Wife was designated the primary residential parent of Son, Who Lived with Wife while attending high school. Wife was also awarded transitional alimony for a period of seven years.

A little over one year later — one day after Son’s 18th birthday — Husband petition to reduce or eliminate his transitional alimony on the grounds that Wife was now living with and providing financial support to a third person, namely Son.

After a hearing, the trial court reduced Husband’s transitional alimony by approximately $625 per month, which was the amount of financial support the trial court found Wife was providing to Son.

Wife appealed.

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

Tennessee Code Annotated § 36-5-121(g)(2) provides:

(2) Transitional alimony shall be nonmodifiable unless:
* * *
(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

Tennessee courts have consistently held that the “lives with a third person” language applies to any third person, including adult children. Nowhere does the statute indicate there must be any type of liaison, sexual or otherwise, between alimony recipient and third person. The nature of the relationship between alimony recipient and third person is irrelevant to the statute. It applies in all cases where an alimony recipient ‘lives with a third person,’ regardless of the relationship, or the gender of the third person.

A finding that an alimony recipient is living with a third person does not end the inquiry of whether transitional alimony should be suspended in whole or in part. Such a finding merely shifts the evidentiary burden in a modification proceeding to the alimony recipient. Once the presumption arises, the alimony recipient bears the burden of demonstrating a need for the previously awarded alimony, notwithstanding the cohabitation.

In order to determine whether the presumption is rebutted, a court must examine the financial circumstances of the alimony recipient at the time of the modification hearing to see whether the recipient has demonstrated a continuing need for the previously awarded amount of alimony. Tennessee courts have frequently held that an alimony recipient has rebutted the presumption by demonstrating continuing need, despite living with a third person and either receiving support from, or providing support to, the third person.

After reviewing the record, the Court concluded:

In the present case, husband stopped providing any financial support to his children as soon as they turned eighteen. He acted within his right in doing so. He removed [Son] from his health insurance, prompting wife to pick up the added expense of putting [Son] on her health insurance….

It appears from the evidence presented that the only significant changes in wife’s financial situation since the final divorce judgment are that she stopped receiving child support of $507 per month from husband when [Son] turned eighteen, and wife’s additional health insurance expense from adding [Son]….

Wife has admitted that she “helps both of [her] children when I can financially afford to do so” while they are trying to get a college education. We do not believe it is fair for her to be penalized for doing so, nor does the alimony statute require such a result. Wife’s economic situation is on a downward spiral unrelated to her help for her children. Under the circumstances, we hold that wife has rebutted the statutory presumption and demonstrated her continuing need for the amount of transitional alimony initially awarded by the trial court. The trial court’s judgment reducing wife’s transitional alimony is reversed.

Wife was also awarded her attorney’s fees and discretionary costs. The case was remanded to the trial court to determine those amounts.

Hickman v. Hickman (Tennessee Court of Appeals, Eastern Section, February 26, 2014).

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

Posted by: K.O. Herston | March 28, 2014

Photo of the Week: Dog Jumping Contest

This week’s photo comes from a dog jumping contest during the Bele Chere Festival in Asheville, North Carolina in July 2012.

Knoxville divorce attorneys

Dog Jumping Contest, Bele Chere Festival, Asheville, NC, July 2012

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

Facts: At the time of divorce, Mother was designated the primary residential parent for Children. In a post-divorce modification proceeding brought about by concerns about Mother’s substance abuse, Father was awarded primary custody of Children. Mother received visitation rights subject to a number of restrictions, including that she abstain from the use of illegal drugs or alcohol.

A few years later, Father and Stepmother filed a petition to terminate Mother’s parental rights to Children and for adoption of Children by Stepmother. The petition alleged numerous grounds for termination, including failure to visit and failure to support.

Knoxville divorce and child custody attorneysIn the four months preceding the petition to terminate Mother’s parental rights, the proof showed Mother attempted to give some gifts to Children. At another time, she made a $25 payment for Children’s support. After being found in contempt with a child support arrearage of $2169, Mother made a $500 payment on November 17 to purge herself of contempt. Notably, this payment was made on the same day the petition to terminate parental rights was filed.

Mother argued her $500 payment constituted non-token support within the relevant four-month window. The trial court disagreed. Mother’s parental rights were terminated.

Mother appealed.

