After the Breakup, They Help Sell the House

Lucky are the few who move out of their houses simply because they have tired of the view or suddenly possess the means to trade up. More often, it is a change in life circumstances that pushes people out into the housing market, something like a new job, a new husband or a new baby.

And lurking with quiet devastation behind many “for sale” signs is the big, sad shift that almost always requires that somebody move out: divorce.

For real estate agents and brokers, deals that spring from divorce are an inevitable slice of the business, and over the years, many find themselves gathering answers to questions they hoped never to ask.

How does one represent two people who won’t speak to each other? How does an agent show an apartment that has been divided by awkwardly placed locks or temporary walls? And what if your client’s highest priority is making sure their former partner does not come out ahead?

For most agents, this is an accidental expertise. For others, it is a niche.

“We specialize in it,” said Vicki Stout, an agent at Keller Williams Suburban Realty in Livingston, N.J., who proclaims herself to be a “divorce specialist.”

“But it is hard to advertise,” added Bob Bailey-Lemansky, her business partner. “No one is going to go to our Facebook page and ‘like’ divorce.”

It was about three years ago that Ms. Stout, a widow and single mother, and Mr. Bailey-Lemansky, who is divorced, created New Jersey Real Estate Divorce Specialists. Today deals stemming from breakups tend to make up about half of their business. They have a few useful tips for their clients (how both halves of a divorcing couple can maximize tax breaks on capital gains when selling a home, for example) but most of what they offer is more basic.

They have found that having one man and one woman on the sales team can make acrimonious couples more comfortable, they say. They have grown accustomed to having every conversation at least twice. And perhaps most crucially, they said, they are inured to the difficulties that can arise when clients’ claws are out.

“We’re familiar with how to handle clients that have restraining orders,” Ms. Stout offered matter-of-factly.

Just a few months into their partnership, however, they discovered that business cards loudly proclaiming “Divorce!” were not always a banner their customers were eager to fly. The pair changed the name of their partnership to Family Focus Realty.

In fact, keeping the word quiet is often a priority, many brokers say. Most often, when buyers hear “divorce,” their first thought is “fire sale.”

“I don’t discuss it because it opens up the seller to getting killed,” said Frances Katzen, a managing director at Douglas Elliman. “Buyers think they must be desperate.”

Optics are important, Ms. Katzen continued, and if a closet looks bare on one side, she will gently rearrange what’s available to make the absence less apparent. But Michael Shapot, a senior vice president at Keller Williams Realty in New York City, whose biography calls him a “certified real estate divorce specialist,” likes to go a step further.

“If there are no men’s clothes in there, go buy some,” Mr. Shapot said. “Ask a friend, or find some off-season clothing you can store there. There are things you can do.”

Mr. Shapot’s divorce certification comes from a company in Colorado called the Financial Divorce Association, which offers roughly four hours of tax and legal seminars on DVDs for about $600. Ms. Stout and Mr. Bailey-Lemansky have taken the course as well.

Sometimes an agent’s most difficult task is not keeping the divorce under wraps, but navigating between the two clients who are in the middle of it.

Mr. Shapot recalled situations where apartments were left covered in laundry and dirty dishes because the partner still living there was not eager to sell. Ms. Katzen said a client of hers in similar circumstances left the bathroom filthy and the apartment reeking of smoke for its first showing.

Elayne Reimer, an executive vice president at Halstead Property and a former marriage and family therapist, said she had clients a few years ago whose impending divorce required jumping through extra hoops not just for her but for buyers, too.

“I had to meet the husband in the lobby and then he escorted me to his section of the apartment,” Ms. Reimer explained in an e-mail. “I had to then meet his wife elsewhere and wait for her to escort me to her section, which was locked from him.”

A similar dance was performed each time she took buyers to see the apartment, first one section, then, at a later date, the other.

All this, of course, raises the question: Doesn’t it get depressing?

“I mean, it’s not inspiring, I will say that,” said Victoria Vinokur, an executive vice president at Halstead Property.

“I think it’s very important to remember that these people are not trying to be difficult on purpose,” Ms. Vinokur continued. “This is just one aspect of a big picture they’re dealing with. They may have other money, maybe other properties. What if they have children?”

Even in difficult circumstances, however, homes do eventually sell, at which point the parting couple gathers up the pieces to look for separate places to live, and real estate agents are called in again.

Ms. Katzen of Douglas Elliman has a pair of divorcing clients right now who are buying two apartments on different sides of the same building, she said, because they hope it will make the separation easier on their child.

“It’s quite selfless, really,” Ms. Katzen said. “Some people would say, ‘Forget you! If I’m going out on a date, I do not want to run into you in the lobby.’ Talk about putting the child first.”

Source: After the Breakup, They Help Sell the House (New York Times, April 1, 2013).

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

Facts

Later, Mother and Husband eventually divorced and entered into a marital dissolution agreement that designated Mother as Child’s primary residential parent. Husband was ordered to pay child support for the benefit of Child.

Within months after Child turned 18, he filed a parentage action to establish that Father is his biological father. Child’s parentage petition sought a retroactive award of child support dating back to his birth, as well as an award of attorney’s fees.

