Herston on Tennessee Family Law | Knoxville Divorce, Child Custody, Child Support, Alimony and Matrimonial Law Attorney | Knoxville matrimonial and divorce lawyer's take on developments in Tennessee divorce, family law, child custody, child support and related legal subjects.

Posted by: koherston | April 1, 2013

Tennessee Supreme Court Clarifies Standard of Review in Termination of Parental Rights Cases: In re Taylor B.W., et al.

East Tennessee child custody lawyers Facts: The parties divorced in March 2002. In November 2002, Mother purported to give Father a flu vaccination but instead injected him with a chemical used to euthanize animals. In May 2003, Mother pleaded guilty to the attempted second degree murder of Father and received a sentence of twelve years to be served at thirty percent (meaning that she would be eligible for release after approximately four years). The children were seven and five years old at the time Mother was sentenced.

In 2004, while Mother was incarcerated, the parties amended their parenting plan by agreement to provide visitation with the children’s maternal grandmother one weekend per month to allow the children to visit Mother in prison. It also provided for a gradual return to the original parenting schedule upon Mother’s release from prison.

Several years later, Father married Stepmother. They subsequently filed an action to terminate Mother’s parental rights and to obtain a stepparent adoption.

After the trial, the trial court concluded that Father and Stepmother had proved by clear and convincing evidence that Mother had been sentenced to a period of incarceration of twelve years when the children were under eight years of age, which is a ground for terminating Mother’s parental rights per Tennessee Code Annotated § 36-1-113(g)(6).

The trial court then considered the children’s best interest. The trial court found no proof that Mother posed a danger to the children and that she had done nothing but attempt to have a relationship with the children. Still, after weighing its findings as to the factors in Tennessee Code Annotated § 36-1-113, the trial court concluded that termination of Mother’s parental rights was in the best interests of the children.

Mother filed a motion to alter or amend in which she argued the trial court improperly allocated the burden of proof to her as to certain statutory factors. The trial court agreed and reexamined its findings. The trial court then determined that “[b]ecause the case is so close,” Father and Stepmother failed to prove by clear and convincing evidence that it was in the best interests of the children to terminate Mother’s parental rights. The trial court therefore entered an amended order denying Father and Stepmother’s petition to terminate parental rights.

Father and Stepmother appealed. The Court of Appeals found “it is clear the [t]rial [c]ourt’s first ruling that termination was in the best interest[s] of the children was supported by clear and convincing evidence.” The Court of Appeals reinstated the trial court’s first order terminating Mother’s parental rights.

Mother appealed to the Tennessee Supreme Court.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals and affirmed the trial court.

The Tennessee Supreme Court concluded:

Having reviewed the record, we agree with the trial court that none of the factors support termination of Mother’s parental rights. We therefore cannot conclude that Father has proven by clear and convincing evidence that it is in the best interests of the children to terminate Mother’s parental rights. . . .

We reverse the judgment of the Court of Appeals and affirm the trial court’s amended order concluding that Father and Stepmother have not shown by clear and convincing evidence that terminating Mother’s parental rights is in the best interests of the children.

Most importantly, the Supreme Court, after noting that in the past it has applied differing standards of review in termination of parental rights cases, clarified the standard of review as follows:

We now make clear that we review findings of fact by a trial court in civil actions de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. When a trial court has made no finding of fact, however, we conduct a de novo review to determine where the preponderance of evidence lies. Following our evaluation of the facts, we review the trial court’s order to determine whether the facts amount to clear and convincing evidence that the termination of parental rights is in the best interests of the children. Clear and convincing evidence is “evidence in which there is no serious or substantial doubt as to the correctness of the conclusions drawn from the evidence.”

K.O.’s Comment: Both the trial court and the Supreme Court commented on the lack of expert proof. The trial court said:

[T]here was no expert testimony about the psychological or emotional impact that such a change in allowing the Mother more time in the children’s lives would have. All the court had was testimony from the Stepmother and the children about their fear of what may happen during a visit with Mother. Expert evidence would have been helpful.

The Supreme Court concurred, stating:

The trial court correctly reflected that expert testimony could have provided the trial court with a basis for determining the authenticity of the children’s fear of Mother and a prediction of the psychological effect of required visitation.

In re Taylor B.W., et al. (Tennessee Supreme Court, February 21, 2013).

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

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Posted in Child Custody, Evidence, Parental Rights, Post-Divorce Issues, Procedure | Tags: Family law, Knoxville Tennessee, Legal burden of proof, Tennessee, Termination of parental rights

Posted by: koherston | March 28, 2013

Parental Relocation Denied in Murfreesboro Child Custody Case: Johnson v. Johnson

East Tennessee divorce lawyers Facts: The parties divorced after 16 years of marriage. By agreement, Mother was named the primary residential parent and Father received 122 days of visitation each year.

A little over a year later, Mother sent Father a notice of relocation announcing her intention to relocate to California so she could attend school to become a marine biologist. Father filed a petition opposing Mother’s proposed relocation and requested that he be named the primary residential parent.

Prior to the trial, Mother married a man she had been dating who lives in California.

At trial, Father introduced testimony from an expert witness who testified:

I believe it would cause her substantial emotional harm to move to California. Tennessee is her home. Her father is here. Her friends are here. Her school is here. She has established real — her teachers, her brother, real connections with people that, in essence, she would have to give up for long extended periods of time if she were to move to California.

Largely relying on the expert testimony, the trial court found it was not in the child’s best interest to relocate to California because of the specific threat of serious harm.

Mother appealed.

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

When divorced individuals have children and the primary residential parent desires to relocate more than one hundred miles from the other parent within the state, the relocating parent is required to notify the other parent. The other parent can then choose to file a petition within thirty days opposing the removal of their child by the relocating parent. If such a petition is filed, the court is to consider certain factors to determine whether the relocating parent should be permitted to relocate with the child. Tennessee Code Annotated § 36-6-108(d)(1) provides as follows:

The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

(A) The relocation does not have a reasonable purpose;

(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or

(C) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

If a court finds one or more of the grounds specified above, the statute then directs the court to make a best interest determination.

After reviewing the trial court record, the Court found:

In this case . . . Father presented affirmative evidence in the form of expert testimony that the move would pose a specific threat of serious harm to the child if she relocated to California with Mother. Mother did not object to Father’s expert at trial, and she had ample opportunity to cross examine her. Moreover, Mother did not retain an expert to testify that relocating to California would not pose a threat of specific and serious harm to the child, as she could have done. . . .

Reviewing all the evidence before the trial court, we do not believe the evidence preponderates against the court’s finding that the parties’ child would suffer a specific and serious harm as a result of relocating to California and that the harm is significantly more involved and serious than the normal temporary unhappiness and adjustment associated with most moves for children.

We now turn to the court’s finding that it is not in the child’s best interest to relocate to California. Evidence was presented that the child is attached to her older brother, who testified that he is close with his sister and that he intends to remain in Father’s house even after high school. There was also evidence that the child gets along well with Father’s current wife and her two sons. Both Father and Father’s current wife testified about how they all enjoy spending time together and how well everyone gets along. Taking into consideration the expert’s testimony together with the other evidence presented at the hearing, we conclude the evidence does not preponderate against the trial court’s finding that if Mother relocates to California, it is in the child’s best interest to change the primary residential parent from Mother to Father rather than to relocate the child to California.

The relocation was denied. The parenting plan was modified to declare Father the primary residential parent.

Johnson v. Johnson (Tennessee Court of Appeals, Middle Section, January 31, 2013).

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

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Posted in Child Custody, Evidence, Post-Divorce Issues | Tags: Child custody, Family law, Knoxville Tennessee, Parental relocation, Tennessee

Posted by: koherston | March 25, 2013

Is Divorce Bad for Children?

This recent article by Hal Arkowitz and Scott Lilienfield in Scientific American may be of interest to readers of this blog.

Is Divorce Bad for Children?

The break-up may be painful, but research reveals that most kids adjust well over time

Many of the 1.5 million children in the U.S. whose parents divorce every year feel as if their worlds are falling apart. Divorcing parents are usually very concerned about the welfare of their children during this troublesome process. Some parents are so worried that they remain in unhappy marriages, believing it will protect their offspring from the trauma of divorce.

Yet parents who split have reasons for hope. Researchers have found that only a relatively small percentage of children experience serious problems in the wake of divorce or, later, as adults. In this column, we discuss these findings as well as factors that may protect children from the potentially harmful effects of divorce.