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

It is well established that parents have a fundamental right to the care, custody, and control of their children. However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.

Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence.

Tennessee Code Annotated § 36-1-113(g)(1) establishes abandonment as a ground for termination of parental rights. The statute defines abandonment, in relevant part, as the willful failure to visit or support the child “for a period of four (4) consecutive months immediately preceding the filing of a . . . pleading to terminate the parental rights” of the parent.

The issue presented on appeal is whether the day of the filing of the petition to terminate parental rights counts in the fourth consecutive month window and whether a substantial child support payment made that day would cure the failure to support.

After reviewing the record, the Court reasoned as follows:

Consider a scenario where a petition to terminate parental rights which includes the ground of willful failure to support is filed at 8:56 a.m. and a large child support payment is made by the respondent-parent minutes later. Would we need to determine the exact timing to the minute and second of the respective filings? We do not believe our General Assembly contemplated or intended such a race when it enacted Tenn. Code Ann. § 36-1-102 (1)(A)(i). A day is a unit of time more amenable to effective adjudication. In our view, a more reasonable construction is that the applicable four month window for determining whether child support has been paid in the context of the ground of willful failure to support includes the four months preceding the day the petition to terminate parental rights is filed but excludes the day the petition is filed. In other words, the last day of the four month period is the day before the petition is filed. We, therefore, hold that Mother’s $500 payment was made outside the applicable time period.

Even if we err in our interpretation of Tenn. Code Ann. § 36-1-102 (1)(A)(i) and the applicable four month window, the facts of this case establish that Mother failed to support the Children. Mother’s $500 purge payment came at the last minute not to help support the Children but rather to stave off her incarceration. This was not so much genuine child support as it was a bid for self-preservation.

Accordingly, the Court of Appeals affirmed the trial court’s finding that Mother’s failure to support the children was willful. The termination of Mother’s parental rights was affirmed.

In re Jacob C.H. (Tennessee Court of Appeals, Eastern Section, February 20, 2014).

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

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

Post-Divorce Tax Intimacy Can Be Riskier Than Post-Divorce Sex

With tax season upon us, I thought this recent article by Peter Reilly on Forbes.com might be of interest to readers of this blog.

Post-Divorce Tax Intimacy Can Be Riskier Than Post-Divorce Sex

Post-divorce intimacy between exes seems to be something of a controversial topic among therapists and the like. In Psychology Today, Pamela Cytrynbaum wrote about the various forms that post-marital sex can take, finishing with the caution:

No matter how, why, when and where you’re doing it with your ex, my advice: Keep your eyes wide open.

Post-divorce sex between exes has an interesting titillating aura about it, but there is a bit of financial intimacy that is more or less taken for granted.That would be a joint tax return for the final year of the marriage. It might even be arranged, even prepared, by the half of the couple that had always tended to it. I would suggest that, in many circumstances this might be an even worse idea than a post-marital roll in the hay.

Knoxville divorce attorneysTax Court decisions to illustrate the hazards of post-marital tax entanglement are numerous, but the most recent is something of a standout. I should mention at the outset that the Tax Court believed the version of events laid out by Anthony W. Roberts. His ex-spouse had a different version, which the Tax Court did not believe. I’m just a tax blogger, not an investigative reporter, so I am telling you the story as the Tax Court told it without any independent verification.

Mr. Roberts married Cristie Smith in 1990. They separated for a period in 2008, permanently separated in January 2009 and were divorced in March 2010. They maintained two checking accounts, one with Washington Mutual (WM) and the other with Harrborstone Federal Credit Union (HS) . Although both accounts were joint, they operated them on a his and hers basis, with Mr. Roberts doing everything through the HS account and Ms. Smith doing everything through the WM account. Mr. Roberts never saw the WM statements. Mr. Roberts gave his tax information to Ms. Smith in early 2009, expecting that she would file a joint return as had been their custom.

As it turned out, Ms. Smith did not file a joint return with Mr. Roberts. She did her own return, apparently accurately, married filing separately. She filed Mr. Roberts as single lowered his wage income by $3,000, increased his withholding by $3,000 and had the resulting $3,357 refund electronically deposited in the WM account (i.e. “her account”).

