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

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

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

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

Husband appealed.

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

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

After reviewing the record, the Court reasoned:

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

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

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

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

After reviewing the evidentiary record, the Court commented:

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

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

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

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

Posted by: koherston | July 24, 2015

Photo of the Week: Acrobatic Cub


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

best divorce, child support, adoption lawyer in KnoxvilleOnce again, I am honored to be selected by other lawyers as being among the best DivorceFamily Law, Child Support, and Adoption lawyers in Knoxville.

CityView magazine explains:

Each year, Cityview calls upon the members of the Knoxville Bar Association to determine which attorneys in East Tennessee are the best in their respective fields. The one criterion we most want the participating attorneys to consider when casting their ballots is whom they would recommend to friends and family if a particular matter fell outside of their practice specialties. This year, we asked local attorneys to cast votes in 64 categories.

Tennessee does not allow attorneys to advertise that they specialize in certain areas of the law, but as a consumer, choosing an attorney with experience in the correct area is essential. To that end, we have compiled this listing to assist you should you ever need legal counsel in East Tennessee.

Winners in most categories were so close in total votes that we are listing them alphabetically. We feel confident that all of the attorneys listed would provide wonderful representation, but the results of this poll represent only one method of determining who are the best legal professionals in our area. We strongly advise you to use not only this information but to use other quality sources of information.

Source: CityView magazine, Knoxville’s “Top Attorneys” 2015 (July/August 2015).

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

Facts: Husband and Wife divorced after 17 years of marriage. They have three children.

Husband is a dentist. Wife is a registered nurse but worked primarily as a homemaker since the birth of the parties’ first child at the beginning of their marriage. Wife did not maintain her nursing certification after the joint decision that she would be a stay-at-home parent and homemaker. Wife was primarily tasked with the caregiving responsibilities for the children and management of the household while Husband was the primary wage earner.

appealIn 2009, Husband became involved in an extramarital relationship with his dental assistant. After some marital counseling, the parties separated. This divorce followed.

The trial court determined the applicable statutory factors weighed in favor of an award of alimony to Wife. Finding that Wife needed time to reestablish her career, the trial court awarded her rehabilitative alimony of $3600 per month for three years.

Also finding that Wife would not be able to earn an income comparable to that of Husband, the trial court awarded her transitional alimony in progressively decreasing amounts for 16 years, the approximate duration of the parties’ marriage. Wife was awarded $6451 per month for three months, $2288 per month for eight years, and $500 per month for eight years after that.

The trial court also awarded Wife alimony in solido of $207,000 to pay her attorney’s fees.

Husband appealed

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

Husband argued the award of transitional alimony was error because transitional alimony, which has been defined as “short-term support,” should not have been awarded for a period of 16 years.

Transitional alimony is appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce. Simply put, this type of alimony aids the person in the transition to the status of a single person. In contrast to rehabilitative alimony, which is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, 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. As such, transitional alimony is a form of short-term support.

Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce. Alimony in futuro, by contrast, may be awarded in addition to an award of rehabilitative alimony where a spouse may be only partially rehabilitated.

After reviewing the record, the Court reasoned:

Even with rehabilitation, Wife’s earning capacity will only measure as a fraction of the earning capacity of Husband. Husband will in all probability maintain greater financial resources in the future than Wife. The parties enjoyed a marriage of relatively long duration. Wife is the primary residential parent of the children, spending a significant portion of her time engaged in activities related to the children. The parties enjoyed a luxurious standard of living during the marriage, with both contributing their efforts to the marital estate as wage earner and homemaker respectively. Finally, as determined by the trial court, Husband must bear the fault for the divorce. Accordingly, while modifying its form and duration, we affirm the trial court’s grant of alimony to Wife.

Wife’s ability to achieve partial rehabilitation is not disputed, thus the award of rehabilitative alimony is proper. We conclude, however, that it is appropriate to modify the transitional alimony award to an award of alimony in futuro. As previously explained, transitional alimony should be awarded where rehabilitation is not necessary. If, as here, the disadvantaged spouse can be only partially rehabilitated, an award of alimony in futuro may be granted in addition to rehabilitative alimony. Having determined that the trial court correctly found that Wife would experience an ongoing need for alimony beyond the period of rehabilitation, we conclude alimony in futuro would be the more appropriate form of this award. We therefore modify the trial court’s judgment accordingly….