Rapid Recovery

Divorce affects most children in the short run, but research suggests that kids recover rapidly after the initial blow. In a 2002 study psychologist E. Mavis Hetherington of the University of Virginia and her then graduate student Anne Mitchell Elmore found that many children experience short-term negative effects from divorce, especially anxiety, anger, shock and disbelief. These reactions typically diminish or disappear by the end of the second year. Only a minority of kids suffer longer.

East Tennessee child custody attorneys Most children of divorce also do well in the longer term. In a quantitative review of the literature in 2001, sociologist Paul R. Amato, then at Pennsylvania State University, examined the possible effects on children several years after a divorce. The studies compared children of married parents with those who experienced divorce at different ages. The investigators followed these kids into later childhood, adolescence or the teenage years, assessing their academic achievement, emotional and behavior problems, delinquency, self-concept and social relationships. On average, the studies found only very small differences on all these measures between children of divorced parents and those from intact families, suggesting that the vast majority of children endure divorce well.

Researchers have consistently found that high levels of parental conflict during and after a divorce are associated with poorer adjustment in children. The effects of conflict before the separation, however, may be the reverse in some cases. In a 1985 study Hetherington and her associates reported that some children who are exposed to high levels of marital discord prior to divorce adjust better than children who experience low levels. Apparently when marital conflict is muted, children are often unprepared when told about the upcoming divorce. They are surprised, perhaps even terrified, by the news. In addition, children from high-discord families may experience the divorce as a welcome relief from their parents’ fighting.

Taken together, the findings suggest that only a small percentage of young people experience divorce-related problems. Even here the causes of these lingering difficulties remain uncertain. Some troubles may arise from conflict between Mom and Dad associated with the divorce. The stress of the situation can also cause the quality of parenting to suffer. Divorce frequently contributes to depression, anxiety or substance abuse in one or both parents and may bring about difficulties in balancing work and child rearing. These problems can impair a parent’s ability to offer children stability and love when they are most in need.

Grown-up Concerns

The experience of divorce can also create problems that do not appear until the late teenage years or adulthood. In 2000 in a book entitled The Unexpected Legacy of Divorce: A 25 Year Landmark Study, Judith Wallerstein, then at the University of California, Berkeley, and her colleagues present detailed case studies suggesting that most adults who were children of divorce experience serious problems such as depression and relationship issues.

Yet scientific research does not support the view that problems in adulthood are prevalent; it instead demonstrates that most children of divorce become well-adjusted adults. For example, in a 2002 book, For Better or For Worse: Divorce Reconsidered, Hetherington and her co-author, journalist John Kelly, describe a 25-year study in which Hetherington followed children of divorce and children of parents who stayed together. She found that 25 percent of the adults whose parents had divorced experienced serious social, emotional or psychological troubles compared with 10 percent of those whose parents remained together. These findings suggest that only 15 percent of adult children of divorce experience problems over and above those from stable families. No one knows whether this difference is caused by the divorce itself or by variables, such as poorer parenting, that often accompany a marriage’s dissolution.

In a review article in 2003, psychologists Joan B. Kelly of Corte Madera, Calif., and Robert E. Emery of the University of Virginia concluded that the relationships of adults whose parents’ marriages failed do tend to be somewhat more problematic than those of children from stable homes. For instance, people whose parents split when they were young experience more difficulty forming and sustaining intimate relationships as young adults, greater dissatisfaction with their marriages, a higher divorce rate and poorer relationships with the noncustodial father compared with adults from sustained marriages. On all other measures, differences between the two groups were small.

Bouncing Back

Even though children of divorce generally do well, a number of factors can reduce the problems they might experience. Children fare better if parents can limit conflict associated with the divorce process or minimize the child’s exposure to it. Further, children who live in the custody of at least one well-functioning parent do better than those whose primary parent is doing poorly. In the latter situation, the maladjusted parent should seek professional help or consider limiting his or her time with the child. Parents can also support their children during this difficult time by talking to them clearly about the divorce and its implications and answering their questions fully.

Other, more general facets of good parenting can also buffer against divorce-related difficulties in children. Parents should provide warmth and emotional support, and they should closely monitor their children’s activities. They should also deliver discipline that is neither overly permissive nor overly strict. Other factors contributing to children’s adjustment include postdivorce economic stability and social support from peers and other adults, such as teachers.

In addition, certain characteristics of the child can influence his or her resilience. Children with an easygoing temperament tend to fare better. Coping styles also make a difference. For example, children who are good problem solvers and who seek social support are more resilient than those who rely on distraction and avoidance.

The good news is that although divorce is hard and often extremely painful for children, long-term harm is not inevitable. Most children bounce back and get through this difficult situation with few if any battle scars.

Source: Is Divorce Bad for Children? (Scientific American, March 19, 2013).

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

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Posted in Child Custody, Divorce, Divorce Tips, Post-Divorce Issues | Tags: Child custody, Divorce, Family law, Parent

Posted by: koherston | March 21, 2013

Unclean Hands Leads to Loss of Property in Sparta Divorce: Jolley v. Jolley

Knoxville divorce lawyers Facts: After 28 years of marriage, Wife filed for divorce. Husband and Wife owned a piece of property with unrelated Third Party. A few months after the divorce was filed, Husband transferred his interest in the property to his sister and brother-in-law.

Third Party then filed a partition action that named Husband and Wife as co-owners of the partition property.

A few months later, Wife filed a petition for criminal contempt in the divorce action alleging that Husband transferred his interest in the partition property without Wife’s consent. Wife requested that she be awarded the proceeds from the sale of the partition property.

The parties then reached an agreement in the divorce proceeding as to the equitable division of the marital estate. The agreement awarded specific assets to Wife and awarded the “balance of the parties’ assets not specifically mentioned herein” to Husband. It did not specifically mention to partition property by name. It also dismissed Wife’s pending contempt petition. The trial court entered the final decree of divorce that incorporated the parties’ agreement.

Husband was subsequently dismissed from the partition action because he claimed he had no interest in the partition property. The court ordered that the partition property be auctioned and set another hearing to to determine how the proceeds would be distributed.

Husband then sought to set aside the final decree of divorce on the grounds that Wife was asserting — in the partition action — an interest in the partition property that Husband claimed was awarded to him. After a hearing on Husband’s motion, the trial court found:

That [Husband] deliberately violated Tennessee Code Annotated § 36-4-106 and that he comes to the court with unclean hands and therefore, the court does not find that he is entitled to relief from the original judgment. . . . The court further found that there was no ambiguity in the orders and that proceeds from the [partition] property was [Wife's] separate property and was not marital property. The court further found that when he transferred his interest in the property to [his sister and brother-in-law] he committed a contemptible charge based upon statute and would not be permitted to come back and claim an interest in that property. The court finds that he has waived any interest he would have and does not petition the court with clean hands.

Husband appealed.

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

Tennessee Code Annotated § 36-4-106(d) lists several temporary injunctions which commence upon the filing of a complaint for divorce including the following:

(1)(A) An injunction restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court.

The doctrine of “unclean hands” is a tenet of courts of equity based on the principles that “he who seeks equity must do equity and that he who has done inequity cannot have equity.” The doctrine enables a court to prevent a party from profiting from her own misconduct. Decisions regarding the proper application of the doctrine of unclean hands are heavily fact-dependent and are addressed to the considerable discretion of the trial court.

After reviewing the record, the Court reasoned:

Because Husband transferred the [partition] property in violation of Tennessee Code Annotated § 36-4-106(d), the trial court did not abuse its discretion in finding the unclean hands doctrine should prevent Husband from asserting an interest in the property under the catch-all provision of the final decree of divorce. The court did not err in awarding any proceeds realized from the partition action to Wife.

In other words, Husband cannot have it both ways. Because Husband committed contempt of court by transferring his interest in the partition property in violation of the statutory injunction, and because he later claimed he no longer had an interest in the partition property, he was not allowed to come back and change his position to assert that he (really, really this time!) had an interest in the property.

The trial court was affirmed.

Jolley v. Jolley (Tennessee Court of Appeals, Middle Section, January 31, 2012).

