Knoxville child custody lawyersFacts: Mother and Father are the unmarried parents of Child.

Father petitioned for parenting time with Child.

After hearing the proof at trial, the trial court awarded Father parenting time of alternating weekends and three hours every Tuesday night. Holiday time was to be shared and Father was awarded one week of continuous parenting time during the summer in the first year, two weeks the following year, and three weeks each year thereafter.

Notably, the trial court did not make specific findings of fact or state the statutory factors upon which it relied in setting the parenting time schedule. In its oral ruling, the court stated only:

Let me tell you why I am doing this, sir. You got to — you go to work at six o’clock. I hate when a child has to get up at 4:30 or whatever or — whatever and get over there, and you don’t have any time with the baby.

The trial court further observed that “both parties are honest, caring and loving people…. Father is a good man and a good father and the Mother is a good lady and a good mother.”

Father appealed.

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

Father argued the parenting schedule failed to provide him the maximum amount of parenting time. He suggested the evidentiary record “supports a more balanced parenting schedule.”

Tennessee Code §§ 36-6-106 and 36-6-404 specify factors a court must consider in making a child custody arrangement and in designing a permanent parenting plan. Tennessee Code § 36-6-106(a) requires that any such determination be made in the best interest of the child and provides:

In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation in the life of the child consistent with the factors set forth in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.

Tennessee Code § 36-6-404(b) requires that each parenting plan include a residential schedule which, among other things, “encourage[s] each parent to maintain a loving, stable and nurturing relationship with the child.”

After reviewing the record, the Court concluded:

In the absence of [specific findings of fact], we have reviewed the testimony . . . and conclude that the evidence preponderates against the parenting time schedule adopted by the court. The reason given by the court is, standing alone, insufficient justification to limit Father’s parenting time, particularly at times when Father is not at work. In addition, we fail to see any justification for limiting Father’s continuous parenting time during the summer months in the manner ordered.

We therefore reverse the residential parenting schedule and remand the case for the court to adopt a schedule that affords Father more parenting time, considering that Tennessee Code § 36-6-106(a) favors a parenting schedule that gives each parent the maximum amount of time in accordance with the child’s best interests.

Accordingly, the trial court’s parenting schedule was reversed and the matter remanded for a schedule that gives Father more parenting time.

K.O.’s Comment: I hesitate to read too much into this case because the lack of factual findings or any discussion of the statutory factors by the trial court can distinguish this case from others. Nonetheless, family law litigators should take note that a fairly common parenting schedule has been reversed for running afoul of the “maximum participation” provision in Tennessee Code § 36-6-106(a). This case may be helpful to those advocating for more parenting time at the trial court level.

In re Blaklyn M. (Tennessee Court of Appeals, Middle Section, February 24, 2015).

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

Posted by: koherston | March 13, 2015

Photo of the Week: River Otter Love

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Posted by: koherston | March 11, 2015

Herston on Tennessee Family Law is Five Years Old!

Knoxville divorce lawyersIt just dawned on me that I’ve been blogging on Tennessee family law for five years now.

My first post was on February 18, 2010. You can read it here.

Hopefully the quality of the posts has improved since those early days.

It’s been fun watching the readership grow from one (me) to to the tens, to the hundreds, and now the thousands. The blog is followed by lawyers and judges throughout Tennessee and beyond. Posts are viewed all over the world and shared on social media every day.

I hope to keep this blog going for at least another five years. Although it requires a significant time commitment, I think it is a worthwhile endeavor for me personally, for my colleagues in the family law bar, and for laypeople interested in Tennessee divorce and family law issues.

If nothing else, I hope this blog sheds some light on a challenging (and changing) area of Tennessee law.

Here’s to another five years!

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Knoxville divorce lawyersOn February 12, 2015, the Tennessee Supreme Court adopted an amendment to the ethics rules that will ban written, electronic, telephonic, or in-person solicitation of potential divorce clients within 30 days of the filing of a divorce.

The Tennessee Supreme Court added the following Comment 5[A] to RPC 7.3:

RPC 7.3(b)(3) includes a prohibition against any solicitation of a prospective client within thirty (30) days of the filing of a complaint for divorce or legal separation involving that person, if a significant motive for the solicitation is the lawyer’s pecuniary gain. Some divorce or legal separation cases involve either an alleged history of domestic violence or a potential for domestic violence. In such cases, a defendant spouse’s receipt of a lawyer’s solicitation prior to being served with the complaint can increase the risk of a violent confrontation between the parties before the statutory injunction’s take effect. See Tennessee Code § 36-4-106(d) (2014) (imposing specified temporary injunctions, including “[a]n injunction restraining both parties from harassing, threatening, assaulting or abusing the other,” that take effect “[u]pon the filing of a petition for divorce or legal separation, and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent”) (emphasis added). The prohibition in RPC 7.3(b)(3) against any solicitation within thirty (30) days of the filing of a complaint for divorce or legal separation is intended to reduce any such risk and to allow the plaintiff spouse in such cases to take appropriate steps to seek shelter, an order of protection, and or any other relief that might be available.

