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.

Facts: This 47-page (!!!) opinion begins with the following statement: “This is an appeal from an extremely contentious divorce.”

The parties married in 1994 and had one child together. In July 2013, they were divorced. Among other things, the trial court found Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse that amount to Wife.

The trial court also entered a permanent parenting plan designating Wife as the primary residential parent and provided a residential parenting schedule.

Husband appealed those rulings, among others.

non-partyPrior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plants growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests.

The trial court modified the parenting plan and incorporated Wife’s proposed restrictions.

Husband filed a separate appeal from that order.

The two appeals were consolidated and heard together. Although virtually every possible issue was challenged on appeal, I think the only issues are worth mentioning (1) dissipation, and (2) conditioning Husband’s parenting time based on his girlfriend’s compliance with the parenting plan.

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

Dissipation. A party’s dissipation of marital or separate property is one of many factors a trial court may take into consideration in making an equitable division of a marital estate. While there is no statutory definition of dissipation, the term typically refers to the use of marital property for a purpose unrelated to the marriage, often to “hide, deplete, or divert” marital property after a marriage is irretrievably broken. The concept of dissipation is based on waste. In determining whether dissipation has occurred, the court must distinguish between dissipation and discretionary spending. While discretionary spending may be ill-advised, it is typical of the parties’ expenditures throughout the course of the marriage. Expenditures that constitute dissipation, on the other hand, are so far removed from normal expenditures that they can be characterized as wasteful or self-serving.

In determining whether dissipation occurred, Tennessee courts should consider the following: (1) whether the evidence presented at trial supports the alleged purpose of the various expenditures, and if so, (2) whether the alleged purpose equates to dissipation under the circumstances. The first prong is an objective test. To satisfy this test, the dissipating spouse can bring forward evidence, such as receipts, vouchers, claims, or other similar evidence that independently support the purpose as alleged. The second prong requires the court to make an equitable determination based upon a number of factors. Those factors include: (1) the typicality of the expenditure to this marriage; (2) the benefactor of the expenditure, namely, whether it primarily benefited the marriage or primarily benefited the sole dissipating spouse; (3) the proximity of the expenditure to the breakdown of the marital relationship; (4) the amount of the expenditure.

The evidentiary record contained copies of 41 checks Husband wrote to his girlfriend totaling $15,633.06. Husband was ordered to repay all of those monies to Wife. The Court reversed that ruling, reasoning:

Notwithstanding our conclusion that the evidence supports the trial court’s finding that the checks Husband wrote to [his girlfriend] constituted dissipation, we note that the trial court ordered Husband to reimburse Wife for the full amount of the checks. The trial court’s award ignores the fact that Husband also had an interest in the money. Here, because the trial court divided the parties’ marital assets equally, we conclude that Husband is entitled to one-half of the assets he dissipated. Therefore, we modify the amount of the trial court’s dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated assets.

Conditioning parenting time on actions of non-party. Husband argued the trial court erred in conditioning in his parenting time on his girlfriend’s compliance with the modified parenting plan. He argued that because his girlfriend is not a party to the lawsuit and, therefore, the trial court lacked jurisdiction to order her to submit to drug tests, it erred in requiring her compliance as a condition of his ability to exercise parenting time.

In a previous Tennessee case, Marlow v. Parkinson, 236 S.W.3d 744 (Tenn. Ct. App. 2007), the trial court enjoined the father from allowing the stepmother to interfere with the mother’s parenting obligations. On appeal, the Court reversed, stating the better practice would’ve been to join the stepmother as a party and issue an injunction against her. The Marlow Court noted that while many cases impose an obligation on a parent to police the activities of others while in the home where the child resides or in other locations when a parent is present with the child, the injunctions in those cases are tempered by the fact that the parent must have the ability to prevent the act that the trial court has prohibited.