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

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Posted in Contempt, Divorce, Procedure, Property Classification, Property Division | Tags: Contempt of court, Family law, Knoxville, Knoxville Tennessee, Marital Property, Separate Property, Tennessee

Posted by: koherston | March 18, 2013

Retroactive Child Support Denied in Clarksville Divorce: Carroll v. Carroll

Facts: After eleven years of marriage, the parties separated in 2007, and Husband filed for divorce. Three years later in 2010, Wife filed an answer and counter-complaint for divorce. At that time, Husband was ordered to pay temporary child support of $628 per month. Wife sought to recover retroactive child support back to the date of separation three years prior.

Knoxville child support lawyer At trial, the evidence showed that Husband made monthly payments on a loan for an automobile that Wife drove and that he made these payments from the time the parties separated until the loan was paid off before the trial. The monthly car payments were $667, and both Wife and Husband were responsible for this debt. Husband testified that Wife agreed he would make these car payments during the separation in lieu of child support. Wife denied the existence of any agreement, but conceded she would have made the car payments from any child support Husband gave her.

The trial court denied Wife’s claim for retroactive child support, finding:

Wife testified that if she had received child support during the parties’ separation, she would have used it to pay the [car] payment. As such, over the objection of counsel for Wife, the Court finds this to be the same thing and does not find an order of retroactive child support to be appropriate in this case.

Wife appealed.

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

Every parent is obligated to support his or her children until they reach the age of majority. When a marriage is dissolved, courts are authorized by statute to provide for the future support of the parties’ minor children. Courts are directed to apply the child support guidelines promulgated by the Department of Human Services as a rebuttable presumption when determining the amount of child support to award.

Tennessee’s Child Support Guidelines provide that unless the rebuttable presumption provisions have been established by clear and convincing evidence, a judgment for initial support must include an amount of monthly support dating back to when the parties separated.

After reviewing the record, the Court concluded:

Husband’s monthly car payments of $667 exceeded Husband’s child support obligation of $628 by $39. We calculate that by making 54 car payments (March 2006 — August 2010) in the amount of $667 that exceeded his monthly obligation by $39, Husband has paid $2,106 more than he was required to pay in child support. We agree with the trial court that it would have been inappropriate to require Husband to pay an additional $628 per month in retroactive child support.

Husband made the payments directly instead of paying Wife, who would have used the same money to make the same payments. To hold that these payments did not constitute child support would be to elevate form over substance.

The trial court was affirmed.

Carroll v. Carroll (Tennessee Court of Appeals, Middle Section, January 30, 2013).

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

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Posted in Child Support, Divorce | Tags: Child support, Family law, Tennessee

Posted by: koherston | March 14, 2013

Termination of Alimony in Murfeesboro Divorce Reversed: Averitte v. Averitte

Knoxville alimony lawyer Facts: Husband and Wife divorced in 2011. The final decree of divorce incorporated the parties’ marital dissolution agreement (“MDA”), which required Husband to pay alimony to Wife in the amount of $1,200 per month. The specific terms of the alimony provision were as follows:

SPOUSAL SUPPORT: Husband agrees to pay Wife periodic alimony in the amount of $1,200 per month for a period of 7 years which is 84 months with the first such payment to be due on February 15, 2011 and a like payment to be due on the 15th day of each and every month thereafter for a total of 84 payments.

Shortly after the divorce, Wife remarried. Husband then filed a motion to terminate his alimony obligation. Although the MDA did not state that Husband’s alimony obligation would terminate upon Wife’s remarriage, Husband argued that termination was required as a matter of law because the MDA specifically referred to the alimony award as “periodic alimony.” Tennessee Code Annotated § 36-5-121(f) provides that alimony in futuro is “also known as periodic alimony,” and such an award “shall terminate automatically and unconditionally upon the death or remarriage of the recipient.”

After a hearing, the trial court entered an order granting Husband’s motion to terminate his alimony obligation. The trial court noted that “periodic alimony” is one of the four types of alimony available in Tennessee, and because the MDA referred to the obligation as “periodic alimony,” the court concluded that Husband’s obligation was subject to the statutory rules for periodic alimony “even though” the alimony obligation described was for “a period of time” and “a fixed amount.”

Wife appealed.

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

Tennessee law recognizes several distinct types of spousal support, including (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. This case only involves alimony in futuro and alimony in solido because neither party argued that the award described in the MDA was rehabilitative or transitional alimony.

The first type of spousal support, alimony in futuro, is intended to provide support on a long-term basis until the death or remarriage of the recipient. An award of alimony in futuro remains in the court’s control for the duration of the award and may be modified upon a showing of substantial and material change in circumstances.

The second type of support, alimony in solido, is also a form of long-term support. However, it differs from alimony in futuro due to the definiteness of the award. The total amount of alimony in solido is set on the date of the divorce decree and is either paid in a lump sum payment of cash or property, or paid in installments for a definite term. An award of alimony in solido is considered a final judgment, not modifiable, except by agreement of the parties, and it does not terminate upon death or remarriage.

The nature of the alimony award becomes important when one party seeks to modify or terminate the award, as alimony in futuro is modifiable and alimony in solido is not. Discerning the nature of the award can be challenging if the language of the decree is not sufficiently descriptive, because both types of alimony are typically comprised of court-ordered periodic payments. The mere fact that the obligation is payable in installments is neither conclusive nor determinative regarding its status as in solido or in futuro. Both alimony in futuro and alimony in solido are forms of long term or more open-ended support.

Whether alimony is in futuro or in solido is determined by either the definiteness or indefiniteness of the sum of alimony ordered to be paid at the time of the award. Alimony in solido is an award of a definite sum of alimony. Alimony in solido may be paid in installments provided the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. Alimony in futuro, however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid.

The Court reversed the trial court, reasoning:

The fact that the obligation was to be paid in installments is “neither conclusive nor determinative regarding its status as in solido or in futuro.” The “determining factor . . . is the definiteness or indefiniteness of the amount ordered to be paid.” We conclude that Husband’s alimony obligation was definite and ascertainable at the time of the award because the MDA did not provide any contingencies upon which Husband’s obligation would terminate. It required him to pay $1,200 per month for seven years, “for a total of 84 payments,” which indicates that the parties intended the obligation to be for a definite term and a definite sum. “Tennessee law has long recognized that an award of monthly payments of alimony for a definite period, without any conditions or terminating factors, is an award of alimony in solido.” Although the MDA did not specify the total amount to be paid, the full amount of alimony payable—$100,800—can be definitely determined by simply multiplying the monthly sum ($1,200) times the designated duration (84 months). It is “not necessary” for a decree to set forth the total amount of an award of alimony in solido as a lump sum, because it can be easily determined by mathematical calculation.

Because Husband’s alimony obligation was definite and calculable when awarded, with no contingencies, and therefore, it was alimony in solido, which is considered a final judgment, not modifiable except by agreement of the parties, and it does not terminate upon death or remarriage. Consequently, the trial court erred in granting Husband’s motion to terminate his alimony obligation upon Wife’s remarriage.

K.O.’s Comment: The Tennessee Supreme Court said the following in Self v. Self, and it bears repeating here:

Obviously, great care should be exercised by counsel and trial courts in crafting decrees. The decree should reflect the court’s findings with regard to the circumstances of the parties, the purpose or expected results of the relief granted, and the specific benefits granted to and obligations imposed upon the respective parties. In addition to the rights and obligations of the parties with respect to each other, the liability for taxes, the rights of creditors, and other significant consequences may depend upon the preciseness of the language employed in the decree. Construction by the courts of uncertain and ambiguous language is a poor substitute for careful articulation.

Averitte v. Averitte (Tennessee Court of Appeals, Middle Section, January 29, 2013).

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

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Posted in Alimony/Spousal Support, Marital Dissolution Agreement, Post-Divorce Issues | Tags: Alimony, Divorce, Knoxville Tennessee, Lump sum, Tennessee

Posted by: koherston | March 11, 2013

Judicial Notice of Disputed Facts Leads to Reversal in Madisonville Child Support Case: In re Estate of Miller

Knoxville child support lawyer Facts: Husband and Wife divorced in 1975. They had one child for whom Husband was ordered to pay child support.

Husband died in 2010. Ex-Wife filed a claim against Husband’s estate for unpaid child support and interest totaling $68,145.24. Husband’s widow asserted that Husband’s child support obligation had been satisfied either in full or in part.

Ex-Wife testified that she had never received any child support from Husband. She acknowledged that she had not attempted to recover the arrearage during Husband’s lifetime. Husband’s widow related her belief that Husband had assisted the child financially. She testified that Husband had provided spending money and helped pay for the child’s education and other expenses. However, Husband’s widow admitted having no knowledge regarding Husband’s child support payments to Ex-Wife or how much child support, if any, had been paid to Ex-Wife. She presented no documentation to evidence satisfaction of the child support obligation.