The Tennessee Bar Association strongly objected to the proposal, citing serious reservations about the constitutionality of the ban.

The amendment to Rule 8, RPC 7.3, is effective May 1, 2015.

In re Rule 8, RPC 7.3(b)(3) (Tennessee Supreme Court, February 12, 2015).

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Posted by: koherston | March 6, 2015

Photo of the Week: Pileated Woodpecker

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Knoxville divorce lawyersFacts: Mother and Father divorced in 2003. Father had regular, unsupervised parenting time with their children.

In 2006, Mother petitioned to modify the parenting plan and temporarily suspend Father’s parenting time because Mother alleged Father was addicted to drugs and alcohol. She also requested recovery of her reasonable attorney’s fees and expenses.

After discovery had been completed and the case scheduled to proceed to trial, Mother’s legal expenses totaled $16,277. During discovery, Father admitted abusing alcohol and drugs. Father proposed a settlement that was rejected by Mother.

Mother changed lawyers. The trial was subsequently continued at various times at the request of both parties.

Additional discovery took place, during which Father admitted he continued to abuse alcohol and drugs. Despite these admissions, Mother continued to incur substantial private investigator fees to survey Father and report on his alcohol use. The parties then entered into a settlement agreement, which was similar to the original settlement offer previously rejected by Mother.

Mother filed her petition for attorney’s fees and expenses. At this time, Mother’s legal expenses totaled $49,594.

Despite the settlement, Mother again incurred fees related to the use of a private investigator. This time, the surveillance was not just limited to Father, and also to Father’s counsel, ostensibly to show that Father’s counsel improperly asked to we schedule a deposition.

The parties eventually went before a Special Master for hearing on the issue of attorney’s fees and expenses. The total requested by Mother at this time was $354,872. The Special Master found that Mother’s request was excessive. Mother was awarded $124,824 in attorney’s fees and expenses. Both parties appealed to the trial court.

The trial court further reduced Mother’s award of fees and expenses to $42,277. The trial court commented:

There has been an ongoing conflict between not only the parties to this case but also between Mother’s counsel and opposing counsel and the guardian ad litem. This Court believes that this unfortunate conflict has caused Mother’s counsel to use every litigation arrow in his quiver in pursuit of Mother’s goals. Mother can certainly engage in such a strategy but she must recognize that she cannot expect the other side to pay for it.

The trial court further commented that the “vast majority” of the fees and expenses incurred by Mother were neither reasonable nor necessary “for purposes of requiring the opposing party to pay them in their entirety.” Thus, the total amount awarded for Mother’s fees and expenses was a $42,277.

Mother appealed.

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

Typically, Tennessee courts follow the American rule regarding attorney’s fees and require litigants to pay their own attorney’s fees unless there is a statute or contractual agreement providing otherwise. Tennessee Code § 36-5-103(c) provides a statutory mechanism for the recovery of attorney’s fees in certain situations. Section 36-5-103(c), in relevant part, provides:

[T]he spouse or other person to whom custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change in custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

Thus, Tennessee Code § 36-5-103(c) allows a party to recover his or her reasonable and necessary attorney’s fees in cases involving child support modification and custody.

The appropriate factors Tennessee courts must consider when fixing a reasonable attorney’s fee are:

1. The time devoted to performing the legal service.
2. The time limitations imposed by the circumstances.
3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
4. The fee customarily charged in the locality for similar legal services.
5. The amount involved and the results obtained.
6. The experience, reputation, and ability of the lawyer performing the legal service.

After reviewing the record, the Court reasoned:

Mother points to no specific errors in the trial court’s judgment other than the reduction in the award attributable to non-attorneys and associates. Taking the trial court’s ruling in the light most favorable to it, we discern no abuse of discretion in the trial court’s decision. First, the trial court pointed to specific facts justifying the reduction in fees. For example, [Mother’s counsel] wrote a letter to Father’s counsel indicating that he would be prepared for trial shortly after Mother retained him, presumably based on Father’s condemnatory admissions to his substance abuse. Despite the fact that Mother’s original attorney believed that the matter was nearing conclusion, an opinion that [Mother’s counsel] initially shared, Mother and [Mother’s counsel] proceeded to incur hundreds of thousands of dollars of additional fees and expenses. Furthermore, even though Father continued to admit his alcohol and drug use, Mother hired private investigators to follow Father.

In addition, although we have no doubt of [Mother’s counsel’s] excellent representation, the results obtained by [Mother’s counsel] are similar to the settlement offer made by Father’s prior counsel in 2006…. While similar results obtained at trial are not always indicative that a fee is unreasonable, this fact does tend to show that the parties’ positions were not so diametrically opposed as to require hundreds of thousands of dollars of legal fees to reach an agreement.

Accordingly, the Court held the trial court did not abuse its discretion in declining Mother’s request for reimbursement of over $350,000 in legal expenses.

