Facts: When Mother and Father divorced, Mother was designated the primary residential parent of Child.

Seven years later, Father petitioned to change custody, alleging that Mother failed to attend to Child’s medical needs and need for speech therapy.

Knoxville divorceThe proof shows Father took Child to the doctor for severe breathing issues. Mother thought these problems were caused by allergies. The doctor disagreed, finding a serious problem with Child’s enlarged adenoids indicated the need for surgery. Mother took no action. Finally, Father had the surgery done while Child was with him. Child also experienced emotional stress as a result of her speech problem which was not addressed until Father put Child in speech therapy.

The trial court found a material change in circumstances in that Mother did not follow up on Child’s medical condition and failed to address the issues — emotional and behavioral — associated with Child’s speech problems. The trial court further found it was in Child’s best interest for Father to be designated the primary residential parent.

Mother appealed.

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

A petition to modify the custody of a child requires the court to conduct a two-step analysis. The threshold question is whether a material change in circumstances has occurred since the entry of the prior custody order. Only if the court finds a material change in circumstances does it proceed to consider whether changing custody is in the child’s best interest.

Decisions involving the custody of a child are among the most important decisions faced by the courts. The party seeking modification of the parenting plan to change the designation of the primary residential parent has the burden of proving a material change in circumstances. Although there are no bright-line rules for determining when such a material change of circumstances has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

After reviewing the record, the Court commented:

Father noticed [Child] was having difficulty breathing at night and she was having difficulty saying certain sounds. When Mother was made aware of Father’s concerns [], Mother responded she did not have time to deal with these issues and Father would have to take care of what Father perceived to be [Child's] medical and speech problems….

The record contains notes from [Child's] physician. These notes indicate Father asked the physician to contact Mother to discuss [Child's] condition and the physician attempted to reach Mother. The physician stated in his notes he left a message with Mother, asking her to return his call. According to the physician, Mother never returned his call. Father arranged to have the recommended surgery performed on [Child]…. Father testified the surgery was successful and [Child's] breathing problems at night ceased following the surgery….

The record contains evidence [Child] was difficult to understand in class due to her inability to make certain sounds and, as a result, [Child] did not like to talk in front of her friends or volunteer to speak in class. Father testified he was alarmed at the negative effects on [Child] from not being able to speak properly and [] he decided to set up a speech evaluation in an effort to improve his daughter’s quality of life even if Mother refused to participate in this effort. As a result of the speech therapy she received over several months’ time, the evidence was undisputed [Child] has become better adjusted socially and her speech is much improved….

Despite Mother’s pretension she was not informed about [Child's] medical condition and her need for surgery before the surgery was scheduled, there is strong evidence to the contrary….

Based upon our review of the record, we find the evidence does not preponderate against the trial court’s findings Father has established a material change of circumstances by a preponderance of the evidence.

The Court went on to agree with the trial court’s judgment that it is in Child’s best interest for Father to be named the primary residential parent.

Accordingly, the trial court’s judgment was affirmed.

In the Matter of Shayla H. (Tennessee Court of Appeals, Middle Section, June 9, 2014).

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Posted by: K.O. Herston | July 25, 2014

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Facts: Mother gave birth to Child in 2009.

The following year, the State of Tennessee, acting on Mother’s behalf, filed a petition against Alleged Father to establish paternity. After finding that Alleged Father failed to appear at the hearing despite being served with process, the trial court entered a default judgment establishing paternity and setting Alleged Father’s ongoing and retroactive child support obligation.

A year later, after his wages were garnished to satisfy the child support order, Alleged Father appeared at a hearing and requested DNA testing. After the paternity testing showed Alleged Father was not Child’s biological parent, Alleged Father moved to set aside the default judgment and child support order. He further alleged that Mother “knew or should have known that [Alleged Father] was not the biological father as she was not intimate with him at a time that would be consistent with the birth of the child and its conception.”

Despite Alleged Father’s protestations to the contrary, the trial court found Alleged Father had willfully evaded personal service of process and knew to appear at the hearing where the default judgment occurred, thereby establishing actual or constructive notice. Alleged Father’s motion to set aside was untimely inasmuch as it was filed more than 30 days after the entry of the default judgment. The trial court held it could not retroactively forgive the child support arrears and that statutory interest had to be imposed. Accordingly, the trial court entered a judgment against Alleged Father for $23,472.02.The trial court amended its previous order, however, to reflect that Alleged Father “is not the biological father of [Child] and, therefore, [Alleged Father] will not have any future child support obligations.”

