Facts: Husband and Wife divorced after 23 years of marriage. Husband was ordered to pay alimony in futuro of $10,000 per month.

Several years later, Husband petitioned to reduce or terminate his alimony obligation on the grounds of Wife’s cohabitation with her boyfriend.

The trial court found Wife was not cohabitating with anyone.

Husband appealed.

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

An award of alimony in futuro may be modified or terminated upon proof that a substantial and material change in circumstances has occurred since the entry of the original alimony order.

To be material, a change in circumstances must have been unforeseeable, unanticipated, or not within the parties’ contemplation when the order for alimony was awarded. To be substantial, the change must significantly affect either the obligor spouse’s ability to pay or the obligee spouse’s need for the support.

Even if the obligor is able to show a material and substantial change in circumstances, modification must also be justified under the factors relevant to an initial award of alimony, particularly the receiving spouse’s need and the paying spouse’s ability to pay.

Tennessee Code Annotated § 36-5-121(f)(2)(B) addresses cohabitation and provides:

In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

After reviewing the record, the Court concluded:

Our review of the record shows that Husband presented evidence that Wife may have spent more than six days at a time at [her boyfriend’s] house in Florida at different points in time, but this alone is insufficient to prove Wife was cohabitating with [her boyfriend]. Moreover, as the trial court found, there was no proof that Wife supported [her boyfriend] or that [her boyfriend] supported Wife. Finally, Wife testified that her need for the spousal support had not changed since it was modified a few years earlier. We cannot say, based on the evidence presented at trial, that the evidence preponderated against the trial court’s conclusion that Wife was not cohabitating with [her boyfriend].

Accordingly, the trial court was affirmed.

Wiser v. Wiser (Tennessee Court of Appeals, Middle Section, April 30, 2015).

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

Facts: When the Mother and Father divorced, Father was ordered to pay $800 per month in child support for their two children.

Five years later, Father’s child support obligation was reviewed because the children’s day care expense had ended.

Father, a self-employed car salesman, argued his income had decreased. Father submitted his federal tax returns in support of this proposition.

Mother contended Father’s income should be measured by the amounts of money he deposited annually into his personal bank account, which was significantly greater than the income shown on his tax returns.

The trial court ruled Father’s current income should be set based on the average of the total deposits to his personal bank account for the three years preceding the hearing. The trial court questioned father’s testimony regarding his income because his bank deposits were sufficiently greater than his reported income or profit. Although Father’s income had declined even under the trial court’s formulation, Father’s child support obligation increased to $1017 per month.

Father appealed.

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

The Tennessee Child Support Guidelines, when applied to an obligor whose income is derived from a salary and an occasional bonus or dividend, yield an easily quantitated child support amount. Once the obligor’s income has been determined and the Child Support Guidelines have been applied, the calculation of child support is made with certainty, predictability, and precision.

Although achieving such precision is possible when calculating the child support owed by a salaried obligor, the calculation is much more difficult and much less precise when the obligor is self-employed. The Child Support Guidelines therefore provide a different method for calculating a self-employed obligor’s income. In the self-employed obligor’s situation, the guidelines require the trial court to consider all income of the obligor parent, reduced only by reasonable expenses to produce the income. Income from self-employment includes income from business operations and rental properties, etc., less reasonable expenses necessary to produce such income.

These self-employment guidelines are fashioned in such a way as to authorize the trial court to address the potential of a self-employed obligor to manipulate income for the purpose of avoiding payment of child support. Courts have recognized that a self-employed obligor has the opportunity to manipulate his reported income by either failing to aggressively solicit business or by inflating his expenses, thereby minimizing his income.

After reviewing the record, the Court concluded:

[I]n the case at bar, Father sought to rely exclusively on his federal tax returns to demonstrate the proper amount of his income. Mother, on the other hand, sought to rely on Father’s bank records to establish his income because the amount of the deposits to his personal bank account greatly exceeded the amount of his reported income. Although Father generally testified that some deposits to his personal account were not income from his business, such as amounts he borrowed from his business line of credit and amounts he repaid to himself for loans he made to the business, he produced no documentary evidence to support his contentions. Father failed to provide specific dollar amounts regarding deposits that he claimed were not income. Therefore, based on the proof presented to the trial court, we conclude that the court did not err in utilizing the amount of Father’s deposits in determining his income for child support purposes.

The trial court’s ruling on this issue was affirmed.

K.O.’s Comment: This outcome is consistent with several other cases where the Court of Appeals affirmed the trial court’s use of deposits to an obligor’s bank account as the best evidence of the obligor’s actual income for child support purposes when the bank account deposits greatly exceeded the obligor’s reported income or profit from a business.

Sellers v. Walker (Tennessee Court of Appeals, Eastern Section, April 29, 2015).

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

Posted by: koherston | May 22, 2015

Photo of the Week: Osprey

Osprey

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

Facts: Mr. and Mrs. A. entered into a surrogacy contract with Surrogate and her husband, whereby Surrogate would serve as the gestational carrier of a child for Mr. and Mrs. A. donated eggs were fertilized with Mr. A’s sperm, and the resulting embryos were implanted into Surrogate’s womb. The procedure was successful, and Surrogate gave birth to twin boys.

All the parties to the surrogacy agreement filed a joint petition to establish parentage of the children. The joint petition stated Mr. A was the “intended and genetic father” of the children and that Mrs. A was the “intended mother.” It also stated that Surrogate was the gestational carrier of the children but not a biological parent or genetic donor.

The joint petition asking the court for a declaratory judgment declaring Mr. and Mrs. A as the legal parents of the children invest in them all rights and responsibilities of parenthood under Tennessee law, including the right to have their names entered on the children’s birth certificates as their parents.