As Wife will likely confront an extreme economic disadvantage compared to Husband following rehabilitation, she will need an additional amount of alimony in order to maintain a standard of living reasonably comparable to that which she enjoyed during the marriage, or which Husband will be able to enjoy following the divorce. We conclude that $2,288 per month is an appropriate amount based on the purpose of rendering the standard of living reasonably comparable between the two households.

Accordingly, the trial court’s award of transitional alimony was modified to alimony in futuro of $2288 per month until the death or remarriage of Wife.

Dissent: Judge Swiney issued a partial dissent, stating:

I cannot agree with the majority that the amount of alimony in futuro awarded to Wife should be increased from $500 per month after eight years to $2288….

The majority’s changing of the alimony from transitional to in futuro, a change I agree with, means that Wife will likely receive considerably more in this alimony than she would have under the trial court’s alimony award…. [T]he majority without any request or argument being made by Wife to increase the $500 per month alimony then decides sua sponte and without the legal necessity of doing so to increase the amount from $500 per month to $2288 per month. The majority has not only more than just tinkered with the amount of alimony awarded, something we normally avoid if possible, it has done so without any request or legal necessity that it do so….  I [] would have the now alimony in futuro decrease from $2288 per month to $500 per month as originally ordered by the trial court.

K.O.’s Comment: I imagine the telephone call from Husband’s lawyer was awkward. “I have some good news! Congratulations, we won our appeal! Yeah, I know I’m amazing. Thanks. Umm… also… uhhh, the *cough* 16 years of transitional alimony you thought was too long was *cough* converted to *cough* *cough* lifetime alimony. Gotta go. Bye.”

Unhappy litigants often want a second opinion on their case. This case shows one needs to be careful what one wishes for. One can win the battle but lose the war.

Lunn v. Lunn (Tennessee Court of Appeals, Eastern Section, June 29, 2015).

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

Posted by: koherston | July 17, 2015

Photo of the Week: Black Bear Family

Black Bear Family

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

Facts: Mother and Father are the never-married parents of Child.

When Child was four years old, a parenting plan was entered designating Mother as Child’s primary residential parent and establishing Father’s co-parenting schedule.

Ten years later, Father petitioned to modify the parenting plan to change custody and necessarily increase his parenting time. He alleged the following material changes of circumstance justifying a change in custody: (1) Child’s deteriorating relationship with Mother; (2) Mother’s adoption of two other children; (3) Child’s preference to live with Father; and (4) Mother’s lack of parenting skills.

After hearing all the proof, the trial court found Father had failed to prove a material change of circumstance as necessary for either a change in custody or parenting time. The trial court found Father’s testimony was not credible while Mother’s was. Accordingly, the trial court denied Father’s petition to modify.

Father appealed.

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

Tennessee courts apply a two-step analysis to requests to modify the primary residential parent or the residential parenting schedule. The threshold issue is whether a material change in circumstance has occurred since the entry of the parenting plan. Only if a material change of circumstance has occurred will the court move to the second step and determine if a modification is in the child’s best interest.

A change in circumstance regarding the parenting schedule is different from the change in circumstance regarding the designation of the primary residential parent. The threshold for establishing a material change of circumstance to modify the parenting schedule is low. To modify a parenting schedule, merely showing that the existing arrangement is unworkable for the parties is sufficient to satisfy the material change of circumstance test.

After reviewing the record, the Court concluded:

The evidence in the record before us preponderates against the trial court’s finding that there was no material change of circumstance for the purposes of residential parenting time. In this case, the original parenting plan was entered in 2002, over 11 years before the trial court’s final order was issued…. [O]ver a decade had passed since the entry of the prior custody order. Even discounting Father’s testimony, without a doubt [Child’s] needs have changed significantly since the entry of the prior custody order in 2002. Both Father and Mother have also had significant changes in their living conditions by the addition of other people to their households.

These changes were material under the lower threshold of Tennessee Code Annotated § 36-6-101(a)(2)(C). Therefore the trial court should consider . . . whether it is in [Child] best interest to grant Father greater parenting time.

Accordingly, the trial court’s judgment was reversed and the matter remanded for further proceedings.