K.O.’s Comment: You know it is not going to end well when the Court begins its analysis with this sentence: “As an initial matter, we must first discuss the deficiencies in Mother’s brief.” *gulp*

After discussing specific deficiencies, the Court adds, “[T]his Court might be inclined to overlook the deficiencies in Mother’s brief [] had the brief contained appropriate citations to authority.” After discussing how “no relevant legal authority is cited” as to various issues raised by Mother on appeal, the Court says:

Again, Mother cites no legal authority . . . nor constructs any legal argument as to why this issue must be reversed. [W]e remind litigants that judges are not like pigs, hunting for truffles buried in briefs. It is not the function of the appellate court to research and construct the parties’ arguments.


The Court went on to award Father “frivolous appeal damages” for his attorney’s fees incurred responding to the issues the Court determined were waived by Mother “due to deficient briefing.”

Coleman v. Coleman (Tennessee Court of Appeals, Western Section, February 4, 2015).

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

Posted by: koherston | March 2, 2015

Tennessee Divorce and Family Law Legislative Preview 2015

Knoxville divorce and family law attorneysThe Tennessee Legislature has begun its 2015 session. Several bills affecting family law have been introduced. Below is a brief summary of some pending family law legislation.

Senate Bill 101/House Bill 90: This would allow a child support obligor and the obligee to enter into a written settlement to forgive accrued principal and interest on a child support arrearage with the approval of the court. It requires the court to find the forgiveness of the child support arrearage is in the best interests of the child. This bill is part of Governor Haslam’s legislative package.

K.O.’s Comment: I would love someone to explain a scenario where it would it be in the child’s best interest to forego financial support to which it is entitled.

Senate Bill 161/House Bill 609: This bill requires the premarital value of retirement, pensions, and other employment benefits together with the marital appreciation be treated as separate property for purposes of division of property in a divorce. It further provides the court should use “any reasonably reliable method” to determine the amount of postmarital appreciation of premarital accounts, regardless of whether contributions were made to the account and contributions have appreciated in value during the marriage.

Senate Bill 400: This is the *sigh* “EGG and SPERM Act,” which stands for Egg Guidelines and Governance and Sperm Provider Effective Record Management Act. First, please stop with the forced acronyms. Second, the bill defines various terms as they relate to egg and sperm donation, and assisted reproductive technology (ART). It requires oocyte collection agencies, sperm banks, and ART programs to report certain information to department of health. It also requires the establishment of collection and reporting rules, and the maintenance of contact information for oocyte collection agencies, sperm banks, and ART programs.

Senate Bill 809/House Bill 950: This bill establishes certain disclosure and information and data reporting requirements regarding assisted reproductive technologies.

K.O.’s Comment: These bills could be the Legislature’s initial response to the Tennessee Supreme Court’s pleas for action in last year’s surrogacy case In re Baby. They still don’t address the issues presented in In re Baby but perhaps they’ll get around to that someday after they establish the Bible as the State’s official book, establish a military assault weapon as the State’s official gun, authorize exploding targets, eliminate “no-go zones,” and solve other imaginary problems.

Senate Bill 440/House Bill 445: This bill removes a parent’s right to to revoke the voluntary surrender of the parent’s child for adoption. At present, a parent has 10 days to revoke a voluntary surrender. The bill would allow a judge to revoke or invalidate a voluntary surrender if the judge determines by clear and convincing evidence that the surrender involved duress, fraud, or intentional misrepresentation or if revocation is in the child’s best interests.

K.O. Comments: After certain decisions are made, Tennessee law provides a “grace period” whereby people can change their minds, e.g., contracts to join a gym/health club can be revoked within three days. Why should a parent’s decision to voluntarily surrender a child for adoption not be afforded the same consideration? The 10-day period is already extremely short in order to provide stability for the adoptive family. While I realize those 10 days are filled with anxiety, the permanent cessation of the parent-child relationship is too consequential to be treated like just any other ordinary decision. I believe this bill should be defeated.

Senate Bill 668/House Bill 829: This bill requires that where an order of protection or restraining order is granted against an offender arrested for stalking, aggravated stalking, or a domestic violence offender prior to the offender’s release from custody, the offender must be served with the order prior to release.

Senate Bill 812/House Bill 960: This bill would allow a divorce court to divide marital property without regard to marital fault (which is the current law) or, in its discretion, with regard to marital fault.

K.O.’s Comment: It should be self-evident that injecting fault considerations into the equitable division of marital property is a terrible idea. Marital fault can be considered in the subsequent alimony analysis where, if appropriate, the court can award marital assets to a party as alimony in solido.

Senate Bill 1206/House Bill 565: This bill clarifies the legislative intent of the foster care statute is to place a child in a permanent home at an early date if an early return to the child’s parents is not appropriate or possible under the current statute.

Senate Bill 1231/House Bill 737: This bill abolishes the common law “doctrine of necessaries,” thereby establishing that no spouse shall be liable for the other spouse’s debt arising solely by reason of the marriage.