Relying on this reasoning, the Court concluded:

[T]he trial court has essentially ordered Husband to police [his girlfriend’s] activities and require her compliance with the [parenting plan]. There is no evidence in the record that Husband has the authority or the ability to prevent [his girlfriend] from contacting the child. Likewise, there is no evidence that Husband has the authority or ability to require [his girlfriend] to submit to the drug tests or to prevent her from engaging in activities outside of his presence that would cause her to fail the drug tests. The better practice would have been to join [Husband’s girlfriend] as a party and issue an injunction against her. Thus, we conclude that the trial court erred in imposing restrictions on Husband that conditioned his parenting time on [his girlfriend’s] actions. On remand, the trial court is instructed to modify the [parenting plan] so that Husband’s parenting time is not conditioned on the actions of a non-party.

Accordingly, the trial court’s rulings on those two issues were reversed.

K.O.’s Comment: The appeal wasn’t all good news for Husband. As I mentioned above, there were many issues raised on appeal. One issue involved whether the girlfriend growing marijuana on Husband’s property constituted a material change sufficient to reconsider the parenting schedule. At the time of the underlying divorce trial in July 2013, the trial court found Husband’s girlfriend used marijuana. In the subsequent modification proceeding, Husband argued the discovery that his girlfriend grew her own marijuana rather than purchasing it was not a material change. Then the Court notes:

Perhaps more boldly, Husband contends that even if discovery of the marijuana plant is evidence of a material change in circumstance, is evidence of a positive change because [his girlfriend] is no longer buying drugs from drug dealers.

Surprisingly, that beautiful argument didn’t get very far with the Court, which concluded: “Our review of Husband’s testimony supports the trial court’s finding that Husband ‘has completely lost touch with reality.'”

Holdsworth v. Holdsworth (Tennessee Court of Appeals, Western Section, June 3, 2015).

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

Posted by: koherston | June 19, 2015

Photo of the Week: Sunrise in the Smokies


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

Posted by: koherston | June 17, 2015

Prenups: Not just for the wealthy

This article by Elizabeth Renter in USA Today may be of interest to readers of this blog.

Prenups: Not just for the wealthy

Talking about money is never easy, especially with someone you love and especially when you’re talking about keeping it for yourself.

While we commonly think of prenuptial agreements as contracts for the soon-to-wed wealthy, you don’t always enter a marriage with riches, or guarantees that the bliss will last. And even if differences or difficulties don’t arise, it might not be a bad idea to have such a plan in place.

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce. They may touch on things like spousal support (alimony), ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

“Since getting into the business and seeing what can happen to family relationships in a divorce, I’m not sure there is an instance where a prenup would be a bad thing,” says financial adviser Jeffery Cortright, president of Phase 2 Investment Advisers in Jenison, Mich.

While prenuptial agreements are normally thought of as a matter of assets, there are many other concerns that can be addressed in the contract, such as: the costs of raising a child, caring for a parent or going back to school; shopping habits and matters like credit card debt; the costs and proceeds of business ownership; tax liabilities; spousal and child support from previous relationships; and even how death or disability could affect the finances of your family.

A prenup, Cortright says, isn’t only for the wealthy, though having significant assets are certainly cause for such an agreement. Even when couples have less than they need or eventually want, the effort that goes into a prenuptial agreement can have benefits far beyond the financial.

When a prenup is a must-have

There are certain situations when a prenuptial agreement is a no-brainer. If one person is entering the marriage with significantly more money or assets than the other, or if one or both individuals have family money or inheritances, common knowledge says that a prenup is necessary.

But Cortright also suggests considering a prenup when couples plan on keeping parts of their finances separate. Many couples opt to have separate bank accounts and one joint account for paying household bills, for instance.

“It is important to honor the prenup in continuing separate maintenance of the accounts once married, however, because anything moved to joint ownership will be difficult to maintain accounting for access and growth or depletion,” says Cortright.

In other words, if assets (like money in the bank) are mixed, accounting for increases or losses in the event of divorce could get messy.