A court-ordered DNA test confirmed that Father is Child’s biological parent.

The trial court found that Mother was judicially estopped from making a statement that was contrary to the sworn pleadings she filed in her divorce action, in which she asserted that Child was the child of her marriage to Husband. The trial court commented that the actions of Mother deprived both Child and Father of the opportunity to have a relationship during Child’s childhood.

The trial court observed that Tennessee Code Annotated § 36-2-311 specifically references the child support statutes, including § 36-5-101, which provides for the payment of child support to the spouse or other person with custody of the child at issue. The trial court drew a negative inference from the fact that these statutes have no express provision for the payment of child support to an adult child, and on that basis concluded that there was no authority for the court to make such an award. Thus, the trial court concluded that Tennessee law did not expressly authorize it to make an award of retroactive child support to an adult child.

Child appealed.

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

Child argued that, once paternity has been established, the pertinent provision of the paternity statutes, Tennessee Code Annotated § 36-2-311(a)(11)(A), requires the trial court to make a determination of child support. He stressed that the purpose of the paternity statute is to require a biological father to support his child and that — as an adult child — he is entitled to that relief.

Father argued that Tennessee Code Annotated § 36-5-101(c)(2)(A), which states that the “order or decree of the court may provide that the payments for the support of such child . . . shall be paid either to the clerk of the court or directly to the spouse, or other person awarded the custody of the child. . . .” Father contended that Child does not have a personal right to child support, arguing that the right to receive child support payments vests in the custodial parent once due. Father also argued that Child is not legally entitled to receive child support because the costs associated with raising him were borne by Mother and Husband, not by Child.

Tennessee Code Annotated § 36-2-311(a) provides:

(1) A complaint to establish parentage of a child may be filed by:

(A) The child, if the child has reached the age of majority. . . .

The parentage statutes specify that an adult child must bring the parentage action within the statutory time deadlines. Once parentage is established by genetic testing, the statutes set forth certain actions to be taken by the trial court:

Upon establishing parentage, the court shall make an order declaring the father of the child. This order shall include . . . a determination of child support.

Section 36-2-311(a)(11) details the considerations for the trial court in making an award of retroactive child support and sets forth reasons for which the trial court may deviate from the child support guidelines. In addition, it directs the trial court to consider an award of attorney’s fees to either or both parties.

The Court reasoned:

[T]he object of the parentage statutes is not only to give the complainant the knowledge of the true parentage of the child at issue, but also to provide concrete relief that reflects the responsibility concomitant with being a biological parent. Section 36-2-311 sets forth that relief, using language that indicates that Tennessee’s legislature intended the relief to be mandatory once parentage is established….

When the legislature has enacted more than one statute relating to the same subject or sharing a common purpose, the statutes “shall be construed together (‘in pari materia’) in order to advance their common purpose or intent.” Thus, we must attempt to construe the general child support statutes, setting forth how and to whom child support is to be paid, along with the mandate in the parentage statutes that child support be included in the trial court’s parentage order, in a manner that advances the common purpose of both statutes…. In doing so, we decline to draw the negative inference drawn by the trial court below, and instead find that the lack of any provision in the child support statutes for payment of child support to an adult child does not nullify the child support mandate in the parentage statutes. In interpreting the parentage statutes, we are required to enforce the legislature’s clear mandate. When the legislature included in the parentage statutes a specific provision allowing an adult child to bring a parentage action, it gave no indication that the relief to be awarded to an adult child would be any different from the relief awarded to any other complainant. The legislature did not choose to carve out an exception in the parentage statutes for an adult child complainant, and we decline to read one into the statutes….

The parentage statutes state that the trial court may consider a deviation from the amount of the child support award as calculated under the child support guidelines based on the extent to which the father did not know, and could not have known, of the child; the mother’s intentional failure or refusal to notify the father of the child; and the mother’s attempts to notify the father of her pregnancy or the child….

Tennessee’s parentage statute requires the trial court to make any findings on deviation from the child support guidelines based on “the best interests of the child or the equity between the parties,” so the fact that the complainant is the adult child rather than the mother may significantly affect the trial court’s weighing of the equity between the parties.

Thus, the Court held that an adult child may recover retroactive child support pursuant to Tennessee’s parentage statutes. The trial court was reversed.

K.O.’s Comment: Compare this case with Lichtenwalter v. Lichtenwalter, where the Tennessee Supreme Court said ”[c]hild support payments are typically paid to the custodial parent despite the fact that child support payments are intended for the benefit of the child.” The Supreme Court noted the child support statute “does not change the party to whom the unpaid amount must be paid based upon the current age of the children for whom the amount were due.” The Supreme Court then held that the right of recovery for the arrearage “is a vested right that lies with the parent to whom the child support is due.” The Court of Appeals distinguished Lichtenwalter because it was not a paternity action. Reading the two cases together, it would appear that an adult child’s right to recover retroactive child support is limited to actions to establish paternity.

Danelz v. Gayden (Tennessee Court of Appeals, Western Section, March 25, 2013).