K.O.’s Comment: The doctrine provides that, for example, a provider of medical services can recover a debt under the necessaries doctrine by proving that (1) it provided medical services to the receiving spouse, (2) the medical services were necessary for the receiving spouse’s health and well-being, (3) the person from whom recovery is sought was married to the receiving spouse when the services were provided, and (4) payment for the services has not been made. I predict the medical service providers will kill this bill.

Senate Bill 1393/House Bill 1369: This bill requires that the post-adoption services provided by the Department of Children’s Services (e.g., counseling, crisis intervention, support groups, respite services, case management services, etc.) be offered to all families of adopted children and biological families of adopted children, regardless of whether the children were adopted through DCS.

K.O.’s Comment: Please forgive me for doubting the Legislature’s willingness to increase DCS’s budget to expand these services to all adoptive families regardless of their financial means.

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

Posted by: koherston | February 27, 2015

Photo of the Week: Snowflakes


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Posted by: koherston | February 25, 2015

A Primer on Criminal Contempt in Tennessee

This recent article by Marlene Moses in the Tennessee Bar Journal may be of interest to readers of this blog.

Can Criminal Contempt Create Compliance?

How can a party or attorney in a family law case effectively use criminal contempt as a means of getting a positive result from the other party? When a person is determined to be in willful violation of an order of the court, that person may be held in either criminal or civil contempt. A contempt action in a family law matter is most often seen in the context of a failure to pay court-ordered child support, but a contempt petition[1] may be sought for any willful violation of a court order regardless of the content of the order. This article will focus on the necessity and use of criminal contempt to achieve the goals of a family law practitioner.

Knoxville divorce and family law attorneys“Criminal contempts … are intended to preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.”[2] Tenn. Code Ann. § 16-1-103 specifically provides “For the effectual exercise of its powers, every court is vested with the power to punish for contempt, as provided for in this code.”[3] Tenn. Code Ann. § 29-9-101. et. seq. describes in greater detail the types of behavior that will warrant the use of the court’s contempt power as well as the possible punishments that a court may inflict once it has made a finding of contempt and they are what one might expect.[4] The court may utilize its contempt power specifically for “willful disobedience … to any lawful writ, process, order, rule, decree or command of such courts.”[5] Contempt power grants the court the power to punish “by fine or by imprisonment, or both.”[6]

Tennessee Rule of Criminal Procedure 42 specifically provides for the process required for the implementation of a criminal contempt as a means of obtaining compliance from a party who is subject to a court’s lawful order. Unless the contempt takes place in the presence of the court, a direct contempt, in which case, the court may deal summarily with the issue without formal process, the party being accused of contempt is entitled to notice of the hearing date and time, the opportunity to be heard, the opportunity to prepare a defense and specific notice of the allegations that constitute the charge of contempt.[7] Furthermore, since the petitioning party is seeking to enforce the court’s orders through use of a petition for criminal contempt, the respondent must be notified of his/her Constitutional rights in addition to being served with the petition that describes the alleged infractions in detail. This notice should be provided by the petitioner along with the petition itself.

Additionally, Tenn. Code Ann. § 39-15-101 goes beyond mere contempt as a remedy for the specific issue of non-payment of court ordered support. The code provides that a person may be charged with an A misdemeanor for non-support or an E felony for flagrant non-support as a criminal offense. Non-support is defined as when a person “fails to provide support which that person is able to provide and knows the person has a duty to provide to a minor child or to a child or spouse who, because of physical or mental disability, is unable to be self-supporting.”[8] Further, “a person commits the offense of flagrant nonsupport who: leaves or remains without the state to avoid a legal duty of support; or having been convicted one (1) or more times of nonsupport or flagrant nonsupport, is convicted of a subsequent offense under this section.”[9] A private party may not seek such relief from the court in a family law context, but the possibility of criminal charges looms for those who willfully choose not to pay court ordered support.

Of course, since a criminal contempt is, by its very nature, criminal and the full Constitutional protections provided to a defendant in a criminal case are implicated by charging criminal contempt, practitioners should consider carefully their decision to seek criminal contempt. Often, the discovery process may be halted or eschewed since defendants need not answer any questions that might implicate themselves in a crime even if the possible punishment for a contempt of court is relatively minor. Though the potential punishment may be greater, the use of criminal contempt might actually slow down the resolution of the issues that gave rise to the contempt rather than hasten the road to a satisfactory resolution. On the other hand, a monetary fine or possible incarceration can, and often is, a strong motivation for a party to comply fully with a court’s order. However, attorneys or persons seeking contempt should keep in mind that “a court can also imprison and/or fine an individual simply as punishment for the contempt,” with no eye toward actually resolving the issue, but rather punishing an offending party as a means of guaranteeing future compliance.[10] Along the same lines, a person might choose to proceed with an action for non-payment of child support pursuant to Tenn. Code Ann. § 36-5-104, which provides that “Any person, ordered to provide support and maintenance for a minor child or children, who fails to comply with the order or decree, may, in the discretion of the court, be punished by imprisonment in the county workhouse or county jail for a period not to exceed six (6) months.”[1]1 However, the Tennessee Supreme Court has determined that the language of this statute actually describes a criminal offense and is not, in fact, a contempt statute. If a party proceeds under Tenn. Code Ann. § 36-5-104, the defendant is entitled to all Constitutional protections, including a jury trial should he or she so desire, a process that would not expedite a resolution to the issue of non-compliance.[12] Unlike civil contempt, where persons may be incarcerated only until they purge their contempt, the punitive nature of criminal contempt merely punishes prior disobedience and, even if a party is successful, the results that are most desired may not be achieved.

