Posted by: koherston | August 28, 2015

Photo of the Week: Sea Lion

KOH_0695-3

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

Posted by: koherston | August 26, 2015

Collaborative Divorce Saves Time and Money

This article by Debra Denison Cantor and Ann V. Levin in the Philadelphia Inquirer may be of interest to readers of this blog.

‘Collaborative divorce’ can save time and money

While many associate the word divorce with painful and messy, a new emphasis on conflict resolution has led to a specialty known as “collaborative divorce.” Gaining traction in Pennsylvania as well as being part of an international movement, collaborative divorce is saving clients time, heartache, and often thousands of dollars.

tennessee collaborative divorceUnder collaborative law, both parties retain separate, specially trained lawyers whose only job is to help them settle the dispute. All parties agree to work in good faith, combining legal representation with the strength of mediation.

In January, a draft of the Pennsylvania Uniform Collaborative Law Act (UCLA) gained unanimous approval of the Family Law Section of the Pennsylvania Bar Association. Last month, a resolution supporting the proposal was approved by the full board and the House of Delegates of the Pennsylvania Bar Association. A bill is expected to be introduced in the legislature later this year.

The UCLA or state versions of the act specifically pertaining to family law have been enacted by four states and the District of Columbia, according to the Uniform Law Commission. The act provides consistent standards in the process to ensure that clients in the collaborative process have a similar experience. To date, Pennsylvania has about 300 collaboratively trained attorneys housed in 13 practice groups across the state.

To ensure that attorneys are committed to the process, the UCLA would prohibit any who fail to help settle a case from representing the client further. No one may go to court or threaten to go to court; if that happens, the process ends. This is truly a settlement endeavor.

Traditionally, divorce is treated like separating partners in a business deal or victims of a car accident, as if participants can simply walk away when their case is over. But when children are involved, parties must remain tied together forever. A main goal behind collaborative law process is to make children a top priority and to learn to communicate for co-parenting in the future.

As an alternative to litigation, collaborative divorce looks at real lives, circumstances, and actual expenses, with both parties using financial experts, mental-health consultants, and appraisers instead of adversarial experts.

Collaborative divorce can also work well when:

  • The couple’s children attend college. The law does not require parents to pay for college, but they often agree to share costs.
  • The couple has a child with special needs. The process looks at every aspect of handling the complex demands of caring for the child.
  • The couple owns a business. A private settlement can be arranged without panicking investors or clients.
  • The parties still have respect for each other, even though they no longer wish to be married.

All this is not to say that collaborative divorce is an easy process. You don’t just hand over your troubles to a divorce lawyer and say, “Fix this.” And while it’s a misconception that couples must be able to get along for the process to work, a level of trust is helpful.

One proponent called it “divorce for grown-ups,” noting that an “amicable divorce” is really a myth; unpleasantness nearly always invades the process because it drives the split. But collaborative divorce forces civility and communication. A client said she “talked more to my husband in the first session than I did in the last three years of marriage.”

In collaborative divorce, spouses can speak of their deep hurt. It can be healing and lead to more closure. The courts are not interested in such things. Many collaborative divorces can be dealt with in as few as six meetings. One divorce settled in two meetings; another took a year and a half while the parties waited for property to sell. The important consideration in collaborative divorce is that the parties set the pace of resolution.

Above all, in any divorce proceeding, it’s important for both sides to understand that the courtroom is not the place for revenge or validation. Too many times, clients are looking for a judge, a lawyer, or someone in authority to listen to their pain and tell them they are right.

Depending on the process and the goals of both parties, a divorce can be accomplished without the rancor many anticipate. Collaborative divorce helps parties find a separate peace while creating a safe zone around the children and preserving relationships for life.

K.O.’s Comment: Collaborative divorce is also gaining popularity in Tennessee. Professionals trained in collaborative divorce have formed practice groups in Knoxville, Nashville, and Memphis.

Source: ‘Collaborative divorce’ can save time and money (Philadelphia Inquirer, July 3, 2015).