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

Facts

The parties eventually separated, and Mother obtained her own residence. One month later, Mother filed a petition to modify the parenting plan and to establish visitation.

The trial court held that a material change in circumstance had occurred when Parents ignored the terms of the parenting plan and lived together with Child as they had before the divorce and that another material change occurred when Mother was “essentially and abruptly removed” from the Child’s life when the parties’ separated.

The trial court acknowledged Mother’s criminal conduct but found that her conduct, even though despicable, did not change the fact that Mother loved Child and had always been a sound caregiver. The trial court held that the “greater weight of the evidence show[ed] that she would continue to be a good mother.” The court performed a best interest analysis before designating Father as the primary residential parent but holding that Mother should have “liberal unsupervised visitation” with Child. Mother was awarded 140 days of visitation.

Father appealed.

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

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether (1) the change occurred after the entry of the order sought to be modified, (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered, and (3) the change is one that affects the child’s well-being in a meaningful way.

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

In modifying a residential parenting schedule, once a material change of circumstances is found, the trial court must then determine whether a change in visitation is in the best interest of the child. This determination requires consideration of a number of factors, including those set forth at Tennessee Code Annotated § 36-6-106(a) to make an initial custody determination and those at Tennessee Code Annotated § 36-6-404(b) to establish the residential schedule.

After reviewing the extensive record, the Court concluded:

In this case, Parents never adhered to the parenting plan. Parents did not agree on much throughout the trial but each agreed that Mother, whether supervised or unsupervised, was a constant presence in the Child’s life, despite the agreement reached in the initial parenting plan that was adopted by the trial court. Child became accustomed to Mother’s presence and was upset by Mother’s absence. Each change, Mother’s constant presence and then subsequent absence, affected the Child’s well-being in a meaningful way and necessitated a change in the residential parenting schedule that was in the best interest of the Child. Accordingly, we affirm the court’s decision that a material change in circumstances occurred when Mother remained in the home after the entry of the parenting plan and when Mother left the home after years of liberal visitation with the Child….

In this case, Parents submitted exhaustive and at times, duplicative evidence of the other parent’s moral depravity and inability to properly care for the Child. Mother alleged that Father was abusive and vindictive, while Father alleged that Mother was incapable of accepting responsibility for and improving her criminal and deceitful behavior that affected the Child. Notably, the court appeared to agree with each parent’s assessment of the other but found that the Child’s maintenance of a relationship with each parent was in the Child’s best interest. We agree. Each parent in this case has shortcomings; however, the Child will benefit from the continued nurturing that Mother provided after the divorce and the continued stability that Father provided.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Compare this case with Greenwood v. Purrenhage, issued five days later by the Middle Section, in which the Court found Mother’s granting of more time to Father than the parenting plan required was not a material change, but rather an exercise of parental cooperation, which should be encouraged and not penalized. Unfortunately, Greenwood is designated as a “Memorandum Opinion” so it cannot be cited in any other case. Add me to the growing chorus of lawyers critical of what we perceive to be the excessive use of the memorandum opinion designation by the Court of Appeals.

Graham v. Graham (Tennessee Court of Appeals, Eastern Section, March 21, 2013).

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

Facts

The MDA allocated specific items of property to each party, including real property, vehicles, an annuity fund, retirement accounts, bank accounts, and also allocated debts between the parties.

Specifically, the MDA provided that ”[t]he parties agree that the Husband shall take possession of the following items of personal property and shall assume responsibility of any debts thereon and indemnify and hold wife harmless from any liability and/or responsibility thereon.” The list of items following this declaration included the two numbered bank accounts at SunTrust Bank and Educators Credit Union.

Ten years later, Husband died unexpectedly without a will. The proof showed that he had not notified the bank of the ownership change on the two disputed accounts prior to his death, and it was undisputed that Wife did not access either of those accounts in the ten years between the parties’ divorce and Husband’s death. But shortly after Husband’s death, Wife withdrew virtually all of the money — $181,500 — from the two bank accounts.

The co-administrators of Husband’s estate filed a lawsuit to recoup those funds. They asked the court for a declaration that the funds that were in the two accounts at the time of Husband’s death became the sole property of his estate and that Wife had no property rights in the accounts or in the funds she withdrew from them.

Wife contended that because the Husband never changed the ownership designation on the two accounts, they belonged to her as a matter of law.

The trial court awarded the proceeds of the account to Husband’s estate. The trial court reasoned that the MDA was binding on both parties, and that it “was tantamount to an amendment to their contract that existed upon the initial establishment of the bank accounts.”

Wife appealed.

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

A Marital Dissolution Agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. To the extent that an MDA is an agreement as to distribution of marital property, it does not lose its contractual nature by merger into the decree of divorce and it is not subject to later modification by the court.

An MDA is subject to the same rules of construction as other contracts. The cardinal rule of contract construction is to ascertain the intention of the parties and to give effect to that intention, consistent with legal principles. Where there is no ambiguity in the contract, the intentions of the parties are derived from the usual, natural and ordinary meaning of the contractual language.