Alleged Father appealed.

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

Regarding Alleged Father’s claim that he was never served with process for the underlying petition to establish paternity, the Court noted that Alleged Father, appearing pro se both at the trial court level and on appeal, failed to provide a transcript or statement of the evidence from which the Court could determine whether the evidence preponderates for or against the trial court’s findings. In the absence of the trial court record, the Court must presume that the trial court’s findings of fact are supported by the evidence. Thus, the Court must presume that Alleged Father willfully evaded service of process and knew to appear at the hearing where the default judgment occurred. The Court did so.

Regarding the retroactive modification of child support, Tennessee Code Annotated § 36-5-101(f)(1) provides that a judgment for child support “shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed. . . .” This provision is required by federal law to ensure that children receive adequate parental support. When the provision was enacted, equitable defenses were specifically disallowed because, according to the Tennessee Supreme Court, it would create “a situation where exceptions could easily swallow up the rule.”

Pursuant to Tennessee Code Annotated § 36-5-101(f)(1), Tennessee courts have consistently upheld the prohibition against retroactive modification of child support in the face of equitable defenses.

After reviewing some analogous cases, the Court concluded:

In light of [] the statutory prohibition against retroactive modification of child support, we must affirm the trial court’s denial of Rule 60 relief because such relief would result in the retroactive modification of child support. We find this result harsh, but the statutes and case law require this result.

Although [Alleged Father] cannot receive retroactive modification of child support, the trial court did grant Rule 60 relief as to any obligation to pay child support prospectively. Thus, [Alleged Father] is relieved from any child support obligation as of the date his motion to set aside the child support order was filed….

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: Arguably, Alleged Father could bring a “paternity fraud” action against Mother to recover his pecuniary loss pursuant to Hodge v. Craig — that is, if the one-year statute of limitations has not run (I believe it likely has). Alleged Father really could have benefited from having a knowledgeable family law attorney (and a court reporter) at the trial court level.

Purdy v. Smith (Tennessee Court of Appeals, Middle Section, May 23, 2014).

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Facts: Mother and Father, parents of Child, divorced in 2011. They agreed that Mother be designated the primary residential parent. Father received reasonable visitation.

Two years later, Maternal Grandparents filed a petition for custody of Child on the grounds that Child was dependent and neglected in Mother’s care. Specifically, Maternal Grandparents alleged Mother is bipolar and was abusing prescription and nonprescription drugs. They claimed Mother had been in and out of several mental institutions but they did not help her at all.

Upon learning of the petition, Father filed a petition to modify the parenting plan, alleging that a material change in circumstances has occurred as evidenced by Maternal Grandparents’ petition for custody.

At the hearing on Father’s petition, Maternal Grandparents minimized and contradicted the allegations asserted in their petition for custody. The trial court denied Maternal Grandparents’ request to intervene in the child custody modification proceeding.

The trial court found a material change of circumstances had occurred that affected Child’s well-being in a meaningful way and that it was in Child’s best interest to designate Father as the primary residential parent. The trial court specifically found that Maternal Grandparents were not credible witnesses, but that Father was a credible witness whose “parenting had been undermined by the continuous interference by [Maternal Grandparents] and the bizarre behavior of [Mother].”

Mother appealed.

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

Mother argued she had addressed and corrected her behavioral issues prior to trial and, therefore, that was not a material change of circumstances justifying the change of child custody.

The determination of whether a “material change in circumstance” occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule. The Tennessee Code establishes a lower threshold for modification of a residential parenting schedule.

There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.

After reviewing the record, the Court concluded:

In this case, Mother’s behavior progressively deteriorated while she resided with Grandparents. Despite Grandparents’ retraction of their initial allegation that Mother was unfit, the record establishes that the Child’s living environment had simply become unsafe and contentious and involved regular police intervention. While Mother may have made efforts to address her behavioral issues, the trial court found that Grandparents were not credible witnesses. Additionally, Grandparents and Mother admitted to hiding her behavior from Father in an effort to preclude his involvement with the Child. The increasingly hostile environment in which the Child lived and the interference with Father’s ability to parent the Child was a material change in circumstances that was not reasonably anticipated and that affected the Child’s well-being in a meaningful way.