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

Facts: In 2010, two men were married in Iowa, whose laws allowed individuals of the same sex to marry. Iowa law did not require the individuals marrying to be residents of Iowa, and the parties’ marriage certificate stated they were residents of Roane County, Tennessee. Iowa law, however, does require residency for a specified minimum period in order to obtain a divorce in Iowa.

After marrying in Iowa, the men continued to reside in Tennessee.

Plaintiff filed a complaint for divorce in Roane County, Tennessee. He raised a constitutional challenge to Tennessee’s prohibition on same-sex marriage, which prohibition refused to recognize the Iowa marriage because it did not occur between “one man and one woman.”

Tennessee flagBecause of the constitutional challenge, the Tennessee Attorney General was allowed to intervene in the lawsuit.

After a hearing, the trial court ruled Tennessee’s prohibition on same-sex marriage did not violate the Constitution of the United States.

Plaintiff appealed.

On appeal, the State of Tennessee moved to hold the appeal in abeyance pending the United States Supreme Court’s decision in Tanco v. Haslam. The Court of Appeals granted the motion.

The United States Supreme Court issued its opinion in Tanco v. Haslam on June 26, 2015.

Following the Supreme Court’s decision, the parties filed supplemental briefs as directed by the Court of Appeals. In its supplemental brief, the State of Tennessee concedes that Tanco v. Haslam compels the outcome in this case.

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

The Court explained:

As pertinent to the case now before us, the United States Supreme Court held in [Tanco v. Haslam] “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” We, as an intermediate appellate court, are bound by the decisions of the Tennessee Supreme Court as to state and federal constitutional questions, and the United States Supreme Court as the ultimate authority as to federal constitutional questions. Given this, we reverse the Trial Court’s [] order and remand this case for further proceedings consistent with the United States Supreme Court’s Opinion in [Tanco v. Haslam] and this Opinion.

Accordingly, the case was remanded so this same-sex couple can finally get divorced.

Borman v. Pyles-Borman (Tennessee Court of Appeals, Eastern Section, August 4, 2015).

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

Posted by: koherston | August 21, 2015

Photo of the Week: Sea Otter Mother with Pup

KOH_2118-2

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

surprise!Facts: Mother and Father, parents of Child, divorced many years ago. Mother was designated the primary residential parent of Child.

After Mother proposed relocating to Texas, Father moved to modify the parenting plan seeking, in part, to be designated as the primary residential parent.

After the hearing, the trial court did not name Father the primary residential parent but modified the schedule to increase Father’s parenting time.

The trial court also modified child support by imputing additional income to Father after finding he was willfully underemployed.

Father appealed.

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

Father argued the trial court erred by imputing additional income to him based on a finding of willful underemployment because that issue had not been raised in the pleadings. Mother did not allege that Father was voluntarily or willfully underemployed; therefore, Father argued he was not put on notice the issue would be tried.

The Tennessee Rules of Civil Procedure require all pleadings in which a party sets forth a claim for relief to contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. This rule establishes a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and to the court. Providing notice of the issues to be tried allows the opposing party to adequately prepare for trial.

Historically, courts strictly enforced the rule that irrespective of what may be proved, a court cannot decree to any plaintiff more than he claims in his pleadings. Because the purpose of pleadings is to give notice to all concerned regarding what may be adjudicated, a judgment beyond the scope of the pleadings is beyond the notice given the parties and thus should not be enforced.

This rule has relaxed over time, and today the Tennessee Rules of Civil Procedure provide that, except with respect to default judgments, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings” as long as the propriety of such relief was litigated and the opposing party had the opportunity to assert defenses against it. Accordingly, parties may agree to try matters not asserted in the pleadings.

After reviewing the record, the Court concluded:

We agree with Mother that Father was on notice that child support would be modified if he were designated the primary residential parent or if the change in the days allocated to each parent under the parenting schedule created a significant variance in the amount of child support owed. In fact, Father submitted a proposed parenting plan that modified the child support section contained in the April 2013 parenting plan; however, that was based on a change in parenting time. The foregoing notwithstanding, notice that child support may be modified based on a change in the primary residential parent or parenting time does not, without more, put a party on notice that he or she is alleged to be underemployed and that the court may impute additional income to him or her when calculating or modifying child support….