As with all contracts, the contracting parties to an MDA are bound by a duty of good faith and fair dealing. That duty requires a contracting party to do nothing that will have the effect of impairing or destroying the rights of the other party to receive the benefits of the contract.

Wife argued that she is entitled to all the funds in the two accounts at issue because the failure of Husband to remove her name from them gave her a property right that became vested at his death.

After reviewing the record, the Court found:

We agree that a joint bank account with rights of survival is a binding contract between the joint owners of the account as to the disposition of the funds in the account upon the death of one of the owners. However, contracts can be modified by the subsequent agreement of the parties. Generally, the last agreement as to the same subject matter that is signed by all the parties supersedes all their former agreements and embodies their true agreement. The MDA in this case was agreed to and signed by both parties. The agreement very clearly stated that [Husband] was to assume sole ownership of the two disputed accounts and that [Wife] was to be divested of all her interest in those accounts. Thus, the trial court was correct to find that the MDA “was tantamount to an amendment to their contract that existed upon the initial establishment of the bank accounts….”

[Wife], with advice of counsel, signed the MDA and explicitly gave up any interest in the two accounts. This agreement superseded the joint tenancy designation on the accounts.

Therefore, the trial court’s judgment was affirmed.

In re Estate of Ellis (Tennessee Court of Appeals, Middle Section, March 20, 2013).

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

Facts

Foster Mother, a single, 20-year-old neighbor with whom Mother was acquainted, happened to be nearby at the time. Mother asked her to take immediate custody of Child pending the DCS investigation, and she agreed. DCS accepted the verbal agreement between Mother and Foster Mother, so Foster Mother was permitted to take temporary custody of Child. Using DCS parlance, Child was “safety-placed” with Foster Mother.

DCS developed a Family Services Plan for Mother, setting out requirements she would need to complete in order to regain custody of Child. Throughout this time, Mother continued to visit with Child for an approximate two-hour visit once per week.

Many months later, DCS filed a dependency and neglect petition. After a final hearing, the Juvenile Court found Child was dependent and neglected due to drug use in the home and the domestic violence between Mother and Stepfather.

Shortly thereafter, DCS closed its case file on Child without notifying Mother. Child continued to live with Foster Mother and Foster Father (by now Foster Mother had married). As before, Mother continued to visit Child once each week. Mother continued to sometimes bring items to the visits, such as milk, diapers, toys, and other things.

Over a year later, Foster Parents filed a petition seeking to terminate the parental rights of both biological parents and to adopt Child. While several grounds for termination were alleged, I am going to focus on (1) substantial noncompliance (a.k.a. persistence of conditions), and (2) failure to support.

Father’s parental rights were terminated by default judgment.

After a trial, the trial court found that Foster Parents had established by clear and convincing evidence two grounds for termination of Mother’s parental rights: (1) that Mother had substantially failed to comply with the “plan of care” for the reunification of Child (referring to the Family Services Plan developed by DCS), and (2) that Mother had abandoned Child by failure to support him for a period of four consecutive months preceding the filing of the termination petition. The trial court also found by clear and convincing evidence that termination of Mother’s parental rights was in Child’s best interest.

Mother appealed.

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

Termination proceedings are governed by statute in Tennessee. A party with standing to seek the termination of the parental rights of a biological parent must first prove at least one of the statutory grounds for termination. Secondly, the party seeking termination must prove that termination of the parental rights of the biological parent is in the child’s best interest. Because of the profound consequences of a decision to terminate parental rights, courts must apply a higher standard of proof. Therefore, the elements required for termination of parental rights must be proven by clear and convincing evidence.

Substantial Noncompliance. Under Tennessee Code Annotated § 36-1-113(g)(2), a biological parent’s rights may be terminated if “[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan….” Tennessee Code Annotated § 37-2-403 sets out the specific requirements for a permanency plan:

(2)(A) The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal specified in subdivision (a)(1). The statement shall include the definitions of “abandonment” and “abandonment of an infant” contained in § 36-1-102 and the criteria and procedures for termination of parental rights. Each party shall sign the statement and be given a copy of it. The court must review the proposed plan, make any necessary modifications and ratify or approve the plan within sixty (60) days of the foster care placement.

Thus, a “permanency plan” must include the agency’s responsibilities as well as the parent’s responsibilities. It must also include the criteria and procedures for termination of parental rights. The statute requires that a court ratify or approve the plan within 60 days of foster placement.

Section 37-2-403 also provides that substantial noncompliance with the permanency plan is a ground for termination of the parental rights of the biological parent:

(C) Substantial noncompliance by the parent with the statement of responsibilities provides grounds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, and notwithstanding the failure of the parent to sign or to agree to such statement if the court finds the parent was informed of its contents, and that the requirements of the statement are reasonable and are related to remedying the conditions that necessitate foster care placement.

Termination of parental rights based on noncompliance under Tennessee Code Annotated § 36-1-113(g)(2) “requires more proof than that a parent has not complied with every jot and tittle of the permanency plan.” To prove the ground set forth in § 36-1-113(g)(2), the party seeking termination must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the parent’s custody in the first place. Second, the party seeking termination must show that the parent’s noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met.