In re Jacob B. (Tennessee Court of Appeals, Middle Section, June 26, 2015).

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

The dates for this year’s Tennessee Family Law Update CLE tour are as follows:

Knoxville divorce lawyersMemphis: Monday,  November 16, 2015

Nashville: Tuesday, November 17, 2015

Chattanooga: Wednesday, November 18, 2015

Johnson City: Thursday, November 19, 2015

Knoxville: Friday, November 20, 2015

As in previous years, each presentation will begin at 8:30 a.m. and end shortly before noon.

Lawyers and family law mediators should go ahead and mark the date on your calendars now. I don’t want to hear any whining about scheduling conflicts in November (you know who you are!).

Additional information and registration details will be provided on this blog in the coming months. The Seminars page will always have the most up-to-date information, too.


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

Posted by: koherston | July 10, 2015

Photo of the Week: Baby Snake

baby snake

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

Posted by: koherston | July 8, 2015

Couples Are Delaying Marriage

This article by Leslie Mann in the Chicago Tribune might be of interest to readers of this blog.

Nowadays, it’s ‘last comes marriage’

Katie Hasse and Andrew Pace, both 30, fit a lot into their 20s.

He played professional football in Germany, volunteered in Peru and Guatemala, and earned a master’s degree in business administration. She traveled to Europe and Asia, ran many marathons, was a “ski bum” in Colorado and collected a bachelor’s degree in journalism.

They moved into a Chicago condo and launched their careers — he as an investment banker and she as a corporate public relations manager. They are planning a big wedding in July and a honeymoon in Italy.

Hasse and Pace are typical of today’s young, educated couples, according to an analysis of women by the National Center for Family and Marriage Research at Bowling Green State University in Ohio.

“Instead of marrying, and then finishing their education, saving money and buying homes, couples plan their weddings after they’ve started building their lives,” said Susan Brown, sociology professor at the center. “Marriage is now viewed as a luxury good that we achieve after we get everything else in order.” That is the opposite of what couples did a generation year ago.

Today’s young people do not consider themselves “marriage material” until they are educated and financially stable, Brown said. Although women with only high school educations or less were just as likely as their educated counterparts to marry from 1940 to 1960, they have been less and less likely since. Only 28 percent of women with less than a high school diploma now marry.

“By waiting, we were able to do a lot of things we might not have done as a couple,” Hasse said. “We never felt like we had to ask the other person to do what we wanted, even though we were dating. I know some people marry young and grow up together, but that doesn’t always work out. We feel like we’ve already grown up and we’re ready for marriage.”

Meanwhile, the wedding industry has exploded with new products that might astound parents but appeal to soon-to-be brides and grooms, such as matching jewelry for bridesmaids and ballroom dancing lessons for wedding parties. This contributes to rising expectations of what a wedding should be, Brown said.

“It’s no longer just a small get-together,” she said. “Now, couples want to spend it up, have a whole weekend of activities or have a ‘destination wedding’ at a vacation spot.”

The winning of gays’ right to marry has helped put marriage and weddings on a higher pedestal, Brown said. “Gay rights advocates say, ‘We want to have this too.'”

It was not that long ago that American weddings were simple affairs. In the Colonial days, couples said they were married until the visiting preacher came through town and made it official, Brown said.

“You might have had a family lunch or dinner, but without all of the trappings of today’s weddings. The wife’s role was to raise the children and be the homemaker. The men owned the property and represented the families in the community.”

Post-World War II, when women entered the workforce en masse, “people looked at wives’ skills differently,” Brown said. “We lowered our standards of homemaking, hired people to help raise the kids and put more emphasis on women’s career achievements.”

The results are more egalitarian, collaborative marriages between peers.

“Used to be, the doctor married the nurse, but now the doctor marries a doctor,” she said.

Today’s marriage is not as likely to help the wife climb the economic ladder.

Partially because more women put college and graduate school before marriage, they are marrying later. The median age of first marriage for women is 26.6, the highest this figure has been since 1890. (One upside: These older, educated couples are more likely to stay married than their younger, less-educated counterparts, said Brown.)