[E]vidence that is relevant to modification of child support based on a change in the amount of parenting time may be very different from the evidence that is relevant to whether a party is voluntarily or willfully underemployed.

Based on these legal principles, we have concluded that Father was not on notice that the issue of voluntary underemployment would be tried. Therefore, the trial court erred by imputing income to Father for calculating his basic child support obligation. Nevertheless, because each party’s respective parenting time was modified by the trial court, it was incumbent on the court to determine whether that created a significant variance and, if so, to modify child support pursuant to the guidelines.

Accordingly, the trial court’s calculation of child support based on Father’s imputed income was reversed.

K.O.’s Comment: Compare the analysis in this case with the 2-1 decision on a similar child support notice issue in Leonardo v. Leonardo.

Reconciling this opinion with the opinion in Leonardo, it appears the rule is that an action to modify a parenting plan puts the parties on notice that child support may be modified based on changes in parenting time but does not put them on notice that child support may be modified for some other reason, such as willful underemployment.

What about work-related childcare, the child’s portion of the health insurance premium, changes in upper deviations like private school tuition, etc.? Does a parenting plan modification put the parties on notice that these matters will be reviewed if the parenting plan is modified? Or is the notice limited to the effects of a change in parenting time?

Solima v. Solima (Tennessee Court of Appeals, Middle Section, July 30, 2015).

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

Posted by: koherston | August 17, 2015

Tennessee’s New Permanent Parenting Plan Forms

Tennessee’s Administrative Office of the Courts has revised the official form for Permanent Parenting Plans.

The new form removes references to “Mother” and “Father” and replaces them with “Parent 1” and “Parent 2.”

TN Parenting Plan

This update reflects the U.S. Supreme Court’s invalidation of Tennessee’s prohibition on same-sex marriages in Tanco v. Haslam. Now that Tennessee recognizes same-sex marriages and same-sex divorces, the gender references in the old form were not inclusive enough. Tennessee courts now recognize that children may have two fathers or two mothers.

Click here to download the new parenting plan form directly from the Administrative Office of the Courts.

UPDATE (August 19, 2015): Because of complaints from a handful of same-sex marriage opponents (give it up already!) about the new “Parent 1” and “Parent 2” designations, which designations have been used for years in states where same-sex marriages were recognized prior to Tanco v. Haslam, the AOC has temporarily removed the new form and reverted to the old form that contains the “Mother” and “Father” designations.

The AOC issued the following statement to Fox News:

After receiving feedback regarding a recent change made to the permanent parenting plan form, the AOC has reviewed the procedures and determined that, before making any changes to the form, the AOC should consult with the Domestic Relations Committee of the Tennessee Judicial Conference. We have reverted to the previous form and the Committee has been notified.

If you feel like banging your head against the nearest wall, read this article to see extremists complain about how the change in nomenclature “violates the rights of heterosexual parents.”

LOL.

Even though the AOC took the form off their website for now, I am making the Word file available for download here. Feel free to share this post and spread the word.

UPDATE # 2 (August 19, 2015): Fox News is milking this story for all it’s worth (click for video).

UPDATE # 3 (August 19, 2015): The local Fox TV affiliate in Nashville is now reporting the story (inaccurately, I might add).

UPDATE # 4 (August 21, 2015): This story was covered on the WBIR newscast last night (click for story and video).

Source: Tennessee Administrative Office of the Courts.

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

Posted by: koherston | August 14, 2015

Photo of the Week: Smiling Kid

KOH_0092-2-2

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

Facts: Mother and Father divorced in April 2012. Mother was designated the primary residential parent of Child, while Father was awarded 104 days of parenting time.

Tennessee PhiladelphiaIn October 2014, Mother provided Father with a notice of intent to relocate to Philadelphia, citing an employment opportunity as the reason for the relocation.

Father filed a timely petition in opposition to the requested relocation. He also filed a proposed parenting plan requesting to change the primary residential parent designation.

At the trial, Mother presented evidence that she had been offered a teaching position in Trenton, New Jersey, with an annual salary of $60,000, which Mother claimed was higher than what she could earn in Tennessee.