An important point to note within the language of the statute is that the “disobedience” must be “willful,” as indeed, each different variation of contempt must be. Though the statute Tenn. Code Ann. § 29-9-101, et. seq., does not distinguish in its description of contempt between civil and criminal contempt, it certainly stands to reason that if a petitioner is alleging a criminal contempt of court, that the element of intent in the offense must also be proven. Consequently, the act must be of a willful nature in order for the court to exercise its contempt powers and not merely a situation that is beyond the control of the contemnor.

A party who is seeking relief from a court for contempt must be both cognizant and wary of this hurdle. It is often more difficult to prove than expected that a person was “willful” in his or her failure to comply with a court order, particularly when the non-compliance relates to the non-payment of money for child support, alimony, or some other court-ordered payment that was not made by the infringing party. The burden is on the petitioner to prove, for example, that the inability to pay was due to a willful choice on the part of the respondent not to pay, not simply that they could not obtain employment, or a rate of pay sufficient to allow for the required payments to the petitioner as ordered by the court.

In a different family law context, a court may order any number of provisions regarding the care of the parties’ minor children and failure to comply may be addressed by a contempt petition. However, when attempting to characterize many issues regarding non-compliance with the court’s instructions as “willful disobedience” of the court’s order, as they pertain to the minor children, success may not be as simple as it may appear at first glance.

Generally speaking, a private attorney seeking criminal contempt on behalf of a litigant is not entitled to an award of attorney’s fees. The logic behind this is two-fold. First, the punishment that a court may assign for an incident of contempt is specifically laid out by statute and attorney’s fees are not one of the powers granted to the court by statute.[13] Secondly, the punishment of a contempt action is primarily to reinforce the power of the court for acts committed contrary to the court’s instructions or rules.[14] Consequently, any benefit to a private party is only tangential and a party should not be awarded attorney’s fees for vindicating the court’s power. Conversely, an attorney filing a civil contempt for a client is seeking to enforce a client’s contractual or statutory rights and, therefore, is entitled to an award of attorney’s fees. As that is the case, this should be another factor to weigh when choosing whether a criminal contempt is the appropriate remedy.

Needless to say, the choice to file a petition by a party seeking contempt ought to be carefully considered before it is filed. The purpose of seeking relief through a contempt petition is that other options have previously been exhausted, or in rare situations, the actions are so flagrantly contemptuous of the court’s authority that they must be addressed by the judge. An attorney and his or her client need to examine what their goal is by filing a criminal contempt and assess if its few benefits are outweighed by its many detractors before making the decision to proceed.


1.  In some jurisdictions, a party may proceed with contempt proceedings by a motion to the court rather than a petition. Throughout this piece, the discussion will refer to a petition for contempt, but the term should be viewed as interchangeable with motion if your jurisdiction permits proceeding by motion.
2.  Black v. Blount, 938 S.W. 2d 394 at 397 (Tenn. 1996).
3.  Tenn. Code Ann. § 16-1-103
4.  Tenn. Code Ann. § 29-9-102, 103, 104, & 105
5.  Tenn. Code Ann. § 29-9-102(3).
6.  Tenn. Code Ann. § 29-9-103(a).
7.  Tenn. Rule of Criminal Procedure 42(b)(1).
8.  Tenn. Code Ann. § 39-15-101(a).
9.  Tenn. Code Ann. § 39-15-101(d).
10.  Ahern v. Ahern, 15 S.W. 3d 73 at 79 (Tenn. 2000).
11.  Tenn. Code Ann. § 36-5-104(a).
12.  Brown v. Latham, 914 S.W. 2d 887 at 888 (Tenn. 1996).
13.  Butler v. Butler, 1995 Tenn. App. Lexis 749.
14.  Understanding Contempt, Ronald D. Krelstein,

Source: Can Criminal Contempt Create Compliance? (Tennessee Bar Journal, January 2015).

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

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Sad Cub Scout

Facts: When Mother and Father divorced, they entered an agreed parenting plan designating Mother as the primary residential parent of Child and awarding Father 100 days of parenting time.

Five years later, Father petitioned to modify the parenting plan and change custody. Father alleged a long list of material changes of circumstance, including his claim that Child missed an unreasonable amount of school with unexcused absences, that Mother exhibited irrational and unreasonable behavior (such as referring to Father’s second wife as a “slut” at a Cub Scout meeting where Child was present; Father also claimed when Child asked why both parents were not going on a Cub Scout camping trip, Mother responded, “Because your dad is a bastard”), that Mother did not meet Child’s basic needs such that Child was frequently dirty and foul-smelling, and that Mother made derogatory remarks about Father to Child, such as telling Child he could not be around Father’s coworkers because they were “sluts, homewreckers and a bad influence,” and telling Child that Father “f—ed another girl in high school.”