The trial court granted the relief requested, declared Mr. and Mrs. A to be the sole legal parents of the children, and ordered the Tennessee Department of Health to issue original birth certificates reflecting Mr. and Mrs. A as the sole legal father and mother of the children.

The Tennessee Department of Health intervened in the case and sought to set aside the trial court’s declaration that Mrs. A is the legal mother of the children and is entitled to have her name listed on the birth certificates.

After considering the Department’s arguments, the trial court changed its mind and concluded Surrogate must be listed as the mother on the children’s birth certificates and that Mrs. A must adopt the children are in order to obtain parental rights.

Mr. and Mrs. A — joined by Surrogate and her husband — appealed.

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

Following the reasoning of In re Adoption of Male Child A.F.C., the Court affirmed the trial court’s ruling that Surrogate should be listed on the children’s birth certificates. That left the children’s legal maternity as the only remaining issue.

Surrogacy is generally defined as the process of carrying and delivering a child for another person. Surrogacy arrangements generally fall into two broad categories: traditional surrogacy and gestational surrogacy.

In a traditional surrogacy arrangement, a surrogate mother gives birth to a child by allowing her own eggs to be fertilized by artificial insemination. A traditional surrogate mother thus has a genetic connection to the child whom she carries and bears on behalf of others.

By contrast, in a gestational surrogacy arrangement, one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child. The key distinction is that a traditional surrogate is the biological mother of the child, whereas a gestational surrogate has no genetic relation to the child.

In a gestational surrogacy with egg donation, a gestational carrier carries and gives birth to a child as a result of fertilization and implantation of a third-party donor’s egg. Under those circumstances, the intended mother has no genetic relation to the child, and neither does the gestational carrier. That was the situation presented in this case.

In In re C.K.G., 173 S.W.3d 714 (Tenn. 2005), the Tennessee Supreme Court considered the issue of maternity where the gestational carrier of triplets obtained the eggs from an anonymous third-party donor. In that case, an unmarried couple — Charles and Cindy — sought assistance at a fertility clinic to have children. Anonymously donated eggs were fertilized with Charles’s sperm and implanted in Cindy’s uterus. As a result, Cindy gave birth to triplets. After the relationship between Charles and Cindy deteriorated, Charles sought custody of the three children on the grounds that Cindy lacked a genetic connection to the children and failed to qualify as their “mother” under Tennessee law.

After concluding that Tennessee law did not contemplate such a situation, the majority in In re C.K.G. devised a four-factor test for deciding the case.

First, the court described the genetics as “an important factor in establishing legal maternity.” It concluded that in cases like Cindy’s, “where a woman has become intimately involved in the procreation process even though she has not contributed genetic material, factors other than genetics take on special significance.”

Second, the court looked at “the intent to take on both parental rights and responsibilities.”

Third, the court found it appropriate to consider gestation as a factor in its analysis.

Fourth, the court considered “the nature of the controversy.” The court noted that in Cindy’s case, she was the only “mother” involved. Accordingly, the court limited its holding to cases where there is no controversy between the gestational carrier and the genetic “mother.”

Applying these four factors, the Tennessee Supreme Court in In re C.K.G. concluded that Cindy was the legal mother of the triplets.

Declining to apply that analysis, the Court concluded the case failed to present a justiciable controversy, reasoning:

Unlike the facts in In re C.K.G.…, there is no real legal controversy regarding the legal maternity of the children in this case. There is no disagreement among the parties to the surrogacy contract, nor is there a “tie” between two “mothers” who desire parental status. The only party challenging the legal maternity of Mrs. A is the Tennessee Department of Health, and it only does so in the context of this lawsuit. Under the circumstances of this case, the petitioners are not entitled to a declaration as to the children’s “legal mother.” The petitioners have failed to demonstrate a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant a declaratory judgment.” As the Middle Section of this Court stated in In re Adoption of A.F.C., courts must decide issues in surrogacy cases on “particularly narrow grounds given their inherently policy-laden and administratively and fiscally momentous nature.” The “important and consequential issue” of designating the legal mother “should be left for determination in a case that presents an actual, ongoing controversy, or . . . should be resolved by the legislature.” This case does not present an actual, ongoing controversy regarding the legal maternity of the children at issue. We therefore vacate the juvenile court’s finding regarding the legal maternity of the children.

The Court further noted that while “[t]he Department has the authority to issue birth certificates, [] it does not have the authority to declare who qualifies as the children’s legal mother.” Noting that all parties to the surrogacy agreement agree that Mrs. A is the mother of the children, the Court concluded there is no disagreement to resolve, nor is there a right for Mr. and Mrs. A to vindicate. The court stated “[t]he parties are not being compelled to do anything, or refrain from doing anything, based on a determination regarding who is the ‘legal mother.’ Our resolution of the issue would not resolve any real controversy.”

Accordingly, the trial court was affirmed in part and reversed in part.

K.O.’s Comment: Sounding like a broken record, the Court again pleaded with the Legislature to craft legislation that governs surrogacy situations. The Court said:

The best solution to this potential problem is the enactment of a comprehensive statute to ensure uniformity in the outcomes of surrogacy cases. Tennessee’s statutes offer limited guidance as to how courts should handle surrogacy disputes. Tennessee’s limited and outdated surrogacy statute lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements and leaves the parties and the courts ill-equipped to deal with the complex questions that inevitably arise in this area of the law. There can be no denying that the ability to create children using assisted reproductive technology has far outdistanced the legislative responses to the myriad of legal questions that surrogacy raises. Surrogacy arrangements present numerous legal obstacles, and courts have generally been required to muddle through the surrogacy thicket without legislative guidance. The increasing popularity of surrogacy will only cause these problems to proliferate. In In re Baby, the Tennessee Supreme Court again encouraged the Tennessee General Assembly “to follow the lead of other state legislatures that have enacted statutes to address the fundamental questions related to surrogacy.” We share in the court’s sentiment and urge the Tennessee General Assembly to give Tennessee’s courts and citizens guidance in this important and increasingly complex area of the law. By enacting a statute governing gestational surrogacy, the Tennessee General Assembly will afford infertile couples entering into a surrogacy contract confidence in the process and certainty in the results.