Father alleged Mother was not promoting a relationship between Father and Child. He also presented proof that his family is in Tennessee and all are involved in Child’s life.

The trial court granted Father’s petition, finding that Mother’s proposed relocation did not have a reasonable purpose.

Mother appealed.

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

The parental relocation statute — codified at Tennessee Code Annotated § 36-6-108 — governs this action. The statute creates a mechanism for determining whether a parent may relocate outside the state or more than 50 miles from the other parent within Tennessee.

Because Mother and Father were not spending substantially equal intervals of time with Child, the issue at trial was whether Mother should be permitted to relocate with Child pursuant to Tennessee Code Annotated § 36-6-108(d)(1), which provides:

(d)(1) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
(C) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

The parent opposing the relocation bears the burden of proof to establish one of these three grounds. The relocation shall be permitted if the opposing parent fails to prove any of the three grounds. If the court finds one of the grounds to be present, then the court shall determine whether or not to permit relocation of the child based on the best interest of the child.

After reviewing the record, the Court reasoned:

Mother did not claim that she was unable to pursue any employment opportunities in Tennessee. She merely claimed that she could not obtain a comparable salary in Tennessee. She does not account for what she admitted at trial was an increased cost of living in New Jersey as evidenced by the tuition for the Child’s schooling and increased rent. Her testimony concerning the opportunity for career advancement is also unsubstantiated and subjective when considered with the fact that she only submitted “five or six” applications in Tennessee and the fact that her employment history has been largely unstable as evidenced by her employment at four different institutions in the past four years. Additionally, the record reflects that the Child enjoyed a loving relationship with Father and his extended family in Tennessee. With all of the above considerations in mind, we affirm the trial court’s determination that Mother’s purpose for relocating was unreasonable when weighed against the Child’s loss of Father’s ability to participate fully in his life.

Accordingly, the trial court’s determination that there was no “reasonable purpose” for the proposed relocation was affirmed. The trial court failed to assess whether the proposed relocation was in Child’s best interest, however, so the case was remanded to the trial court to make a comprehensive best interest analysis using the factors set forth in Tennessee Code Annotated § 36-6-108(e).

K.O.’s Comment: This case is similar to Thorneloe v. Osborne, where the Court found the higher salary in the proposed new location was offset by the higher cost of living.

The relevant economic factors typically considered in the reasonable purpose analysis include but are not limited to the relative significance of the increase in income, the cost of living in the proposed location compared to the present location, the firmness of the job offer, the opportunity for career advancement, and the economic betterment of the family unit.

Even if there are economic reasons for relocating, the reasonable purpose must be substantial when weighed against the gravity of loss of the non-custodial parent’s ability to participate fully in the child’s life. This consideration weighed against the proposed relocation in this case.

Lawrence v. Broadnax (Tennessee Court of Appeals, Eastern Section, July 31, 2015).

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

germanyFacts: Mother, a German citizen, married Father while he was stationed in Germany with the United States Army. They moved to the United States, had one child, and later divorced.

At the time of divorce, they entered an agreed parenting plan designating Mother as the primary residential parent and awarding Father 122 days of parenting time each year.

On December 27, 2013, approximately five years after the divorce, Mother sent Father a certified letter notifying him of her intention to relocate to Germany with Child. Mother said she was moving to assist her parents, whose health conditions had deteriorated and who needed assistance with their everyday lives. The letter also stated Mother had secured employment which would allow her and the child to have a better quality of life. The letter further told Father that he “may file a petition in opposition to [Mother’s] proposed relocation within 30 days of receipt of this notice.”

Father received Mother’s certified letter on December 28, 2013.

Father responded by writing a letter to Mother’s attorney expressing his opposition to the proposed relocation. The letter was dated January 24, 2014, and was received by Mother’s attorney on January 27.

On February 3, 2014, Mother filed a Petition to Modify Visitation stating that Father had failed to file a petition in opposition as required by statute. Based on this failure to file a petition in opposition, Mother said she and Child were relocating to Germany and the parenting schedule needed to be modified to accommodate this relocation.