After reviewing the detailed record (and repeating the specifics at length, much to the chagrin of your hardworking blogger), the Court concluded:

We must conclude that the Foster Parents have made no showing as to why the ground of substantial noncompliance should be applied at all under the facts of this case. As can be seen from the language quoted above, the statutes on substantial noncompliance have significant built-in protections for the rights of the biological parent. These protections come into play only when DCS has taken the child into State protective custody. Here, DCS repeatedly warned Mother that [Child] could be taken into State protective custody, apparently to obtain her cooperation with their directives, such as ordering her to find a temporary custodian for [Child] and having her agree to a Juvenile Court dependency and neglect order. [Child], however, was in fact never placed in State protective custody; he was instead “safety-placed” with Foster Mother. The record does not contain any definition of safety-placement or outline DCS’s authority and responsibility under such circumstances….

Despite having refrained from taking [Child] into State protective custody, DCS clearly exercised authority over both Mother and Foster Mother; it imposed requirements on Mother via the [] Family Services Plan, restricted her visitation with the child, and required Foster Mother to supervise Mother’s visitation. DCS, however, appears to have assumed none of the responsibility that would normally accompany the exercise of such authority. [The DCS caseworker] openly disavowed any real responsibility, and said that her job consisted merely of “monitoring” the Family Services Plan….

All of this shows that the circumstances of this case are not appropriate for application of the ground of substantial noncompliance with the permanency plan…. [T]he record does not show, that this Service Plan was a “permanency plan” of the type that is required when a child is taken into DCS custody. As noted above, this is because [Child] was never actually taken into State protective custody…. [T]he Family Services Plan recited any responsibilities for DCS at all, other than to follow up to determine the level of Mother’s compliance with her duties. It is undisputed that the Family Services Plan did not inform Mother of the criteria and procedures for the termination of parental rights. The Family Services Plan was never approved by a court, as is required under § 37-2-403(a)(2). Therefore, the Family Services Plan cannot be considered the type of “permanency plan” or “plan of care” that can serve as the basis for terminating the parental rights of a biological parent under § 37-2-403.

Moreover, when the State seeks termination of the parental rights of a biological parent on the grounds of substantial noncompliance, the party seeking termination must show that DCS complied with its statutory duty to make reasonable efforts to facilitate the safe return of the child to the child’s home. The statutory duty to make reasonable efforts includes an obligation to exercise “reasonable care and diligence . . . to provide services related to meeting the needs of the child and the family.” DCS never assumed the responsibility to make reasonable efforts in this case, and its efforts in any event would fall far short of the standard.

For all of these reasons, the Court reversed the termination of Mother’s parental rights based on the ground of substantial noncompliance.

Failure to Support. Under Tennessee statutes, the parental rights of a biological parent can be terminated based on “abandonment” as that term is defined in Section 36-1-102. The pertinent part of Section 36-1-102 defines “abandonment” as follows:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child. . . .

The statute further defines the phrase “willfully failed to support” or “willfully failed to make reasonable payments toward such child’s support” as “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” Because a biological parent has a constitutional right to the care and custody of his or her child, the parent’s failure to pay support for a child in the custody of another does not constitute a valid ground to terminate that parent’s rights unless the failure to do so is found to be “willful.” Failure to support a child is deemed “willful” if a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.

Mother was never under a court order to make support payments, but the obligation to pay support exists even in the absence of a court order to do so. On the element of willfulness, though, Tennessee courts must consider all of the surrounding circumstances. Thus, Mother’s knowledge of a duty or expectation that she provide support is a factor in determining willfulness.

The Court reasoned as follows:

Mother’s routine method of providing support was to give [Child] in-kind gifts, not monetary support. All evidence indicates that Foster Parents acquiesced in this manner of support, and they never asked Mother to pay them money instead. Indeed, both Foster Mother and Mother testified that, when Mother asked Foster Mother to tell her something specific that she should bring for [Child], Foster Mother always responded that the child did not need anything, but that Mother could bring things if she wanted to….

Foster Parents acknowledge that Mother had limited or no employment during the pivotal four-month period. They argue that her underemployment was voluntary, but they submitted no evidence to this effect, and the trial court made no such finding.

Under all of these circumstances, we cannot find that the evidence in the record establishes clearly and convincingly that Mother’s failure to make monetary support payments during the four months preceding the filing of Foster Parents’ termination constitutes “willful” abandonment of [Child].

The Court reversed the trial court’s termination of Mother’s parental rights on the ground of abandonment for willful failure to provide support.

Because the Court concluded there are no grounds for terminating Mother’s parental rights, it did not address whether terminating Mother’s parental rights would be in the best interest of the child.

In re Kaleb N.F. (Tennessee Court of Appeals, Western Section, March 12, 2013).

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

Click on the thumbnail for the larger image.

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

Facts

Mother and Father’s divorce decree gave Father only supervised visitation with Child. Therefore, Father’s opportunities to visit with Child were dictated by Mother’s schedule. It was undisputed that Father had lived in Massachusetts throughout Child’s life and had come to Tennessee to visit Child an average of once a year, or about 12 times in all.