There was something even more significant that Ms. Smith left off Mr. Roberts return, something that she had not informed him about. In late 2008, she had arranged to have ING issue to checks totaling $37,020 which she deposited into the WM account. ING issued the accounts from Mr. Roberts IRA. According to the Tax Court findings, Ms. Smith used the funds to set up her post-separation household, take a vacation and family trip and pay expenses for which she was liable.

What A Mess

When Mr. Roberts received a 1099-R from ING, he thought at first that he was a theft victim. Eventually he found out what happened. The IRA money that Ms. Smith had availed herself us was taken into account in the final divorce property settlement in 2010.

The IRS position was that ING made checks out to Mr. Roberts and they were deposited into a joint account. He picks up $37,020 in 2008. End of story. The Service noted that taxpayers in similar circumstances were allowed to replenish IRA funds that had been diverted citing Private Letter Ruling 20119040. Mr. Roberts had not done that. The Service noted that Mr. Roberts ended up getting credit for the IRA distribution in the final settlement.

Mr. Roberts Mostly Wins Kind Of Sort Of Probably

Since Mr. Roberts did not disclaim the return that Ms. Smith filed for him nor file one of his own, he was stuck with the deficiency from the W-2 and filing status misstatement and any resulting penalty. The Tax Court did not find it reasonable of him to rely on Ms. Smith. Yah think?

The IRA distribution was a different story. The theories that the IRS put forth were arguments that support him being taxable on the distribution in 2009 or 2010. There was no reasonable basis for taxing him in 2008. That puts a bit of a cloud over Mr. Roberts victory parade, since, counting on my fingers, I come up with 2010 still being an open year. I’m betting the Service does not go after him for 2010. If they did and he won, they may have created a roadmap for conspiratorial divorcing couples to bail money out of IRAs tax-free. Frankly, I would caution you to not try this at home or at all.

The Lesson

When you get divorced, you need to accept that bad as the relationship may have been, there were probably many of your needs that were being met through it. Likewise, low as their opinion may have become of you, you were probably meeting some of your spouse’s needs. There may be some things that you cannot disentangle, but you probably should disentangle as many as you can. That’s the point of getting divorced. Tax compliance is one that is relatively easy to disentangle and it can cause you a lot of trouble if you don’t.

If you have always hired somebody to do your return, one of you should probably hire somebody else. My experience is that many preparers don’t think of couples as two clients. Also, many preparers are not sensitive to the implications of joint and several liability and encourage joint filing when it is inappropriate. Divorce attorneys and even probate judges seem to make the same mistake sometimes ordering recalcitrant spouses to sign joint returns.

As far as having your ex prepare your return or preparing your ex’s return, it seems like a really bad idea, although the only instance of it I know of seems to be working out OK. My covivant is such a good preparer and already does so many other free returns, that I persuaded her to do my return the last two years rather than have to learn new software myself. So for 2012, there is a Drake software account with nine returns – Me. CV, her five adult children, her ex-husband and her ex-brother-in-law. I guess there is an exception to every rule.

Source: Post Divorce Tax Intimacy Can Be Riskier Than Post Divorce Sex (Forbes.com, January 7, 2014).

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

Posted by: K.O. Herston | March 21, 2014

Photo of the Week: Coyote on Patrol

When I’m not working or studying the latest case law, I can often be found behind the lens of a camera. I figured it might be fun to share one of my photographs with you each Friday.

This week’s photo was taken yesterday evening in the Great Smoky Mountains National Park. This male coyote was patrolling from field to field looking for food. With Spring just around the corner in the mountains, he’s going to have plenty to eat real soon.

Knoxville Divorce Lawyers

Coyote on Patrol, Great Smoky Mountains National Park, March 20, 2014

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

Knoxville child custody lawyersFacts: Mother and Father, parents of three children, were divorced in 2009. Mother was designated the primary residential parent at the time of divorce. Father was awarded 159 days of parenting time.

Later, Mother was permitted to relocate to Texas with the children. This relocation required the development of a new parenting schedule.

After a hearing, Father was awarded the following parenting time: fall vacations on even-numbered years; half of the two weeks for Christmas vacation; five weeks in the summer and every spring vacation; and holiday time, but — curiously — not weekends that adjoined the holidays. This resulted in a reduction in Father’s annual parenting time from 159 days to 57 days.

Father appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

Father sought parenting time on weekends adjacent to his holiday parenting time. He argued the children’s best interests are not served by the omission of his weekend time or weekends connected to holidays awarded to him.