Why all couples may want to consider a prenup

Prenups may be the stuff of the wealthy, but perhaps they shouldn’t be. Settling on the terms of a prenuptial agreement takes uncomfortable discussions and ultimately a greater transparency between mates. These difficult talks about money can uncover things that could be disastrous if put off until several years into the marriage.

Arguments about money are a top predictor of divorce, according to a study from Kansas State University. No matter how much you make or how much debt you have, the researchers found, these arguments last longer, take longer to recover from, and include some of the harshest language.

“When a couple is ‘evenly yoked’ financially, having a prenup can help determine if there are any differences in money attitude,” Cortright says. “When one is a significant saver and the other a significant spender, it may be better to spell out the issues that could arise from those differences beforehand.”

Children can also present justification for a prenup. If one spouse enters the marriage with a child from a previous relationship, the prenup can stipulate financial responsibilities when it comes to the costs of raising a child. The same goes if one spouse is a caretaker for an aging parent.

For the most productive and civil pre-marital money conversations, a professional may be able to help.

“Meet with a non-biased financial professional — a fiduciary adviser would be best — and a couples counselor for coping with the transition to married life,” suggests Cortright. “Each meeting has the potential to show greater depth of your connection with your soon-to-be spouse.”

Although talking about money may be difficult, the conversations often pay off. The wooing and honeymoon phase of courtship can conceal potential problem areas like differing financial philosophies. Uncovering these differences could bring couples closer together when it matters most and lessen the chances of financial arguments and misunderstandings down the road.

Source: Prenups: Not just for the wealthy (USA Today, December 28, 2014).

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

dissipationFacts: Husband and Wife divorced after approximately 25 years of marriage.

Wife presented evidence at trial that, during the four years the parties were separated, Husband deposited $1,131,738 into his accounts. Husband presented evidence that his expenses totaled $959,144 during that time. Thus, the sum of $172,594 was not accounted for.

Husband testified he had no “hidden money” and he had “given [Wife] every wage statement, checking account, credit card statement, [and] investment account.” Wife acknowledged receiving those documents from Husband and said she had reviewed each document.

The trial court found Husband did not dissipate the missing $172,594. The trial court made the following findings in its oral ruling from the bench:

This issue of dissipation has been bothersome to the Court. There are funds that I’m satisfied have not been accounted for. But on the one hand, there’s so much income coming in here and being used for legitimate purposes that I can’t find that [Husband] has willfully done anything that would be considered wasteful during the pendency of this divorce.

And that is, as has been pointed out, the concept of dissipation is based on the idea of waste. Can’t find that there’s anything in the proof that would support that he’s wasted any of their assets.

There is some question about where a big chunk of this money has gone, a sizable chunk, but I can’t find that there’s any proof that would support that it has been used for some purpose unrelated to the marriage and that it was used in a way for intentional or purposeful misconduct….

Wife appealed.

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

In dividing marital property, Tennessee courts must consider whether either party has dissipated any of the marital assets. Dissipation of assets requires a showing of intentional, purposeful, and wasteful conduct.

The burden of proof in showing dissipation is on the party making the allegation that marital funds have been dissipated.

A party alleging dissipation cannot meet his or her burden simply by arguing that “since he or she does not know how the money was spent, dissipation must have occurred.”

Courts must also differentiate between dissipation and discretionary spending. Courts must distinguish between what marital expenditures are wasteful and self-serving and those which may be ill-advised but not so far removed from “normal” expenditures occurring previously within the marital relationship to render them destructive.

After the party alleging dissipation establishes a prima facie case that marital funds have been dissipated, the burden shifts to the party who spent the money to present evidence sufficient to show that the challenged expenditures were appropriate.

After reviewing the record, the Court stated:

[O]n the record presented we see no need to alter the burden placed upon Wife to prove that Husband dissipated marital funds. Husband produced all information he had available, which Wife acknowledged that she received, and Husband was subjected to cross-examination on the same. The court implicitly found the any unaccounted for funds were used for purposes related to the marriage and for the children and not for purposeful or intentional misconduct; significantly, the court did not find that Husband had done anything that would be considered wasteful…. [T]he absence of an explanation for absent funds does not establish dissipation.