The now-adult child testified that Husband had given her financial assistance over the years, but she admitted having no knowledge regarding any child support payments made by Husband to Ex-Wife. No further testimony was given at the initial hearing, and the proof was closed by the trial court.

The trial court took it upon itself to review the original file from the 1975 divorce. That petition contained a petition for contempt filed by Ex-Wife in 1978 that alleged Husband ”has quit making his child support payments and is more than four (4) months behind.” Husband filed a responsive pleading denying the allegation. The file included no final resolution to the 1978 contempt matter. Ex-Wife stated that nothing has been done to collect past-due child support since 1978 because no success resulted from the 1978 petition.

The trial court denied Ex-Wife’s claim against Husband’s estate, finding:

[Ex-Wife] is unreliable and is not able to offer competent testimony on whether, when, or how much child support was paid. She has contra[di]cted herself both in court and in her pleadings on those issues. . . .

Child support was paid by [Husband] to [Ex-Wife] in some amount.

The court would be required to speculate regarding how much child support was or was not paid.

There is no reliable proof that child support was not paid after 1978.

Ex-Wife appealed.

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

Ex-Wife argued the trial court committed reversible error by taking judicial notice of disputed facts contained in the court file from the original divorce action.

Tennessee Code Annotated § 34-1-102(b) obligates parents to support a child until the child reaches 18 years of age. The fact that a child has reached the age of majority, however, does not relieve a obligor parent from liability for unpaid child support.

Tennessee Code Annotated § 36-5-101(f)(1) states:

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. . . . 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. . . . All interest that accumulates on arrearages shall be considered child support.

Tennessee Code Annotated § 36-5-101(f)(3) provides that a child support arrearage in existence at the time an order for child support would otherwise terminate continues in effect until the unpaid arrearage and costs are satisfied. A court may enforce such orders for arrearage under its power to punish for contempt. Tennessee Code Annotated § 36-5-103(g) states: “Judgments for child support payments for each child subject to the order for child support pursuant to this part shall be enforceable without limitation as to time.” Tennessee Code Annotated § 36-5-101(f) further supports the conclusion that the parent to whom child support is owed is entitled to seek reimbursement for a child support arrearage even if the child has reached majority by the time the suit is filed.

The party seeking a judgment for delinquent child support has the burden of proving the amount due. The burden may be met by showing the order to pay and the fact of nonpayment. Once this burden is met, the burden shifts to the defendant. A petition to recover unpaid child support is essentially a proceeding to collect a judgment. In such cases, the plaintiff has the burden of proving the judgment and its validity, but the defendant has the burden of proving affirmative defenses, including payment.

Rule 201 of the Tennessee Rules of Evidence provides that a court may take judicial notice of any adjudicative fact “not subject to reasonable dispute” and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” This limitation means, almost by definition, if a party offers anything other than dilatory or pretextual reasons for opposing the taking of judicial notice, the court should view the fact as subject to reasonable dispute and decline to take judicial notice of it.

After reviewing the record, the Court concluded:

In this action, it appears that the trial court took judicial notice from the original divorce file the fact that child support payments allegedly had been made, as asserted in the answer and letter to clerk, because there is no other direct evidence in the record demonstrating that child support payments had been made. Taking judicial notice of these disputed allegations from a prior, unresolved proceeding was improper. Ex-Wife offered more than “dilatory or pretextual reasons for opposing the taking of judicial notice.” The trial court abused its discretion when it took judicial notice of the disputed facts. . . .

Based upon the judicial notice, the trial judge made credibility determinations and decided the claim on its merits. Because he has made these finding and rulings, we believe it would be appropriate for another judge to hear this matter on remand.

Thus, the trial court was reversed and the case assigned to a different trial judge on remand.

In re Estate of Miller (Tennessee Court of Appeals, Eastern Section, January 22, 2013).

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

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Posted in Child Support, Divorce, Evidence, Procedure | Tags: Child support, Family law, Family Law Attorney, Knoxville Tennessee

Posted by: koherston | March 7, 2013

Surrogacy Agreement Upheld in Nashville Child Custody Dispute: In re Baby

Knoxville Child Custody Attorney Facts: An Italian couple (“Intended Parents”) entered into a surrogacy agreement with a Tennessee woman (“Surrogate”) and her husband (Surrogate’s Husband). The surrogacy provided that Intended Parents desired to have a child biologically related to one of them, that Surrogate and her husband did not want to have a parental relationship with any child born pursuant to the agreement, that Surrogate and her husband would not attempt to form any parent-child bond and child born as a result of the agreement, and that Intended Parents would take physical custody of the child immediately upon birth.

Surrogate then became pregnant as a result of artificial insemination with the sperm of Intended Father. Shortly before the child’s birth, all parties to the agreement filed a joint petition to declare the parentage of Intended Parents and ratify the surrogacy agreement. The trial court declared Intended Parents to be the legal parents of the unborn child immediately upon the child’s birth.

The child was born. All parties agreed it would be in the child’s best interest for Surrogate to nurse the child for a few days. Six days later, Surrogate filed a petition to prevent the child from leaving he country. The trial court denied the petition and directed that physical custody of the child be given to Intended Parents.

Surrogate also filed a motion to alter or amend the prior order establishing the parental rights of Intended Parents and ratifying the surrogacy agreement. The trial court denied this motion, stating:

[T]he court finds that there was a valid surrogacy agreement entered into with full knowledge of all relevant facts by the parties. The parties acted upon this agreement in good faith until shortly after the birth of the child. The Surrogate received well over $30,000 in reimbursement under the agreement. She carried the child to term pursuant to the agreement. At this point, she wishes to change her mind. She knew what the surrogacy agreement required. She, only weeks prior to the child’s birth[,] co-petitioned the court to ratify the agreement.

Surrogate appealed.

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

Surrogate first argued the trial court lacked subject matter jurisdiction to uphold the surrogacy agreement.

Tennessee Code Annotated § 36-1-102(48)(A)(ii) defines ”surrogate birth” as “[t]he insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent.” Subsection (C) of the same statute provides that the statute shall not “be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.” The Court describes subsection (C) as “a curious provision” whereby the Tennessee legislature “kicks the can down the road” by leaving it to a subsequent legislature or the courts to authorize surrogacy birth contracts.

The Court concluded:

Tennessee Code Annotated § 36-1-102(48)(A) expressly defines such contracts and does not make them illegal. Rather, the statute “reflects a neutral legislative stance as to the validity and enforceability of surrogacy arrangements.” This is a subject better left to the legislature and we, therefore, decline to find such agreements to be against public policy. Because such contracts violate no law, we will enforce them until the legislature instructs otherwise.

Surrogate then argued the trial court abused its discretion in enforcing the surrogacy agreement because Intended Mother and Intended Father were not married at the time the parties entered into the surrogacy contract (Intended Parents married 20 days after the birth of the child). Surrogate’s argument is rooted in the language of the applicable statutory definition of surrogate birth: “The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent.” Tenn. Code Ann. § 36-1-102(48)(A)(ii) (emphasis added). Because Intended Mother and Intended Father were not married at the time the parties entered into the surrogacy contract, Surrogate asserted that the contract violates Tenn. Code Ann. § 36-1-102(48)(A)(ii) and, therefore, the trial court erred in enforcing the contract.

The trial court rejected this argument, writing:

It would be absurd to adopt the position that this was not a surrogate birth because the Intended Parents were married 20 days after the birth of the child. The obvious intent is for the child to be raised in a stable, loving home by committed parents. That is exactly what was intended and what is before this court. . . . The court agrees with counsel that “to have the child’s entire destiny hinging on the timing of her parents’ marriage is absurd.”

The Court of Appeals agreed, stating:

Surrogate knew the marital status of the intended parents when she signed the surrogacy agreement. For over a year, the parties acted in reliance on the surrogacy agreement, and Surrogate accepted considerable amounts of money from the intended parents. The parties jointly petitioned the trial court for approval of their agreement, and the order entered by the trial court was approved by all of the parties. Moreover, Intended Mother and Intended Father married within a few weeks of the child’s birth. Surrogate’s last-minute change of heart does not provide a reason to invalidate the final judgment approving the surrogacy contract.