Having found a material change of circumstances, the Court proceeded to determine whether a change in custody was in Child’s best interest. On that issue, the Court wrote:

While Mother previously served as the primary caregiver for a number of years, the relevant factors are fairly equally weighted between the Parents. However, the record is clear that Mother’s ability to parent the Child by herself without interference from Grandparents and to facilitate and encourage a close and continuing parent-child relationship between the Child and Father is severely lacking. With all of the above considerations in mind, we conclude that the preponderance of the evidence supports the trial court’s naming of Father as the primary residential parent as being in the best interest of the Child.

Accordingly, the trial court’s judgment was affirmed.

Dickerson v. Cantrell (Tennessee Court of Appeals, Eastern Section, May 16, 2014).

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

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Facts: The parties were divorced by agreement in 2011. Their Marital Dissolution Agreement (“MDA”) provided for alimony, stating:

Wife is economically disadvantaged as compared to Husband. Husband shall pay Wife alimony at the rate of $929.00 per month, beginning August 15, 2011. Said alimony shall continue for a period of eight years.

The following year, Husband petitioned to terminate his alimony obligation because Wife had remarried, resided with a third party (her new husband), and no longer needed alimony.

Wife responded that the alimony award in the MDA constituted alimony in solido, which was non-modifiable.

The trial court found the MDA failed to specify whether the payments were to be considered alimony in solido or transitional alimony. The trial court further found the parties could have included specific exceptions or conditions in the alimony provision but chose not to. The trial court then denied Husband’s petition to terminate the alimony obligation.

Husband appealed.

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

The issue presented is whether the alimony at issue constitutes alimony in solido, which is not subject to modification, or transitional alimony, which is subject to modification.

Whether an alimony award is subject to modification depends upon the type of alimony involved, as determined from the language of the order or agreement establishing the award.

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

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

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

By contrast, rehabilitative alimony is short-term support that enables a disadvantaged spouse to obtain education or training necessary to become self-reliant following a divorce.

Where economic rehabilitation is unnecessary, transitional alimony may be awarded. Transitional alimony assists the disadvantaged spouse with the transition to the status of a single person.

Wife argued the alimony at issue is alimony in solido. Alimony in solido is an award of a definite sum of money, and the total amount to be paid is ascertainable at the time of the award. It retains its character as alimony in solido even if paid in installments, provided the payments are ordered over a definite period of time and the total amount to be paid is definite and ascertainable. Alimony in solido promotes the twin goals of certainty and finality through the award of a fixed amount without conditions. The determinative factor in deciding whether an award of alimony is in solido is the intent of the parties (in an MDA) or the court (in a final order). A final award of alimony in solido is not subject to future modification.

Husband contended the alimony at issue is transitional alimony, which is subject to termination in certain limited circumstances. Transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. Consequently, transitional alimony has been described as a form of short-term “bridge-the-gap” support designed to smooth the transition of a spouse from married to single life. Transitional alimony is payable for a definite period of time and may be modified only if: (1) the parties agree that it may be modified; (2) the court provides for modification in the divorce decree, decree of legal separation, or order of protection; or (3) the recipient spouse resides with a third person following the divorce.

After reviewing the record, the Court concluded:

[W]hen the obligor spouse is seeking a modification of transitional alimony based upon the alimony recipient’s cohabitation with a third party, as is the case in this appeal, there is no statutory requirement that either the parties or the court agree to this type of modification in the initial divorce decree or MDA. Instead, the obligor spouse’s right to seek modification based on the alimony recipient’s cohabitation with a third party is guaranteed by statute…. Therefore, the trial court incorrectly concluded that the parties’ failure to include modification terms in their agreed MDA was fatal to Husband’s request to modify or terminate his alimony obligation.

[A] finding that the obligee spouse is economically disadvantaged is a hallmark of transitional alimony…. In contrast, economic disadvantage is not a condition precedent to an award of alimony in solido….

[T]he plain language of the parties’ MDA, which includes a notation that the alimony is awarded because Wife is “economically disadvantaged” is clear evidence of the parties’ intention that the alimony at issue is properly considered transitional alimony, rather than alimony in solido.

From the totality of the circumstances, we conclude that the alimony at issue in this case is transitional alimony subject to modification pursuant to Tennessee Code Annotated § 36-5-121(g)(2)…. [T]he MDA specifically states that the purpose of the alimony is to provide for Wife, who is economically disadvantaged. This is the stated purpose of transitional alimony in the alimony statute.

Accordingly, the trial court’s judgment was reversed. The case was remanded for consideration of whether Husband is entitled to a modification or termination of his alimony obligation based on Wife’s remarriage and cohabitation.

