Knoxville divorce lawyersA recent issue of Tennessee Attorneys Memo calls this blog one of “the most practical and insightful Tennessee legal blogs.” Among other things, it says this blog contains “a thorough analysis of many of the most recent family law cases with the relevant Code sections and case citations.”

Thanks for the shout out! It’s always nice to get a pat on the back, particularly from those in the legal community.

Source: Tennessee Attorneys Memo (October 13, 2014) (subscription required).

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

Posted by: koherston | October 24, 2014

Photo of the Week: Indian Flats Falls

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Indian Flats Falls, Great Smoky Mountains National Park

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

Facts: The parties divorced after 23 years of marriage.

Husband earned between $100,000 and $120,000 per year, depending on bonuses.

Wife earned $39,000 per year but had the capability to earn up to $50,000 with additional education.

The trial court found Wife could not be rehabilitated and awarded her alimony in futuro of $2000 per month for 12.5 years, at which time wife would be 65 years old.

Husband appealed.

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

Alimony in futuro, a form of long-term support, is awarded where an economically disadvantaged spouse’s economic rehabilitation is not feasible.

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

Tennessee Code § 36-5-121(e)(1) says to be “rehabilitated” means to achieve, with reasonable effort, an earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse.

Where economic rehabilitation is unnecessary, transitional alimony, which is intended to assist the disadvantaged spouse in transitioning to the status of a single person, may be awarded.

After reviewing the record, the Court reasoned:

Wife testified that she had a degree in public management; that her degree qualified her for several non-specialized government jobs; that she had not made any effort to utilize her degree; that she possessed skills in “Excel [and] Word”; that she had experience as a probation officer and in “financial aid procedures”; and that she had no physical limitations. Wife also testified that she “loved numbers” and had investigated a two-year accounting certificate program offered at Lipscomb University, costing “$16,000 to $18,000″ and that with the certificate her income could rise from $39,000 per year to “about 45 or 50.” This testimony supports a determination that Wife can be rehabilitated and achieve a higher income in the future, and that the long-term support as ordered by the court may not be necessary.

Because the evidence preponderates against the court’s finding, we reverse the award of alimony in futuro. For the same reasons, the evidence supports an award of rehabilitative alimony; accordingly, we remand the case for a determination of the duration and amount of the award.

Thus, the trial court’s award of alimony in futuro was reversed.

K.O.’s Comment: I think the Court of Appeals erred by creating an equivalence between having the potential to earn a higher income and being “rehabilitated.” The trial court found that even though Wife could potentially earn slightly more with additional education, that higher income would still not render her “rehabilitated” as that term of art is defined in Tennessee Code § 36-5-121(e)(1).

Compare this outcome with that in Henderson v. Henderson, which opinion was issued the same day as Willenberg and involved the same three Court of Appeals judges. Henderson involved a 21-year marriage where Husband earned around $100,000 per year and the 50-year-old Wife with some health limitations and a history as a homemaker earned approximately $7800 per year. The trial court awarded Wife alimony in futuro of $2100 per month, expressly finding that “Wife cannot be rehabilitated, or able to achieve an earning capacity that will permit her [to attain the] standard of living enjoyed during the marriage, or to the Husband’s expected post-divorce standard of living.” The Court of Appeals held the evidence did not preponderate against the trial court’s finding.

How do we reconcile these two outcomes? Both cases involve long marriages, large economic disparities between the parties, a property division award to Wife in excess of $300,000, and findings below that the economically disadvantaged spouse, Wife, will not be able to enjoy a reasonably comparable post-divorce standard of living as compared to the economically advantaged spouse, Husband. In Willenberg, the record contained evidence that Wife could earn slightly more income through additional education. The opinion in Henderson only reflects Husband’s argument that Wife has the capacity to earn more than she currently earns despite what the trial court found to be Wife’s “very limited earning capacity.” Evidently the ability to earn slightly more income through additional education was enough for these three judges to find the Wife in Willenberg capable of rehabilitation.

Willenberg v. Willenberg (Tennessee Court of Appeals, Middle Section, September 23, 2014).

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

Facts: During the pendency of the parties’ divorce action, Father obtained an ex parte order of protection against Mother, which ex parte order of protection was subsequently allowed to expire. The parties eventually entered an agreed parenting plan providing for equal co-parenting time.

