Posted by: koherston | January 23, 2015

Photo of the Week: Buck Photobomb

Another photographer and I were photographing a big buck one day. We were apparently in the buck’s way so he solved that problem by walking between us. I was able to capture this photo of my friend during this encounter.

Knoxville family law attorneys

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

Facts: Mother and Father divorced and agreed to Mother being the primary residential parent with Father having 115 days of parenting time.

After the divorce, Mother was allowed to relocate to Wisconsin. As a result of Mother’s relocation, a new parenting schedule was agreed to that, among other provisions, required Mother to transport the children to Tennessee to see Father at the beginning of the spring break holiday and the summer holiday each year.

Knoxville divorce lawyersMother did not bring the children to visit with Father during his 2013 spring break and summer vacation parenting time. In February 2013, the child welfare agency in Wisconsin began investigating allegations of abuse and neglect against Father. One of the agencies social workers recommended that the children’s visitation with Father be suspended until the investigation was complete. Based on this letter and her fears of sending the children to be with Father, Mother did not bring the children to visit Father over the spring break holiday.

The investigation by the child welfare agency in Wisconsin resulted in no findings against Father. Still, one of the children told a counselor of his continued fear that Father would touch him inappropriately. Soon thereafter, Mother moved for restraining orders in Wisconsin, seeking to enjoin Father from having contact with the children.

The Wisconsin court granted Mother’s application for temporary restraining orders and set the matter for hearing. Pursuant to the restraining orders, Father was ordered to avoid contact with the children.

Two days later, Father filed a petition in Tennessee requesting that Mother be found guilty of two counts of criminal contempt for failing to bring the children to Tennessee for his parenting time during the spring break and summer holidays.

Mother testified that it had never been her intention to disobey the court order. Under the circumstances, she said she did what she thought was the best thing to do in order to protect the children. Because of the Wisconsin restraining orders (which were entered a few days after Father’s summer parenting time was ordered to begin), Mother testified she believed she was not allowed to take the children to visit Father in Tennessee.

The trial court found Mother guilty of two counts of criminal contempt for violating its order with respect to Father’s spring break and summer visitation. Mother was sentenced to seven days in jail but the sentence was suspended for all but two days.

Mother appealed.

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

Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law. To establish a criminal contempt claim based on a party’s failure to comply with a court order, four elements must be established: (1) the order alleged to have been violated must be lawful; (2) the order alleged to have been violated must be clear, specific, and unambiguous; (3) the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and (4) the person’s violation of the order must be willful.

Although willfulness in the context of a civil contempt proceeding is identified by acts that are the product of free will rather than coercion, in the criminal context, a willful act is one undertaken for a bad purpose.

After reviewing the record, the Court of Appeals reasoned:

In this case, there is no dispute that Mother violated the order of the Davidson County Circuit Court. She did not bring the children to visit Father during their spring break, and she failed to transport the children to Nashville for Father’s summer visitation. The evidence adduced at trial, however, does not support the conclusion that Mother acted with a bad purpose.

With respect to the spring break period, it is important to emphasize that Mother had received a letter from [the Wisconsin child welfare agency] immediately prior to spring break recommending that Father’s visitation be suspended. During the contempt hearing, Mother testified that she did not send the children to visit Father because she thought she was doing the best thing she could do in light of the information she had received. She testified that she had feared for the safety of the children and stated that it had never been her intention to disobey any order.

Mother’s testimony indicates that she did not intend to flaunt the orders of the Davidson County court. Rather, it merely reflects that she had concerns about sending the children to be with Father in light of the recommendations made by the [Wisconsin child welfare agency]. Although in the future we would certainly direct Mother to secure relief from the courts before unilaterally deviating from the mandated parenting schedule, the evidence in this case is not indicative of a bad purpose….

With respect to the summer visitation period, . . . Father was subject to no-contact orders during the pendency of his summer visitation. Mother’s reliance on these orders is not indicative of a bad purpose.

Accordingly, the trial court’s order finding Mother in criminal contempt was reversed.

K.O.’s Comment: It is worth noting that even if the Tennessee court loses jurisdiction under the UCCJEA to modify custody, it can retain jurisdiction to enforce its order through contempt. For example, in Helig v. Heilig, the Western Section of the Court of Appeals held that even if the Tennessee court no longer had jurisdiction to modify a child custody order, it could still enforce the order in a contempt proceeding when no other court had assumed jurisdiction to enter a contrary order.