The record does not preponderate against the court’s determination that the money was used primarily for familial purposes and that no dissipation occurred by either party.

Accordingly, the trial court’s ruling was affirmed.

Pair v. Pair (Tennessee Court of Appeals, Middle Section, May 29, 2015).

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

Posted by: koherston | June 12, 2015

Photo of the Week: Synchronous Fireflies at Elkmont

Synchronous Fireflies

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

Facts: Mother and Father are the parents of Child.

After they married, Mother discovered Father had a serious drinking problem. After several discussions, rehabilitation facilities, and warnings concerning Father’s addiction, Mother relocated with Child to New York to be near her family.

Several months later, the parties began divorce proceedings.

Father testified Mother should be responsible for payment of his travel expenses to visit Child because she decided to move to New York with Child; in the alternative, he testified the parties should equally split the cost of transportation.

The trial court designated Mother as the primary residential parent and awarded Father 80 days of parenting time per year, which amounted to one weekend per month with extended time during the summer and winter holiday. Father was ordered to pay child support in the amount of $697 per month. Mother was ordered to pay all costs associated with transporting Child to and from Tennessee for Father’s parenting time. Specifically, the trial court stated:

Although the Court understands that Mother moved out of the State of Tennessee using a very common-sense analysis, the Court still has to enter the analysis that she chose to have a child in the State of Tennessee and that she is bound to this state for that purpose. The Court does not begrudge Mother from moving and the Court finds that Mother did not make the wrong decision in moving. The Court finds that Mother acted in a way that she thought was appropriate to benefit the child. If a party moves out of the jurisdiction of this Court, it is generally accepted that the party moving will be responsible for the transportation of the child back to the state….

Mother appealed.

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

Mother argued the cost of transporting Child for visitation will exceed her annual award of child support. She contended she moved for Child’s benefit, that Father’s income is far greater than Mother’s, and both parties testified at trial that an equitable solution to the transportation expenses would be for each party to pay one-half of those expenses.

Assigning travel expenses for visitation is an issue on which the relative financial resources of the parties may be considered. Trial courts are vested with broad discretion in making determinations regarding transportation.

After reviewing the record, the Court concluded:

The trial court found that Father’s annual income totaled $75,000 based on his employment, and imputed an annual income of $50,000 to Mother based on her education, ability to secure a job, and the money donated from her relatives. Based on the relative financial status of the parties, the fact that both parents recommended to the court that they equally share the costs of transporting the child to facilitate Father’s parenting time, and realizing that requiring Mother to pay all costs of transportation will significantly deplete, if not exceed, the annual award of child support, which creates an unjust result upon Mother, … we modify the parenting plan to the extent that the parties shall share equally the costs of transporting the child.

Accordingly, the trial court’s ruling was reversed and modified to allocate the transportation expenses one-half to each party.

Keown v. Keown (Tennessee Court of Appeals, Middle Section, May 29, 2015).

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

Posted by: koherston | June 8, 2015

Facebook and Divorce

This story by WFTS News in Tampa Bay may be of interest to readers of this blog.

“Till death do us part,” unless Facebook causes you to divorce first

Logging onto Facebook numerous times daily has become a common routine for many people.

“There’s so much conversation going back and forth on Facebook,” St. Petersburg resident Janet Landt said.

For married couples, some of that conversation could lead to divorce.

“I can see where a lot of people would get themselves in trouble,” Landt said.

New research from Lake Legal, a law firm in the UK, shows Facebook is being cited in a third of all divorces.

“The very best evidence comes from Facebook,” divorce attorney Howard Iken said.

Iken is an attorney for Ayo and Iken Law Firm in Tampa Bay. He said he has seen a rise in cases using Facebook as a reason for divorce.