K.O.’s Comment: This case reminds me of Averitte v. Averitte, another what-type-of-alimony-is-it case where the Court repeated the following advice:

Obviously, great care should be exercised by counsel and trial courts in crafting decrees. The decree should reflect the court’s findings with regard to the circumstances of the parties, the purpose or expected results of the relief granted, and the specific benefits granted to and obligations imposed upon the respective parties. In addition to the rights and obligations of the parties with respect to each other, the liability for taxes, the rights of creditors, and other significant consequences may depend upon the preciseness of the language employed in the decree. Construction by the courts of uncertain and ambiguous language is a poor substitute for careful articulation.

Miller v. McFarland (Tennessee Court of Appeals, Middle Section, May 23, 2014).

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

Tennessee Family Law Legislative Update 2014

Things were pretty quiet on the legislative front this year. When it came to family law matters, the 108th General Assembly of the State of Tennessee did not appear to make things worse, which means it was a pretty good year.

Below is a brief recap of the new family law statutes, all of which became effective on July 1, 2014.

Child Custody “Comparative Fitness” and Best Interest Factors: Public Chapter 617 consolidated the list of factors the trial court must consider when conducting a comparative fitness analysis or determining the child’s best interest in a child custody proceeding. Previously, courts had to consider different (but substantively similar) factors for initial custody determinations and custody changes (Tennessee Code § 36-6-106(a)) and changes to a parenting schedule (Tennessee Code § 36-6-404(b)).

As amended, Tennessee Code § 36-6-106(a) now contains the following best interest factors:

(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child;

(2) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;

(3)  Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;

(9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life in the length of time the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or frequent the home of a parent and such person’s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(14) Each parent’s employment schedule, and the court may make accommodations consistent with of those schedules; and

(15) Any other factors deemed relevant by the court.

Likewise, the sixteen factors in Tennessee Code § 36-6-404(b) have been deleted. Thus, there is now just one list of best interest factors instead of two.

K.O.’s Comment: This list is simply an effort to combine the two prior lists. Combining them makes sense. There is no substantive change in the best interest analysis.

Parental Bill of Rights: Public Chapter 617 also rewrote the “Parental Bill of Rights” in Tennessee Code § 36-6-101(a)(3). The new list of rights is as follows:

(i) The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in the parenting plan or other court order or, where days and times are not specified, at reasonable times;

(ii) The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order;

(iii) The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant healthcare providers with the contact information for the other parent;

(iv) The right to receive directly from the child’s school any educational records customarily made available to parents. Upon request from one parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child’s education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request which includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child’s report cards, attendance records, names of teachers, class schedules, and standardized test scores;

(v) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person;

(vi) The right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;

(vii) The right to be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular school, athletic, church activities and other activities as to which parental participation or observation would be appropriate, in the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order;

(viii) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than forty-eight (48) hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and

(ix) The right to access and participation in the child’s education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school’s day-to-day operations or with the child’s educational schedule.

K.O.’s Comment: These revisions place new burdens on on the primary residential parent that did not exist before. For example, the custodial parent now has the affirmative obligation to provide the non-custodial parent not only with notice of the child’s school, athletic or church activity activity but also the telephone number the school, athletic or church official who is “responsible for scheduling” the activity. For another example, the custodial parent now has the affirmative obligation to provide “healthcare providers with the contact information” of the non-custodial parent. Lawyers need to make sure their clients understand these new obligations.

Lawyers will also need to update their parenting plans, all of which recite the Parental Bill of Rights. The Administrative Office of the Courts has updated the parenting plan form to reflect these changes. You can access the updated parenting plan here.

Uniformed Deployed Parents Custody and Visitation Act: Public Chapter 798 permits parents to enter into a temporary agreement granting custodial responsibility during a parent’s military deployment. If the non-deploying parent has no custodial responsibility or if the operative court order prohibits contact between the child and that parent, the deploying parent may, via a power of attorney, delegate all or part of the custodial responsibility to a third party for the period of the deployment. Tennessee Code §§ 36-6-113 and 36-6-308 are deleted.

In Loco Parentis Healthcare Power of Attorney for a Minor Child: Public Chapter 696 requires an adult or organization acting in loco parentis (“in the place of the parent”) to sign an “in loco parentis affidavit” stating that the person has taken responsibility for the health care of the minor child.  This protects doctors and hospitals from civil and criminal liability if they rely on the in loco parentis affidavit when providing medical care to a child.