Five years later, Father obtained another ex parte order of protection against Mother. On the day Father’s ex parte order of protection was scheduled for hearing, the parties entered an agreed one-year order of protection without conducting a hearing. The order of protection placed limitations on Mother’s contact with the children. The order of protection specifically noted no hearing had been held, no testimony had been offered and, therefore, the trial court had made no findings of fact.

The parties subsequently entered an agreed parenting plan that incorporated the limitations on Mother’s contact with the children imposed by the one-year order of protection. After finding Father had “shown good cause” to extend the order of protection “by a preponderance of the evidence,” trial court also granted Father a one-year extension of the order of protection.

Mother appealed.

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

Mother argued the trial court erred in finding sufficient basis to grant an extension of the order of protection.

Tennessee Code § 36-3-605 (2014) provides in pertinent part:

(a) Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section.
(b) Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year, unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year, after which time a further hearing must be held for any subsequent one-year period….

“Abuse” is defined by Tennessee Code § 36-3-601(1), in relevant part, as “inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, malicious damage to the personal property of the abused party….”

“Domestic abuse” is defined in Tennessee Code §§ 36-3-601(4), (5)(A) & (5)(D) as committing abuse against a “domestic abuse victim,” the definition of which includes a “former spouse” and “adults or minors related by blood or adoption.”

In other words, a party seeking entry of an ex parte order of protection must first show an “immediate and present danger of abuse.”

A party seeking a modification or extension of an existing order of protection, which is the case here, has a less onerous burden of proof and only needs to prove the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence.

Thus, to obtain the modification or extension of the order of protection at issue, Father had the burden of proving by a preponderance of the evidence the allegation of domestic abuse.

After reviewing the record, the Court of Appeals concluded:

Father [] was unable to offer specific details regarding any occurrence during the year the order of protection was in effect that caused him to fear for his safety or that of his children if the order were not extended…. Upon a careful and thorough review of the record, we determine that much of the proof presented by the parties focused on post-divorce issues rather than allegations of domestic abuse associated with an extension of the order of protection. We conclude that the evidence does not preponderate in favor of the trial court’s finding that Father met the statutory requisite for an extension of the order of protection. We therefore vacate the extension.

Accordingly, the trial court’s extension of the order of protection was reversed.

Hall v. Hall (Tennessee Court of Appeals, Eastern Section, date).

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

Posted by: koherston | October 17, 2014

Photo of the Week: Bear Eating Choke Cherries

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Bear Eating Choke Cherries, Great Smoky Mountains National Park

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

Facts: Husband and Wife obtained an agreed divorce in 1997. Their final decree of divorce contained the following provision:

The wife shall receive custody of the parties’ four minor children and the husband shall receive liberal visitation subject to his and the children’s schedules. The husband shall pay support equal to 46% of his net income, including any and all bonuses, pursuant to the Tennessee Child Support Guidelines. Said amount is equal to $3,114.00 per month. Said amount shall never be decreased as any child reaches the age of majority as the amount for which the husband would be entitled a decrease shall be deemed spousal support. It is the intent of the parties and is so ordered by the Court that even after the last minor child reaches the age of majority, the husband shall continue to pay the above referenced amount as spousal support until the wife remarries or dies.

Husband paid the child support and alimony payments as ordered, continuing such payments after the parties’ youngest child reached the age of majority in 2006.

In May 2012, Husband filed a petition to terminate the alimony obligation. Husband alleged his health had declined significantly, his income was reduced, and he was approaching retirement. Husband asserted he would no longer be able to pay the agreed amount of alimony. He also claimed Wife no longer needed spousal support.

The trial court denied Husband’s petition, concluding the parties’ agreement “clearly set out that [the alimony] would be alimony in futuro that would not be modified, would not be decreased for any reason until the wife died or remarried, neither of which events have occurred.” The trial court agreed with Wife’s argument that the parties had “contracted out” the ability of the alimony award to be modified.

Husband appealed.

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

Tennessee Code § 36-5-121(a) provides an alimony award “is subject to modification by the court based on the type of alimony awarded, the terms of the court’s decree or the terms of the parties’ agreement.”

Tennessee Code § 36-5-121(f)(2)(a)  provides an “award of alimony in futuro shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.”