The trial court was affirmed.

In re Baby (Tennessee Court of Appeals, Middle Section, January 22, 2013).

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

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Posted in Adoption, Child Custody, Parental Rights | Tags: Family law, Knoxville Tennessee, Surrogacy

Posted by: koherston | March 4, 2013

Post-Divorce Parental Relocation Reversed in Memphis: Toyos v. Hammock

Knoxville child custody lawyer Facts: Child was born in Memphis to unmarried parents. A subsequent paternity test confirmed Father’s paternity. Mother was named the primary residential parent, and Father was awarded 90 days of visitation each year. Child support and joint decision-making authority were established.

Several years later, Mother notified Father of her intent to relocate Child from Memphis to Rockvale, a suburb of Murfreesboro. Mother was pregnant and about to marry her fiancé who lived in Rockvale.

Father filed a petition in opposition to Mother’s proposed relocation. He claimed the parties spent substantially equal time with Child such that the statutory presumption favoring Mother’s relocation should not arise. He further alleged that a material change of circumstances had occurred and that it was in Child’s best interest that he be designated the primary residential parent.

Mother denied Father’s allegations. Mother proposed a parenting schedule that reduced Father’s parenting time from 90 days to 80 days.

The trial court bifurcated the the modification issue from the relocation issue and tried the modification issue first.

After a thirteen (!) day trial on the modification issue, the trial court did not mince words in finding against Father, describing his testimony as “incredible” and his arguments as “frivolous” and “arrogant.” The trial court found the parties had not spent substantially equal time with Child. The trial court also found that Mother spent substantially more time with Child than Father and that the reason for her proposed relocation was both reasonable and in Child’s best interest. Mother’s relocation was found to be a material change of circumstances but a change of custody was found not to be in Child’s best interest. Father’s parenting was adjusted to accommodate the distance created by Mother’s relocation. Father appealed.

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

Father argued the trial court erred in ruling on the Mother’s relocation request. Father claimed the relocation issue was bifurcated from the modification issue — which was the only issue tried — and that he was denied an opportunity to present proof regarding relocation. Mother admitted that bifurcation occurred, but she asserted that Father was afforded opportunities to present evidence related to relocation.

First, the Court affirmed the trial court’s refusal to change custody, writing:

Overall, we find the evidence supports the trial court’s conclusion that a modification of the primary residential parent is not in [Child's] best interest. The evidence at trial indicated that both Mother and Father love [Child]. . . . Both parents are capable of providing for [Child's] basic and educational needs, but Mother has been her primary caregiver, while Father often relies upon others.

The Court then turned to the relocation issue.

Tennessee Code Annotated § 36-6-108 provides that if the parents spend substantially equal time with the child, no presumption in favor of or against relocation arises. Instead, the court determines whether to allow relocation based upon the best interests of the child, considering the relevant factors set forth in Tennessee Code Annotated §§ 36-16-108(c)(1)-(11). If, however, the parents do not spend substantially equal time with the child, the parent spending the greater amount of time with the child shall be permitted to relocate unless the court finds the relocation has no reasonable purpose, relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody, or the parent’s motive for relocating is vindictive, in that it is aimed at defeating or interfering with the visitation of the parent spending less time with the child.

On the relocation issue, the Court reversed the trial court, reasoning as follows:

Tennessee has long recognized that a parent’s right to custody is a fundamental liberty interest which may not be abridged absent due process of law. Father and his counsel reasonably believed they would be allowed to present relocation-specific evidence at a second hearing. However, due to the trial court’s discrediting of Father’s testimony and its conclusion that a second hearing would be “redundant[,]” no such hearing ever occurred. In ruling on the relocation issue after limiting the evidence to that concerning modification, the trial court effectively denied Father his day in court. We find no waiver of the relocation issue by Father, as the trial court offered Father the opportunity to schedule a relocation hearing only after it had announced its decision to allow Mother’s relocation.

The trial court’s order permitting Mother to relocate with Child was vacated. The case was remanded to the trial court for an evidentiary hearing on the issue of Mother’s relocation. Child was permitted to reside with Mother in Rockvale pending resolution of the issue on remand.

K.O.’s Comment: You just read a very condensed version of a 57-page opinion. That’s right — 57 pages! Next time you see me, buy me a beer and we’ll call it even.

Toyos v. Hammock (Tennessee Court of Appeals, Western Section, January 17, 2013).

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

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Posted in Child Custody, Post-Divorce Issues, Procedure | Tags: Best interests, Child custody, Knoxville Tennessee, Parental relocation

Posted by: koherston | February 28, 2013

Helping Children Endure Divorce

This recent article by Marlene Moses in the Tennessee Bar Journal contains good advice for divorcing parents.

Helping Children Endure Divorce

When in the midst of a divorce, it is understandable for a party to become entrenched in what is felt to be a personal battle and preoccupied with details such as where to live, how to maximize the financial settlement, and how to pay the legal fees. Sometimes, this preoccupation leads to losing sight of what is going on with one’s children, who are unquestionably also directly affected by that parent’s decision to divorce.

If the divorce practitioner receives little feedback from a client about the children, it is all too easy to focus exclusively on meeting the client’s personal goals with minimal awareness of how doing so will truly affect the client’s children. However, it is up to us to actively solicit feedback from our clients about their children and educate our clients about how to help their children navigate the transition. We should remain mindful that our clients’ children are “shadow clients,” and we should strive to fine-tune our advice and strategies accordingly.

The Effects of Divorce on Children

There has been an abundance of research concluding that growing up in a single-parent household is less than ideal and can be detrimental to a child’s well-being. Even in low-conflict divorces, children can suffer in a myriad of ways. The obvious immediate repercussion is the disruption of life as they have known it. Children not living with both biological parents are more likely to experience psychological struggles and academic problems. Long-term effects of divorce on children can include increased susceptibility to substance abuse. Teenagers with divorced parents are 50 percent more likely to drink alcohol than those with married parents. Children of divorce also are more likely to experience divorces of their own down the road.

Research shows that the effects of divorce on a child depend to some extent on the age of the child at the time of divorce, the child’s gender and personality, and the degree of conflict between the parents. Infants may react to changes in parents’ energy level and mood by losing their appetite or spitting up more. Preschool-aged children often blame themselves for their parent’s divorce, viewing it as the consequence of their own misbehavior. They may regress and exhibit behavior such as bedwetting and may become uncooperative or aggressive. School-aged children are old enough to understand that they are hurting because of their parents’ separation. They may feel rejected by the parent who left. It is not uncommon for children in this age group to exhibit psychosomatic symptoms such as headaches or stomachaches. Adolescents may become excessively moody, withdrawn, depressed or anxious. They may favor one parent, blaming the other for the divorce.

Some research even suggests gender differences. Certain studies have found that children raised primarily by a parent of the same sex tend to have greater success adjusting to the divorce than those who are raised primarily by a parent of the opposite sex. Although there is little correlation between the sheer amount of time that divorced fathers spend with their children and those children’s overall adjustment, children of divorce whose fathers spend quality time actively engaged in their lives and activities tend to perform better in school and exhibit fewer behavioral problems. Father involvement has been linked to children feeling less at the mercy of the world and more willing to behave responsibly.

The quality of a child’s relationship with the primary parent is a particularly strong indicator of the child’s successful adjustment following a divorce. It also goes without saying that day-to-day involvement of both parents lets a child know that he or she is loved. This does not mean, however, that an equal or near-equal division of parenting time is necessarily the best option. For instance, preschool-aged children may feel they are being punished when they are moved from one household to another. Older children, too, may dislike this type of arrangement if it intrudes on their daily lives. Some parents with equal or near-equal division of time, or who engage in multiple transfers of the children back and forth in a short period of time, fight more often because they are in constant contact, which in turn causes the children to suffer. A child’s well-being is particularly affected by the amount and intensity of conflict between the parents. Marital conflict is associated with increased anxiety and depression, and poorer overall social and academic adjustment in children.

So, how can we use this research to educate our clients with the goal of helping ensure that their children adjust with minimal side-effects to the divorce?

Guidelines for Helping Children

1. Telling children about the divorce.

Ideally, children should be told about the divorce as soon as a definite decision has been made to get divorced. Children need to be told before any changes occur, and they should be informed of the changes to expect, such as moving to a new house or school, or beginning a parenting schedule. If possible, both parents should tell the children together, with the parents agreeing on the details of the explanation ahead of time. It is important to present a united front as much as possible.