On February 12, 2014, Father, a non-lawyer who was representing himself, filed his petition in opposition to Mother’s proposed relocation.

Mother moved to dismiss Father’s petition on the grounds that it was not timely filed.

The trial court denied Mother’s motion to dismiss, holding that the requirement that Father’s petition be filed within 30 days of receipt of notice of Mother’s intent to relocate was an “unreasonable burden on a pro se petitioner.” In other words, because Father was not a lawyer and was representing himself, the trial court excused him from the deadlines imposed by the governing law. The trial court further stated, “It is unfair to require someone who’s child is going to be taken 4500 miles away only 30 days in which to hire an attorney and file a pleading and paid them a huge retainer fee.”

After hearing, the trial court denied Mother’s proposed relocation, holding that her motive for relocating was vindictive and had no reasonable purpose. The trial court then increased Father’s parenting time.

Mother appealed.

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

Parental relocation in Tennessee is governed by Tennessee Code Annotated § 36-6-108. The portions of the statute pertinent to this appeal are § 36-6-108(d)(1) and (g).

According to the statute, a party opposing a proposed relocation may file a petition within 30 days of receipt of notice, and in the event no petition is filed within that 30-day period, “the parent proposing to move with the child shall be permitted to do so.”

After reviewing the record, the Court concluded:

The record shows that Father received a certified letter on December 28, 2013, notifying him of Mother’s intended relocation and advising him that he “may file a petition in opposition to [Mother’s] proposed relocation within thirty (30) days of receipt of this notice.” Father waited until January 24, 2014, to write Mother’s attorney expressing his opposition to the move. It was not until after Mother filed her petition to alter visitation — in which she noted Father’s failure to timely file a petition in opposition gave her the right to relocate, pursuant to Tenn. Code Ann. §36-6-108(g) — that Father filed a petition in opposition, asking the court “to have sympathy due to me not having the finical [sic] means for counsel or the understanding of the Tennessee laws….”

The language of Tenn. Code Ann. § 36-6-108(g) is clear and mandatory. The record does not support the court’s determination that it was an “unreasonable burden” or “unfair” to apply the 30-day time limit to Father. Stating one’s opposition to a proposed move, without more, is not in compliance with the statute and is not sufficient to invoke the adjudicatory powers of the court. Moreover, whether Mother was prejudiced by Father’s failure to timely file the petition is not an appropriate consideration.

Accordingly, the trial court was reversed. Mother and Child may now relocate to Germany. The matter was remanded to the trial court for entry of a new parenting plan reflecting this relocation.

K.O.’s Comment: This case is very similar to Rutherford v. Rutherford, a 2-1 decision in which the same arguments were made and the same result was reached. It is worth noting that Justice Holly Kirby (who is still the reigning “World’s Most Awesome Judge,” by the way) was part of the majority in Rutherford.

Tennessee law is clear that pro se litigants who invoke the complex and technical procedures of the courts assume a very heavy burden. While they are entitled to fair and equal treatment, they must follow the same substantive and procedural requirements as a party represented by a lawyer. They cannot shift the burden of litigating their case to the courts.

While pleadings filed by pro se litigants may sometimes be held to less stringent standards than those applied to pleadings prepared by lawyers, the same substantive law applies to all parties whether they are represented by a lawyer or are attempting to represent themselves.

Buchanan v. Buchanan (Tennessee Court of Appeals, Middle Section, July 30, 2015).

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

Posted by: koherston | August 7, 2015

Photo of the Week: Swim Competition

KOH_9466-2

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

Posted by: koherston | August 5, 2015

Tell the American Bar Association Why You Read This Blog

I guarantee you have no idea how much time it takes to maintain this blog.

I have to read all the Tennessee family law opinions issued by the appellate courts, figure out which ones are “blog worthy” (not many), and then draft the posts that are published on this blog.

It is a HUGE time commitment.

I have never asked for anything in return.

Until now.

I want two minutes of your time.

The American Bar Association wants to know why you read this blog.

The comments are limited to 500 characters or less. Sharing your thoughts should take no more than two minutes.

The ABA is seeking input from legal blog readers as to which legal blogs they like and why.