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

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Posted by: K.O. Herston | July 10, 2014

Electronic Surveillance in Tennessee Family Law

This article by Marlene Moses and Manuel Russ in the May 2014 issue of the Tennessee Bar Journal may be of interest to readers of this blog.

Electronic Surveillance in Family Law

As everyone is aware, the use of electronic technology in business as well as people’s personal lives has grown beyond anyone’s imagination in recent years. With this rise in the use of various forms of technology, people often forget that what you use a computer for and what you store on a computer are just as relevant, and just as easily documented, as the written or spoken word on paper or in conversation. This can be particularly relevant in family law where child custody and parental fitness are routine questions for the court.

Knoxville divorce lawyersFor several years now, use of information obtained on the Internet or other electronic media has been used in and out of court for a variety of reasons, not the least of which being impeachment material for testifying witnesses. But is all of the potential evidence obtained through computer searches fair game, or does the manner in which it was collected give rise to admissibility issues as well as ethical, or even criminal, concerns for lawyers who are advising their clients on the collection of such information? Can spouses who are still married and have access to their partner’s various computers, cell phones, emails, texts and other electronic devices take advantage of this opportunity with impunity, or are there regulations, guidelines or road signs as to what is permissible and what is not?

Tennessee and federal wiretapping laws restrict a party’s ability to intercept electronic communications. The United States Code makes it illegal for any party to intentionally intercept any wire, oral or electronic communication. Similarly, Tennessee statute prevents the intentional interception of such communication as well. It is unlikely that any party in a family law case would be able to lawfully intercept such communication, to say nothing of the difficulty in intercepting such communication, lawful or otherwise.

However, the above cited statutes only deal with the actual interception of such communication while en route, not communications that have already been received and stored, such as emails in an inbox that have already been viewed but not erased. A more plausible scenario in a family law case would be a spouse obtaining electronic communication from the other spouse’s storage device since they are still cohabitating, or they share household items like a computer. In such a situation, the manner in which that electronic communication was obtained becomes a matter of evidentiary and ethical importance to the party’s attorney, and the attorney must consider carefully whether to use these communications depending on the manner in which they were obtained by the client. The Tennessee Personal and Commercial Computer Act and the United States Code additionally make it a criminal offense to access stored communications without the requisite authorization. While these statutes may seem clear cut in an employment setting, or when an outside party hacks someone’s home email account, it is not nearly so certain in a divorce situation since the adverse parties have overlapping control, access and ownership of devices and, potentially, data as well.

In a guiding case from New Jersey, a wife in a divorce action had her private investigation firm take, copy and access emails from her husband’s email account that were located on the family computer to which they jointly had access. The wife did not use, nor ultimately did she need, the password to her husband’s email account to access his emails wherein she located evidence of infidelity on his part. The court ultimately ruled that this activity did not infringe on either federal or New Jersey wiretapping statutes, and it also ruled that, since the wife had not used the husband’s password without permission, but rather accessed the emails that had been stored on a computer that she did have permission to access, there was no improper conduct on her part and the communications were admissible. Conversely, there is a recent Florida case where a wife installed a spyware program on her husband’s computer, without his knowledge or consent, during a pending divorce proceeding, thereby obtaining emails and images being transferred to her husband’s computer as they were being transmitted. The trial court ruled, and the appellate court affirmed, that since the evidence was illegally obtained by the wife in violation of the Florida wiretapping act, the evidence was inadmissible in the proceeding before the court.

Cases such as these appear to set some basic ground rules for admissibility and use of electronically stored information from another party without that party’s consent. However, they do little to instruct or help a lawyer trying to determine how to advise a client on the potential collection of such evidence and how to avoid running afoul of ethical and criminal entanglements. Clearly a lawyer who advises a client to obtain information from a spouse in a questionable manner is opening themselves up for sanctions. However, the above situations were created by the client without the knowledge or direction of their attorney (presumably). How should a family law practitioner advise a client who suggests copying a spouse’s hard drive for discoverable material? Is it possibly ineffective lawyering not to advise a client to attempt to access shared computers in the hopes of obtaining favorable or incriminating evidence against a soon to be ex-spouse? Additionally, attorneys advising clients must also emphasize that electronically stored evidence must not be removed or destroyed purposefully or a court can levy highly detrimental and punitive sanctions and penalties for spoliation of evidence.