Miller v. Miller (Tennessee Court of Appeals, Middle Section, January 7, 2015).

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

Knoxville family law attorneysFacts: Mother and Father divorced after 12 years of marriage.

The proof at trial showed Mother received eight separate gifts of money from her parents over a seven month period after the parties’ separation. The combined value of the gifts was $5,010.

When determining child support, the trial court did not include the gifts from Mother’s parents when determining Mother’s gross income for child support purposes. Instead, the trial court attributed to Mother a gross monthly income of $400.

Father appealed.

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

The statutes and regulations governing child support are intended to assure that children receive support reasonably consistent with their parent or parents’ financial resources. Courts are required to use the child support guidelines developed by the Tennessee Department of Human Services to promote both efficient child support proceedings and dependable, consistent child support awards.

The child support guidelines provide that gross income “shall include all income from any source,” including “[g]ifts that consist of cash or other liquid instruments, or which can be converted to cash.”

Pursuant to the child support guidelines, a court may impute income “[i]f a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed.” Courts should increase an underemployed parent’s gross income to an amount that reflects the parent’s income potential or earning capacity based upon his or her educational level and previous work experience.

When discussing the trial court’s award of alimony to Mother, the Court of Appeals determined Mother’s average monthly income to be $1019.26.

After reviewing the record, the Court of Appeals commented:

It is apparent that the [trial] court did not consider Mother’s gifts in its determination of her monthly gross income as required by [the child support guidelines]…. As evidenced of our earlier discussion of Mother’s income [where the Court determined Mother’s average monthly income to be $1019.26], the financial gifts she received from her parents contribute to her monthly income…. Consequently, we vacate the award of child support and remanded the case for redetermination of the parties’ respective child support obligations.

Accordingly, the trial court’s ruling as to Mother’s gross monthly income for child support purposes was reversed and remanded for recalculation.

K.O.’s Comment: The gifts Mother received from her parents after the parties separated were sporadic and of wildly varying amounts. For example, her parents gave her $120 in April and over 23 times that amount ($2831) in May. Is this issue as clear as the opinion suggests? Consider Velez v. Velez, which holds it is improper to consider in the obligor’s income sporadic bonuses that are not guaranteed in the future because doing so is too speculative. Or Vivien v. Campbell, which says that while non-wage income such as inheritance, lottery winnings, etc., can be included in an obligor’s income, the court should look to the dependability of its continued receipt. Vivien says courts should be wary of increasing child support based on possible income that is merely speculative, instead focusing on income regularly received by the obligor. Does Mother have a viable argument on remand?

Howell v. Howell (Tennessee Court of Appeals, Middle Section, December 30, 2014).

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

Posted by: koherston | January 16, 2015

Photo of the Week: Elk in the Smokies

Great Smoky Mountains National Park

Great Smoky Mountains National Park

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

Knoxville family law attorneysFacts: in 2010, Mother sought assistance in caring for Child after Mother lost her job. She signed a power of attorney and authorization of temporary guardianship stating Child would reside with another couple for approximately six months. During that period, the couple filed a petition alleging Child was dependent and neglected and seeking temporary custody of Child.

The juvenile court found Child dependent and neglected and granted custody to the couple.

Mother appealed to the circuit court, which found no clear and convincing evidence of dependency and neglect and ordered the juvenile court to reunify Child with Mother.

The couple appealed, but the Court of Appeals affirmed the circuit court.

Despite that procedural history, Child was never reunified with Mother because, in part, the trial court deferred to a psychologist who wanted to reunify Mother and Child over a period of two years. While this reunification process was occurring, the couple filed a petition in juvenile court to terminate Mother’s parental rights.

The juvenile court found grounds of abandonment for failure to provide financial support and determined it was in Child’s best interest to terminate Mother’s parental rights. When the termination petition was filed, mother had not made a child support payment in four months and three days.

Mother appealed.

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

In Tennessee, proceedings to terminate a parent’s parental rights are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things.

First, they must prove the existence of at least one of the statutory grounds for termination, which are listed in Tennessee Code § 36-1-113(g). Several grounds for termination are listed in subsection (g), but the existence of any one of the grounds enumerated in the statute will support a decision to terminate parental rights.