Mother denied Father’s allegations. The matter proceeded to a hearing where Mother and Father were the only witnesses.

The trial court questioned Mother’s credibility and concluded there had been a material change of circumstance. The trial court noted Mother’s “behavior has really been inappropriate in a lot of ways.” Despite this, the trial court found it was not in Child’s best interest to change custody, stating that Child is “thriving” in Mother’s custody and, as a result, the court was “really reluctant to disturb that.”

Father appealed.

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

A trial court’s determinations as to whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child’s best interests are factual questions. Because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are considered better positioned to evaluate the facts than appellate judges. Thus, a trial court’s decision regarding the details of a residential parenting schedule will not be reversed absent an abuse of discretion. A trial court abuses its discretion when its decision falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.

After painstakingly examining the record and the trial court’s findings as to each of the best interest factors in Tennessee Code § 36-6-106(a), the Court concluded:

We, like the trial court, are troubled by Mother’s conduct, but we cannot say that the evidence preponderates against the trial court’s finding that it was in the best interest of the child for Mother to remain the primary residential parent.

Accordingly, the trial court was affirmed.

Zahn v. Logan (Tennessee Court of Appeals, Middle Section, February 2, 2015).

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Posted by: koherston | February 20, 2015

Photo of the Week: Merlin Playing in Snow

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Knoxville divorce and family law attorneysFacts: Husband and Wife executed a marital dissolution agreement (“MDA”) which was approved by the court and made part of their final divorce decree.

The MDA awarded a piece of real property to Husband but required him to satisfy the mortgage debt within 90 days such that Wife would no longer be liable on the mortgage. The MDA also contained an enforcement provision entitling the “prevailing party” in any action to enforce the MDA to his or her attorney’s fees.

Husband failed to remove Wife from the mortgage debt as directed in the MDA. Wife filed a motion to enforce the MDA and a motion for civil contempt. Wife also sought to recover her attorney’s fees.

One week prior to the hearing on Wife’s motion to hold Husband in contempt, Husband paid off the mortgage indebtedness in full, thereby removing Wife from that debt and finally complying with the MDA.

The trial court found the issue of civil contempt was rendered moot by Husband’s belated compliance. Under the enforcement provision of the MDA, the trial court determined Wife was the prevailing party and ordered Husband to pay $4000 of Wife’s legal fees. The trial court further found that but for Wife’s petition for civil contempt, Husband would not have adhered to the terms of the MDA.

Husband appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

Husband argued Wife was not the “prevailing party” because there was no evidentiary hearing on the merits or any finding by the trial court that he was in contempt.

Tennessee adheres to the “American Rule,” which provides that, absent a statute of agreement to the contrary, litigants are responsible for their own attorney’s fees. Tennessee courts have consistently held that marital dissolution agreements are a contract between parties contemplating divorce. After a divorce decree becomes final, a marital dissolution agreement becomes merged into the decree; however, the agreement, as a property settlement agreement, does not lose its contractual nature by merger into the decree of divorce and is not subject to later modification by the trial court.

An act of contempt is an intentional act that hinders, delays, or obstructs the court’s administration of justice. An action for civil contempt is designed to coerce compliance with a court’s order. Persons who have failed to make payments required by a court order may be held to be in civil contempt if the court concludes, by a preponderance of the evidence, that they have not made the payments even though they have the present ability to do so.

There are no bright-line rules in determining who is the “prevailing party.” Thus, these determinations are necessarily fact-intensive and fact-specific. The Tennessee Supreme Court has ruled that a party need not attain complete success on the merits of the lawsuit in order to prevail. Rather, a prevailing party is one who has succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Status as a prevailing party arises when the outcome of litigation materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

After examining the relevant case law, the Court concluded:

[A] party may be recognized as the prevailing party if that party achieves the primary benefit sought in instituting the legal proceedings and/or if the action modifies the opposing party’s behavior in a way that provides a direct benefit, regardless of the fact there was no hearing or judgment on the merits.

The majority further explained:

Wife’s primary purpose in filing the petition for contempt was to compel Husband to comply with [] the MDA by removing her from all liability on the mortgage. The record clearly establishes that, by filing and pursuing this action, Wife altered Husband’s behavior by forcing him to comply with [] the MDA by paying off the mortgage, and by altering Husband’s behavior, Wife achieved the benefit she sought. Moreover, as the trial court correctly concluded, but for Wife instituting legal proceedings to procure the enforcement of the provision requiring Husband to satisfy the debt on the mortgage, Husband would not have complied with the MDA.

For the foregoing reasons, we have concluded that Wife was the prevailing party even though the trial court did not address the merits of the case.

Thus, the majority of the Court of Appeals affirmed the trial court.

Dissent: Judge McBrayer dissented, arguing controlling precedent says to be a prevailing party, one must receive at least some judicially-sanctioned relief on the merits of his or her claim.