The Tennessee Supreme Court made this same plea when the In re C.K.G. case was considered in 2005 and Tennessee courts have repeated it in the handful of surrogacy cases that followed. Ten years later, our General Assembly has done absolutely nothing. Tennessee children deserve better.

In re Amadi A. (Tennessee Court of Appeals, Western Section, April 24, 2015).

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

Posted by: koherston | May 18, 2015

Tennessee Family Law Legislative Update 2015

2015 was a quiet year for family law legislation in Tennessee. The Republican super-majority devoted it’s time to other issues such as preventing a floor vote on the Governor’s “Insure Tennessee” plan to expand Medicaid to low-income Tennesseans, imposing medically-unnecessary restrictions on women’s healthcare, or preventing local governments from prohibiting guns in local parks.

While the Legislature passed and the Governor signed several bills that change Tennessee family law, I think the following bills merit the attention of readers of this blog:

Public Chapter 113: This changes the time period in which a parent may revoke a voluntary surrender of parental rights from 10 days to three calendar days. Thus, now there is a three day period in which a parent may revoke a voluntary surrender of parental rights. This law became effective on April 10, 2015.

K.O.’s Comment: Given the gravity of the issues involved and the emotions that accompany a parent’s voluntary surrender of parental rights, I think the revocation period should have remained 10 days. I believe 10 days strikes the proper balance between the parent’s rights and the child’s interest in stability and finality.

Public Chapter 167: This eliminates any right to custody/visitation/inheritance for parents convicted of aggravated rape, rape or rape of a child that led to the child’s conception. It also permits the other parent to request reasonable visitation with the convicted parent and requires the establishment of a child obligation for the convicted parent.

Public Chapter 200: This allows parties to forgive a child support arrearage if the obligor had been paying as ordered for the preceding 12 months and the court approves the settlement. Money owed to the State cannot be forgiven, however. An obligor can only have an arrearage waived one time. If subsequent arrearages arise, they cannot be waived.

K.O.’s Comment: This is a significant change in the law of child support. Previously, courts held agreements waiving child support arrearages were against public policy. This new law specifically says such waiver “shall not be considered against public policy if the compromise and settlement is in the best interest of the child or children.” It will be interesting to see if a trial court ever finds it is in a child’s best interest not to receive money to which the child is entitled. Also, it appears the “mandatory” interest required by Tennessee Code § 36-5-101(f)(1) is not necessarily mandatory after all.

Public Chapter 202: This requires that the appreciation of premarital retirement and similar employment benefits be treated as separate property instead of marital property. Contributions made as a result of employment during the marriage and the appreciation attributable thereto will be treated as marital property. Commingling and transmutation analysis will not apply to marital appreciation of such premarital employment-related accounts. Trial courts are to use “any reasonable method of accounting to attribute post marital appreciation to the value of the premarital benefits.”

K.O.’s Comment: This is a significant change in the law of property classification. It overrules the Tennessee Supreme Court’s 4-1 decision in Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009), which classified the marital appreciation of premarital employment-related retirement funds as marital property. Justice Wade’s dissenting opinion in Snodgrass lost the battle but won the war.

Public Chapter 236: In a custody case not involving the Department of Children’s Services, this prevents a court from returning a child to the custody of a parent when the child was removed “primarily” because of the parent’s drug abuse unless the parent demonstrates “a sustained commitment to responsible parenting.” It says the parent can demonstrate this “responsible parenting” by not being the subject of a criminal investigation for 90 days, resolving any investigations by child protective services, and passing two consecutive monthly drug screens paid for by the parent.

K.O.’s Comment: What does it mean to say one has not been the subject of a criminal investigation for at least 90 days? How does a parent satisfy that burden of proof? For all we know, anyone reading this might be the subject of a criminal investigation right now. It is not as though law enforcement tends to let one know when one is the subject of a criminal investigation. Because it is couched as pro-child and anti-drug, it passed both chambers unanimously. The Legislature needs to let trial courts figure out what is best for a child in an individual case and stop meddling with such one-size-fits-all legislation.

Public Chapter 237: This provides grounds to terminate a parent or guardian’s parental rights if the parent or guardian is convicted of sex trafficking of children.

Public Chapter 238: This prohibits a court from awarding custody to a parent who is under indictment for aggravated child abuse, sexual abuse of a child or severe child sexual abuse while the indictment remains pending. The parent may be awarded supervised visitation while the indictment is pending.

Public Chapter 247: This permits great-grandparents to petition a court for grandparent visitation. This law became effective April 24, 2015.

K.O.’s Comment: This law was signed three days after the Court of Appeals issued its opinion in In re Dayton R. holding that great-grandparents had standing to file a petition under the Grandparent Visitation Statute. Thus, while this was the law before this bill was signed, I suppose it is now really, really, really the law.

Public Chapter 320: This allows a trial court to admit into evidence the video of a forensic interview of a child conducted by an interviewer who is employed by a for-profit child advocacy center. This law became effective April 28, 2015.

Unless otherwise noted, these bills become effective July 1, 2015.

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

Posted by: koherston | May 15, 2015

Photo of the Week: Coyote on the Prowl

Coyote on the prowl

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

Posted by: koherston | May 13, 2015

Making Time for Kids? Study Says Quality Trumps Quantity

This recent article by Brigid Schulte in The Washington Post might be of interest to readers of this blog.