Second, the petitioner must prove that terminating parental rights is in the child’s best interest, considering, among other things, the factors listed in Tennessee Code § 36-1-113(i).

The person seeking to terminate parental rights must prove all the elements of the case by clear and convincing evidence.

The grounds for termination at issue is abandonment by willful failure to make reasonable payments toward the support of the child during the four-month period immediately preceding the filing of the petition to terminate parental rights.

Willful failure to support or to make reasonable payments toward support means the willful failure to provide more than token payments toward the support of the child. Token support payments are not sufficient to preclude a finding of willful failure to support. Token support is support that under the circumstances of the individual case, is insignificant given the parent’s means. In termination proceedings, the term “token support” is a term of art. A finding that support was insignificant in light of the parent’s means must be based on evidence regarding both the parent’s actual financial support of his or her child and the parent’s means. In the context of token support, the word “means” connotes both income and available resources for the payment of debt. The definition of token support itself requires consideration of the circumstances of the individual case. The question of intent or willfulness depends on the totality of the circumstances.

Here, the proof showed the couple with custody told Mother not to pay them monetary child support because they wanted her to use those funds to pay for her supervised visits with Child and “to get her life back on track.” The Court commented:

During the pivotal four-month period, Mother did just that, directing her limited financial resources toward regaining custody of [Child]. She paid for the cost of supervised visits. She paid someone to transport her to and from visit and to and from court hearings. She paid for a drug and alcohol assessment recommended by DCS. She paid for parenting classes. She attempted to obtain reliable transportation and establish a stable home. She was in the midst of a four-day trial on the dependency and neglect petition and paying attorney’s fees incurred in that litigation. Mother used all of these funds in an attempt to comply with the responsibilities established by DCS and by the courts so that she could be you reunited with [Child]. Mother was aware that the [couple] were financially stable and that [Child’s] needs were being met. The [couple] had previously informed her that they could provide for [Child] without monetary support from mother. We also note that Mother had never been advised of the criteria and procedures for terminating her parental rights or the definition of abandonment….

The evidence in this case falls short of meeting [the] standard [for clear and convincing evidence]. The evidence presented by the [couple] simply does not produce a firm belief or conviction, in our minds, that Mother, during the four-month period, had the capacity to support [Child], made no attempt to do so, and had no justifiable excuse for not doing so. We hold that the evidence in this case does not support a finding that Mother intentionally abandoned [Child], and we therefore reverse the trial court’s finding that this ground for termination was proven by Clear and convincing evidence.

Accordingly, the termination of Mother’s parental rights was reversed and the matter remanded to the trial court to reunify Mother and Child without delay.

K.O.’s Comment: Reading this opinion will create flashbacks for any attorney who has witnessed a case languish in juvenile court far longer than it should have because a magistrate or judge implicitly (or sometimes explicitly) confers judicial authority on a third party not affiliated with the judicial system, such as a counselor or therapist. The Court of Appeals was certainly frustrated with the trial court’s delays in this case, commenting that “this case has been delayed far too long already.” They also characterized the juvenile court as being “extremely hesitant to reunify Mother and [Child],” noting that “[t]his record provides no basis for such hesitation, other than the general concern that exists in all reunification’s following a lengthy separation.” Lawyers who regularly practice in juvenile court should consider reading this opinion (but only after a few glasses of wine).

In re Alysia S. (Tennessee Court of Appeals, Middle Section, December 17, 2014).

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

Posted by: koherston | January 12, 2015

When Cheating Is the Issue, Remorse Helps

This article by Sona Patel in The New York Times might be of interest to readers of this blog.

When Cheating Is the Issue, Remorse Helps

For a couple faced with overcoming the effects of an extramarital affair, regaining trust is crucial.

“If they really do love each other and they really believe in the marriage, yes, I’ve seen it work,” said Molly O’Shea, a marriage and family therapist in San Francisco.

Research compiled by the Kinsey Institute from the early 1990s showed that infidelity was the single most cited cause of divorce in more than 150 cultures.

Knoxville divorce lawyersAnd in western countries, one research report estimated that 25 to 50 percent of people who split up cited a spouse’s infidelity as the primary cause of the divorce.