Children are entitled to know why their parents are divorcing, and the reasons given should be simple and honest. Telling children that it is too complicated to explain or that they would never understand the reasons could leave them wondering whether they might be able to change their parents’ plans. Blanket reassurances do not always work, and children will likely need an opportunity to talk about why they feel at fault for the divorce, oftentimes on more than one occasion. Parents need to acknowledge the reasons for the child’s concerns, such as “Yes, you are right that your father and I do argue about how much time we each feel you should spend on the computer or with friends or watching television, and I can see why this makes you worried that the divorce is your fault.” Then, words of reassurance need to follow immediately, such as: “… but you didn’t cause the breakup …” If a child’s concerns are not cavalierly dismissed but are instead truly heard and discussed, without the parents becoming defensive or dismissive, the child is more likely to feel assured that indeed he or she was not the cause of the parents’ divorce. The child who feels at fault could also feel responsible for fixing the problem. Therefore, children need a clear statement from each parent that they cannot prevent or reverse the divorce. They also need to be reassured that while parents and their children do not always get along, they do not stop loving each other and do not get divorced from each other.

Finally, it may be tempting to place blame on the other parent for the divorce, but such defensiveness sends a message that the children need to take sides, which only serves to increase their anxiety, guilt and stress.

2. Encouraging a relationship with the other parent.

Because of the inherently adversarial nature of divorce, it may seem counter-intuitive to a litigant not to seek to limit the other parent’s time with the children. The “winner” gets the kids, and the “loser” does not. In fact, a better legal strategy may be to encourage and facilitate time and a continuing relationship with the other parent. Tennessee’s custody statute requires the court to consider, in making a custody determination, “each parent’s past and potential … willingness and ability … to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents … to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent … to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order.”

In addition to what the law tells us, social research tells us that children are better off with the influence and presence of both parents in their lives, absent extraordinary circumstances. It is important for both parents to be mindful of this and to strive to create a parenting plan that provides this for their children.

Hand-in-hand with encouraging and facilitating a meaningful relationship with the other parent is showing respect for the other parent. It is harmful to a child for either parent to make derogatory remarks about the other parent. The child can be made to feel as if he or she is expected to take the side of the parent who is disparaging the other parent. This behavior by a parent violates the statutory standard parenting rights set forth in all Tennessee parenting plans. Such rights include “the right to be free of unwarranted derogatory remarks made about the parent or his or her family by the other parent to the child or in the presence of the child.” Acting contrary to this mandate can lead to a finding of contempt and sometimes even a change of custody in extreme circumstances.

3. The parenting schedule.

It is usually best for each parent’s time with the children to be scheduled at regular and predictable times. Once the schedule is created, it is important that it be honored. Children may see missed visits, especially without notification, as rejection. Children crave consistency, and routines provide a sense of security and may help ease fears of abandonment. If possible, the parents should work together to ensure that the same routines and rules are followed at each home. It is important to resist the temptation to spoil the children during or following a divorce by not enforcing limits or allowing children to break rules.

Handovers between the two households can be particularly stressful for children, let alone parents. Children often feel guilty and are reluctant to admit to one parent that they are thinking about or missing the other parent. As a result, children are often anticipating the emotional turmoil of the handover back to the other parent instead of enjoying the time remaining before the transfer. The divorce practitioner can counsel clients to minimize the number of handovers each week. Furthermore, it may help for the handovers to occur at a neutral location such as the child’s school, as this is likely to cause less stress than handovers occurring on either parent’s home turf. The parents will need to commit to making handovers free of arguments and hostility.

Although the typical parenting plan mentions only in passing that each parent has the statutory “right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations,” it may be worthwhile to be proactive and help clients work through the logistics. For instance, it can be wise to avoid phone calls at emotionally charged and more intrusive times such as meal time or bedtime. It is not uncommon for a parent to feel that the ex-spouse is interfering with the phone calls in a multitude of ways, so a word to the wise: address these potential issues before they arise.

Finally, in crafting the parenting schedule, thinking outside the box can make for much more meaningful periods of parenting time. When children have been asked what they would change about their scheduled times with each parent, some have responded that they do not necessarily care to be shuffled back and forth with their siblings as a group. Children enjoy and benefit from one-on-one time with each parent. However, frequently, for the purposes of organizing the schedule, children are indeed “lumped together as a homogenous group, irrespective of their ages and needs.” Tennessee’s standard parenting plan form treats the children as a group, so we lawyers need to be more proactive and consider suggesting to our clients that separate parenting times for each child be carved out if feasible for the family.

Conclusion

Given the proof that parents have the power to affect their children’s reactions to divorce, it is necessary that parents put their children’s welfare ahead of their own conflict with their spouse or former spouse. We as divorce practitioners also have the power to influence our clients’ behavior by educating them and helping them craft parenting plans that minimize as much as possible the negative effects of divorce on our clients’ children.

Source: Helping Children Endure Divorce (Tennessee Bar Journal, January 2013).

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

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Posted in Child Custody, Divorce, Divorce Tips | Tags: Child, Divorce, Family, Family law, Parent, Parenting time, Tennessee

Posted by: koherston | February 25, 2013

Court Split 2-1 on Inappropriate Marital Conduct in Tennessee Divorce: Longanacre v. Longanacre

Knoxville divorce lawyer Facts: The parties married in 2002 and had no children. In 2009, Wife fell down the stairs at home, struck her head, and sustained a traumatic brain injury. As a result, Wife has difficulty reading, writing, and completing tasks, and suffers debilitating migraine headaches and seizures.

Husband, a soldier, was deployed overseas in 2010. After three months by herself (where she had difficulty caring for herself), Wife moved to Florida to live with her parents.

Husband emailed Wife suggesting they separate. Wife filed a petition for legal separation so she could prolong her benefits under Husband’s health insurance. Husband counter-sued for divorce on grounds of inappropriate marital conduct.

Husband alleged Wife committed inappropriate marital conduct through her “reckless money management,” “extreme jealousy,” and alienation of Husband from his other family members. On these latter points, Husband testified that Wife caused him to become alienated from his daughter, ex-wife and other family members. Husband testified that he had not been able to see his nephews and nieces for years, that he had not been able to have a visit with his daughter since 2005, and that his Wife became jealous when he scheduled to have lunch with his daughter in 2007. Husband testified that Wife was often jealous. Wife did not refute Husband’s testimony in this regard.

The trial court dismissed Husband’s counterclaim for divorce after finding he did not prove inappropriate marital conduct by Wife. The trial court granted Wife a legal separation for two years. Husband appealed.

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

Tennessee Code Annotated § 36-4-101(a)(11) defines inappropriate marital conduct as:

The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct[.]

Inappropriate marital conduct can be found when either spouse “is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper.” Thus, inappropriate marital conduct is established when either or both of the parties have engaged in a course of conduct which (1) caused pain, anguish or distress to the other party, and (2) rendered continued cohabitation improper, unendurable, intolerable or unacceptable.

Husband argued that he established grounds for divorce such that it was error to dismiss his counter-petition. The Court disagreed, stating:

Although the trial court did not make specific findings of fact, the evidence cited by Husband does not preponderate against the determination that Wife was not guilty of inappropriate marital conduct. . . . The record supports the trial court’s determination that Wife did not engage in a course of conduct that caused pain and anguish to Husband or which made continued cohabitation unacceptable. Thus, we affirm the trial court’s dismissal of Husband’s counterclaim for absolute divorce.

Husband then argued the trial court erred by granting a legal separation to Wife when there was no hope of reconciliation. After noting the discretionary nature of such a decision and the deferential standard of review, the Court said, “[W]e cannot conclude that the [trial] court abused its discretion in granting a legal separation and not a divorce.”

Thus, the trial court was affirmed.

Judge Clement filed a concurring opinion to note his opinion that a spouse is not afforded a right to divorce without proving one of the statutory grounds for divorce. Until then, according to Judge Clement, Husband is not entitled to complain on appeal that the trial court abused its discretion by granting Wife a legal separation for two years, regardless of whether reunification was possible or probable.

Judge Cottrell filed a dissenting opinion stating:

In this case, [Husband] established that his wife interfered with his relationship with his daughter and the rest of his family, testimony that went unrebutted. In my opinion, that evidence, together with the mutual desire to separate, establish grounds for divorce.