As more women delay marriage, it makes sense that the proportion of women who are married is at a record low of 47 percent. That is down from the 1950 peak of 65 percent. The percentages vary with socioeconomics. Educated, high-income Asian women, for example, are most likely to hear wedding bells. Uneducated, low-income black women are the least likely.

The “never-married” percentage of women has grown steadily for the last century to 29 percent. Among unmarried women, the proportion that are divorced or separated has grown, too, to 15 percent. The proportion of widowed women has remained stable.

Putting off marriage does not preclude cohabitation or having children, though. Couples live together and have children without marriage more often, said Brown. But cohabitation does not equal stability, as it does in some Western European countries.

“There, it means long-term parenting together,” she said. “But we’re not seeing that in the U.S. yet. The cohabiting couple here is still more likely to split up than is the married couple. Less than 10 percent of cohabiters last more than five years.”

“For us, it’s about starting with a clean slate,” said Adrian Radosav, 36, of his June 2014 nuptials with Ashley Brown, 28. “She’s paid her student debts and established her business as a wedding planner. We’ve saved our money. We’re still house-shopping, but I own a condo where we’ll live for now.”

Their yearlong engagement enables them to plan the soiree of their dreams, Radosav added.

“We’re having a big wedding at my family’s church in Chicago and reception near her family in Aurora. That’s a ‘want,’ not a ‘need.’ We could just go to city hall,” he said.

A European honeymoon will include visits to his relatives in Yugoslavia.

“We’ve seen other couples rush into marriage before they’re all set,” said Radosav, a pilot. “But marriage doesn’t fix things. It can just create more financial problems, which can lead to divorce.”

Nor does marriage cement a relationship, Radosav added.

“We feel no need to rush into marriage to ‘keep’ each other,” he said. “By the time we got engaged, she knew that I’m staying and I knew she’s staying.”

Source: Nowadays, it’s ‘last comes marriage’ (Chicago Tribune, January 1, 2014).

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

Facts: Husband and Wife divorced after 20 years of marriage. They have two children.

One issue at trial was the parties’ respective incomes for the purpose of determining child support.

Husband alleged Wife receives rent from her sister, who lives with Wife. However, Wife testified unequivocally at trial that she receives no rent from her sister because of her sister’s health problems.

There is no other proof in the record regarding whether Wife receives $500 per month in rental income from her sister.

When determining Wife’s income for child support purposes, the trial court found Wife receives $500 in rental income each month.

Wife appealed.

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

On appeal, Husband cited no proof in the record supporting the proposition that Wife receives $500 per month in rental income from her sister.

Because child support decisions retain an element of discretion, appellate courts review them using the deferential “abuse of discretion” standard. This standard is a review-constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court’s decision will be reversed. A trial court’s discretionary decision will be upheld as long as it is not clearly unreasonable and reasonable minds can disagree about its correctness. Discretionary decisions must, however, take the applicable law and the relevant facts into account. Accordingly, a trial court will be found to have “abused its discretion” when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party.

After reviewing the record, the Court stated:

This Court does indeed extend strong deference to trial courts’ credibility determinations, but here we are confronted with a specific finding of fact for which there is no evidence in the record which we can discern. That the Trial Court did not believe Wife when she denied receiving rent from her sister is not proof that Wife received $500 per month in rent from her sister. The mere allegation by Husband does not establish this as fact. Therefore, we reverse the Trial Court in its adding $500 per month in rental income to Wife’s income for child support purposes. Our holding on this issue requires that this case be remanded to the Trial Court for a new calculation of child support, this time excluding the $500 per month in alleged rental income from Wife’s sister for which there simply is no competent evidence in the record….

We reverse the Trial Court in its adding $500 in monthly rental income to Wife’s income for child support purposes as the evidence does not support this finding. We remand this case to the Trial Court for a new child support calculation.

Accordingly, the trial court’s determination as to Wife’s income for child support purposes was reversed.

Culver v. Culver (Tennessee Court of Appeals, Eastern Section, June 26, 2015).

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

Posted by: koherston | July 3, 2015

Photo of the Week: Wild Boar Encounter

I was hiking in the Smokies one day when I stumbled upon a family of wild boars who hadn’t detected my presence. This is the look I got when I stepped on a small stick and they discovered I was standing there. After a brief stare down (that felt like a long one), they ran away with their piglets in the opposite direction.