Ms. O’Shea considers spouses who are cheated on as people who are dealing with grief and loss. She will start by asking what they love and respect about their partner.

In the beginning, emotions are high and the therapist may suggest that they consult individually.

There is a no-secrets policy, however, that anything said by a spouse while alone with Ms. O’Shea will be discussed when everyone is together.

In Ms. O’Shea’s experience, a year or more of therapy is needed for a couple to start the healing process.

She asks the person cheated on what it would take to regain trust and what the cheating spouse can do to prove the affair was a mistake.

“Usually the person who has been cheated on says, ‘I don’t know what I need’ and ‘nothing is going to help,’ ” Ms. O’Shea said. “They’re just so angry.”

For the majority of Ms. O’Shea’s clients, the spouse who was cheated on will ask for specific details about the affair: where it happened, what happened and how long it lasted.

“They’re looking for consistency in the story,” Ms. O’Shea said.

At the same time, too much questioning can become unproductive, so Ms. O’Shea will set limits.

“I’m not going to let one person bash the other person,” she said. “But I will validate their feelings and their anger.”

“When you think of someone who has been traumatized, they have to tell their story over and over, and the person has to tolerate hearing it over and over,” Ms. O’Shea said. “Then you start talking about what’s working and why you want to stay connected.”

Chief among the issues is continuing suspicion, including becoming upset each time the spouse doesn’t answer the phone.

People who have cheated need to affirm their partner’s feelings, sympathize and put up with a lot of justifiable anger.

As for tracking a couple’s progression, that is partly just observing them. At the start, it can be something obvious about their behavior like sitting on opposite ends of a sofa, keeping their arms crossed or avoiding eye contact.

As they progress, they may speak up for each other, actually defending the partner to the therapist. “Maybe I’ll bring to attention the words that were used and question how hurtful they were,” Ms. O’Shea said, “and the other person will say, ‘I don’t think it was wrong’” to say that.

Still, while a couple may become stronger, rarely do they regain complete trust. “You forgive, but you don’t forget,” she said.

As for spouses who cheated, Ms. O’Shea prepares them for a rough path back.

“They need to be able to validate the pain and continue to show remorse,” Ms. O’Shea said. “Over and over and over again.”

Source: When Cheating Is the Issue, Remorse Helps (The New York Times, August 9, 2013).

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

Posted by: koherston | January 9, 2015

Photo of the Week: Elk Bugling

Knoxville divorce and child custody lawyer

Great Smoky Mountains National Park

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

Knoxville divorce lawyersFacts: Mother gave birth to Child and died two days later. Father lived in California and was not present for Child’s birth. Mother and Father were not married.

Because Father had not yet been declared Child’s legal father, the Tennessee Department of Children’s Services gave temporary custody of Child to Maternal Grandmother. Father was advised he needed to establish paternity in order to receive custody of Child. Father took a DNA test that same day.

At a hearing several months later, Maternal Grandmother was awarded custody at a hearing Father failed to attend. Father also failed to present the DNA test results showing he is the biological father of Child..

Several months later, Maternal Grandmother petitioned to to terminate Father’s parental rights and adopt Child. Father counter-petitioned to establish paternity and obtain custody of Child.

Maternal Grandmother alleged Father abandoned Child by failing to visit or pay child support in the four months preceding the filing of her petition to terminate Father’s parental rights.

Father argued his failure to visit was not willful given his limited financial means and the fact that he lives in California. He claimed he tried to set up visits but had difficulty contacting Grandmother and obtaining her consent for him to visit. When he was able to contact her, she would either tell him it was not a good idea for him to visit or to wait until the next court date. During Maternal Grandmother’s testimony, she agreed it would be unreasonable for someone who is trying to visit his child to fly 3000 miles and stay in a hotel without a definite visit scheduled.

Father also argued his failure to pay child support was not willful given his limited financial means and the fact that he has to support four other children.

The trial court did not accept Father’s reasons for not paying child support and not visiting more often. The trial court found Father had the financial means to support Child during the four months preceding the filing of the petition to terminate his parental rights and that he willfully chose not to do so. The trial court also found Father did not seek reasonable visitation with Child during the four months preceding the filing of the petition. Father’s parental rights were terminated.

Father appealed.