K.O.’s Comment: I agree with Judge Cottrell. “Inappropriate marital conduct” is a term of art broadly defined and (I think) liberally interpreted. For example, compare this case to the similar factual scenario presented in Earls v. Earls. I think the reasoning used by the majority in this case is inconsistent with that employed by the Court in Earls regarding how liberally “inappropriate marital conduct” is to be interpreted. Applying that liberal interpretation to the unrebutted evidence cited by Judge Cottrell has me siding squarely with the dissent on this one.

Longanacre v. Longanacre (Tennessee Court of Appeals, Middle Section, January 16, 2013).

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

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Posted in Divorce, Grounds for Divorce | Tags: Divorce, Grounds for Divorce, Inappropriate marital conduct, Knoxville Tennessee, Legal separation, Tennessee

Posted by: koherston | February 21, 2013

Termination of Parental Rights Not in Child’s Best Interest in Murfreesboro: In re Madilene G.R.

Facts: After a brief sexual relationship with Father ended, Mother discovered she was pregnant. When she informed Father of the pregnancy and her belief that he was the biological father, Father responded stating he was skeptical as to the paternity of Child. Mother requested no support from Father for any pregnancy-related expenses during her pregnancy and Father offered no support.

Knoxville divorce lawyer During the sixth or seventh month of her pregnancy, Mother contacted Mr. and Mrs. H. and presented the idea of them adopting Child. Mother informed them that Father was not interested in being a parent and would not oppose the adoption. Neither Mother nor Mr. and Mrs. H informed Father of their plan for a private adoption. Mr. and Mrs. H were present at the hospital and when Child was released they took Child home with them.

Shortly thereafter, Mother surrendered her parental rights to Child. At the surrender, Mother provided the name and phone number of Father and the address of Father’s parents. That same day, the trial court entered an order of partial guardianship granting custody to Mr. and Mrs. H (hereinafter referred to as “the Guardians”). Father received no notice of the hearing or the order of guardianship.

Father was contacted by the Guardians’ attorney. Father requested a paternity test to determine if he was Child’s biological father. By agreement, a DNA test was performed. The test results confirmed that Father was the biological parent.

Father filed a Rule 60 Motion to Set Aside the Order of Partial Guardianship seeking to be named the guardian and to obtain custody of Child. On the same day, the Guardians filed a Petition for Adoption and Termination of Parental Rights.

After a trial, the trial court denied Father’s Rule 60 motion and granted the petition filed by the Guardians to terminate Father’s parental rights and adopt Child. As grounds for terminating Father’s rights, the trial court found, inter alia, that for more than four consecutive months prior to the filing of the petition, Father willfully failed to support Child and only made minimal attempts to visit or have any relationship with Child. The trial court also found termination was in Child’s best interest. Thus, the trial court terminated Father’s parental rights. Father appealed.

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

Willful failure to support. Tennessee Code Annotated § 36-1-102(1)(A)(i) provides that, for purposes of terminating parental rights, “abandonment” means:

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

The Court concluded:

The record reflects that Father was gainfully employed during the four months preceding the filing of the petition to terminate his parental rights, he knew the child was expected to be born [], he knew how to contact Mother at all times relevant to these proceedings, and he had the ability to financially support the child but failed to do so.

Based on the foregoing, the Court voted 2-1 to find that the Guardians had proven this ground for terminating Father’s parental rights. Judge Cottrell dissented from this finding, writing that “[t]he evidence set out in the majority opinion does not, in my opinion, meet the Constitutionally required standard [of clear and convincing evidence].”

Child’s best interests. Once a statutory basis for termination has been found, the trial court is to engage in a best interest analysis using the statutory factors set forth at Tennessee Code Annotated § 36-1-113(i)(1)-(9). The nine statutory factors are not exclusive or exhaustive, and other factors may be considered by the court. Moreover, not every statutory factor need apply and a finding of only a few significant factors may be sufficient to justify a finding that termination of the parent-child relationship is in the child’s best interest. Finally, the child’s best interest is to be determined from the perspective of the child rather than the parent.

While the trial court cited a variety of factors in support of its conclusion, they all revolved around the concept that Father had never visited Child and had no relationship with Child.

The Court was clearly troubled by the trial court’s reasoning, stating:

The trial court is correct that Father has never visited the child, but we find this adverse ruling perplexing for it was the Guardians and the trial court who refused to allow Father to have any visitation whatsoever at anytime. . . . [W]hen he called Mother about the child she only told him that she no longer had custody and refused to tell him who did or how to contact them. . . .

Father was not even permitted to have supervised visitation in spite of the fact there was no evidence that Father had a mental or emotional status that would be detrimental to the child, there was no evidence the physical environment of Father’s home was not healthy or safe, there was no evidence of criminal activity in his home, and there was no evidence of abuse of alcohol or use of controlled substances as may render Father unable to care for the child in a safe and stable manner. All of these factors are to be considered when parental visitation is at issue and yet, even though it was stipulated that Father was the child’s father, he was never permitted to have any contact of any kind at any time with his child. . . .

The record readily reveals that a cloak of secrecy was cast over the guardianship proceeding by Mother and the Guardians and yet this secret proceeding is being used by the Guardians to establish that it is in the child’s best interest to terminate Father’s parental rights because he did not visit the child prior to the creation of the guardianship.

Ever since the order of guardianship was entered, Father’s repeated attempts to visit the child were denied by the trial court upon the Guardians’ repeated objections and yet, the fact Father did not arrange visitation prior to the guardianship, when the child was only one month old, is the alpha and omega upon which the trial court’s best interests conclusion is based.

Based on the foregoing, a unanimous Court held the evidence did not clearly and convincingly establish that it was in Child’s best interest to terminate Father’s parental rights. The case was remanded to the trial court with instructions to dismiss the Guardians’ petition.

In re Madilene G.R. (Tennessee Court of Appeals, Middle Section, January 10, 2013).

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

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Posted in Adoption, Parental Rights | Tags: Adoption, Child support, Knoxville Tennessee, Parent, Tennessee, Termination of parental rights

Posted by: koherston | February 18, 2013

Trust Account Not Required in Nashville Child Support Modification: Carter v. Carter

Knoxville divorce lawyer Facts: The parties were divorced, and Father was ordered to pay child support of $966 per month. Father was also ordered to pay one-half of Child’s tuition at a private school. A few years later, Mother petitioned to modify the child support on the grounds that Father’s income had increased substantially and her mother — Child’s maternal grandmother — had been subsidizing Mother’s portion of Child’s private school tuition but was no longer doing so.

At the hearing, the proof showed that Child’s maternal grandmother had given Child annual gifts of money ($10,000 or $11,000) each year since the divorce.

The trial court increased Father’s child support obligation based on his increased income but denied Mother’s request that Father pay all of Child’s private school tuition. The trial court also ordered Mother to create a separate trust account for the use and benefit of Child in the amount of $66,000 (representing six annual gifts of $11,000 from the maternal grandmother). Mother was to hold this money in trust until Child’s 21st birthday. Mother appealed.

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

Mother argued the trial court erred in requiring her to establish a trust account for all gifts from the maternal grandparent to Child.

In the context of making a child support award, a trial court has some discretion as to whether and how much child support should be placed in a trust or restricted account for the benefit of the child.

Tennessee Code Annotated § 34-1-102(a) provides that “[f]unds of a minor held by a guardian shall not be expended to relieve or minimize the obligation of the parent or parents to support the minor.”

The trial court’s only stated justification for the trust requirement was as follows: “[T]he problem I’ve always had whenever children have money on deposit, parents tend to want to use that money to pay things that really, as a parent, they should be paying.” The trial court also stated, “I don’t want to impute to [Mother] any bad motive, or anything, I think she’s done the right thing. . . .”

The Court agreed with Mother’s argument, writing:

The only issues presented to the court were whether Father’s income justified an increase in child support and whether Father should be required to pay a greater share of the child’s education-related expenses. Father did not petition to have a trust account established or put on any evidence to support the need for such an account. . . .

While this court agrees with Father that a trial court has the authority to establish a trust where circumstances so require, we find no evidence of any such circumstances in this case. . . .

We, therefore, conclude that the trial court erred in going outside the issues before it and requiring Mother to establish a trust account without any request or justification for such a remedy.

Accordingly, the requirement that Mother establish a trust account was reversed.

Carter v. Carter (Tennessee Court of Appeals, Middle Section, December 28, 2012).