Wild Boar

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

Facts: Mother and Father are the parents of Child. They were divorced in 2012. Mother was named the primary residential parent with 256 days of parenting time. Father received 109 days of parenting time.

In 2013, Father petitioned to modify the parenting schedule to provide for equal time, i.e., 182.5 days to each parent. Father alleged a variety of material changes of circumstances, including that Mother had denied him the right to pick Child up from daycare and exercise parenting time with Child while Mother was working. In his petition, Father specifically stated he was not seeking to modify child support.

Tennessee child supportAfter a trial, the trial court granted Father’s petition, commenting that “[t]he Court views that the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

The trial court also modified the child support obligation.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court (2-1 on the child support modification).

Maximum participation and third party caregivers. The trial court stated its belief that “the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

Mother argued this finding is “unsupported by any statute or case law: it is not the law in Tennessee, nor should it be.”

Tennessee Code Annotated § 36-6-106(a) states that, “in taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10) [i.e., the best interest factors], the location of the residences of the parents, the child’s need for stability and all other relevant factors.”

Like the trial court, the unanimous Court rejected Mother’s argument, reasoning:

At the time of the trial, the parties’ child was in daycare. Mother argued that it was best for the child to have a set schedule and for the Father not to visit or remove her from daycare when his schedule allowed. Father agreed that when the child started kindergarten, she would need to remain at the school during school hours, but given his schedule and the increased distance between his home and Mother’s new home, he would visit with the child at daycare whenever he could. The trial court agreed that this would foster the relationship between the Father and the child and that the child’s need for stability was not undermined by Father’s occasional visits to the daycare. Under Tennessee Code Annotated § 36-6-106(a), and from the totality of the circumstances, we conclude that the trial court did not err in allowing Father to visit the child while she is in daycare or with a third party caregiver.

Modification of child support. Mother argued the fact that Father did not specifically petition for modification of child support precluded the trial court from addressing that issue.

Tennessee Code Annotated § 36-5-101(f)(1) requires only that a party file an “action for modification” in order to trigger review of child support.

Tennessee Code Annotated § 36-6-405 specifically addresses “modifying permanent parenting plans.” The statute provides that, “[i]n a proceeding for a modification of a permanent parenting plan, a proposed parenting plan shall be filed and served with the petition for modification and with the response to the petition for modification.” Likewise, § 36-6-402(3) defines a “permanent parenting plan,” in relevant part, to mean “a written plan . . . including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support.” Once the trial court enters a parenting plan, it must also enter a child support worksheet.

In a 2-1 decision, the Majority concluded:

Based upon: (1) the requirement that a proposed parenting plan form must be filed with a petition for modification of a permanent parenting plan; (2) the fact that the proposed form requires disclosure of the parties’ incomes; (3) the plan requires disclosure of a proposed child support amount; and (4) the fact that the trial court is required to include a child support worksheet with its parenting plan, we conclude that the filing of a petition to modify child visitation and/or the child’s residential parenting schedule triggers a review of the parents’ respective child support obligations….

[I]n light of Father’s timely submission of a parenting plan form, we conclude that Mother had notice that a modification of child support was possible (and, in fact, was the trial court’s duty to establish upon modification of parenting time)….

Mother was on notice that the issue of modification of child support was before the court based upon Father’s petition to modify visitation and the income disclosures contained in the attached proposed parenting form.

Accordingly, the trial court’s judgment was affirmed.

Dissent: Judge Stafford concurred on the third party caregiver issue but dissented on the child support modification, writing:

I must [] dissent from the majority’s holding that the trial court did not err in modifying Mother’s child support obligation, where no pleadings were filed notifying Mother that the issue would be tried, no opportunity to conduct discovery on the issue, and no opportunity to present evidence to the trial court concerning modification of child support….

Tennessee Rule and Regulation 1240-02-04-.01 specifically outlines the situations where the Child Support Guidelines “shall be applied” to establish or modify a child support award. These situations include divorce or separate maintenance actions, paternity determinations, actions involving orders for custody of child, “any other actions in which the provision of support for children is established by law,” and actions involving interstate enforcement of custody awards involving the previous outlined actions. Notably missing from the list of actions is an action to modify a residential parenting schedule….