Making Time for Kids? Study Says Quality Trumps Quantity

Do parents, especially mothers, spend enough time with their children?

Though American parents are with their children more than any parents in the world, many feel guilty because they don’t believe it’s enough. That’s because there’s a widespread cultural assumption that the time parents, particularly mothers, spend with children is key to ensuring a bright future.

Now groundbreaking new research upends that conventional wisdom and finds that that isn’t the case. At all.

In fact, it appears the sheer amount of time parents spend with their kids between the ages of 3 and 11 has virtually no relationship to how children turn out, and a minimal effect on adolescents, according to the first large-scale longitudinal study of parent time to be published in April in the Journal of Marriage and Family. The finding includes children’s academic achievement, behavior and emotional well-being.

“I could literally show you 20 charts, and 19 of them would show no relationship between the amount of parents’ time and children’s outcomes. . . . Nada. Zippo,” said Melissa Milkie, a sociologist at the University of Toronto and one of the report’s authors.

In fact, the study found one key instance when parent time can be particularly harmful to children. That’s when parents, mothers in particular, are stressed, sleep-deprived, guilty and anxious.

“Mothers’ stress, especially when mothers are stressed because of the juggling with work and trying to find time with kids, that may actually be affecting their kids poorly,” said co-author Kei Nomaguchi, a sociologist at Bowling Green State University.

That’s not to say that parent time isn’t important. Plenty of studies have shown links between quality parent time — such as reading to a child, sharing meals, talking with them or otherwise engaging with them one-on-one — and positive outcomes for kids. The same is true for parents’ warmth and sensitivity toward their children. It’s just that the quantity of time doesn’t appear to matter.

“In an ideal world, this study would alleviate parents’ guilt about the amount of time they spend,” Milkie said, “and show instead what’s really important for kids.”

But if Milkie’s study makes clear that quality, not quantity, counts, then how much quality time is enough? Milkie’s study doesn’t say.

“I’m not aware of any rich and telling literature on whether there’s a ‘sweet spot’ of the right amount of time to spend with kids,” said Matthew Biel, a child and adolescent psychiatrist at Georgetown University Medical Center.

Research does show that in highly stressed urban environments, having involved parents and even strict parents is associated with less delinquent behavior, Biel said.

In truth, Milkie’s study and others have found that, more than any quantity or quality time, income and a mother’s educational level are most strongly associated with a child’s future success.

“If we’re really wanting to think about the bigger picture and ask, how would we support kids, our study suggests through social resources that help the parents in terms of supporting their mental health and socio-economic status,” she said. “The sheer amount of time that we’ve been so focused on them doesn’t do much.”

Amy Hsin, a sociologist at Queens College, has found that parents who spend the bulk of their time with children under 6 watching TV or doing nothing can actually have a “detrimental” effect on them. And the American Academy of Pediatrics emphasizes that children also need unstructured time to themselves without the engagement of parents for social and cognitive development.

Still, the amount of time mothers and fathers spend in child care has been climbing since the 1970s. Fathers’ time has nearly tripled from 2.6 hours a week spent with kids in 1965 to 7.2 in 2010. Mothers’ time with children rose from 10.5 hours a week in 1965 to 13.7 in 2010. In roughly the same period, the share of working mothers with children under 18 rose from 41 percent in 1965 to 71 percent in 2014.

In fact, working mothers today, an earlier groundbreaking study of Milkie’s found, are spending as much time with their children as at-home mothers did in the early 1970s. It was that surprising finding that led Milkie to wonder — does all that time make a difference for kids?

In her current work, though she looked at father time and parent time together, Milkie focused specifically on mothers. She wanted to test the widespread belief that there’s “something special” about mothers’ time with children. Milkie predicted mother and parent time with kids would matter. She was shocked when she found it didn’t. “I was really surprised,” she said. “And we don’t find mothers’ work hours matter much at all.”

The one key instance Milkie and her co-authors found where the quantity of time parents spend does indeed matter is during adolescence: The more time a teen spends engaged with their mother, the fewer instances of delinquent behavior. And the more time teens spend with both their parents together in family time, such as during meals, the less likely they are to abuse drugs and alcohol and engage in other risky or illegal behavior. They also achieve higher math scores.

The study found positive associations for teens who spent an average of six hours a week engaged in family time with the parents. “So these are not huge amounts of time,” Milkie said.

The researchers analyzed the time diaries of a nationally representative sample of children over time, looking at parent time and outcomes when the children were between the ages of 3 and 11 in 1997, and again in 2002, when the children were between the ages of 12 and 17. Researchers looked at both “engaged” time, when parents were interacting with their children, and “accessible” time, when parents were present, but not actively involved with children. They focused on sheer quantity, not quality, of time. They did not look at time with children from birth to the age of 3.

Nomaguchi said mothers’ guilt-ridden efforts to spend as much time as possible with their children may be having the opposite effect of what they intend.

“We found consistently that mothers’ distress is related to poor outcomes for their children,” including behavioral and emotional problems and “even lower math scores,” Nomaguchi said.

Indeed, some of that stress, the researchers say, may be driven by what they call “intensive mothering” beliefs that have ratcheted up the standards for what it takes to be considered a good mother in recent decades. The idea that mothers’ time with children is “irreplaceable” and “sacred,” they contend, has led to mothers cutting back on sleep and time to themselves in order to lavish more time and attention on their kids.

“There are a lot of cultural pressures for intensive parenting — the competition for jobs, what we think makes for a successful child, teenager and young adult, and what we think in a competitive society with few social supports is going to help them succeed,” Milkie said.