Scenarios such as this are presuming that traditional discovery will be insufficient to obtain all of the electronically stored information in its original form. Both the Tennessee Rules of Civil Procedure and the Federal Rules of Civil Procedure provide for the discovery of electronically stored information. Certainly during the formal discovery process, an attorney should request, with specificity, that they are seeking disclosure of electronically stored material and tailor their request as narrowly as possible as unduly burdensome discovery production of electronically stored information has been excluded from discovery requirements. Given the volume of electronic data available, a cost-benefit analysis for the client needs to enter into the lawyer’s thought process when making a formal request. Additionally, a client should understand that whatever is requested of the opposing party will likely be requested from the client in return. In addition to formal discovery, a lawyer should advise a client to avail themselves of access to all social media and other information that is open to public viewing since this information is not protected by any privacy right, but may well be left out of the response to formal discovery, or the content, intentionally or otherwise, may be altered on a frequent basis.

From the case law and statutes, it appears that a lawyer would be on safe grounds advising a client to access any and all electronic storage devices to which they have shared access. Once possessed, anything stored on that device that is not protected by additional, personalized safeguards of an individual user, would be deemed properly obtained and admissible in court. Beyond that, it would be much safer for the client, the lawyer and the client’s case to access electronically stored information of the opposing party through formal channels like the discovery process.

Source: Electronic Surveillance in Family Law (Tennessee Bar Journal, May 2014).

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

Best Knoxville divorce lawyersFacts: The parties divorced after 13 years of marriage.

Husband worked throughout the marriage until he became disabled approximately four years before the divorce. Wife did not work until around the time Husband became disabled.

In 2006, Wife inherited money that she deposited into the parties’ joint checking account each quarter when it was received. In 2009, the parties paid $50,000 toward their mortgage from their joint checking account.

The trial court valued and divided the marital property. After first awarding $50,000 of the equity in the marital residence to Wife as “repayment” of her contribution of her separate property, the trial court equally divided the remainder of the marital estate. Thus, the overall property division was 68% to Wife and 32% to Husband.

Husband appealed.

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

In divorce cases, Tennessee recognizes two distinct types or classes of property, i.e., “marital property” as defined at Tennessee Code Annotated § 36-4-121(b)(1) and “separate property” as defined at Tennessee Code Annotated § 36-4-121(b)(2). This distinction is important because Tennessee Code Annotated § 36-4-121(a) provides only for the division of marital property. Implicit in the statute’s mandate is the concept that assets properly classified as “separate property” are not divided between the parties, but rather are set aside to the spouse to whom the property is “separate” in nature. Also implicit in the statutory scheme for the division and distribution of marital and separate property is the concept that the property upon which the trial court acts is, generally speaking, the property owned by the parties, individually or jointly, at the time of the divorce.

As a corollary to this principle, property once owned by a spouse, either as separate property or marital property, but not owned by either spouse at the time of divorce, is not generally subject to classification and division or distribution when the divorce is pronounced. This is because a court cannot generally divide and distribute what is “not there” — property no longer owned by the parties, individually or jointly, at the time of the divorce.

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

We hold that the $50,000 awarded to Wife does not, ipso facto, render the division of the marital estate inequitable. The record reflects that Wife’s contributions of separate property to the marriage far exceeded those of Husband….

[W]hat is clear beyond any doubt is that there came a time in this marriage when there was a balance in the parties’ checking account of at least $50,000. This could not have come from the parties’ relatively meager incomes. It had to have come from Wife’s separate property contributions. If Wife had not contributed [] separate property to the marriage, it is highly unlikely that the parties would have had much in the way of a net marital estate at the time of their divorce.

Accordingly, the trial court was affirmed.

Dissent: Judge Swiney dissented, writing:

I believe the evidence preponderates against the trial court’s property division . . . as being an equitable division of the marital property….

Despite what was found by the trial court and apparently agreed to by the majority, the $50,000 payment made by the parties on the mortgage from their joint checking account was not Wife’s separate property at the time the $50,000 payment was made. As found by the majority, it was marital property at that time as it already had been transmuted into marital property. In other words, Wife never made a payment of $50,000 from her separate assets on the mortgage.

[I]t is not equitable to give Wife what amounts to a dollar-for-dollar credit as to the $50,000 payment because it treats $50,000 of her once separate property, in effect, as if transmutation never occurred….

[T]he majority has placed an inordinately high importance on Wife’s contribution of separate property to the exclusion of other relevant factors….

This is a case where consideration of all relevant factors rather than focusing on only one mandates an even division of the marital estate to achieve an equitable division….