Tennessee courts sometimes have to interpret alimony provisions contained in marital dissolution agreements, often concerning the particular question of whether the alimony awarded is modifiable. The outcome usually depends on whether the original award is alimony in solido (i.e., a lump sum) or alimony in futuro (i.e., periodic alimony).

Alimony in solido, or “lump sum alimony,” is fundamentally the award of a definite sum of money, and if the sum is payable in installments, the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Alimony in solido becomes a vested right from the date of the judgment. The fact that the award is payable in installments is not determinative of the question whether it is alimony in solido or periodic alimony.

Alimony in futuro, however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid. The duration of an award of alimony in futuro may be affected by contingencies agreed upon by the parties or imposed by courts. Common contingencies affecting the duration of an award of alimony in futuro are the death or remarriage of the receiving spouse.

In this case, the award lacked sum-certainty because it was subject to contingencies affecting the total amount of spousal support to be paid. Thus, Wife conceded it was an award of alimony in futuro. Awards of alimony in futuro are generally subject to modification by the courts, whereas awards of alimony in solido are not.

After reviewing the record, the Court of Appeals concluded:

The agreement simply and unambiguously provides that Husband’s child support obligation would not decrease as any child attained the age of majority. As a result, Husband would continue to pay the amount he had previously paid as “spousal support until the wife remarries or dies.” We conclude that the language of the provision sub judice is not susceptible to more than one reasonable interpretation. The agreement clearly provides that Husband will pay alimony in futuro upon the termination of his child support obligation but fails to address the modifiability of that alimony obligation….

In this case, neither the terms of the court’s final decree nor the provisions of the parties’ agreement specifically address whether the alimony award at issue is subject to modification. Our statutory scheme regarding alimony, however, provides that alimony in futuro is modifiable “upon a showing of a substantial and material change of circumstances.” Therefore, pursuant to Tennessee Code § 36-5-121(a), the court may modify the alimony award because the type of alimony awarded is modifiable.

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

K.O.’s CommentDivorce attorneys searching for additional guidance in figuring out whether an alimony award is modifiable alimony in futuro or non-modifiable alimony in solido should look at Averitte v. Averitte. For guidance distinguishing between modifiable transitional alimony or non-modifiable alimony in solido, see Miller v. McFarland.

Stewart v. Stewart (Tennessee Court of Appeals, Eastern Section, September 9, 2014).

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

Posted by: koherston | October 13, 2014

Why Marriages Fail: Romance Just Isn’t Enough

This recent article by Naomi Schaefer Riley in the New York Post might be of interest to readers of this blog.

Why Marriages Fail: Romance Just Isn’t Enough

“This is what Cinderella would have worn on her wedding day!” said a bride, gushing over a Tiffany-blue ball gown on a recent episode of “Say Yes to the Dress: Atlanta.”

She had found her Prince Charming and spent years dreaming of being a princess on her wedding day. What could go wrong?

A lot, as we all know. The wedding may be the ending of most fairy tales, but it is supposed to be the beginning of a long partnership.

Since the 1970s, though, the percentage of Americans who eventually leave their marriage has been above 40 percent. The question is why.

When it comes to marriage, some things never change. That’s certainly one lesson from a recent survey of 4,000 ever-divorced adults between the ages of 18 and 60.

Researchers at the Austin Institute for the Study of Family and Culture used new data from the “Relationships in America” survey to find out why people got out of their marriages.

Sexual infidelity is still the most common reason for divorce. Nearly 37 percent of respondents cited their own infidelity or their spouse’s as a cause for the split.

However much our sexual mores may have loosened in recent years, it still seems that married couples expect their partners to remain faithful. If they didn’t, they would simply remain cohabiting couples — who are, by the way, much more likely to split.

Women are more likely to file for divorce, something that has been the case for well over a century now. Nor is this simply a matter of perspective: According to both men and women in the survey, women wanted the divorce more.

About 55 percent of women say they wanted the divorce more compared to only 20 percent of men who said they wanted it more. Given the complete revolution of the lives of women in the past 100 years, it’s remarkable this situation remains unchanged.

Indeed, no matter what place women have in the home or in the workplace, they still expect different things from a relationship. They are more likely to cite several reasons for divorce than men are.