Low-income mothers, who have traditionally not been associated with time-intensive, middle-class “helicopter parenting,” Milkie said, not only have more financial and day-to-day stress, but may also feel stressed that they don’t have the resources to keep up with intensive parenting expectations. “They’re getting the same message, that spending time with kids is important,” she said.

Nicole Coomber, a management professor at the University of Maryland’s Robert H. Smith School of Business and mother of two boys, said she feels that pressure to intensively parent more than her husband does. “No one ever asks him how he’s managing to balance it all,” she said. And sometimes she puts higher expectations on herself. “I don’t know why it is that I’m trying to be the perfect mother, but I definitely am. That voice in my head is not very gentle.”

Her husband, Bob, wants to spend more time with their children than his father, a traditional breadwinner, spent with him, and mornings are chaotic as he gets the kids out the door and to child care. But he doesn’t feel the intense pressure to spend more time with the children and meet high parenting expectations that his wife does.

“It’s like I have the role model of my dad, and I’m kind of following in that model,” he said. “But she thinks she has to be my mom, who stayed at home with us for most of our formative years before going back to work, and be a successful professional. And it’s impossible to do both.”

Jennifer Senior, who chronicled intensive parenting in “All Joy and No Fun,” attributed the guilty feeling that parents — mothers especially — can’t spend enough time with their children to a nostalgia for the past and a continuing ambivalence about working mothers. The General Social Survey, which has tracked Americans’ attitudes and opinions since 1972, for instance, still asks whether children would be better off with mothers at home, and whether working mothers can form strong bonds with their children. The results are mixed. The survey does not ask the same questions about fathers.

“Perhaps if you were part of a culture that actually felt less ambivalent about mothers working, and had a system of child care in place where it was okay for mothers to work, I think you would automatically feel less guilt and pressure to spend more time with kids,” she said.

The study’s findings shook some parents, many of whom had built their lives around the idea that the more time with children, the better. They quit or cut back on work, downsized their houses or struggled to cram it all in.

Mari Kosin, of Seattle, quit her full-time job in 2013 to stay home with her two children, ages 7 and 4, because the strain of managing work, the commute, child care, activities and home demands, and the guilt of being away from her daughters, or being snappish and always feeling rushed with them, got to be too much. The family has burned through its savings and is striving to afford living on a single income. Her reaction to the study: “Oh, I was afraid of that,” she said. “I can see from my own experience how time with your parents is more important in adolescence. But, you know, the relationship with your child isn’t built all of a sudden when they’re teens. It takes time early on.”

Building relationships, seizing quality moments of connection, not quantity, Milkie said, is what emerging research is showing to be most important for both parent and child well-being. “The amount of time doesn’t matter, but these little pieces of time do,” she said. Her advice to parents? “Just don’t worry so much about time.”

Source: Making Time for Kids? Study Says Quality Trumps Quantity (The Washington Post, March 28, 2015).

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

grandparent visitation in tennesseeFacts: After the children were adjudicated dependent and neglected, the maternal great-grandparents were awarded temporary custody. The children lived with the great-grandparents for the next six years.

Once custody was restored to the biological parents, the great-grandparents petitioned for grandparent visitation.

The biological parents opposed any visitation and asserted the great-grandparents lacked standing to seek grandparent visitation pursuant to Tennessee’s grandparent visitation statute, Tennessee Code Annotated § 36-6-306.

The trial court held the great-grandparents did not fall within the definition of “grandparents” under Tennessee law and, therefore, they lacked standing to petition the court for grandparent visitation rights.

The great-grandparents appealed.

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

As the result of lobbying by advocates of grandparents’ rights and senior citizens, all fifty states now have laws providing for an order of visitation by grandparents under certain circumstances. However, the nature of grandparent visitation statutes varies significantly from state to state.

Some states allow great-grandparents to petition for visitation under their grandparent visitation statutes. Some of these states have grandparent visitation statutes that explicitly refer to visitation by grandparents or great-grandparents. In some states, courts have examined grandparent visitation statutes that simply use the term “grandparents,” with no definition of the term or mention of great-grandparents, and concluded that great-grandparents do not fall within the plain meaning of the term grandparents. At the other end of the spectrum, some states have statutes that expressly define “grandparent” in a manner that excludes great-grandparents.

Tennessee’s grandparent visitation statute — Tennessee Code Annotated § 36-6-306 — is unique. It provides a mechanism for a grandparent to file a petition for visitation and includes the following guidance with regard to the term “grandparent”:

(e) Notwithstanding any law to the contrary, as used in this section and in § 36-6-307, with regard to the petitioned child, the word “grandparent” includes, but is not limited to:
(1) A biological grandparent;
(2) The spouse of a biological grandparent; or
(3) A parent of an adoptive parent.

Tennessee’s grandparent visitation statute applies only to persons who satisfy the statutory definition of the term “grandparent.” As a result, a court does not have subject matter jurisdiction to hear a petition for grandparent visitation unless the party filing the petition falls within that definition.

After reviewing the applicable law, the Court concluded:

[T]he Tennessee General Assembly did not intend to enact the type of grandparent visitation statute that would grant standing to only four grandparents. The statute lists three different categories of persons who qualify as grandparents, as illustrative examples, and it goes on to state that the term “grandparents” is not limited to those categories. This clearly evinces the Legislature’s intent not to limit the statutory definition of “grandparent” to only the three listed categories. Rather, the Legislature’s wording in Section 36-6-306(e)(1) indicates an intent to provide standing to lineal ancestors, or grandparents who are biologically related to the child. In this case, there is no dispute that [the great-grandparents] are lineal ancestors of the children, are biologically related to them, and, therefore, are within the same group of people contemplated in Section 36-6-306(e)(1). Considering the expansive definition of the term “grandparent” used in the Grandparent Visitation Statute, we hold that [the great-grandparents], as great-grandparents of the children, have standing to seek grandparent visitation, and, as a result, the trial court had subject matter jurisdiction over their petition. We express no opinion as to the merits of [the great-grandparents] petition and remand for the trial court to render an opinion as to that issue.