When Child was 13 years old, Mother joined Stepfather in filing a petition to terminate Father’s parental rights to Child so Stepfather could adopt Child. The petition cited abandonment and failure to support as grounds for termination.

Father visited Child in Tennessee approximately one month before Mother and Stepfather filed a petition. Father spent a few hours with Child on Saturday and a few hours with Child on Sunday. Mother and Stepfather contended that Father exercised only “token visitation” with Child during this visit.

Father presented proof that Mother had made it difficult for him to communicate and visit with Child. Mother presented proof that Father rarely communicated with Child. Child testified that he does not feel comfortable with Father and wants to be adopted by Stepfather.

The trial court concluded that “[Father] has done nothing to show that he is a father” and stated “the Court is of the opinion that it would be in [the child's] best interest to be adopted in this case.” Nevertheless, the trial court denied the petition to terminate Father’s parental rights because “[b]y case law, the father exercised the parenting time he was allowed under the Court Order within four months of the filing of the petition.” Mother appealed.

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

Stepfather cannot adopt the child unless he can succeed in terminating Father’s parental rights to the child. Stepfather must prove two elements by clear and convincing evidence before a court will terminate Father’s parental rights to the child. First, Stepfather must prove one of the statutory grounds for termination set forth in Tennessee Code Annotated § 36-1-113(g). Second, Stepfather must show that termination of Father’s rights is in the best interest of the child. The heightened standard of proof prevents unwarranted termination of a biological parent’s parental rights.

“Abandonment” is one of the statutory grounds for terminating parental rights and is defined by Tennessee Code Annotated § 36-1-102(1)(A)(i), in pertinent part, as follows:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

The statute clarifies that “[f]or purposes of this subdivision (1), ‘willfully failed to visit’ means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is defined as “visitation [that], under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.” A parent’s failure to visit must be willful, and when a parent’s efforts to visit his or her child are thwarted by others, the failure to visit is not willful. Whether a parent’s visitation is “token” requires a fact-intensive inquiry to be determined on a case-by-case basis.

After reviewing the record, the trial court concluded:

The evidence in this case shows that Father lives over one thousand miles away from the child and has a factory job that pays him by the hour. Living so far away on a limited income makes it difficult for Father to visit as often as he may like. Father has made efforts over the years to spend more time and have a more meaningful relationship with the child. Father has bought the child a cell phone, he has offered to bring the child up to Massachusetts, and he has offered to buy the child a laptop. The child was unable to keep track of the phone, and Mother refused to allow the child to go to Massachusetts. Mother also refused Father’s offer to buy the child a laptop.

We affirm the trial court’s finding that Stepfather had not established, by clear and convincing evidence, that Father had willfully failed to visit in the four months preceding the filing of the petition.

The child will soon be fifteen years old, and in little more than three years he will be able to decide for himself the type of relationship he has with Father. In the meantime, Father should not be prevented from being involved in the child’s life. The child’s relationship with Stepfather will presumably remain the same regardless of the fact that Stepfather is unable to adopt him.

Accordingly, the trial court’s decision to maintain Father’s parental rights was affirmed.

In re Adoption of Male Child Z.J.D. (Tennessee Court of Appeals, Middle Section, March 7, 2013).

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

Facts

About a year after the move to Nashville, Father filed for divorce. He alleged that Mother was an alcoholic, that she was addicted to illegal drugs, that she neglected Child, and that she was mentally unstable. He asked to be named the primary residential parent and that he be allowed to relocate with Child to North Carolina.

At trial, Father presented evidence of Mother’s behavior that made him doubt her willingness to adequately care for Child, and sometimes even made him fear for Child’s safety. For example, he refused to drink some Gatorade one evening because it gave him heartburn, and Mother woke him up at 2:00 or 3:00 in the morning and forced him to drink it, because she had somehow become convinced that he was trying to poison her. Another evening, Father and Mother were lying in bed with the baby between them, and Mother reportedly said, “The devil is telling me to harm the child.” Father was understandably alarmed, and he urged her to go to a doctor because it was clear to him that she needed help.

Mother denied the truth of much of Father’s proof about her alleged abuse of alcohol and marijuana, and she offered testimony to minimize the implications of child neglect that Father’s account of her behavior suggested. She also gave a very optimistic account of the progress she was making her music career.

The trial court found it was in the best interest of Child that Father be named the primary residential parent. The trial court also held that Father’s proposed move to North Carolina was reasonable and that, without the relocation, Child would be at risk. Mother was awarded a limited amount of supervised visitation — up to three days per month — until she can show that she has no ongoing drug or alcohol abuse issues and can maintain a safe environment for Child. Mother appealed.

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

Mother challenged the trial court’s designation of Father as the primary residential parent. When making a residential parenting schedule, trial courts in Tennessee must consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

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

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

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

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

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

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

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

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

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

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

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

After reviewing the appellate record, the Court concluded that there was “more than enough evidence to support the trial court’s decision to designate Father as the primary residential parent,” writing:

For example, one of the statutory factors the court is directed to consider is “[t]he parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.”