And many of those reasons boil down to men “not meeting their emotional needs,” says Brad Wilcox of the National Marriage Project. Indeed, when you combine “spouse’s immaturity,” “emotional abuse” and “spouse unresponsive to needs,” these answers top even infidelity as a reason for divorce.

To some extent, this is a new phenomenon.

Kay Hymowitz, senior fellow at the Manhattan Institute, zeroes in on “spousal immaturity.” Her 2012 book, “Manning Up,” shows how 20- and 30-something men “often come across as aging frat boys, maladroit geeks or grubby slackers.”

And there seems to be no correlation, according to Dave Gordon, a researcher at the Austin Institute, between the age of the respondent and the likelihood he or she would cite “immaturity” as a reason for the end of the marriage.

So despite the fact that we are getting married later and later, on average, the issue of immaturity does not seem to be diminishing as a problem in our marriages. This may just be a men are from Mars, women are from Venus kind of issue.

As Wilcox notes, “women are more attuned to relationships. They put more effort into relationships. They are more acute and sensitive and reactive in every possible way when it comes to relationships. And they have more opinions and criticisms about their marriage and higher expectations for them.”

If we can’t get men to “man up” and we can’t get women to lower their expectations, what chance does the institution of marriage have? In the 1970s, when divorce skyrocketed, Wilcox says, many researchers expected that the upper classes would be worst hit.

The sexual revolution seemed to free them from the social strictures of marriage. Hope for the future of the American family rested on those middle and even lower classes in the heartland.

In fact, the exact opposite has proved true. Marriage is thriving among the wealthy and educated.

“Who would have thought elites would have devoted themselves maniacally to their children’s success?” asks Wilcox.

It seems as though marriage does well when it is a vehicle for something else — whether that’s making sure your children have food on the table or that they get into an Ivy League school.

Romance — even with a ball gown and glass slippers — is not enough.

Source: Why marriages fail: Romance just isn’t enough (New York Post, June 23, 2014).

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

Posted by: koherston | October 10, 2014

TN Family Law CLE Early Registration Discount Ends Sunday

Knoxville divorce lawyersMany of you have already taken advantage of the early registration discount for this year’s Tennessee Family Law Update seminar. Thank you! We are already hard at work to make the seminar relevant to your practice.

For those who have not signed up yet, the early registration discount will remain available through this Sunday, October 12.

Registering on Monday or thereafter will increase the cost by $20. If you are planning to attend, you need to sign up now to receive the discount.

Please share this information with your friends and colleagues.

Click here for more details about the seminar.

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

Posted by: koherston | October 10, 2014

Photo of the Week: Smoky Mountain Cub

East Tennessee Divorce Attorneys

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

Facts: After what Mother described as a “fling thing” with Father, Mother gave birth to Child in March 2009. Father saw Child at the hospital when Child was born but never saw Child again.

In April 2011, Mother, in her sole name, filed a petition to terminate Father’s parental rights.

In June 2011, Mother married Stepfather.

In October 2012, the trial court entered an agreed order allowing Mother and Stepfather to file and proceed on and Amended Petition joining Stepfather as a party and seeking to have Stepfather adopt Child.

On March 4, 2013 — the day before trial — Mother and Stepfather’s Amended Petition was filed.

The trial court found Father willfully failed to provide child support or visit Child in the four months immediately preceding the filing of the original petition to terminate Father’s parental rights. The trial court also found Father willfully failed to make reasonable payments toward Mother’s support in the four months immediately preceding the birth of Child. Notably, the trial court found “the Amended Petition relates back to the filing of the original Petition pursuant to Rule 15 of the Tennessee Rules of Civil Procedure.”

Father appealed.

On Appeal: The Court of Appeals reversed the trial court on the applicable four-month period but affirmed that the outcome on other grounds.

A parent’s parental rights may be terminated only upon (1) a finding by the court by clear and convincing evidence that the grounds for termination of parental rights have been established; and (2) that termination of the parent’s rights is in the best interest of the child. Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

Tennessee Code § 36-1-102(1)(A)(i) defines “abandonment” to mean for a period of four consecutive months immediately preceding the filing of a pleading to terminate the parental rights of a parent, that parent willfully failed to visit the child or willfully failed to support the child.