If you enjoy this blog, please take two minutes of your time to tell the ABA why you read this blog, what you enjoy about it, how it benefits you, etc.

You only have until August 16 so please take a moment right now and CLICK HERE to share your thoughts with the ABA.

Thank you. I really appreciate it.

Source: American Bar Association “Blawg 100 Amici” (August 2015).

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

contemptFacts: In this post-divorce action, Father filed a petition to hold Mother in contempt for violating the parenting plan by making derogatory statements about him to their child.

The trial court found Mother in civil contempt for making derogatory statements about Father to Child in violation of the parenting plan, and awarded Father attorney’s fees incurred in prosecuting the civil contempt petition.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court in part and reversed in part.

Civil contempt. Mother first argued the trial court erred in treating Father’s petition as one for civil contempt instead of criminal contempt.

Criminal contempt is used to preserve the power and vindicate the dignity and authority of the law as well as to preserve the court as an organ of society. Sanctions for criminal contempt are both punitive and unconditional. They are designed to punish past behavior rather than coerce compliance with a court order or influence future behavior.

In contrast, civil contempt is remedial in character, and is intended to benefit a private litigant rather than vindicate the authority of the court.

Civil contempt proceedings may serve two purposes. One purpose is to coerce future compliance with a trial court’s order.

Civil contempt may also serve a compensatory function, providing relief to a party who has suffered unnecessarily as a result of contemptuous conduct. When the contempt at issue is the performance of a forbidden act, the contemnor may be imprisoned until the act is rectified by placing matters back to the status quo, or by the payment of damages. In cases of compensatory civil contempt, even when the conduct at issue has ceased, the disobedience of the court’s order is not rectified until the offending party pays damages to make the other party whole. In the context of civil contempt, an award of attorney’s fees is appropriate because it serves to compensate the prevailing party for the expenses incurred to obtain compliance with a court order.

After reviewing the record, the Court concluded:

In his contempt petition, Father expressly alleged that Mother was engaging in conduct forbidden by a court order, the parenting plan, and he sought to compel Mother’s compliance with specific provisions of that order. A fair reading of the petition clearly reveals that Father was seeking Mother’s future compliance with the parenting plan for his benefit because her continuing violations of the parenting plan were impairing his relationship with their son. As noted above, one of the primary purposes of civil contempt is to enforce compliance with the court’s order for the benefit of the petitioner who has suffered a violation of his or her rights.

Moreover, the trial court addressed the violation of the parenting plan by awarding Father the reasonable attorney’s fees he incurred to enforce compliance with the court’s order. Such action falls squarely within the character and purpose of punishment for compensatory civil contempt. Thus, the trial court correctly ruled that Father’s petition would be tried as one for civil contempt.

Attorney’s fees. Mother also argued it was error to award attorney’s fees to Father because Father did not specifically plead for that relief.

Tennessee follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and court. In conjunction with that standard, Rule 9.07 of the Tennessee Rules of Civil Procedure provides that when items of special damages are claimed, they shall be specifically stated. Attorney’s fees are considered special damages because in the absence of a statute, contract, or equitable rule requiring otherwise, attorneys must generally look to their own clients for their fees. In an appellate court opinion issued in 1981, the Court said, “Since an award of attorney’s fees is fairly unusual, plaintiff should have the obligation of pleadings such an item of damages.”

The Court rejected Mother’s argument, explaining:

In the 34 years since we made that statement [in the 1981 opinion], it has become common for parties to seek payment of attorney’s fees, and awards of attorney’s fees are no longer so unusual. As a result, our courts have held that the failure to comply with [Rule 9.07] is not necessarily fatal to an award of attorney’s fees when parties already know that attorney’s fees may be recovered. Thus, while including a specific request for attorney’s fees in one’s pleadings remains the prudent practice, failure to do so will not necessarily result in a reversal of the award.

As our analysis of civil contempt indicates, the trial court had authority to award Father’s attorney’s fees as actual damages based on a finding of contempt. Therefore, we find no error with the trial court’s determination that Father was entitled to recover the attorney’s fees incurred in the prosecution of the contempt petition.