This means among other things, that the parent must be willing to set aside his or her own personal preferences if necessary to meet the child’s needs. Father’s unrebutted and consistent testimony at trial show that he is well aware that the needs of his child have to be his first priority, and that he has made every effort to put his child first, and in his own words, to “be the adult your child needs you to be.”

In contrast, Mother’s testimony shows that her priorities were elsewhere and that she often took a very casual attitude towards the child’s well-being. For example, she admitted that she dropped the child on the floor, but her testimony showed that she didn’t feel it was any big deal. At other times, she would leave him strapped in his chair in a wet diaper, while drinking beer or smoking marijuana. Mother did not deny that she drank and smoked in the presence of the child, although she did attempt to minimize the frequency of such incidents and the quantity of alcohol or marijuana consumed….

These and some of the other statutory factors clearly support the adoption of a parenting plan that leaves the child primarily in Father’s care. A review of the record and all the relevant factors confirms the trial court’s decision on best interests. In sum, the trial court did not err in designating Father as the child’s primary residential parent.

Likewise, the Court found the restrictions on Mother’s visitation and Child’s relocation to North Carolina were supported by the evidence. The trial court was affirmed in all respects.

Port v. Hatton (Tennessee Court of Appeals, Middle Section, March 6, 2013).

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

payments will self-terminate upon the death of Wife. Said payments will self-terminate upon the remarriage of Wife. Remarriage includes both the ceremonial marriage and cohabitation with an unrelated person for a total of 30 days.

In 2011, Wife filed a petition for civil contempt because Husband stopped paying the court-ordered alimony in late 2008. Husband did so based upon what he claimed was evidence that Wife was cohabitating with someone.Wife denied living with anyone.

After a hearing, the trial court ruled that Wife was entitled to receive the alimony withheld by Husband, which alimony totaled $72,000, even though the trial court found Husband was not in contempt because of the ambiguous “self-termination” language used in the MDA. Wife was awarded her attorney’s fees of approximately $11,000.

Husband appealed.

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

Civil Contempt. Husband argued the trial court could not order payment of the alimony arrearage in the absence of finding him to be in civil contempt.

Civil contempt is imposed at the insistence and for the benefit of the party who has suffered a violation of rights and the purpose of civil contempt is to coerce compliance with the court’s orders. Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce rights under the order that has been violated. Punishment for civil contempt is designed to coerce compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of rights. Also, in civil contempt cases, the quantum of proof necessary to convict is a preponderance of the evidence.

The substantive difference between civil contempt and criminal contempt is that criminal contempt is not used to enforce a private right of a party, instead, 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.” Another substantive difference is that in criminal contempt proceedings, the defendant is presumed to be innocent and must be proven guilty beyond a reasonable doubt.

The Court rejected Husband’s argument, writing:

Tennessee courts have held that a finding of civil contempt is not a prerequisite to a trial court’s ability to enforce its orders…. [B]ecause the trial court has the power and discretion to enforce its orders in the way it deems best, a finding of contempt was not a mandatory requirement for the award of arrears. Here, the court chose to reduce the arrearage to a monetary judgment without going so far as to hold [Husband] in contempt. From the record, we cannot conclude that the court’s decision in this regard constitutes an abuse of discretion. However, the mere fact that the court relieved [Husband] of a contempt finding will not, ipso facto, relieve him of the judgment made by the court for the purpose of enforcing its order. Thus, the court did not err in granting a judgment to [Wife] on the alimony arrears, notwithstanding the trial court’s failure to hold [Husband] in contempt.

Attorney’s fees. Husband also argued that Wife should not have been awarded her attorney’s fees, even though the MDA said the prevailing party is entitled to his or her attorney’s fees in any action seeking to enforce the MDA. Conversely, Wife argued the trial court erred in awarding her only $11,000 of her nearly $39,000 in attorney’s fees.

The trial court’s determination of a reasonable attorney’s fee is a subjective judgment based on evidence and the experience of the trier of facts, and Tennessee has no fixed mathematical rule for determining what a reasonable fee is. Accordingly, a determination of attorney’s fees is within the discretion of the trial court and will be upheld unless the trial court abuses its discretion.

The Court concluded:

In this case, it is clear that the court limited the award of attorney’s fees to those portions of the litigation in which [Wife] prevailed…. The MDA provides for an award of “reasonable attorney’s fees.” It does not provide for an award of all attorney’s fees. In addition the MDA contemplates that the fees and expenses will be awarded to the party for his or her “successful effort to enforce this marital dissolution agreement.” Based upon the plain and unambiguous language of the MDA, we cannot conclude that the court abused its discretion in limiting the amount of attorney’s fees only to those amounts accrued in the portions of [Wife's] case on which she was actually successful, i.e. the petition for contempt. Moreover, a review of the affidavits filed in support of [Wife's] request for attorney’s fees are itemized and, therefore, the portion of fees attributable to the contempt petition is easily ascertainable.

The trial court’s award of attorney’s fees to Wife was affirmed. In addition, Wife was awarded her attorney’s fees incurred on appeal. The case was remanded to the trial court for a determination of those fees.