Because Mother was clearly not given sufficient notice that a modification of child support was at issue and she was given no opportunity to respond to the trial court’s sua sponte decision to modify child support, I must conclude that the trial court proceedings failed to comply with due process. Accordingly, even assuming arguendo, that the issue of child support modification was triggered by the substantial change in the parties’ residential schedule, I would vacate the trial court’s judgment and remand for additional discovery and an evidentiary hearing on this issue. For this reason, I must respectfully dissent in part from the majority Opinion.

K.O.’s Comment: (1) Mother’s argument that the trial court’s third party caregiver finding is unsupported by any statute or case law is flat wrong. As the Court noted here, the trial court’s finding is consistent with the “maximum participation” provision of § 36-6-106(a), which was itself simply a restatement of the longstanding policy set forth in § 36-6-401. Moreover, it is entirely consistent with case law that preceded the “maximum participation” provision, e.g., Miller v. Miller, which hold that a child’s time with a parent should not be diminished in favor of time with third parties.

(2) Judge Stafford’s dissent raises valid concerns about due process, particularly in in light of Father’s affirmative statement in his petition that he was not seeking to modify child support and Mother’s reasonable reliance on that representation. I agree with Judge Stafford that the case should have been remanded for additional discovery related to the child support modification, which discovery was requested by Mother and denied by the trial court.

Leonardo v. Leonardo (Tennessee Court of Appeals, Middle Section, June 18, 2015).

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

On Friday, the U.S. Supreme Court reversed the decision of the Sixth Circuit Court of Appeals and declared Tennessee’s ban on same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution.

My recap of the Sixth Circuit opinion can be found here.

The Supreme Court’s decision was 5-4, with Justice Kennedy writing for the Majority and being joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. The Court writes:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, has not been reduced to any formula. Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them it’s respect….

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

In other words, the Court says the Constitution is a “living” document intentionally written in broad and flexible terms such that contemporaneous society should be considered when interpreting key constitutional provisions.

The Court holds the Fourteenth Amendment compels the conclusion that same-sex couples may exercise the right to marry. The rationale for this holding is fourfold:

1. The Court’s relevant precedents hold the right to personal choice regarding marriage is inherent in the concept of individual autonomy;

2. The Court’s relevant precedents hold the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;

3. Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and

4. The Court’s relevant precedents and the Nation’s traditions make clear that marriage is a keystone of our social order, noting the government bestows benefits to married couples on issues like taxation, inheritance and property rights, rules of intestate succession, spousal privilege in the law of evidence, hospital access, medical decisionmaking authority, adoption rights, the rights and benefits of survivors, birth and death certificates, professional ethics rules, campaign-finance restrictions, workers’ compensation benefits, health insurance, and child custody, support, and visitation rules.

On the third point above, the Court states:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also sever the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

Supporting the concept of a dynamic, “living” Constitution, the Court says:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era….

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.

Regarding the Fourteenth Amendment analysis, the Court concludes:

Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.

Addressing the dissenters’ argument that this fundamental right should be left to the democratic process, the Court responds:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights…. Thus, when the rights of persons are violated, the Constitution requires redress by the courts, notwithstanding the more general value of democratic decisionmaking….

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act…. This is why fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.

Supreme court gay marriageIn other words, the very reason we have a Constitution is that some rights are too important to leave up to the democratic process. Moreover, same-sex couples should not have to wait to have their rights recognized. The children of same-sex couples are growing up without their parents being married.

The Court also notes “these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

The Court concludes with what will surely be the most-quoted language from the opinion:

The Court, in this decision, holds that same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold — and it now does hold – that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may end your even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respected so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They asked for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.

The four dissenting Justices — Roberts, Scalia, Thomas, and Alito — each wrote separate dissenting opinions but everyone except Alito joined the dissent authored by Chief Justice Roberts. The main thrust of Roberts’s dissent is the philosophical disagreement over constitutional interpretation, i.e., “living” Constitution (a.k.a. loose constructionism) versus original intent (a.k.a. strict constructionism or originalism). Roberts writes:

The majority [] explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy….”

The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny then this right.” Whatever force that belief may have as a matter of moral philosophy, it has no [] basis in the Constitution….

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution injuring over all of recorded history cannot inhibit judicial policymaking, what can? … The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now….