Here, the disabled spouse under the majority’s opinion receives less than one-third of the marital property while the spouse who is not disabled and owns rental property receives over two-thirds of the marital property. I believe that considering all relevant factors including the parties’ financial contributions to the marital estate, Husband’s disability, Wife’s not working during most of the marriage, Wife’s post-divorce ability to work, and Wife’s ownership of rental property, an equitable division of this marital estate would be for Husband and Wife each to receive fifty percent (50%) of the entire marital estate. For this reason, I respectfully dissent from the majority’s opinion.

K.O.’s Comment: Both opinions make valid points. While I personally agree with Judge Swiney’s position, I believe reasonable minds can differ such that the trial court should be affirmed in light of the deferential “abuse of discretion” standard of review.

Hoggatt v. Hoggatt (Tennessee Court of Appeals, Eastern Section, May 12, 2014).

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

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

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

Facts: Husband and Wife separated after 16 years of marriage. Husband moved out of the marital residence. Wife filed for divorce.

After the separation but prior to the filing of the divorce complaint, Wife claims Husband assaulted her when he came to the marital residence and asked to pick up some tools and a guitar. Wife said she would not let him in and said the court should settle such issues. According to Wife, Husband became enraged, shoved his way into her home, grabbed her by her hair, threw her down some stairs, slammed her head against the steps, threatened her, swung a decorative statue at her, and told her he was going to “bash her brains in.” She claims she was finally able to get free from him and call 911 when she bit his finger.

Husband claimed the assault never happened and presented proof from a coworker that he was elsewhere at the time of the alleged assault.

In addition to seeking a divorce, Wife brought a spousal tort claim against Husband for damages arising from the assault. Wife’s dentist testified that one of Wife’s teeth was fractured and that her bridge required replacement. Wife’s treatment lasted several months and required a root canal and the placement of implants.

The trial court found Husband committed an assault and battery against Wife and awarded her compensatory damages of $38,284.10 and punitive damages of $10,000.

Husband appealed.

On Appeal:

Until 1983, the “domestic tranquility rule” prevented any tort action between married persons during or after divorce. Once the doctrine of interspousal immunity was abolished, damages for personal injuries that occurred during the marriage may be recovered in the divorce action or in a separate tort action.

After reviewing the record, the Court commented:

Wife testified that the assault was frightening and the injuries which she received were painful. She suffered permanent injury from a fractured tooth below her gumline. Protracted and long-term dental work was required, including extraction of the tooth, root canal, dental implantation and the construction of a new bridge. Wife testified that for a period of time she was unable to consume anything but liquids and that it was humiliating and difficult to go through the lengthy dental procedures that were required. Wife further related a loss of enjoyment of life in that she constantly was scared to the point that she obtained a surveillance system to monitor the outside of her home. The record before us reveals the determination of the trial court was supported by a preponderance of the evidence.

The Court also granted Wife’s request to consider post-judgment facts, namely the fact that Husband pleaded guilty to the aggravated assault against Wife after the appeal was taken. Considering this information, the Court stated:

Inasmuch as Husband had taken the position that the assault did not happen and was fabricated by Wife, and inasmuch as he stated in his guilty plea that restitution was to be paid as set out in the divorce action, we grant Wife’s motion to consider the post-judgment facts. The information further supports our finding that the compensatory and punitive damages awards were justified.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: The September 17, 2008 opinion in Cardella v. Cardella, No. M2007-01522-COA-R3-CV, is worth reviewing for lawyers dealing with or contemplating spousal tort claims.

Rayfield v. Rayfield (Tennessee Court of Appeals, Eastern Section, May 6, 2014).

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

Knoxville grandparent visitationFacts: Child lived with his Maternal Grandparents from birth until approximately age six, at which point he lived with Mother (Father is deceased). Less than two months later, Maternal Grandparents petitioned for court-ordered grandparent visitation of 138 days per year (after initially requesting that they be named the primary caregivers).

The proof showed that in the seven weeks between the time Child returned to Mother and the Maternal Grandparents filed their petition, the maternal grandparents had visitation with Child on seven different days, including two overnight visits. The proof also showed Mother allowed visitation even after being served with the petition. Mother testified she did not tell Maternal Grandparents they could not see Child, she did not oppose their having visitation with Child, and she wished for them to continue having a relationship with Child. The Maternal Grandparents testified they wanted a “regular” schedule.

The case was first heard by a Juvenile Court Magistrate who awarded the Maternal Grandparents 80 days of visitation per year.