Accordingly, the trial court’s ruling was reversed.

K.O.’s Comment: Other Tennessee cases have held that certain petitioners do not fall within the scope of the Grandparent Visitation Statute’s definition of “grandparent,” including a former step-grandparent and an adult sibling.

In re Dayton R. (Tennessee Court of Appeals, Western Section, April 21, 2015).

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

Posted by: koherston | May 8, 2015

Photo of the Week: River Otter with Trout

Knoxville divorce and child custody lawyer

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

Facts: Mother and Father are the unmarried parents of Child. After Father’s paternity was established, he was awarded visitation with Child.

Father filed a petition for contempt alleging Mother was interfering with his court-ordered visitation and served it on Mother’s counsel consistent with the Tennessee Rules of Civil Procedure.

The trial court judge — Judge Beal — refused to hear Father’s petition until Mother was personally served with process, which is not required when Mother’s counsel is properly served.

Father filed a complaint in the Circuit Court to compel Judge Beal to hear his petition for contempt. Father also filed a complaint with the Tennessee Board of Judicial Conduct.

The Circuit Court took the extraordinary step of entering a writ of mandamus directing Judge Beal to schedule a hearing on Father’s petition for contempt.

In a subsequent hearing, Judge Beal made several rulings concerning temporary custody of Child. Father was awarded specific visitation and telephone contact with Child each week.

As directed by Judge Beal, Father’s counsel prepared a draft order memorializing the trial court’s rulings concerning temporary visitation. Although the proposed order was approved by counsel for both parties, Judge Beal refused to sign it. Instead, Judge Beal drafted his own order that omitted any reference to Father’s temporary visitation.

Father filed a petition requesting that Judge Beal recuse himself from overseeing the visitation dispute between the parties. Father alleged there was a reasonable question regarding Judge Beal’s objectivity because Judge Beal directed Father’s counsel to draft an order that enforced Father’s visitation rights, only to redraft the order to exclude those provisions. Father allegedJudge Beal demonstrated a level of bias that constitutes grounds for disqualification.

Judge Beal denied the motion for recusal.

Father appealed.

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

The right to a fair trial before an impartial tribunal is a fundamental constitutional right, and it remains important to preserve the public’s confidence in a neutral and impartial judiciary. The preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial. Even when a judge sincerely believes that he can preside over a matter in a fair and impartial manner, recusal is nonetheless required where a reasonable person in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. It is an objective test designed to avoid actual bias and the appearance of bias, since the appearance of bias is as injurious to the integrity of the judicial system as actual bias.

Pursuant to Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule 2.11, a judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.

After reviewing the record, the Majority of the Court concluded:

[W]e agree with Father that the trial court’s actions in entering the [] order give rise to a reasonable basis for questioning Judge Beal’s impartiality. Father’s draft order following the [] hearing accurately reflected the rulings that Judge Beal made, and all parties agreed to the entry of the order as to form. Despite this, Judge Beal personally redrafted and entered an order that excluded the rulings favorable to Father’s visitation rights….

Father initiated the recent litigation in this case in an effort to enforce visitation with his minor child, and despite Judge Beal’s oral rulings giving Father temporary visitation pending a full hearing, Judge Beal refused to enter a prepared draft order that affirmed this. As already indicated, the draft order was approved as to form by all parties in this case. When this fact is considered in light of the previous history of this case, which included unsuccessful attempts to set Father’s motion for the entry of a show cause order, father’s filing of a complaint against Judge Beal with the Tennessee Board of Judicial Conduct, and Father’s filing for mandamus relief in Circuit Court, Judge Beal’s decision to not enter an order memorializing his visitation rulings favorable to Father gives cause for concern as to his ability to fairly preside over this case. Under the circumstances presented, we hold that “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.”

Accordingly, the trial court’s ruling was reversed and the case remanded for further proceedings before a different judge.

Dissent: Judge Gibson filed a dissenting opinion stating:

[T]he majority concludes that the trial court’s entry of a written order that differed from the trial judge’s oral colloquy, with no explanation from the trial judge, necessarily demonstrates the appearance of bias and requires recusal….

The crux of the majority’s holding is that the trial judge is required to recuse himself because (1) a writ of mandamus required the trial judge to set Father’s petition for contempt for hearing; (2) Father filed a complaint with the Tennessee Board of Judicial Conduct, and; (3) the trial judge entered an order that was not as expansive as his oral instructions to the party at the [] hearing. However, Father simply has not submitted any evidence that the trial judge’s actions in this case were the result of bias, prejudice, impropriety, or harassment….

The record before us reveals that the trial judge entered an order that did not address every matter he addressed in his oral instructions to the parties at the [] hearing. I recognize that the item the trial judge did not address in his written order is the issue most important to Father — visitation with his daughter. However, trial courts speak through written orders, not through oral statements contained in transcripts….

Based on the evidence and information before us, I do not believe that a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. Rather, I believe that a person of ordinary prudence in the judge’s position would find that Father disagrees with a number of the trial judge’s legal positions. For those, he has a remedy through direct appeal, but they do not require recusal.

The Majority responded as follows:

Although Judge Beal’s refusal to memorialize his oral visitation rulings does not sufficiently evidence the appearance of bias when considered alone, a reasonable question of impartiality does emerge when this fact is considered against the background of the case.