Tennessee Code § 36-1-113(b) says only “the prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child’s guardian ad litem, or the [Department of Children's Services]” have legal standing to file a petition to terminate a parent’s parental rights. Thus, Tennessee law does not grant one parent — standing alone — the authority to seek termination of the other parents rights.

After reviewing the record, the Court of Appeals reasoned:

In the present case, Mother clearly lacks standing to file a petition to terminate Father’s rights by herself. Therefore, the original termination petition she filed in April 2011 is null and void. As we see it, it follows that Tenn. R. Civ. P. 15.03 providing for the “relation back” of amendments to the filing of an original pleading is not applicable. Simply stated, there can be no “relation back” to a pleading — in this case, the original petition by Mother — that was a nullity from the start. Moreover, as Father correctly asserts, the Supreme Court has further observed that “[b]ecause the legislature specifically designated who may file a petition to terminate parental rights, a court does not have subject matter jurisdiction to hear such a petition unless the party filing the petition has standing.” Based on the foregoing, the original petition to terminate is a nullity — ineffectual for all purposes….

In our view, the [rule that the applicable four-month period is] the four months immediately preceding the filing of the petition currently before the court [] applies not only in the context of a dismissed, earlier-filed petition to terminate, but more broadly to other situations involving the filing of multiple petitions to terminate against the same party. Here, we have already concluded that Mother’s original petition is null and void. In effect, the situation is the same as if the original petition was dismissed. Accordingly, [] the applicable four-month period is the four months immediately preceding the filing of the Amended Petition. The trial court erred in concluding otherwise.

Because the proof showed Father paid child support in the four-month period prior to the filing of the Amended Petition, the trial court’s finding of abandonment for failure to support was reversed and vacated.

The Court went on to uphold the trial court’s findings regarding the other grounds upon which the termination of Father’s parental rights was based, i.e., failure to visit Child and failure to provide support in the four months prior to Child’s birth, and the trial court’s findings that termination was in Child’s best interest. Thus, the termination of Father’s parental rights was affirmed on other grounds.

In re A.S.C. (Tennessee Court of Appeals, Eastern Section, August 29, 2014).

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

Posted by: koherston | October 6, 2014

TN Supreme Court Addresses Surrogacy Agreement: In re Baby

Knoxville divorce lawyersFacts: A man and woman who were unable to have children together (“Intended Parents”) entered into a contract with a woman who consented to act as a surrogate (“Surrogate”). Surrogate’s husband was also a party to the contract. The parties contracted for a “traditional surrogacy,” which involves the artificial insemination of the surrogate, who, after giving birth, is meant to relinquish the child to the biological father and the intended mother.

Over the course of the pregnancy, the Intended Parents paid the Surrogate approximately $73,000 for medical and legal fees and other expenses related to the pregnancy and birth.

Prior to the birth of the child, all parties filed a joint petition asking the juvenile court to declare the paternity of the child, grant custody to Intended Parents, and terminate the parental rights of Surrogate. A magistrate for the juvenile court granted the petition. Accordingly, Surrogate’s parental rights were terminated prior to the child’s birth.

Less than a month later, Surrogate gave birth, and, following the advice of medical personnel, the parties agreed Surrogate should breastfeed the child for a short period of time in the interest of providing the best possible nutrition.

When the child was almost one week old, Surrogate filed a series of motions asking the magistrate to vacate the prior consent order, set aside the surrogacy contract, and award her custody. The magistrate denied the motions, the juvenile court judge upheld the ruling, and the Court of Appeals affirmed. My post on the Court of Appeals opinion can be found here.

Surrogate appealed to the Tennessee Supreme Court.

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

The only Tennessee law regarding surrogacy is found in the “definitions” section of the statutory chapter covering adoption. Tennessee’s surrogacy statute—Tennessee Code § 36-1-102(48)(A)-(C)—provides, in its entirety, as follows:

(48)(A) “Surrogate birth” means:
(i) The union of the wife’s egg and the husband’s sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract; or
(ii) The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent;
(B) No surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (48) and no adoption of the child by the biological parent(s) is necessary;
(C) Nothing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the [G]eneral [A]ssembly.