When a parent relocates, Tennessee courts have the power to change the existing parenting plan to fit the new circumstances of the parties and their children. Courts typically make changes necessary to fit the practicalities of the new living arrangements of the children.

Because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are better positioned to evaluate the facts than appellate judges. Thus, determining the details of parenting plans is within the broad discretion of the trial judge. It is not the function of appellate courts to tweak a residential parenting schedule in the hopes of achieving a more reasonable result than the trial court. A trial court’s decision regarding the details of a residential parenting schedule is not supposed to be reversed absent an abuse of discretion.

After reviewing the record, the Court modified the trial court’s ruling, stating:

Mindful of our Supreme Court’s directive that we are not to tweak or micro-manage the plans entered by trial courts in these matters, we nevertheless find logic in [Father's] request. Specifically, we find that attaching weekends to those adjacent holidays awarded to [Father] is a logical common sense accommodation that is in the best interest of the Children. This relatively minor alteration does not undermine the essence of the plan while giving the Children more time with [Father]. We remand this case to the Trial Court to modify parenting time so as to give [Father] the weekends adjacent to those holidays awarded to [Father].

Accordingly, the trial court’s judgment was modified.

Mubashir v. Mahmood (Tennessee Court of Appeals, Eastern Section, February 19, 2014).

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

Facts: Child was born when Mother and Father were teenagers in high school. Mother and Child lived with Mother’s parents after Child was born, and Father lived with his parents. They never sought the court’s assistance with setting child support or visitation.

Father was a regular presence in Child’s life for the first three years, with Child spending the night at his house on occasion.

In Child’s fourth year, Mother began dating Stepfather. Mother also began restricting Father’s access to Child around this time. When Father would ask for Child to stay at his home, Mother would refuse. When Father suggested establishing a parenting plan that would provide Father with regular visitation with Child, Mother refused to discuss it.

Eventually, the only way Father was able to see Child was at Child’s soccer games, about which Mother eventually refused to give Father any information.

Mother and Stepfather were married a few years later. One month later, they petitioned to terminate Father’s parental rights and have Stepfather adopt Child.

After a trial, the trial court terminated Father’s parental rights. Father appealed.

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

Persons seeking to terminate another’s parental rights must prove two things by clear and convincing evidence. Tennessee Code Annotated § 36-1-113(c) requires that termination of parental rights must be based upon: (1) A finding by the court that the grounds for termination of parental rights have been established; and (2) that termination of the parent’s rights is in the best interests of the child.

The best interests analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination. The existence of a ground does not inexorably lead to the conclusion that termination of a parent’s rights is in the best interest of the child. It is a separate analysis.

In conducting a best interest analysis, the focus is on what is best for the child, not what is best for either parent.

After reviewing the record, the Court reversed, finding:

No evidence was introduced that Father’s home is unsafe or detrimental to Child in any way, or that Father or his lifestyle presents any danger to Child. However, the test here is not which residential placement would be better for Child. As our Supreme Court has written, a father’s constitutional right to parent his child “may not be forfeited in a balancing test or to another man who may appear to be a more ideal father.”

This is not a comparison between living with Mother and Stepfather, on one hand, and living with Father, on the other. Instead, the question is whether Child’s best interests are served by termination of Father’s parental rights, thereby reducing Father to the role of a complete stranger and “severing forever all legal rights and obligations” of Father. We find no evidence that having Father involved in Child’s life, in addition to Stepfather, would be contrary to Child’s best interests….

Father acknowledges that Child is happy and thriving in Mother and Stepfather’s home. Father just wants the opportunity to spend time with his son and develop a relationship with him. We also recognize that Stepfather has provided Child with love, support, and a stable environment. We assume that will continue, whether Father is involved in Child’s life or not.

In reviewing the evidence introduced at trial, we find that Stepfather has failed to carry his burden of proving by clear and convincing evidence that terminating Father’s parental rights is in the best interest of Child.

Accordingly, the trial court was reversed, and Father’s parental rights were restored.

K.O.’s Comment: This case illustrates how the best interest analysis in a comparative fitness case between two parents is fundamentally different from the best interest analysis in a termination of parental rights case.

In re William T.H. (Tennessee Court of Appeals, Middle Section, February 18, 2014).

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

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