“I would say 30 to 40 percent of the cases have some sort of Facebook involvement,” Iken said.

In most cases infidelity is the main driver behind divorces and split-ups. With most people having smartphones loaded with social media apps like Facebook, it makes it easier for a spouse or a significant other to cheat even when they’re right next to each other.

“People multi-task,” Iken said. “People can be in close proximity and doing things that are completely unacceptable and completely inconsistent with being married.”

Things like getting back in touch with an old flame.

“It’s giving people the courage, the initiative, and the motivation to move forward with something else,” Iken said.

Iken also said Facebook may be the smoking gun needed in divorce cases.

“I personally have done some cases where I’ve submitted very thick books containing 100 percent Facebook posts to court, and a lot of the times it proves the exact point we’re trying to make in the case,” Iken said.

So next time you log in, just remember, what you do in the online fantasy world could have a very real effect on your home life and marriage.

Source: “Till death do us part,” unless Facebook causes you to divorce first (WFTS News, January 21, 2015).

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

Posted by: koherston | June 5, 2015

Photo of the Week: There’s Always One in Every Group


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

Facts: When Mother and Father divorced, Mother was designated the custodial parent of their two children and Father was awarded visitation. Father was ordered to pay child support of $350 per month.

Almost immediately, the parties began exercising equal parenting time via alternating weeks. They agreed to cut Father’s child support obligation in half because they were equally dividing parenting time, but never obtained a court order approving the child support modification.

Shortly thereafter, Mother moved to Nashville. The parties’ son moved in with Father and their daughter continue to live primarily with Mother. From October 2003 through December 2009, Father paid no child support, nor did he file a petition to modify child support.

In December 2009, the parties’ son moved to Nashville and began living with Mother. In January 2011, Father resumed paying child support of $433 per month.

Mother petition for contempt and modify child support. She alleged a child support arrearage of $52,956, comprised of $29,350 in unpaid child support plus interest in the amount of $23,606.

Father alleged that he made child support payments directly to the parties’ son in the amount of $725 per month through December 2009. Father alleged these direct payments to the parties’ son were for his housing, food, clothing, transportation, healthcare, and education.

The trial court gave Father a $250 monthly credit for “necessaries” during the 76 month period when the parties’ son lived primarily with Father. Applying this credit, the trial court awarded Mother child support arrears in the amount of $23,983.

Mother appealed.

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

A child support order is a judgment, enforceable in the same manner as any other judgment issued by a court of law. Tennessee Code Annotated § 36-5-101(f)(1) provides:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state, and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed…. If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support.

Thus, once child support payments become due, they cannot be altered, reduced, or forgiven by Tennessee courts.

Although a trial court may not retroactively modify a parent’s support obligation, numerous Tennessee appellate court decisions grant trial courts the authority to offset child support arrears based on the obligor’s expenditures to provide necessaries for the child.

In order to maintain a successful claim for necessaries, the child support obligor must prove: (1) that the child needed the particular goods or services that were provided, (2) that the obligee had a legal obligation to provide the goods or services, (3) that the obligee failed to provide the goods or services, and (4) the actual cost of these goods or services.

The rationale is that a credit against the a child support arrearage is not a retroactive modification of support but is given in recognition that the obligor parent provided the support the court ordered in the first place.

After reviewing the record, the Court reasoned:

Mother further argues that Father did not prove that Mother had a legal obligation to provide necessaries for son. However, the original Divorce and Judgment clearly states that “the parties shall enjoy joint legal custody of the parties’ minor children with [Mother] having physical custody of the parties’ minor children.” Moreover, in Tennessee, children have a right of support from both parents, who are equally and jointly charged with their care, nurture, welfare, education and support. Parents have a duty to support their children until the children reach the age of majority or graduate from high school, whichever occurs later. Under Tennessee law, Mother has a legal obligation to support her son, and Mother’s testimony clearly reflects the parties’ agreement for each to provide support and necessaries for the child in his or her custody….