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

A parent has a fundamental right to the care, custody, and control of his or her child. The state may only interfere with parental rights if there is a compelling state interest. An order terminating parental rights has the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.

Terminating a parent’s fundamental parental rights results in severe consequences; therefore, termination cases require a higher standard of proof. To terminate parental rights, the court must find by clear and convincing evidence that at least one statutory ground for termination exists and that termination is in the child’s best interest. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

The ground for termination at issue in this case was “abandonment,” which here meant that Maternal Grandmother must prove by clear and convincing evidence that Father willfully failed to visit Child or pay child support during the four months immediately preceding the filing of her petition to terminate his parental rights.

Willful failure to visit. Willful failure to visit is defined as “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is 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. For a parent’s failure to visit to be considered willful, the parent must have intended not to visit the child.

A parent who has tried to visit his or her child but has been thwarted by the acts of others and circumstances beyond his or her control has not willfully failed to visit. A parent’s failure to visit may be excused by a third party’s conduct if the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child.

Tennessee courts have determined the following circumstances amount to a significant restraint or interference with a parent’s efforts to develop a relationship with a child: (1) telling a man he is not the child’s biological father, (2) blocking access to the child, (3) keeping the child’s whereabouts unknown, (4) vigorously resisting the parent’s efforts to support the child, or (5) vigorously resisting a parent’s efforts to visit the child.

After reviewing the record, the Court of Appeals reasoned:

Both Father and Grandmother testified that Father called a number of times to speak to Child and set up visits. However, Grandmother often did not have a working phone, which made it difficult for Father to reach her, and Grandmother often told Father it was not a good idea for him to visit. Grandmother admitted that it would be unreasonable for Father to travel from California to Tennessee without speaking to Grandmother first and knowing that he would be able to visit Child. Grandmother’s hesitancy to arrange visits with Father, coupled with Father’s limited finances, the distance he had to travel, and his responsibilities as the father of four other children living in California made it extremely difficult for Father to visit Child.

In addition, both Grandmother and Father testified that Father was genuinely happy to have Child, and Father’s other children testified that Father loves them, takes care of them, and that they love him as well. This evidence, in addition to the hurdles that Father had to overcome to visit Child convinces us that the evidence is not strong enough to establish clearly and convincingly that Father willfully failed to visit Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to visit Child.

Willful failure to pay child support. Just like a parent’s failure to visit, failure to support a child financially can be grounds for terminating parental rights if the failure was willful. Simply proving that a parent did not support his or her children is not sufficient. Willful failure to support is “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.” Token payments, or “token support,” are payments that, under the circumstances of the individual case, are insignificant given the parent’s means.

A parent’s failure to support is willful when he or she is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. A parent who does not support his or her child because he or she is financially unable to do so is not liable for willfully failing to support his or her child.

On this issue, the Court of Appeals concluded:

[N]o evidence has been introduced to establish Father’s actual income, expenses, or financial ability to support Child….

Father is completely disabled and unable to work, he lives in his mother’s guest house, and he is behind on child support payments for his four other children. Without any evidence of Father’s actual ability to support Child, we do not believe that there is enough evidence to establish clearly and convincingly that Father willfully failed to support Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to support Child.

Accordingly, the termination of Father’s parental rights was reversed. The case was remanded for the trial court to grant custody to Father pursuant to Tennessee Code § 36-1-117(4), which requires the trial court to grant custody to the legal parent in an adoption proceeding if no grounds for termination exist, unless the court determines by clear and convincing evidence that a legal parent is unable to provide the child with proper custodial care.

In re Lyric J. (Tennessee Court of Appeals, Middle Section, December 16, 2014).

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

Knoxville grandparents lawyerFacts: Mother and Father are the parents of Child. Mother had another child who was legally adopted by the Paternal Grandparents.

Disagreements and hostilities developed between Mother and Father and the Paternal Grandparents, and Mother and Father decided it was in Child’s best interest not to have further visitation with Paternal Grandparents.

Paternal Grandparents filed a petition for grandparent and sibling visitation.

After a trial, the trial court awarded Paternal Grandparents visitation with Child every third weekend as well as telephone contact every other Sunday.

Mother and Father appealed.

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

Tennessee Code § 36-6-306(b)(1) provides:

In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.