Tennessee’s adoption law provides that a woman may qualify as the legal parent of a child in two ways: (1) by being the biological mother of a child, or (2) by being an adoptive parent of a child. Once a woman attains the status of a legal parent, her parental rights may only be terminated in three ways. First, if there is a statutory ground for termination and the termination of the mother’s rights is in the best interests of the child, an involuntary termination may be warranted. Second, when a mother consents to adoption, her parental rights may be terminated as part of the adoption proceeding. Third, a biological mother may relinquish her rights by executing a “surrender,” which is a document executed under the provisions of Tennessee Code § 36-1-111 by which that parent or guardian relinquishes all parental rights to a child to another person or public child care agency or licensed child-placing agency for the purposes of making that child available for adoption.

Before a parent’s rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated. No showing of substantial harm to the child is required where the termination of parental rights is voluntary in nature. Thus, no such showing is constitutionally required for courts to terminate parental rights upon the execution of a surrender or parental consent to an adoption.

The Supreme Court first addressed the public policy concerns, ruling:

[T]he public policy of our state does not preclude the enforcement of traditional surrogacy contracts. Their enforceability, however, is not without bounds. Compensation may not be contingent upon the surrender of the child or the termination of parental rights, and compensation is restricted to the reasonable costs of services, expenses, or injuries related to the pregnancy, the birth of the child, or other matters inherent to the surrogacy process. Moreover, the terms of a surrogacy contract may not dispense with a judicial determination of the best interests of the child. Likewise, the terms of a surrogacy contract may not circumvent the statutes governing a person’s status as a legal parent or the statutory procedures for terminating parental rights. Finally, termination of parental rights in an involuntary proceeding may not occur absent a finding that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.

Specifically on the termination of Surrogate’s parental rights, the Supreme Court reasoned:

Because the Surrogate is the biological mother of the Child, she qualifies as a legal parent. Our statutes provide no mechanism by which a biological birth mother—including a traditional surrogate—may use a contract to avoid attaining the status of a legal parent or to negate parental status prior to the birth of a child…. [P]arties to a traditional surrogacy contract must comply with our statutory procedures in order to terminate the parental rights of a traditional surrogate. Our statutory procedures unequivocally prohibit the voluntary relinquishment of a biological birth mother’s parental rights prior to birth through either surrender or parental consent to adoption. Thus, the provisions of the contract at issue that attempt to circumvent statutory procedure by terminating or negating the parental rights of the Surrogate prior to birth contravene the public policy of our state. Those provisions are therefore unenforceable and without legal effect….

[T]he statutory procedures for terminating the parental rights of a traditional surrogate are limited to involuntary termination, parental consent to adoption, and surrender. Because neither the parties nor the juvenile court complied with any of these procedures in this instance, the portion of the juvenile court’s order terminating the parental rights of the Surrogate must be set aside. Our ruling does not preclude the termination of the parental rights of the Surrogate in a future proceeding. Absent a basis for involuntary termination, however, termination may only occur if the Surrogate executes a surrender or consents to a petition for adoption.

Furthermore, unless and until termination of the parental rights of the Surrogate occurs, she will retain both the rights and the responsibilities associated with legal parenthood. Accordingly, the case must be remanded to the juvenile court for a determination of visitation pursuant to Tennessee Code §§ 36-6-101 to -612 and child support pursuant to Tennessee Code §§ 36-5-101 to -3111.

The Supreme Court opinion includes the following plea to the General Assembly:

Our surrogacy statute—which defines surrogacy but lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements—leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of the law. We encourage our General Assembly to follow the lead of other state legislatures that have enacted statutes to address the fundamental questions related to surrogacy. Legislation could provide useful guidance by addressing whether the different types of surrogacy arrangements are compliant with public policy, what requirements the parties must satisfy in order to create an enforceable surrogacy contract, what procedures are available to address disputes arising out of surrogacy agreements, and which courts have jurisdiction to adjudicate those disputes.

Because there was no legal basis for the termination of Surrogate’s parental rights, that portion of the consent order was vacated in the case remanded to the trial court to determine visitation and child support.

Concurring Opinion: Justice Koch wrote separately to express his disagreement with the broad declaration that traditional surrogacy agreements, or any other surrogacy agreement for that matter, are consistent with Tennessee’s public policy.

Rather than broadly stating that “traditional surrogacy contracts do not violate public policy as a general rule,” I would find that the surrogacy agreement in this case is enforceable, except to the extent, as found by the Court, that it is inconsistent with the statutes explicitly governing the termination of parental rights and the care and custody of children born out of wedlock. The broader public policy questions should be left to the General Assembly.