[A]ny credit for necessaries sounds in contract and must be commenced within six years after the necessaries were provided…. Because Mother’s petition to modify support was filed in April 2013, Father is time-barred from receiving any credit for necessaries prior to April 2007. The trial court credited Father $250 per month for 76 months beginning in October 2003 and ending in January 2010. Because Father is not entitled to receive a credit prior to April 2007, we vacate the award and remand to the trial court to make a fresh determination of the arrearages from April 2007 forward.

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

K.O.’s Comment: By my calculations, this decision will increase the principal balance of Father’s arrearage by $10,250.

Martin v. Martin (Tennessee Court of Appeals, Western Section, May 20, 2015). In a

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

Facts: Mother and Father are the unmarried parents of Child.

The trial court determined Father’s parentage and established a temporary parenting schedule based on the child’s medical needs, young age, and Mother’s breastfeeding schedule.

Months later, the parties modified the temporary parenting schedule by agreement.

A little over a year later, the final hearing was held. Father requested equal parenting time. The trial court found equal parenting time was “not feasible” and not in Child’s best interest. The trial court further found the best interest factors set forth in Tennessee Code Annotated § 36-6-106(a) weighed “heavily” in favor of Mother.

Father was awarded 68 days of parenting time. Mother was given sole decision-making authority after the trial court found the parties did not communicate effectively.

Father appealed.

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

Father argued the trial court’s ruling was contrary to the provision in Tennessee Code § 36-6-106(a) requiring a court to establish a parenting schedule allowing both parents the “maximum participation possible” in the child’s life consistent with the best interest factors.

Tennessee courts have broad discretion to fashion parenting plans that best serve the interests of the children. The Child Support Guidelines presume that children will typically reside with the noncustodial parent a minimum of 80 days per year. Various cases in Tennessee have referred to this as “standard parenting time.”

After reviewing the record, the Court concluded:

The parenting plan adopted by the trial court differs from a “standard” parenting plan in that it does not provide for overnight parenting time during the week; most of the holiday parenting time is for less than 24 hours; there is no provision for a fall break; and the Christmas vacation parenting time is limited to less than 24 hours on Christmas Eve and Christmas Day. With the restrictions on Father’s parenting time, it cannot be said that he is able to enjoy the “maximum participation possible” in his child’s life. While the trial court’s decision may contain reasons for rejecting Father’s proposed week-on/week-off schedule, there is no justification in the record for the minimal amount of parenting time awarded to Father in the parenting plan adopted by the trial court.

We reverse the trial court’s decision on parenting time and remand the matter with instructions to increase Father’s parenting time to at least the minimum 80 days presumed by the [Child Support] Guidelines.

Accordingly, the trial court’s parenting schedule was reversed and the matter remanded for reconsideration.

K.O.’s Comment: Add this to the growing list of cases where the “maximum participation possible” provision was cited as the basis for reversing a parenting schedule. In the cases where the Court of Appeals has upheld such schedules in the face of a “maximum participation” argument, the trial courts made detailed findings as to why such a schedule was necessary under the circumstances. In order for such parenting schedules to have a chance of being upheld, trial courts need to make sure detailed findings are made. Similarly, lawyers must make sure to provide the trial court with evidence from which such findings can be justified. While it’s certainly not impossible for such a schedule to withstand a “maximum participation” argument, it has gotten harder.

In re Grace N. (Tennessee Court of Appeals, Middle Section, May 14, 2015).

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

Posted by: koherston | May 29, 2015

Photo of the Week: River Otter About to Dive

River Otter about to plunge

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

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

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

The trial court found Wife was not cohabitating with anyone.

Husband appealed.

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

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

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

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

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

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

After reviewing the record, the Court concluded:

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

Accordingly, the trial court was affirmed.

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

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

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

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

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

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

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

Father appealed.

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

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

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

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

After reviewing the record, the Court concluded:

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

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

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

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

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

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