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

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Posted in Child Support, Post-Divorce Issues | Tags: Child support, Knoxville Tennessee, Private school, Tennessee, Trust account

Posted by: koherston | February 14, 2013

Tips for Dating After Divorce

This article from eHarmony.com might be of interest to some of my readers on this Valentine’s Day:

Dating After Divorce: Make Sure You’re Ready

Knoxville divorce attorney It sounds like trite advice, but it’s worth following: Don’t date until you’re ready to date. You want to set yourself up for success. If you’re serious about finding love again, make sure you understand where you are in the healing process. Do you understand what went wrong in your last relationship? Are you aware of your role in the marriage’s end? Can you identify what a healthy relationship needs to look like for you? Give yourself the freedom of a little time and make sure your past is firmly in the past, along with the infamous “bitterness baggage,” before giving love a second chance.

Dating After Divorce: Have a Support System

Don’t date alone. No, you don’t have to make every date a group date; just make sure you have good friends in your corner. Friends make the best cheerleaders. Let the people nearest and dearest to you encourage and support you as you dive back into the dating game. You’ll need their shoulders to cry on, and their wisdom and listening ears to help you navigate this exciting new chapter.

Dating After Divorce: Love Yourself

Love yourself. Sometimes it’s easier said than done. Take a new class, get a new haircut, and eat healthier than ever. With the life changes you’ve gone through, make sure you’re taking the time to focus on you. Learn to thrive in your new situation. Dress in a way that makes you feel good about what you see in the mirror. Switch up your daily routine so you’re not stuck in past patterns and ruts by default, and choose to surround yourself with the people and things that inspire you.

Dating After Divorce: Stay Positive — and Be Up for the Adventure

It doesn’t matter how old you are or what your relationship history is, first dates are nerve-wracking. Give yourself a pre-date pep talk, reminding yourself of the great qualities you have to offer. Stay positive, embrace the adventure, expect a few disappointments, and see your life as an unfolding story, one that will be worth telling.

Dating After Divorce: Be Patient

Dating takes time. It might feel awkward at first. You might hear yourself saying the wrong things, or holding back in fear. That’s okay. Be patient, both with your dates and with yourself. Keep an open mind, take a few deeps breaths, and go easy on yourself. If you realize, mid-date, that you’re not ready to date, you can give yourself more time before pursuing anything further. If your date doesn’t call back, don’t take it personally. An 18-year-old doesn’t expect every date to lead to a long-term relationship, nor should you.

Dating After Divorce: Be Honest

Divorce is rarely a deal-breaker in the dating world. It’s a sad but very real fact that about half of marriages end, so prospective partners are often prepared to date people who’ve been married before. While you probably shouldn’t spill intimate details of your marriage’s demise on a first date, be honest and open (if/when appropriate) about the fact that you’re divorced. Don’t judge yourself on your date’s behalf; you’ll likely be surprised at the empathy and grace extended in response to your honesty. Everyone’s experienced heartache; it’s okay to be a little vulnerable about what yours looks like.

Dating After Divorce: Talk to Your Kids

If you have children at home, dating after divorce can be a difficult thing to juggle. Remember that you’re now their model for what dating looks like, so move forward carefully and intentionally once you do start dating. Talk to your kids about how they’re feeling, let them know that you’re going on dates, and be very selective and careful about when your young’uns get to meet your new significant other. It’s usually best to keep dates out of sight until there’s a bit of commitment in order to keep kids from feeling anxious or overwhelmed by frequent introductions. Make sure you carve out intentional time with your children; physically and verbally demonstrate that they will always be your priority and that your new dating life will not threaten the way you feel about them.

Source: Dating After Divorce (eHarmony.com)

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

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Posted in Divorce Tips | Tags: Dating, Divorce, Family law, Relationships, Tennessee

Posted by: koherston | February 11, 2013

Annuity Acquired During Marriage Classified as Separate Property in Jefferson City Divorce: Willocks v. Willocks

Knoxville divorce lawyer Facts: The parties separated after 13 years of marriage. Husband accumulated a sizeable estate prior to the marriage, mostly through an inheritance. The trial court divided the marital estate and awarded Wife alimony in futuro. The only issue of interest to me is the annuity valued at $202,000. Husband purchased the annuity during the marriage with funds from his separate assets. Wife was listed as the primary beneficiary. Because the annuity was purchased during marriage with Husband’s separate funds, the trial court found it to be separate property. Wife appealed.

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

Wife argued annuity should have been classified as marital property. Specifically, she claimed the record did not support the finding that the source of the funds used to acquire the annuity was Husband’s separate property.

Tennessee Code Annotated § 36-4-121(b)(2)(B) and (C) define separate property as “property acquired in exchange for property acquired before the marriage” or “income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1).” Thus, accounts opened with funds from these sources remain separate property even though opened during the marriage.

The Court reviewed the record and concluded:

We concede that the proof is not overwhelming. Husband, however, testified that the money came exclusively from his separate property, and the only income-producing property he had was either acquired before the marriage or inherited. Wife had worked until 2000 drawing a salary of $30,000 per year, but she deposited her checks in her separate account and her contributions to the marital expenses were minuscule. She did not have any separate income in 2003, the year the annuity was acquired. . . . We think the trial judge correctly classified the annuity as the husband’s separate property.

Wife also argued that even if the property was Husband’s separate property, it became marital property by transmutation, i.e., by placing it in the name of both spouses. The Court made short work of this argument, stating:

The proof, however, is clear that husband was always listed as the owner of the annuity with wife as the beneficiary. Wife testified that she “understood” the annuity was jointly owned, but there is no proof of where that understanding came from. The record is also devoid of any proof that wife substantially contributed to the preservation or appreciation of this asset.

Thus, the trial court’s classification of the annuity as Husband’s separate property was affirmed.

Willocks v. Willocks (Tennessee Court of Appeals, Eastern Section, January 10, 2013).

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

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Posted in Divorce, Property Classification | Tags: Divorce, Family law, Property Classification, Tennessee

Herston on Tennessee Family Law | Knoxville Divorce, Child Custody, Child Support, Alimony and Matrimonial Law Attorney

Tennessee Supreme Court Clarifies Standard of Review in Termination of Parental Rights Cases: In re Taylor B.W., et al.

Parental Relocation Denied in Murfreesboro Child Custody Case: Johnson v. Johnson

Is Divorce Bad for Children?

Is Divorce Bad for Children?

The break-up may be painful, but research reveals that most kids adjust well over time

Unclean Hands Leads to Loss of Property in Sparta Divorce: Jolley v. Jolley

Retroactive Child Support Denied in Clarksville Divorce: Carroll v. Carroll

Termination of Alimony in Murfeesboro Divorce Reversed: Averitte v. Averitte

Judicial Notice of Disputed Facts Leads to Reversal in Madisonville Child Support Case: In re Estate of Miller

Surrogacy Agreement Upheld in Nashville Child Custody Dispute: In re Baby

Post-Divorce Parental Relocation Reversed in Memphis: Toyos v. Hammock

Helping Children Endure Divorce

Helping Children Endure Divorce

The Effects of Divorce on Children

Guidelines for Helping Children

Conclusion

Court Split 2-1 on Inappropriate Marital Conduct in Tennessee Divorce: Longanacre v. Longanacre

Termination of Parental Rights Not in Child’s Best Interest in Murfreesboro: In re Madilene G.R.

Trust Account Not Required in Nashville Child Support Modification: Carter v. Carter

Tips for Dating After Divorce

Dating After Divorce: Make Sure You’re Ready

Dating After Divorce: Have a Support System

Dating After Divorce: Love Yourself

Dating After Divorce: Stay Positive — and Be Up for the Adventure

Dating After Divorce: Be Patient

Dating After Divorce: Be Honest

Dating After Divorce: Talk to Your Kids

Annuity Acquired During Marriage Classified as Separate Property in Jefferson City Divorce: Willocks v. Willocks

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Is Divorce Bad for Children?

The break-up may be painful, but research reveals that most kids adjust well over time

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Helping Children Endure Divorce

The Effects of Divorce on Children

Guidelines for Helping Children

Conclusion

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Dating After Divorce: Make Sure You’re Ready

Dating After Divorce: Have a Support System

Dating After Divorce: Love Yourself

Dating After Divorce: Stay Positive — and Be Up for the Adventure

Dating After Divorce: Be Patient

Dating After Divorce: Be Honest

Dating After Divorce: Talk to Your Kids

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