Justice Koch joined the call for legislative action, stating: “The legal rules governing this area are ambiguous, if not non-existent, and they need to be clarified. Until they are, surrogacy contracts in Tennessee will be in legal limbo.”

K.O.’s Comment: What a difficult case. The opinion provides more detail about how the Tennessee Legislature ignored the growing use of assisted reproductive technology and left Tennessee without virtually nothing in the way of statutory guidance regarding surrogate births. Hopefully our elected representatives will finally be forced to address this subject.

In re Baby (Tennessee Supreme Court, September 18, 2014).

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

Posted by: koherston | October 3, 2014

Photo of the Week: Black Bear Cub

Knoxville Divorce Lawyers

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

Facts: Husband and Wife divorced after seven years of marriage. Prior to the marriage, the parties entered into a written prenuptial agreement, which recites, inter alia, that the parties desired for all separate property obtained by them during the marriage to remain separate. The agreement also provides that the only property to be considered jointly owned would be that property specifically designated as such. At the time of the marriage, Wife was beneficiary of a substantial irrevocable trust.

The prenuptial agreement, in relevant part, contains a provision entitled “Co-Owned Property,” which states:

6.1 Definition. The parties acknowledge that they are each free to acquire property during the marriage either in their own name or in joint names. Any property acquired during the marriage shall conclusively be deemed the Separate Property of the party in whose name such title is held unless such property is expressly acquired and held in the name of both parties as evidenced in a writing clearly expressing an intent that the property covered by the writing is to be so held (“Co-Owned Property”) or as to which the deed or document evidencing title is in the name of both parties and creates, expressly or as a matter of law, a tenancy in both parties with the right of survivorship.

The prenuptial agreement also provides that, upon divorce, Co-Owned Property will be “divided into equal shares by the parties in further settlement of the respective marital rights.”

In 2009, the parties purchased some real property, with the deed reflecting that title was being acquired by both parties as husband and wife. The parties then began building a home. Construction took approximately two years. During construction, Husband was paid $600 per week by Wife, which he utilized to pay his bills and contribute to expenses of the household.

Both parties agreed the prenuptial agreement controlled all financial issues relative to their divorce. Wife sought reformation of the deed to the marital residence on the grounds that Husband’s name was erroneously included on the deed.

Knoxville divorce lawyersWife asserted her intent was to be the sole owner of the property because it was purchased entirely with her separate funds. Wife claimed she instructed the realtor to have the deed drafted to name her as the only grantee. She was also the sole applicant on the accompanying mortgage. Wife explained that although she objected to Husband’s name on the deed at closing, she was told by the closing agent that because the parties were married, Husband’s name was required by state law to appear on the deed. According to Wife, she relied upon this advice to her detriment and did not learn that no such requirement existed until the divorce proceedings were underway. Wife admitted she knew upon leaving the closing that Husband’s name appeared on the deed. Wife also admitted she had never attempted to correct the deed prior to the divorce proceedings.

Wife explained that Husband had never paid any monies toward the purchase, construction, or maintenance of this real property. Wife said the parties kept all of their finances separate during the marriage. As such, Wife paid Husband $102,000 for his services as contractor in the construction of the home.

The realtor who drafted the sales contract testified the agreement listed only Wife as the buyer, per the parties’ instructions. The realtor further explained the sales contract specifically provided for the deed to be prepared in Wife’s name only. The realtor said Wife was upset at the closing when the deed contained both parties’ names. The realtor testified that Wife adamantly insisted the deed be in her sole name. Despite Wife’s objections, the closing proceeded with Wife signing the necessary documents.

The trial court found the inclusion of Husband on the deed “was clearly and convincingly shown to be both unexpected by both parties and not desired by either party.” The trial court further found that including Husband on the deed “would result in an unequivocally inequitable windfall” to Husband. Accordingly, the trial court awarded the marital residence to Wife.

Husband appealed.

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

Husband argued that because the deed to the property reflected the names of both parties, the property is “Co-Owned Property” under the prenuptial agreement and, therefore, is subject to equal division upon divorce.

Wife claimed the trial court properly reformed the deed because of a mistake and, therefore, the property was properly determined to be her separate property, which was not subject to division.