Mother requested a rehearing before the Juvenile Court Judge, who dismissed the Maternal Grandparents’ petition because they failed to prove Mother opposed their visitation with Child.

The Maternal Grandparents appealed.

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

Parents have a superior right over all others to direct the upbringing of their children, including decisions regarding with whom the child interacts. The Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306, identifies circumstances in which grandparents are entitled to court-ordered visitation with a minor grandchild. In order for the Grandparent Visitation Statute to be implicated, visitation by grandparents must be opposed by the custodial parent or parents. The grandparents bear the burden of proving the parent has opposed their visitation.

After reviewing the record, the Court commented:

Although Mother allowed the Grandparents to act as [Child's] primary caregivers for a number of years, they are not legally recognized as his parents, and the statute does not provide the relief that they seek. The Grandparent Visitation Statute cannot be used by grandparents who think they are entitled to more or different visitation in the absence of a finding that the parents actually or effectively opposed visitation. The evidence does not preponderate against the trial court’s finding that Mother does not oppose visitation as contemplated by Tennessee Code Annotated § 36-6-306(a). Accordingly, Tennessee Code Annotated § 36-6-306 is not implicated, and the court did not err in dismissing this case.

K.O.’s Comment: For a case that discusses parental opposition to grandparent visitation in greater detail, see Uselton v. Walton.

In re Landon R. W. (Tennessee Court of Appeals, Middle Section, May 2, 2014).

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

Posted by: K.O. Herston | June 27, 2014

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

Facts: The parties were divorced by agreement. Their Marital Dissolution Agreement provided, in relevant part: “Husband and Wife expressly certify and acknowledge they have entered this Agreement upon mature consideration, that they have each fully disclosed all of their assets, and that all of said assets have been distributed herein.” The trial court incorporated the Marital Dissolution Agreement into the Final Judgment of Divorce by reference.

Eleven months later, Wife filed a Rule 60.02 motion to alter or amend alleging that the Marital Dissolution Agreement failed to divide Husband’s pension, which pension is marital property. Wife alleged, “[T]his oversight certainly must have resulted from a mistake, inadvertence, or excusable neglect.”

The trial court denied Wife’s motion, finding “there was no mutual mistake, only a unilateral mistake on the part of the Wife.”

Wife appealed.

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

Tennessee Rule of Civil Procedure 60.02, provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court.

Tennessee courts have characterized relief under Rule 60.02 as an “exceptional remedy” designed to strike a proper balance between the competing principles of finality and justice. Rule 60.02 provides an “escape valve” that is not easily opened. Courts have reversed relief granted under Rule 60.02 where the judgment was not oppressive or onerous. Relief under Rule 60.02 is not meant to be used in every case in which the circumstances of a party change after the entry of a judgment or order, nor by a party who is merely dissatisfied with a particular outcome.

A party seeking relief under Rule 60.02 must substantiate the request with clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In other words, the evidence must be such that the truth of the facts asserted is highly probable. In general, the bar for attaining relief is set very high and the burden borne by the movant is heavy.

All motions for relief based on Rule 60.02 must be made within a reasonable time. Motions based on Rule 60.02(1) or (2) shall be made “not more than one year after the judgment, order or proceeding was entered or taken.” In other words, one year is the outer limit on the time allowed for filing the motion under 60.02(1) or (2). Rule 60.02 does not permit a litigant to slumber on her claims and then belatedly attempt to relitigate issues long since laid to rest.

A marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. An MDA is to be looked upon and enforced as an agreement, and is to be construed as other contracts as respects its interpretation, its meaning and effect. Moreover, generally speaking, the parties are not entitled to a marital dissolution agreement that is different from the one they negotiated.

After reviewing the record, the Court commented:

The trial court found that wife had ample time to review the MDA before she signed it; that she did in fact review it; and that she told husband’s attorney that she was going to take it to her attorney to review. Wife does not dispute these findings. It is obvious that husband did not hide the existence of his pension, because wife testified that she was aware of it but mistakenly thought it would be divided later. A cursory reading of the MDA, however, should have put wife on notice that this document is designed to finally and forever conclude the parties’ rights growing out of their marriage… There is no indication in the record that wife was deceived or misled in any way before she signed the MDA. Wife has not established any ground for reopening the final divorce judgment under Rule 60.02.

Accordingly, the trial court’s judgment was affirmed.

Worgan v. Worgan (Tennessee Court of Appeals, Eastern Section, April 30, 2014).

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

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