Finally, Mother argued the trial court should have conducted a hearing to assess the reasonableness and necessity of the attorney’s fees in question.

It is not always necessary for there to be a fully developed record when the judge who presided over a case is asked to award attorney’s fees. Trial courts are generally capable of determining the value of an attorney’s services by virtue of the fact that they have overseen the proceedings before them. Accordingly, the trial court is not required to hold a hearing as to the reasonableness of the amount of attorney’s fees awarded unless the opposing party makes a timely request.

After reviewing the record, the Court stated:

Here, Mother made a timely demand for a hearing on the reasonableness and necessity of Father’s application for attorney’s fees. Because her request was timely, we have determined the trial court should have held a hearing on the reasonableness and necessity the fees requested. Accordingly, we remand for a hearing on Father’s fee request.

Cremeens v. Cremeens (Tennessee Court of Appeals, Middle Section, July 24, 2015).

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

Posted by: koherston | July 31, 2015

Photo of the Week: Portrait of a Cub

KOH_9262-4

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

Facts:Husband and Wife divorced after 16 years of marriage.

Which is it?

Wife is an orthopedic surgeon. Husband is an engineer who was a stay-at-home parent during the latter part of the marriage. Prior to becoming a stay-at-home parent, Husband earned a six-figure salary.

The trial court equitably divided the marital estate. Wife was awarded assets valued at $1.65 million. Husband was awarded assets valued at $1.5 million.

Husband was awarded rehabilitative alimony of $2000 per month for 36 months.

Finally, Husband was awarded alimony in solido, a.k.a. “lump sum” alimony, of $60,000 to pay his attorney’s fees.

Wife appealed.

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

When determining whether an award of alimony in solido to pay attorney’s fees is appropriate, the trial court must consider the factors set forth in Tennessee Code Annotated § 36-5-101(i). An award of alimony in solido to pay attorney’s fees is appropriate only when the spouse seeking them lacks sufficient funds to pay his or her own legal expenses, or the spouse would be required to deplete his or her resources in order to pay them.

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

In light of the property and financial resources awarded to Husband, we agree with Wife that an award of attorney’s fees as alimony in solido was not warranted in this case. Accordingly, we reverse the trial court’s award of alimony in solido to Husband.

In this case, [Husband] clearly does not lack sufficient funds to pay his own attorney’s fees. [Husband] received an equitable division of the parties’ marital property valued at approximately $1,500,000, including more than $400,000 in financial assets, in addition to rehabilitative alimony of $2,000 per month for 36 months. A payment of $60,000 to pay his own attorney’s fees will not deplete — i.e., empty, exhaust, or waste — [Husband’s] considerable financial resources. Accordingly, the trial court applied an incorrect legal standard, which constituted an abuse of discretion on this issue.

The trial court’s award of $60,000 as alimony in solido was reversed.

Dissent: Judge Stafford filed a dissenting opinion, writing:

As discussed by the majority Opinion, this Court follows the general rule that a “spouse with adequate property and income is not entitled to an award of alimony to pay attorney’s fees and expenses.”

First, I note that the Gonsewski Court held that a spouse with “property and income” would not be entitled to alimony in solido in the form of attorney’s fees…. Husband does not possess both adequate property and income to pay his own attorney’s fees. Because he has no independent income, Husband must resort to depleting his marital estate to pay his attorney’s fees. Wife, however, is certainly financially capable of shouldering that burden….

Having reviewed the trial court’s decision in the light most favorable to it, I cannot agree that the award of attorney’s fees to Husband was an abuse of discretion…. Nothing in the majority’s analysis on this issue leads me to conclude that the presumption in favor of the trial court’s order has in any way been rebutted. Instead, from my review, it does not appear that the trial court’s decision is clearly unreasonable, based upon an incorrect legal standard, illogical, clearly erroneous, or that the decision will cause an injustice. Accordingly, it appears that the majority simply reaches a different conclusion regarding whether the payment of attorney’s fees by Husband would deplete his resources. This is not an appropriate basis for overturning a decision reviewed under the abuse of discretion standard.