[R]ead in context, the material alteration [of the legal relationship of the parties] requirement is not an alternative to a judgment on the merits, but rather, an additional requirement to become a “prevailing party.” In other words, a party only “prevails” when “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”

K.O.’s Comment: The case law cited in both the majority and dissenting opinions appears confusing and subject to varying interpretations. This case present a pure question of law that appears well-suited for clarification by the Tennessee Supreme Court.

Williams v. Williams (Tennessee Court of Appeals, Middle Section, January 30, 2015).

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

Facts: Mother and Father are the married parents of several children.

Mother and Grandmother, both attorneys, worked together in Grandmother’s Kentucky law firm for several years. Their relationship began to deteriorate. Mother left Grandmother’s law firm. The relationship eventually became so acrimonious that Mother forbade Grandmother from contacting the children.

Knoxville family law and divorce attorneysGrandmother petitioned the Kentucky court for grandparent visitation. Mother moved to dismiss that action on the grounds that she and Father moved with the children to Tennessee one day prior to the filing of Grandmother’s petition. The Kentucky court denied Mother’s motion and ultimately awarded grandparent visitation to Grandmother.

The next day, Mother and Father filed a petition for legal separation in Tennessee. The Tennessee court subsequently granted the legal separation and entered the parents’ agreed temporary parenting plan.

Grandmother moved to intervene in the Tennessee case in order to enforce the Kentucky grandparent visitation order. Grandmother argued that Mother and Father had entered into a “sham separation” in order to undermine her grandparent visitation rights. The Tennessee court allowed Grandmother to intervene.

Grandmother then sought to register the Kentucky grandparent visitation order in the Tennessee case so the Tennessee court could enforce it.

Mother objected on the grounds that the Tennessee version of the Uniform Child Custody Jurisdiction and Enforcement Act (“Tennessee UCCJEA”) did not permit the registration of foreign grandparent visitation orders. Mother also argued it would violate her constitutionally-protected parental rights for a Tennessee court to enforce a foreign grandparent visitation order without a showing of substantial harm to the child.

The Tennessee trial court granted registration of the Kentucky grandparent visitation order and Grandmother’s request that it be enforced.

Mother and Father appealed.

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

Mother and Father argued that the Tennessee UCCJEA does not support the registration and enforcement of foreign grandparent visitation orders for two reasons: (1) the definition of “child custody proceeding” in the Tennessee UCCJEA excludes proceedings seeking enforcement of grandparent visitation orders; and (2) the Tennessee Grandparent Visitation Statute, Tennessee Code § 36-6-306, is the sole remedy for grandparents seeking visitation under a foreign order.

Tennessee Code § 36-6-229(a) (the “registration provision”) provides that a “child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement,” provided certain requirements are met. A “child custody determination” is defined in pertinent part as an “order of a court providing for . . . visitation with respect to a child.” The Tennessee UCCLEA does not specifically reference foreign grandparent visitation orders.

The Tennessee Grandparent Visitation Statute, however, specifically references foreign grandparent visitation orders at Tennessee Code § 36-6-306(a)(4) and -306(b)(1). It reads in pertinent part:

(a) Any of the following circumstances, when presented in a petition for grandparent visitation . . . necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
. . . .
(4) The court of another state has ordered grandparent visitation;
. . . .
(b)(1) In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.

After applying the rules of statutory construction and examining the official commentary to the Tennessee UCCJEA, the Court concluded the Tennessee Legislature did not intend to exclude grandparent visitation proceedings from the Tennessee UCCJEA’s definition of “child custody proceeding.”

The score thus far: Grandmother 1, Mother and Father 0.

That does not end the inquiry, however. The remaining issue is whether a foreign grandparent visitation order may be registered and enforced under the Tennessee UCCJEA provision or if visitation must be sought under the Tennessee Grandparent Visitation Statute.

After examining the law and applying the rules of statutory construction, the Court reasoned:

[The] canons of statutory construction convince us that the Legislature intended to require grandparents seeking visitation rights in Tennessee to utilize the Grandparent Visitation Statute rather than the Tennessee UCCJEA registration provision. First, where a conflict is present, “a more specific statutory provision takes precedence over a more general provision.” The Tennessee UCCJEA registration provision applies to an order providing for “visitation with respect to a child,” a broader and more general reference than the Grandparent Visitation Statute’s specific reference to where “[t]he court of another state has ordered grandparent visitation.” Because the Grandparent Visitation Statute is specifically applicable to instances of grandparent visitation, it overrides the Tennessee UCCJEA registration provision where the two conflict.

Second, we assume the Legislature is aware of its prior enactments; therefore, as a general rule, a more recent enactment will take precedence over a prior one to the extent of any inconsistency between the two…. [T]he Grandparent Visitation Statute . . .  is the more recently adopted statute. This lends further weight to application of the Grandparent Visitation Statute where the two conflict. Furthermore, as the Tennessee UCCJEA has never been held to apply to foreign grandparent visitation orders in Tennessee, a holding that the Grandparent Visitation Statute precludes its application to such orders would not constitute an implied repeal.