It is only after there has been a finding of a danger of substantial harm to the child that the court proceeds to determine whether grandparent visitation is in the child’s best interests. The burden of proof is on the grandparents to show a danger of substantial harm.

Although the circumstances that constitute substantial harm cannot be precisely defined, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not.

To find substantial harm, there must be supporting evidence in the record that is specific to the particular child’s relationship with the particular grandparent.

After reviewing the record, the Court of Appeals concluded:

In the present case, the trial court failed to adhere to the required statutory analysis. There was no finding that there was a danger of substantial harm to [Child]. Rather, the trial court based its decision largely upon the need to maintain the relationship between [Child] and her half-sister, [which is] a consideration not authorized under Tenn. Code Ann. § 36-6-306. Moreover, the record in this case does not contain evidence that [Child] was in danger of substantial harm due to the cessation of the relationship with Grandparents. Mother and Father presented evidence that [Child] is a well-adjusted child who was not suffering serious emotional harm and that Mother and Father had sound reasons for terminating her relationship with Grandmother. To order grandparent visitation without a finding of substantial harm violates Tenn. Code Ann. § 36-6-306 and the fundamental right of parents to raise their children as they see fit.

Accordingly, the trial court’s award of grandparent visitation was reversed.

In re Camryne B. (Tennessee Court of Appeals, Middle Section, December 16, 2014).

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

Facts: Wife, 60, and Husband, 40, divorced after 14 years of marriage. At the time of their marriage, Wife had health problems, including a diagnosis of multiple sclerosis, that made it impossible for her to work outside the home.

The trial court awarded Wife the marital residence, valued at $130,000, and held her responsible for the balance of the mortgage, which was approximately $55,000. The trial court found Husband’s equity interest in the marital residence to be $75,000, and awarded Wife that entire amount as alimony in solido.

The division of marital property and debt resulted in a net award to Wife of $92,000 and to Husband a net award of negative $11,000.

Wife was ordered to refinance the mortgage on the marital residence out of the names of both parties and solely into her name.

The trial court found Wife is not capable of obtaining employment because of her age and health problems. Wife was awarded transitional alimony of $400 per month for four months, which would provide her an opportunity to apply for Social Security disability benefits and TennCare health insurance.

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

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

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

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

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

Where economic rehabilitation is unnecessary, transitional alimony may be awarded. Transitional alimony assists the disadvantaged spouse with the transition to the status of a single person. Rehabilitative alimony is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, whereas transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. Consequently, transitional alimony has been described as a form of short-term “bridge-the-gap” support designed to smooth the transition of a spouse from married to single life.

After reviewing the record, the Court concluded:

In this case, the reality is simply this: Wife is the economically disadvantaged spouse; she cannot achieve self-sufficiency; and she cannot be rehabilitated. All of this is not in dispute…. Wife’s earning capacity is clearly zero…..

We hold that the evidence preponderates against the trial court’s award of four months of transitional alimony. Considering all of the pertinent statutory factors and the totality of the circumstances, we modify Wife’s award to an amount of $150 per week as alimony in futuro, payable until Wife dies or remarries. While Wife will likely be entitled to Social Security disability benefits and TennCare, nevertheless, she is clearly in need of additional support, and Husband has the ability to pay this amount without undue financial hardship.

Wife also challenged the trial court’s ruling that she refinance the mortgage on the marital residence solely into her name. The Court agreed, writing:

Finally, Wife argues that the trial court erred by ordering her “to refinance the mortgage in her own name and . . . hold [Husband] harmless therefrom.” In her brief, Wife asserts that “[i]t would be impossible for her to refinance this mortgage given the fact that no lender would loan money to someone in her current physical and financial position.” We modify this decree of the trial court to provide that Wife shall apply for, and make reasonable efforts leading to, the possible refinancing of the mortgage on the residential property in her sole name.

Accordingly, the trial court’s award of transitional alimony was converted to permanent alimony and the amount increased. Wife was also relieved of her obligation to refinance the mortgage on the marital residence; instead, she must only attempt to do so.

K.O.’s Comment: (1) The trial court found this 14-year marriage to be “a marriage of relatively short term.” In a footnote, the Court commented, “Given the current culture, this Court does not believe a 14-year marriage should be considered ‘relatively short-term.'” Really? Three years ago this same Court held a 17-year marriage is neither short nor long for purposes of the alimony analysis. See Garman v. Garman.