K.O.’s Comment: Everything Judge Gibson says in his dissent about the applicable law is technically accurate. Even so, I think the Majority got this one right. When viewed in context of all the circumstances and the history of the case, particularly the fact that Father had to obtain mandamus relief from the Circuit Court simply to get the hearing to which he was entitled (!!!), a reasonable person could question the trial court judge’s impartiality. Under the circumstances presented, recusal is appropriate.

In re Adison P. (Tennessee Court of Appeals, Western Section, April 21, 2015).

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

Retired doctorFacts: Husband and Wife divorced after 37 years of marriage. The marital estate was equally divided and Wife was awarded alimony in futuro of $10,000 per month.

Five years later, Husband filed a petition to terminate alimony because of his pending retirement from the practice of orthopedic surgery.

By the time of trial, Husband was 65 years old and had officially retired at age 64 after working 35 years as an orthopedic surgeon. Husband testified he suffered from Raynaud’s disease, a disease that prevents blood from flowing into the fingers and toes causing numbness. Husband had difficulty gripping and feeling things. Husband also testified he did not know many orthopedic surgeons practicing beyond the age of 64. Husband said his retirement was in no way motivated by a desire to end Wife’s alimony.

At the time of trial, the parties had a substantially similar net worth of about $3.7 million each.

Wife acknowledged that many of her monthly expenses, such as clothing and gifts for others, had tripled since the time of trial. Although she testified she lives on her alimony, she acknowledged the $3 million she held in liquid assets was enough to support her.

The trial court found there had not been a substantial material change in circumstances. Husband’s petition to terminate alimony was denied.

Husband appealed.

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

In order to obtain a modification of an alimony award, the party seeking modification must show a substantial and material change of circumstance.

Obligations voluntarily assumed are not proper to be considered as changed circumstances to reduce alimony payments otherwise owed.

When an obligor’s retirement is objectively reasonable, it constitutes a substantial and material change in circumstances — irrespective of whether the retirement was foreseeable or voluntary — so as to permit modification of the support obligation. However, while bona fide retirement after a lifetime spent in the labor force is somewhat of an entitlement, an obligor cannot merely utter the word “retirement” and expect an automatic finding of a substantial and material change in circumstances. Rather, the trial court must examine the totality of the circumstances surrounding the retirement to ensure that it is objectively reasonable. The burden of establishing that the retirement is objectively reasonable is on the party seeking modification of the award.

Even when an obligor is able to establish that a retirement is objectively reasonable, and therefore that it constitutes a substantial and material change in circumstances, the obligor is not necessarily entitled to an automatic reduction or termination of his or her support obligations. The statute permitting modification of alimony awards — Tennessee Code § 36-5-121(a)(2) — contemplates that a trial court has no duty to reduce or terminate an award merely because it finds a substantial and material change in circumstances. Instead, the change in conditions resulting from retirement merely allows the obligor to demonstrate that reduction or termination of the award is appropriate. Accordingly, when assessing the appropriate amount of modification, if any, in the obligor’s alimony payments, the trial court should consider the factors contained in Tennessee Code § 36-5-121(i) to the extent that they may be relevant to the inquiry.

After reviewing the record, the Court ruled:

Husband retired in December 2012 at the age of 64. Husband had been practicing orthopedic surgery for 35 years. The evidence in the record on appeal reveals no motive on the part of Husband to evade his spousal support obligation through retirement. Rather, the evidence overwhelmingly shows that Husband retired on account of growing health problems….

Even setting aside Husband’s health problems, Husband spent over three decades practicing orthopedic surgery. Husband was 64 years old at retirement. It strikes us as quite reasonable that a person in his mid-sixties having performed surgeries for so many years might have an understandable and objectively reasonable desire to retire. When one then factors in the impact of Husband’s significant health problems — including numbness in the hands — on his ability to perform surgeries one cannot help but see potential hazards to his patients in requiring him to carry on performing delicate surgical procedures…. We find and hold that the evidence overwhelmingly supports the finding that Husband’s retirement was objectively reasonable, and that Husband successfully proved a substantial and material change in circumstances. We reverse the Trial Court on this issue….

As stipulated at trial, these parties have a substantially equal net worth of around $3,700,000 each. Husband’s ability to pay has been reduced by his retirement. Meanwhile, Wife’s needs appear to be more than met by her assets. Wife no longer is economically disadvantaged relative to Husband given Husband’s retirement and the parties’ substantially equal significant net worth of roughly $3,700,000 each. Considering all the relevant statutory factors, we find no basis for Husband’s alimony obligation to continue under the evidence contained in the record. These parties are in a roughly equal financial position now, each with significant assets to draw upon sufficient to meet his or her needs. Given the undisputed evidence in the record before us, we find no reason to remand this case for additional hearing, and we terminate the alimony altogether.

Accordingly, Husband’s alimony obligation was terminated as of the date of the Court’s opinion.

Odom v. Odom (Tennessee Court of Appeals, Eastern Section, April 14, 2015).

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

Posted by: koherston | May 1, 2015

Photo of the Week: Three River Otters

KOH_4221-2

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

Facts: Husband and Wife divorced after 15 years of marriage.

When the parties married, Husband owned a one-third interest in a family business. He subsequently inherited the remaining two-thirds interest upon the death of his parents during the marriage.

Because Husband’s business was failing and producing little income, Wife was responsible for paying most household bills from her income.

At trial, the trial court ruled the business was marital property by operation of transmutation based on Wife’s direct and indirect contributions during the marriage. The trial court awarded the business to Husband in the overall division of marital assets.

Husband appealed.

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

Property division begins with the identification of all the parties’ property interests. The next step is to classify each of these property interests as either separate or marital property.

Tennessee Code § 36-4-121(a)(2)(A) and (D) define “separate property” as property owned by a spouse before marriage and property inherited by a spouse at any time.