K.O.’s Comment: Regarding the propriety of so-called “self-terminating” alimony, the issue was not presented on appeal so the Court declined to either approve or disapprove such a practice. The Court did caution litigants that they rely on “self-termination” clauses at their peril. It noted in a footnote that contracting to allow an obligor spouse to terminate alimony based on a contingency, such as the fact-intensive cohabitation inquiry, without a court order, appears to conflict with established case law. Specifically, the Tennessee Supreme Court has held that a marital dissolution agreement providing for ongoing alimony is subject to modification only by court order. Thus, the best practice for Tennessee divorce lawyers is to avoid using such clauses.

Wilkinson v. Wilkinson (Tennessee Court of Appeals, Western Section, February 19, 2013).

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

Token support?

Judge Kirby (the current holder of the prestigious and highly coveted “World’s Most Awesome Judge” designation!) agreed with the majority’s conclusion that Father abandoned his children by willfully failing to visit them. Judge Kirby disagreed, however, that abandonment by failure to support was shown by clear and convincing evidence in light of Father’s payment history during the relevant four-month period prior to the filing of the termination petition. The Court of Appeals remanded the case to the trial court to determine whether the termination was in the best interests of the children.

The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Tennessee Supreme Court affirmed in part and reversed in part the judgment of the Court of Appeals.

Abandonment is one of the grounds for termination of parental rights. Abandonment is defined as the willful failure to visit, to support, or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights. To prove the ground of abandonment, a petitioner must establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so. Whether a parent failed to visit or support a child is a question of fact. Whether a parent’s failure to visit or support constitutes willful abandonment, however, is a question of law.

Willful failure to support or to make reasonable payments toward support means “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” A parent cannot be said to have abandoned a child when his failure to visit or support is due to circumstances outside his control. A parent may not attempt to rectify abandonment by resuming payments of support subsequent to the filing of “any petition” seeking to terminate parental rights or seeking to adopt a child.

A party seeking termination of parental rights must prove by clear and convincing evidence that the opposing party had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse. Token support payments are not sufficient to preclude a finding of a willful failure to support. Token support is support that “under the circumstances of the individual case, is insignificant given the parent’s means.” In the context of token support, the word “means” connotes both income and available resources for the payment of debt.

For the four-month period immediately preceding the filing of the petition to terminate parental rights, Father paid $3500 in child support to Mother. Mother and Stepfather argued that Father had the ability to pay his child support obligation in full and that his payments were insufficient given his means. No evidence was introduced concerning Father’s monthly expenses, however.

On the issue of token support, the Tennessee Supreme Court agreed with Judge Kirby’s dissent and reversed the Court of Appeals, reasoning as follows:

The evidence concerning Father’s income and expenses is limited at best, however, and we conclude that Mother and Stepfather failed to prove that Father’s payment history between March 5, 2005, and July 5, 2005, reflected mere “token support….”

The trial court concluded that Father’s payment of $3500 during the four months immediately preceding the filing of the petition for termination precluded a finding of abandonment. The evidence does not preponderate against the trial court’s factual findings on which this determination is based. Our review of the record supports the conclusion that Mother and Stepfather failed to prove by clear and convincing evidence that Father’s payment history constituted abandonment by willful failure to support.

Regarding Father’s failure to visit, he did not dispute that he failed to visit the children during the relevant four-month period. Father argued instead that his actions were not willful because his visitation with the children had been suspended by court order.

The Tennessee Supreme Court agreed with the Court of Appeals and rejected Father’s argument, writing:

As the Court of Appeals observed, this is not a case in which a parent was actively trying to maintain visitation….

We agree with the Court of Appeals that the prior order suspending Father’s visitation rights did not preclude a finding that Father willfully failed to visit the children. A preponderance of the evidence supports the conclusion that Father willfully failed to visit his children between July 2003 and July 2005. Although Father filed a petition to reinstate his visitation rights, he took no action to advance the petition. Father had no reasonable excuse for failing to pursue the petition to reinstate visitation during those two years. We therefore conclude that the record contains clear and convincing evidence supporting termination of Father’s parental rights on the ground of abandonment based on willful failure to visit.

Thus, the judgment of the Court of Appeals was affirmed in part and reversed in part. Mother and Stepfather established grounds for termination based on Father’s willful failure to visit the children. Because the trial court did not reach the issue of whether termination of Father’s parental rights is in the best interests of the children, the case was remanded to the trial court for consideration of that issue.

K.O.’s Comment: I had hoped the Court would use this opportunity to provide some direction about what constitutes “token support” in termination of parental rights cases. Unfortunately, this opinion does not give us much in the way of guidance for future cases. I think the blame lies with the lack of evidence at the trial court level regarding Father’s income and expenses.

Also, before someone comments, no, I did not make a typo on the style of this case! Footnote 2 of the opinion says: “The first letter of the children’s last name is ‘E’ and not ‘T’ as reflected in the notice of appeal and the opinion of the Court of Appeals.” So if you’re going to be nitpicky about it, blame the Court of Appeals.

In re Adoption of Angela E. (Tennessee Supreme Court, March 13, 2013).

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