Finally, when faced with two equally plausible interpretations, one of which poses constitutional concerns, the canon of constitutional avoidance directs us to adopt the other interpretation….

Article I, Section 8 of the Tennessee Constitution requires that a finding of substantial endangerment be made before a non-parent can overcome the presumption of superior parental rights. Application of the Tennessee UCCJEA registration provision to grandparent visitation presents serious constitutional concerns. Tennessee Code § 36-6-229 does not provide adequate constitutional protection to our citizens—it does not require a court to find a substantial risk of harm to the child prior to registration and enforcement of a foreign grandparent visitation order. It also does not require the foreign court to have made such a finding. The Grandparent Visitation Statute, however, has been revised to explicitly require that a Tennessee court determine whether there is a risk of substantial harm to the child. Only then may the court proceed to consider whether grandparent visitation is in the child’s best interest.

Because registration of a foreign grandparent visitation order that does not comply with our State’s constitutional guarantees would present serious concerns, we conclude that the Tennessee UCCJEA registration provision does not apply to foreign grandparent visitation orders.

Accordingly, the trial court’s order registering and enforcing the Kentucky grandparent visitation order was reversed.

K.O.’s Comment: The Court notes that courts in other states (e.g., Michigan, Georgia, Alabama) have reached the opposite conclusion. The distinguishing feature is the grandparent visitation statutes in those states do not explicitly apply to a situation where the grandparent has a foreign visitation order, like Tennessee’s grandparent visitation statute does. Because those states lack an alternative avenue for recognizing grandparent visitation rights, registration and enforcement of the foreign grandparent visitation order provides the only option in those states for grandparents to seek relief. In Tennessee, however, grandparents with visitation orders from other states can (and now must) proceed under Tennessee’s Grandparent Visitation Statute.

Moorcroft v. Stuart (Tennessee Court of Appeals, Middle Section, January 30, 2015).

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

Posted by: koherston | February 13, 2015

Photo of the Week: Icy River

Knoxville family law attorneys

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

Knoxville family law attorneysFacts: Mother and Father married and had three children. After nine years of marriage, they separated and never lived together as husband and wife following their separation.

Four years after their separation, Mother filed for divorce.

Almost two years after filing for divorce, Mother was tragically shot and killed in the line of duty as a police officer with the Memphis Police Department while serving a search warrant.

The children’s maternal grandmother filed a petition seeking to be appointed guardian for the children. Grandmother asserted that Father had a history of domestic abuse and had failed to pay child support or participate in the children’s lives for the past three years.

Father filed a counter-petition seeking guardianship of the children.

The trial court emphasized the proceeding was “not a custody proceeding” and, therefore, the trial court proceeded with a best interest analysis under the guardianship statutes at Tennessee Code § 34-2-101, et seq.

The trial court found Father had very little interaction with his children following his separation from Mother; that he received $30,000 following the death of Mother but failed to pay child support, instead opting to purchase an extended cab pickup truck; that he pleaded guilty to stalking and served 11 months in jail, and that he had a history of physical altercations with others. The trial court further found the maternal grandmother was not an appropriate guardian for the children.

Instead, the court determined that the children’s maternal grandfather — who did not even petition for guardianship — should be appointed guardian inasmuch as he had been a primary support giver for the children after Mother and Father separated.

Father appealed.

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

Father argued the trial court deprived him of his constitutional right to the care and custody of his children without first finding that he posed a substantial risk of harm to the children or is an unfit parent.

A parent has a fundamental liberty interest in making decisions concerning the care, custody, and control of his or her children.

In disputes between a parent and a non-parent, parents are afforded a presumption of “superior parental rights.” Furthermore, these superior parental rights continue without interruption unless they parent consents to relinquish them, abandons the child, or forfeits parental rights by conduct that substantially harms the child.

Absent a finding of substantial harm, the deprivation of the custody of a child would result in an abridgment of the parent’s fundamental right to privacy protected by the United State and Tennessee Constitutions.

Accordingly, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of the child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then made court engage in a general “best interest of the child” evaluation in making a determination of custody.

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

After reviewing the record, the Court of Appeals reasoned:

We disagree with the trial court’s interpretation that appointing a guardian pursuant to Tennessee Code § 34-2-103 requires nothing more than a best interest analysis when the choice of guardian is between a biological parent and a non-parent. Where a parent is not appointed as the guardian of his or her children, that parent’s fundamental constitutional rights to the care, custody, and control of his or her children are implicated….

Here, the trial court failed to make an express finding that there was a risk of substantial harm to the children should Father be named their guardian. Therefore, we find that the trial court acted prematurely in awarding guardianship of Father’s [] children . . . to Grandfather based solely on a best interests inquiry.

Accordingly, the trial court’s award of guardianship to the children’s maternal grandfather was reversed and the case remanded to the trial court for a determination of whether Father poses a risk of substantial harm to the children..

In re Guardianship of Taylour L. (Tennessee Court of Appeals, Western Section, January 29, 2015).

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

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