Husband’s business was clearly his separate property because he (1) owned a one-third interest before the parties’ marriage, and (2) inherited the remaining two-thirds interest upon the deaths of both of his parents during the marriage.

Separate property can be converted into marital property through transmutation.

Transmutation occurs when separate property is treated in such a way as to give evidence of an intention that it become marital property. The rationale underlying transmutation is that dealing with property in such a way creates a rebuttable presumption of a gift to the marital estate. This presumption is based upon the provision in Tennessee’s marital property statutes that property acquired during the marriage is presumed to be marital. The presumption can be rebutted by evidence of circumstances or communications clearly indicating an intent that the property remain separate.

Four of the most common factors Tennessee courts use to determine whether real property has been transmuted from separate property to marital property are: (1) the use of the property as a marital residence; (2) the ongoing maintenance and management of the property by both parties; (3) placing the title to the property in joint ownership; and (4) using the credit of the non-owner spouse to improve the property. Accordingly, Tennessee courts have classified separately owned real property as marital property when the parties agreed that it should be owned jointly even though the title was never changed, or when the spouse owning the separate property conceded that he or she intended that the separate property would be converted to marital property.

After reviewing the record below, the Court reasoned:

[T]here is no proof to support application of transmutation. Factor number one is clearly inapplicable because the asset at issue is a business entity. Factor number two does not support a theory of transmutation as the only act performed by Wife to maintain the Business was to assist with certain bookkeeping tasks. Wife admitted that Husband handled all day-to-day aspects of operating the business, including writing checks, paying expenses, paying and managing employees, and generally keeping the business going. There was a dearth of evidence that Wife ever worked in or managed the Business.

With regard to factor number three, there was no proof that Wife’s name was ever placed on the Business, jointly or otherwise. Regarding factor number four, . . . there was an absence of proof that Wife ever used her credit to aid or improve the Business.

Further, this Business was not treated by the parties in such a way as to evince an intention that it become marital property. Husband never conceded that it was jointly owned or should be considered a marital asset. As such, there was no gift to the marital estate, and the Business remained Husband’s separate property. The trial court therefore erred in determining that the Business was transmuted to marital property based on the evidence presented.

Accordingly, the trial court’s classification of the business as marital property due to transmutation was reversed. The overall distribution of the marital estate was vacated and the division of property was remanded back to the trial court for reconsideration.

Griffith v. Griffith (Tennessee Court of Appeals, Eastern Section, April 14, 2015).

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

Facts: Mother and Father are the never-married parents of Child. Their agreed parenting plan provided for equal parenting time via an alternating weekly schedule. Mother was designated the primary residential parent.

Three years later, Father sought to modify the parenting plan such that he would be named the primary residential parent with sole decision-making authority. He alleged that, among other things, Mother had changed residences multiple times, had caused several judgments to be entered against her for unpaid rent, and was dating a convicted felon.

Mother also sought to modify the parenting plan by reducing Father’s parenting time to alternating weekends and two non-consecutive weeks in the summer. She alleged that, among other things, Father harassed her and exhibited verbally abusive behavior and had warrants issued against him for unpaid rent and driving on a revoked license.

After a trial, the trial court found that although there were material changes in circumstance affecting Child, such as the parties’ difficulty cooperating while Child attended daycare and Child’s maturation from 2 to 5 years old, these changes did not warrant changing the primary residential parent from Mother to Father but did warrant changing the parenting schedule. The trial court found it was in Child’s best interest to reduce Father’s day-to-day parenting time to alternating weekends when school was in session and inverting the schedule during the summer break so Mother’s parenting time would occur on alternating weekends.

Father appealed.

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

In any proceeding requiring a trial court to make a child custody determination regarding a minor child, the court must make that determination on the basis of the best interest of the child. Upon a petition to modify custody from one parent to the other parent, the threshold issue is whether a material change in circumstances has occurred after the initial custody determination. Upon a trial court’s finding that a material change in circumstance has occurred, it must then be determined whether the modification is in the child’s best interests.

The standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing custody is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(B). This is considered a more stringent standard.

In comparison, the standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing the parenting schedule is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(C). This is considered a very low threshold.

In this case, Father argued Mother’s cohabitation with another man — “M.C.” — constituted a material change in circumstance sufficient to change custody. Father noted in particular that Mother’s paramour is a convicted felon who had served jail sentences for an arson conviction and violation of an order of protection obtained by his ex-wife.

After reviewing the record, the Court commented:

At trial, Mother acknowledged that M.C. had served jail sentences in the past for an arson conviction and violation of an order of protection obtained by his ex-wife in 2010. She asserted, however, that M.C. was a “good man” who was “great” with her children and had never threatened harm to her or her children. Father did not present any testimony or evidence to indicate that M.C. had ever endangered the Child or anyone living with Mother. Although at the close of trial, the court expressed concern regarding the presence of M.C. in Mother’s home, the court found that Father had not demonstrated any risk of harm to the Child due to M.C.’s presence….

We conclude that the evidence does not preponderate against the trial court’s finding that although a material change in circumstance warranting a modification of the residential co-parenting schedule had occurred, it did not rise to the level required for a change in the primary residential parent.

After also finding no error in the trial court’s assessment of Child’s best interest, the trial court’s judgment was affirmed.

K.O.’s Comment: One of the requirements for a material change in circumstance is that the change affect the child’s well-being in a meaningful way. This is where Father’s argument was found lacking. It’s not enough to have “dirt” on the opposing party. This case reminds us there must be a causal connection between the “dirt” and some resulting impact to the child.

In re Jesslyn C. (Tennessee Court of Appeals, Eastern Section, March 31, 2015).

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

Posted by: koherston | April 24, 2015

Photo of the Week: Morning Buck

Knoxville divorce and child custody lawyer

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