(2) The Court’s decision to reverse the trial court’s requirement that Wife refinance the mortgage on the marital residence — instead requiring only that she attempt to do so — is the first such holding in Tennessee of which I am aware and is inconsistent with the Court’s prior rulings in several cases, e.g., Dobbs v. Dobbs and Mobley v. Caffa-Mobley. Unfortunately, the Court offers little in the way of explanation. The entirety of its analysis is contained in the block quote above.

Berkshire v. Berkshire (Tennessee Court of Appeals, Eastern Section, December 1, 2014).

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

Posted by: koherston | December 31, 2014

Photo of the Week: Happy New Year!

Happy New Year!

Happy New Year!

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

Knoxville divorce attorneysFacts: Husband and Wife divorced after 38 years of marriage.

Wife was 58 years old at the time of trial and earned approximately $60,000 as a schoolteacher. Husband was 59 years old and earned approximately $134,000 as a welding inspector.

Wife was granted a divorce on the grounds of Husband’s adultery. Wife was awarded the marital residence and Husband’s one half share of the equity in the marital residence as alimony in solido. Wife was also awarded alimony in futuro until age 65 in the amount of $200 per month.

After accounting for the alimony in solido award, Wife received approximately 77% of the marital estate to Husband’s 23%. In other words, Wife left with somewhere over $400,000 more of the marital estate than did Husband.

Wife was also awarded a portion of her attorney’s fees as alimony in solido.

Husband appealed.

On Appeal: The Court of Appeals reversed the trial court’s award of alimony in futuro and attorney’s fees.

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

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

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

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

Where economic rehabilitation is unnecessary, transitional alimony may be awarded. Transitional alimony assists the disadvantaged spouse with the transition to the status of a single person. Rehabilitative alimony is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, whereas transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income.Consequently, transitional alimony has been described as a form of short-term “bridge-the-gap” support designed to smooth the transition of a spouse from married to single life.

After reviewing the record, the Court affirmed the award of alimony in solido, reasoning:

The record reflects that Wife is, in fact, disadvantaged relative to Husband in terms of annual income. Husband has shown an ability to regularly earn in excess of $100,000 per year, whereas Wife earns around $60,000 per year as a schoolteacher. We are aware that Husband’s income depends in large measure on outages occurring allowing him to work overtime and that his income fluctuates as a result. Nevertheless, even considering the fluctuations, the evidence is clear that Husband earns much more money than Wife. In order for Wife to preserve some degree of the lifestyle she had come to enjoy, some accommodation was appropriate to reflect her economic disadvantage. We also are cognizant of the some 38 year length of this marriage.

We find that the Trial Court did not err in assigning Husband’s one-half interest in the marital residence to Wife as alimony in solido. In reaching this conclusion, we are guided primarily by the relative economic conditions of the parties, not Husband’s adultery. The Trial Court’s award of alimony in solido is a reasonable one that accords with the evidence.

However, the Court reversed the trial court’s award of alimony in futuro, stating:

We next address whether the Trial Court erred in awarding Wife $200 per month as alimony in futuro until she reaches the age of 65. To resolve this issue, we must assess Wife’s status once she received the award of alimony in solido….

[U]pon receiving Husband’s one-half interest in the marital residence, Wife is no longer economically disadvantaged compared to Husband. There is no valid economic reason to award her additional spousal support. Husband’s conduct in this case, unsavory as some may find it, does not erase the economic facts between the parties. We reverse the Trial Court in its award to Wife of $200 per month until she reaches age 65, irrespective of whether one classifies it as alimony in futuro or transitional alimony.

The trial court’s award of a portion of Wife’s attorney’s fees was also reversed. The Court explained:

Our reasoning on this issue is substantially similar to ours regarding the alimony in futuro award. Once Wife received Husband’s interest in the marital residence as alimony in solido, she no longer was economically disadvantaged compared to Husband. Given this record, Wife has the ability to pay her own attorney’s fees, and no award of attorney’s fees to her as alimony in solido is appropriate.

Thus, the trial court was affirmed in awarding Husband’s one half share of the marital residence to Wife as alimony in solido. However, upon receiving that award, Wife was no longer economically disadvantaged as compared to Husband. For that reason, the Court of Appeals reversed the trial court’s awards to Wife of alimony in futuro and attorney’s fees.