The judicial alteration of the provisions of a written agreement is an equitable remedy known as “reformation.” The basic purpose of reformation is to make the contract conform to the real intention of the parties. It is driven by a respect for the parties’ intent and gives effect to the terms mutually agreed upon by the parties. Because the law strongly favors the validity of written instruments, a person seeking to reform a written contract must do more than prove a mistake by a preponderance of the evidence. Instead, the evidence of mistake must be clear and convincing.  A “mistake” is an act which would have been done, or an omission which would not have occurred, but from ignorance, forgetfulness, inadvertence, mental incompetence, surprise, misplaced confidence, or imposition.

An important subcategory of mistake is mistake in the expression, or integration, of the agreement. A mistake in expression occurs where one or both parties to a written contract erroneously believe that the contract embodies the agreement that both parties intended it to express. In such cases, the courts may adjust the provisions of the written contract to make it express the true agreement reached by the parties.

In order to obtain reformation on the basis of mistake in expression, a party must present clear and convincing evidence that: (1) the parties reached a prior agreement regarding some aspect of the bargain; (2) they intended the prior agreement to be included in the written contract; (3) the written contract materially differs from the prior agreement; and (4) the variation between the prior agreement and the written contract is not the result of gross negligence on the part of the party seeking reformation. Reformation is not automatically barred simply because one of the parties denies there was a prior agreement or claims the mistake was not mutual.

As long as the party seeking reformation establishes the elements of a mistake in expression, any discrepancy between the parties’ prior agreement and their written contract is presumed to be the result of a mutual mistake (unless, of course, there is evidence of fraud).

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

[T]he evidence demonstrated that although Wife initially requested that the deed be drafted to reflect Wife as sole grantee, when she arrived at the closing, she discovered that the deed included both of the parties’ names. Notwithstanding this fact, Wife accepted the deed and allowed the closing to go forward. Therefore, there exists no mistake warranting instrument reformation inasmuch as it was not shown that “one or both parties to a written contract erroneously believed that the contract embodied the agreement that both parties intended it to express.” Wife clearly knew that the deed contained both names when she accepted it. Further, there is no mutuality because the alleged mistake is not common to both parties to the instrument….

We conclude that the real property at issue falls squarely within the definition of Co-Owned Property as defined by the prenuptial agreement. The warranty deed transferred title into the names of both parties as husband and wife, thereby creating a tenancy by the entireties that inherently establishes a right of survivorship. As such, the subject prenuptial agreement dictates that the real property at issue be deemed Co-Owned Property because “the deed or document evidencing title is in the name of both parties and creates, expressly or as a matter of law, a tenancy in both parties with the right of survivorship….”

Pursuant to the express terms of the section regarding Co-Owned Property, the real property at issue qualifies as Co-Owned and therefore is no longer Wife’s separate property, even though her separate property was used to purchase it….

As this real property clearly fits the definition of Co-Owned Property pursuant to the terms of the prenuptial agreement, the trial court erred in vesting title solely in Wife’s name without awarding Husband his equal share. We therefore reverse the trial court’s award of the real property solely to Wife and remand this action for further proceedings by the trial court to effectuate an equal distribution of this asset to both parties.

Accordingly, the trial court was reversed and the case remanded for division of this asset.

Dissent: Judge Susano wrote a dissenting opinion in which he said:

Considering the “mountain” of evidence supporting Wife’s assertion that the marital residential property was to be her separate property, I cannot say that the evidence preponderates against the trial court’s determinations on the subject. I would reform the deed and award the property to Wife as her separate property.

K.O.’s Comment: The marital residence is valued at $1,144,000 with an outstanding mortgage indebtedness of $388,000. Wife claims she borrowed money from her trust to finance construction of the home such that there is no equity in the home. If the trial court disagrees (which the opinion suggests it did), there is $756,000 of equity to be equally divided, i.e., $378,000 to be distributed to each party. That’s an expensive mistake by the closing agent.

To add insult to injury, the prenuptial agreement provides for an award of attorney’s fees to the prevailing party. Consistent with that provision, the Court directed the trial court to award Husband his reasonable attorney’s fees on remand.

Heaton v. Heaton (Tennessee Court of Appeals, Eastern Section, August 29, 2014).

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

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: koherston | 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.

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