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Justice Scalia embarrasses himself with a dissenting opinion not worthy of a Supreme Court justice. He characterizes the decision as a “judicial Putsch.” He says the Court’s reasoning “has descended from the discipline that legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” If he ever joined an opinion with such reasoning, he says he “would hide my head in a bag.”

Justice Thomas, himself an originalist, does no better, saying the concept of “liberty” in the Fourteenth Amendment refers “only to freedom from physical restraint,” which at least is (arguably) intellectually consistent with his belief in originalism. Later, he goes completely off the rails when he says “[s]laves did not lose their dignity (anymore than a lost their humanity) because the government allowed them to be enslaved… The government cannot bestow dignity, and it cannot take it away.” What planet is he on?

Justice Alito highlights the interpretive divide on the Court with this passage:

I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

K.O.’s Comment: (1) The 5-4 philosophical divide between the “living” Constitution justices and the “original intent” justices shows (a) how close we are to upending decades of constitutional law we now take for granted, e.g., the right to privacy, and (b) how much federal elections matter. A Republican president in 2016 is likely to appoint more originalists who will be confirmed by Republican senators and opposed by Democratic senators. Likewise, a Democratic president in 2016 is likely to appoint more “living” constitutionalists who will be confirmed by Democratic senators and opposed by Republican senators. Elections matter. Voter turnout matters.

(2) One curious aspect of this ruling is the Court did not spell out what constitutional test it was applying to a claim of marriage equality. The Sixth Circuit opinion (and those of the other Circuits who considered the issue) contained detailed analysis of “rational basis” review under the Due Process and Equal Protection Clauses. Although the Court relied on precedent that engaged in those analyses, the Court itself did not engage in such analysis like the inferior courts did.

(3) Tennessee lawyers should expect to see substantive changes in Tennessee family law, particularly in the areas of adoption and parental rights. Terrible cases like In re Hayden C. G-J. will thankfully be no more. In addition to the full panoply of parental rights, married same-sex couples will now be entitled to financial benefits such as Social Security survivor and disability benefits, joint tax returns, spousal health insurance rights, estate planning rights — the list goes on and on.

It is an exciting time to be a family law attorney in Tennessee.

(4) Check out Stephen Colbert’s lighthearted take on the opinion:

Tennessee flag

Tanco v. Haslam (United States Supreme Court, June 26, 2015).

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

Posted by: koherston | June 26, 2015

Photo of the Week: Portrait of a Wasp


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

Facts: Father and Mother were not in a relationship. Father testified they were not a regular couple. According to Father “It was just, you know, no couple things – just we were having sex. You know what I’m saying.”

Father violated probation and was re-incarcerated in May 2007. Mother gave birth to Child in January 2008.

While Father admitted he understood that “when you’re having unprotected sex, then people can get pregnant,” he maintained he “didn’t know she was pregnant until after the fact.” Father claimed he didn’t learn of Mother’s pregnancy until two or three days after Child was born. When he was specifically asked whether he had any knowledge that Mother was pregnant during her pregnancy, father replied, “Sir, I didn’t [have] no knowledge until after she had the baby.”

The trial court terminated Father’s parental rights on the grounds of wanton disregard for the welfare of the child.

Father appealed.

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

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines abandonment as follows:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

The term “child” is defined in Tennessee Code Annotated § 36-1-102(13) as “any person or persons under eighteen (18) years of age.” In the context of “wanton disregard for the welfare of the child,” Tennessee courts have extended the definition of “child” to include the period of pregnancy.

This case presents an issue of first impression in Tennessee, namely whether a Father can exhibit a wanton disregard for the welfare of the child if he does not know the child exists. The Court concluded he cannot, reasoning:

Logically, a person cannot disregard or display indifference about someone whom he does not know exists. In our opinion, while the statutory reference to “the child” can mean a child in utero, the wanton disregard language of Tennessee Code Annotated § 36-1-102(1)(A)(iv) must be construed to require that the father has knowledge of the child at the time his actions constituting wanton disregard are taken. In this case, the guardian ad litem did not prove that Father had such knowledge.

Accordingly, the trial court’s termination of Father’s parental rights was reversed.

In re Anthony R. (Tennessee Court of Appeals, Middle Section, June 9, 2015).

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

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