Calloway v. Calloway (Tennessee Court of Appeals, Eastern Section, November 26, 2014).

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

Posted by: koherston | December 24, 2014

Photo of the Week: Happy Holidays!

Great Smoky Mountains National Park

Great Smoky Mountains National Park

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

Facts: Mother and Father lived in California with their children. Father died.

Paternal Grandmother visited the children in California and became concerned with their poor living conditions.

Paternal Grandmother relocated to California, petitioned the California court, and was granted guardianship over the children. The California court allowed Paternal Grandmother the discretion to allow visitation between Mother and the children “given the best interest of the children.”

Later, Paternal Grandmother sought and received permission from the California court to return to Tennessee with the children, and she did.

Mother did not visit her children after they had moved to Tennessee, but she and Paternal Grandmother arranged for weekly telephone calls with the children. The calls usually only lasted about three minutes. Paternal Grandmother eventually instructed Mother to stop calling because she felt the calls were upsetting the children.

Later, Paternal Grandmother petitioned to terminate Mother’s parental rights and adopt the children. Paternal Grandmother alleged grounds of “abandonment” for failure to visit or pay child support.

Mother admitted she had not paid child support in the four months prior to the filing of the petition but stated she was unable to do so because of her financial situation. She also had not seen or spoken to the children during that four-month period but claimed that was because of Paternal Grandmother’s insistence that she have no contact with her children.

The trial court found grounds of abandonment and terminated Mother’s parental rights.

Mother appealed.

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

A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. While this right is fundamental, it is not absolute.

To terminate parental rights, two things must be proved by clear and convincing evidence: (1) the existence of at least one of the statutory grounds for termination, and (2) that termination is in the best interest of the child. This heightened burden of proof is one of the safeguards required by the fundamental rights involved, and its purpose is to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights.

Under Tennessee Code § 36-1-102(1)(A)(i), abandonment can be established by either showing that Mother willfully failed to support her children or willfully failed to visit them in the four months preceding the filing of the petition. The plain language of the statute makes clear that a parent’s failure to pay support or visit does not lead to termination of parental rights unless the failure is willful.

Failure to visit or support a child is “willful” when 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 had no justifiable excuse for not doing so. Failure to visit or support is not excused by another person’s conduct unless the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint or interference with the parent’s efforts to support or develop a relationship with the child.

The willfulness of particular conduct depends upon the person’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct.

If failure to support or visit is due to circumstances outside of a parent’s control, then he or she cannot be said to have willfully abandoned the child.

Regarding the failure to pay support, the financial ability, or capacity, of a parent to pay support must be considered in determining willfulness. If the failure to pay child support is due to financial inability, then a parent has not willfully failed to support the child. In making a willfulness determination, the court must review a parent’s means, which includes both her income and available resources for purposes of support.

After reviewing the record, the Court concluded:

While it is undisputed that Mother failed to provide her children with any support during the relevant time period, there was scant evidence introduced regarding her ability to do so during the applicable four month period.

Regarding the failure to visit, where a parent attempts to visit her child but is obstructed by the acts of another, her failure to visit is not “willful” within the meaning of the statute. A parent’s attempts at visitation are obstructed where another person’s conduct creates a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child. As such, the failure to visit is only willful if it is a product of free will, rather than coercion.

On this issue, the Court reasoned:

[W]e find sparse evidence relating to Mother’s capacity to visit. In this situation, capacity is affected by the great physical distance between Mother and her children. As noted above, Grandmother presented insufficient evidence concerning Mother’s income during the relevant time period, so we cannot determine whether Mother had the financial ability to visit during the four month period preceding the filing of the petition….

[G]iven the heavy burden necessary to interfere with a fundamental constitutional right, the proof offered here was insufficient to show that Mother’s failure to visit her children was willful. We, therefore, find Grandmother failed to clearly and convincing prove the existence of at least one of the statutory grounds for termination.

Accordingly, the termination of Mother’s parental rights was reversed.

In re Mackenzie N. (Tennessee Court of Appeals, Middle Section, November 26, 2014).

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

Posted by: koherston | December 19, 2014

Photo of the Week: Above the Clouds

Knoxville divorce and child custody lawyer

Great Smoky Mountains National Park

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