K.O.’s Comment: This is a tough one. The more I think about this case, the more I change my mind. Ask me at breakfast and I agree with the majority. By lunch I’m siding with the dissent. By dinner I’m definitely back with the majority. When it’s time for bed, I’m convinced the dissent is correct. If I were on the Court of Appeals, I honestly don’t know which way I’d vote. But I keep coming back this question: Even if one disagrees with the trial court, is it reversible error? As of this writing, I’m with the dissent. Ask me tomorrow and all bets are off.

Gladwell v. Gladwell (Tennessee Court of Appeals, Western Section, July 20, 2015).

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

Facts: Husband and Wife divorced after approximately 10 years of marriage. They have one child.

During the divorce, they entered an agreed order providing that neither party would “drink alcohol during their parenting time” with the child or “within 12 hours prior to their parenting time” with the child.

At the trial, Wife requested the inclusion of a paramour clause in the parenting plan. The trial court included this provision, specifically ordering that “neither party shall have any overnight guests of the opposite sex to whom they are not blood related or married while the minor child is present.”

Based on Husband’s deposition testimony in which he admitted to drinking during his parenting time on four separate occasions, the trial court found Husband guilty of four counts of criminal contempt for drinking alcohol during his parenting time.

Husband appealed.

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

Paramour Clause. In the case of Barker v. Chandler, the Court of Appeals reviewed the question of whether trial courts in Tennessee are required to include a paramour provision in a parenting plan. The Court held “that the trial court was not required to include the paramour provision in the permanent parenting plan.” The second time Barker v. Chandler came before the Court, it held that the trial court abused its discretion by including a paramour clause in the parenting plan because there was no evidence to support the finding that the provision was in the best interests of the children or that the presence of Mother’s partner had any harmful effects on the children.

After reviewing the record, the Court reasoned:

In reviewing the record here there is very little testimony regarding the need for a paramour provision in the parenting plan. Wife was asked by her attorney whether she wanted the clause included in the parenting plan “for protection purposes of the child,” and she answered in the affirmative. There was no further testimony regarding the need to include a paramour clause in the parenting plan. In reviewing the statutory factors used to determine custody, the trial court’s ruling stated that it had “no reason to question the character or behavior of any person who frequents each parent’s home.” As there are no findings by the trial court that this provision was either necessary, or in the best interest of the child, we reverse this portion of the trial court’s ruling.

Criminal Contempt. Pursuant to the agreed order, Husband was prohibited from consuming alcohol both before and during his parenting time. He testified under oath to doing that very thing. Relying on this sworn admission, the trial court found Husband guilty of criminal contempt.

It is a fundamental concept in Tennessee criminal law that the elements of a crime may not be established by a confession or an admission of the accused standing alone. As such, the confessions of a party without corroborating evidence will not support a conviction. The party’s confession must be corroborated by evidence which, independently of the confession, tends to establish that the crime occurred.

The amount of corroboration required depends on the circumstances. When a defendant challenges the admission of his extrajudicial confession on lack-of-corroboration grounds, the trial court should begin by asking whether the charged offense is one that involves a tangible injury. If the answer is yes, then the prosecuting party must provide substantial independent evidence tending to show that the defendant’s statement is trustworthy, plus independent prima facie evidence that the injury actually occurred. If the answer is no, then the prosecuting party must provide substantial independent evidence tending to show that the defendant’s statement is trustworthy, and the evidence must link the defendant to the crime.

After reviewing the evidentiary record, the Court commented:

The only evidence before the trial court regarding the criminal contempt of Husband was his deposition testimony in which he admitted to drinking during his parenting time while on vacation with his family on four separate occasions. Wife did not introduce into evidence any corroborating witnesses (even though they were known to her), receipts, lab results, or any other evidence whatsoever from which the trial court could find Husband guilty of criminal contempt beyond a reasonable doubt. Therefore, we reverse this portion of the trial court’s order.

Accordingly, the trial court’s rulings on the paramour clause issue and criminal contempt were reversed.

Dick v. Dick (Tennessee Court of Appeals, Middle Section, July 14, 2015).

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

Older Posts »

Categories

Follow

Get every new post delivered to your Inbox.

Join 919 other followers

%d bloggers like this: