Facts: The parties were divorced by agreement. Their Marital Dissolution Agreement provided, in relevant part: “Husband and Wife expressly certify and acknowledge they have entered this Agreement upon mature consideration, that they have each fully disclosed all of their assets, and that all of said assets have been distributed herein.” The trial court incorporated the Marital Dissolution Agreement into the Final Judgment of Divorce by reference.

Eleven months later, Wife filed a Rule 60.02 motion to alter or amend alleging that the Marital Dissolution Agreement failed to divide Husband’s pension, which pension is marital property. Wife alleged, “[T]his oversight certainly must have resulted from a mistake, inadvertence, or excusable neglect.”

The trial court denied Wife’s motion, finding “there was no mutual mistake, only a unilateral mistake on the part of the Wife.”

Wife appealed.

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

Tennessee Rule of Civil Procedure 60.02, provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court.

Tennessee courts have characterized relief under Rule 60.02 as an “exceptional remedy” designed to strike a proper balance between the competing principles of finality and justice. Rule 60.02 provides an “escape valve” that is not easily opened. Courts have reversed relief granted under Rule 60.02 where the judgment was not oppressive or onerous. Relief under Rule 60.02 is not meant to be used in every case in which the circumstances of a party change after the entry of a judgment or order, nor by a party who is merely dissatisfied with a particular outcome.

A party seeking relief under Rule 60.02 must substantiate the request with clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In other words, the evidence must be such that the truth of the facts asserted is highly probable. In general, the bar for attaining relief is set very high and the burden borne by the movant is heavy.

All motions for relief based on Rule 60.02 must be made within a reasonable time. Motions based on Rule 60.02(1) or (2) shall be made “not more than one year after the judgment, order or proceeding was entered or taken.” In other words, one year is the outer limit on the time allowed for filing the motion under 60.02(1) or (2). Rule 60.02 does not permit a litigant to slumber on her claims and then belatedly attempt to relitigate issues long since laid to rest.

A marital dissolution agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. An MDA is to be looked upon and enforced as an agreement, and is to be construed as other contracts as respects its interpretation, its meaning and effect. Moreover, generally speaking, the parties are not entitled to a marital dissolution agreement that is different from the one they negotiated.

After reviewing the record, the Court commented:

The trial court found that wife had ample time to review the MDA before she signed it; that she did in fact review it; and that she told husband’s attorney that she was going to take it to her attorney to review. Wife does not dispute these findings. It is obvious that husband did not hide the existence of his pension, because wife testified that she was aware of it but mistakenly thought it would be divided later. A cursory reading of the MDA, however, should have put wife on notice that this document is designed to finally and forever conclude the parties’ rights growing out of their marriage… There is no indication in the record that wife was deceived or misled in any way before she signed the MDA. Wife has not established any ground for reopening the final divorce judgment under Rule 60.02.

Accordingly, the trial court’s judgment was affirmed.

Worgan v. Worgan (Tennessee Court of Appeals, Eastern Section, April 30, 2014).

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

Facts: After 19 years of marriage, the parties divorced. They have two children.

Husband is a medical doctor earning approximately $360,000 a year.

Wife is a high school graduate who was a homemaker and stay-at-home parent throughout the marriage. By the time of trial, Wife had obtained a real estate license and was working as an assistant property manager earning $36,000 per year.

The trial court awarded Wife transitional alimony of $3000 a month for five years because she “has a significant need wherein she is economically disadvantaged and needs to adjust to the economic consequences of her divorce.”

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court and modified the alimony award.

There are four types of spousal support, or alimony, available in Tennessee: (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.

Alimony in futuro is intended to provide support on a long-term basis and is to continue until the recipient dies or remarries. Tennessee Code Annotated § 36-5-121(f)(1) provides that this type of alimony is appropriate when

there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse….

Alimony in solido is another form of support and is typically paid in one lump sum or else paid in installments over a period of time. Alimony in solido may be awarded in place of, or in addition to, another alimony award, for the purpose of providing support, including attorney’s fees, where appropriate.

Rehabilitative alimony is meant to assist an economically disadvantaged spouse to acquire additional education or training in an effort to achieve a standard of living comparable to the standard of living that existed during the marriage or the post-divorce standard of living expected to be available to the other spouse. The legislature has expressed a preference for this type of alimony in those situations when the economically disadvantaged spouse is reasonably able to obtain an earning capacity that is reasonably comparable to the economically advantaged spouse.

Transitional alimony is appropriate when a court determines that rehabilitation is not necessary, but the economically disadvantaged spouse needs help adjusting to the economic consequences of a divorce. This type of alimony has been described as assisting a person in transition become adjusted to the status of living as a single person.

Tennessee courts have stated frequently that when making alimony determinations, the two most important considerations are the disadvantaged spouse’s need and the obligor spouse’s ability to pay. All of the factors can be found at Tennessee Code Annotated § 36-5-121(I).

On appeal, Wife argued that regardless of any effort on her part, she will never be able to earn enough to match the standard of living she enjoyed during her marriage, or the standard of living Husband will continue to enjoy post-divorce.

After reviewing the record, the Court agreed, reasoning:

The proof shows that Wife is 45 years old and that, with the agreement of Husband, she stayed at home to take care of the parties’ children while Husband pursued his education and career as a doctor. Although Wife is able-bodied, it is not realistic to believe Wife can be rehabilitated to the extent that she will be able to achieve a standard of living comparable to the standard of living of the parties prior to the divorce or to the standard of living Husband is expected to enjoy post-divorce. Consequently, Wife is not capable of rehabilitation as defined by statute….

The evidence shows that Wife has taken steps to make herself more marketable by becoming a licensed real estate agent and earning her certification as a surgical technologist. However, the best job she has been able to find pays just 1/10 of the amount Husband earns in a year as a physician.

Having determined that Wife is not able to be rehabilitated, we find that the trial court erred in failing to award Wife alimony in futuro. The trial court failed to apply the correct legal standard to the facts….

We find Wife has a need for alimony in futuro and that Husband has the ability to pay Wife $4,500 per month. Accordingly, we modify the trial court’s judgment and award Wife alimony in futuro in the amount of $4,500 per month.

Accordingly, the trial court’s judgment was reversed and the alimony award modified.

Jirjis v. Jirjis (Tennessee Court of Appeals, Middle Section, April 30, 2014).

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

Posted by: K.O. Herston | June 20, 2014

Photo of the Week: Lake Outing with the Babies

Fontana Lake, Great Smoky Mountains National Park

Fontana Lake, Great Smoky Mountains National Park

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

Knoxville child custody lawyersFacts: This is the second interlocutory appeal in this case.

In this child custody dispute, the parties agreed to engage Dr. Clement as an evaluating psychologist for the purpose of making a parenting recommendation to the trial court. Dr. Clement was expressly authorized to speak with the parties’ respective counselors.

Later, upon Mother’s request, the trial court ordered Father to undergo a Rule 35 forensic examination, which examination was performed by Dr. Ciocca. Father authorized the release of certain medical and psychological records to Dr. Ciocca. When Mother sought to obtain copies of those records and the trial court ordered that they be produced to her, Father appealed.

In the first appeal, the summary of which can be found here, the Court ordered that Husband’s privileged psychological records be disclosed to the trial court for an in camera review for the purpose of conducting the comparative fitness analysis.

On remand, the trial court held Father waived the psychologist-client privilege by maintaining he was mentally and emotionally fit, and that Mother should have available to her Father’s mental health records for cross-examination and for review by Mother’s own expert witnesses.

Father again sought and received a second interlocutory appeal.

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

The Court of Appeals’ opinion is a whopping 60 pages long. Because it covers so much ground, it would be impossible to summarize it in a concise blog post. Instead, I will post what I think are the most important excerpts and holdings that Tennessee divorce lawyers and litigants need to know.

1.  Seeking custody does not, by itself, amount to an automatic waiver of the psychologist-client privilege. Denying allegations of mental instability and abuse – or, in other words, asserting mental stability in response to the other party’s allegations of mental instability — without more, does not amount to automatic waiver. Otherwise, there would be no psychologist-client privilege in child custody cases; a party seeking privileged mental health records could obtain them simply by alleging the mental instability of his or her adversary.

2.  With either the attorney-client privilege or the psychologist-client privilege, when the holder of the privilege discloses privileged information in testimony, this can constitute a waiver of the privilege…. Likewise, if a party puts his mental health “at issue,” this too can constitute waiver of the psychologist-client privilege.

3.  Father’s reliance on the reports of the evaluating experts does not constitute a waiver of the privilege as to the records of Father’s treating psychologists.

4.  A party’s oral communications with a court-appointed evaluator are neither privileged or confidential.

5.  Neither Father’s consent to giving Dr. Clement or Dr. Ciocca access to his treating psychologist nor his voluntary disclosure of some of his mental health records to Dr. Clement or Dr. Ciocca constitute a full and general waiver of the psychologist-client privilege as to all of Father’s mental health records.

6.  If an evaluating psychologist requests access to privileged information, in the absence of a court order compelling such disclosure, the party to be evaluated may decline the examiner’s request for the privileged information…. The party to be examined may be concerned that there will be a strategic cost to refusing the examiner’s request for access to privileged records. Absent a court order requiring disclosure, however, the decision on whether to proceed to the examiner’s request is a strategic one…. Absent compulsion by the court, the party holding the privilege remains free to decline the examiner’s request for access to privileged mental health records.

7.  If the disclosure (absent court order) of privileged information to an evaluating psychologist for a court-ordered evaluation is voluntary, it must necessarily constitute a waiver of the privilege with respect to the information actually disclosed.

8.  The psychologist-client privilege attaches to personal communications made by the patient to his treating psychologist, not to the treating psychologist’s opinion, observations, diagnosis, or treatment alternatives. If Father’s treating psychologists disclosed only non-privileged information, then there is no waiver arising from the evaluating psychologists’ contact with Father’s treating psychologists. If any of Father’s treating psychologists disclosed privileged information to either Dr. Clement or Dr. Ciocca, this would constitute a waiver after the particular privileged information disclosed only if the disclosure was pursuant to the express permission of Father, the privilege-holder, for such disclosure. Likewise, Father’s voluntary disclosure of mental health records to Drs. Clement or Ciocca would constitute a waiver of the privilege only as to the records actually disclosed to either of the evaluators with Father’s express permission.

9.  If Father voluntarily disclosed privileged information to either Dr. Clement or Dr. Ciocca, he waived the privilege as to the information that was actually disclosed by Father or with Father’s express permission…. In the record before us, we are unable to ascertain whether information subject to the psychologist-client privilege was voluntarily disclosed by Father to either Dr. Clement or Dr. Ciocca, and thus are unable to determine the extent to which Father waved the psychologist-client privilege. We are left with little choice but to remand the case to the trial court for factual findings….

The Court of Appeals then modified its ruling in the first interlocutory appeal. Considering that both Dr. Clement and Dr. Ciocca will be available to testify about Father’s mental health and, on remand, Mother will have access to any documents that father voluntarily disclosed to either Dr. Clement or Dr. Ciocca, the purpose for the in camera review ordered in the first appeal has been removed. On remand, the trial court may, in its discretion, perform an in camera review of the documents deemed to be within the limited waiver for the purpose of screening out any that are not relevant to the issues or unduly prejudicial. But the trial court is no longer either directed or authorized to conduct an in camera review of Father’s privileged mental health records for the general purpose of conducting its comparative fitness analysis.

Opining that the trial court’s actions after the first appeal show the trial court “demonstrates little inclination to follow the appellate court’s ruling,” the Court expressed “little hope that another remand to the trial judge below would yield compliance with this Court’s directive” in the first appeal. Because “it appears that the trial judge had difficulty putting his previous views aside and complying with the holding” in the first appeal, the Court found “that reassignment to a different trial judge is advisable to preserve the appearance of justice.”

Accordingly, the case was remanded and assigned to a different trial court.

K.O.’s Comment: This lengthy (!!!) opinion affirms that Tennessee follows the more protective view of the psychologist-client privilege. A parent’s mental health is not automatically at issue just because the parent is seeking custody of the children or because one parent alleges the other is mentally unstable. A party’s mental health records remain privileged unless they are voluntarily disclosed by the party.

The Court also declined to interpret the recent amendment to Tennessee Code Annotated § 36-6-106(a)(5), which authorizes a trial court to order the disclosure of a party’s confidential mental health information “if necessary for the conduct of the proceedings,” because the amendment was not in effect when the trial court entered its order and there is no reason to believe the legislature intended the amendment to be applied retroactively. The Court did provide some guidance, however, noting “[t]he phrase ‘necessary to the proceedings’ obviously means substantially more than simply ‘relevant to the proceedings.'”

Culbertson v. Culbertson (Tennessee Court of Appeals, Western Section, April 30, 2014).

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

Posted by: K.O. Herston | June 16, 2014

Collaborative Divorce in Tennessee

Knoxville collaborative divorceIt is becoming increasingly common for divorcing parties to inquire about collaborative divorce. What is collaborative divorce? How is it different from a divorce through litigation?

What is collaborative divorce?

The International Academy of Collaborative Professionals provides the following answer:

Collaborative Divorce is a voluntary dispute resolution process in which parties settle without resort to litigation.

In Collaborative Divorce:

1. The parties sign a collaborative participation agreement describing the nature and scope of the matter;

2. The parties voluntarily disclose all information which is relevant and material to the matter that must be decided;

3. The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement;

4. Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding;

5. The parties may engage mental health and financial professionals whose engagement terminates upon the undertaking of any contested court proceeding; and

6. The parties may jointly engage other experts as needed.

Collaborative Divorce provides you and your spouse or partner with the support and guidance of your own lawyers without going to court. Additionally, Collaborative Divorce allows you the benefit of coaches, child and financial specialists all working together with you on your team.

In Collaborative Divorce, core elements form your commitments to this process, which are to:

  • Negotiate a mutually acceptable resolution without having courts decide issues.
  • Maintain open communication and information sharing.
  • Create shared solutions acknowledging the highest priorities of all.

This segment from The Today Show reviews the collaborative divorce process from the view of the clients and attorneys:

 

Will Collaborative Divorce work for you?

Divorce or the ending of a long-term relationship is a sensitive and personal matter. No single approach is right for everyone. Many couples find Collaborative Divorce to be a welcome alternative to the often destructive, and sometimes very expensive aspects of court proceedings.

If the following values are important to you, Collaborative Divorce is likely to be a workable option for you:

  • I want us to communicate with a tone of respect.
  • I want to prioritize the needs of our children.
  • My needs and those of my spouse/partner require equal consideration, and I will listen objectively.
  • I believe that working creatively and cooperatively resolves issues.
  • It is important to reach beyond today’s frustration and pain to plan for the future.
  • I can behave ethically toward my spouse/partner.
  • I choose to maintain control of the divorce/separation process with my spouse/partner, and not relegate it to the courts.

If this approach reflects your own thinking, I suggest you talk to a Collaborative Divorce lawyer about your own situation. A Collaborative professional can help you decide if Collaborative Divorce is the right alternative for you and your family.

To find a lawyer in your area who practices Collaborative Divorce, a good resource is Member Directory of the International Academy of Collaborative Professionals.

In Knoxville, there is a select group of divorce lawyers who have received special training in Collaborative Divorce. You can find their profiles here. There are similar groups of Collaborative Divorce attorneys in Nashville and Memphis.

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

Posted by: K.O. Herston | June 13, 2014

Photo of the Week: Lurking Alligator

Lurking Alligator

Lurking Alligator, Everglades National Park

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

Knoxville child support lawyersFacts: When Mother and Father divorced, Mother was designated the primary residential parent of Child. Mother was allocated 280 days of parenting time while Father received 85 days. Father was ordered to pay child support.

Years later, Mother petitioned to modify Father’s child support based on several reasons, including a change in both parents’ income and healthcare and work-related childcare costs. Most of the changes were undisputed.

The evidence at trial indicated Child did not want to spend time with Father. By the time of trial, Father had not exercised any parenting time for nearly two years.

The trial court ruled that if Mother had petitioned to modify the parenting plan, then it would have included 365 days of parenting time for Mother and zero days for Father in the new child support calculation. Because Mother had not asked to modify the parenting plan, the trial court’s updated child support worksheet kept Father’s parenting time as previously ordered, i.e., 85 days.

Mother appealed.

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

The Tennessee Child Support Guidelines state that the child support worksheet should reflect “the number of days each child spends with each parent and/or non-parent caretaker.” The Guidelines contemplate that the number of “days” spent with each parent, as reflected on the worksheet, will be the actual number of days spent in the care of each parent, as opposed to the number of days established under the permanent parenting plan.

After reviewing the record, the Court reasoned:

The undisputed testimony indicates that Mother cares for the child 365 days yearly and that the child and Father have not visited since September 2010. Therefore, we conclude that the trial court erred in its calculation of child support by failing to consider the actual number of days each parent spent with the child.

Child support shall be calculated based upon the actual number of annual days Mother and Father exercise parenting time—365 days for Mother and zero days for Father—rather than the number of days contemplated in the permanent parenting plan.

Accordingly, the trial court’s judgment was reversed and the case remanded for recalculation of Father’s child support obligation.

Allen v. Allen (Tennessee Court of Appeals, Middle Section, April 28, 2014).

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

Facts: After approximately 9 years of marriage, Father and Mother divorced. They have five children.

The trial court designated Father as the primary residential parent. Mother was awarded parenting time every other Thursday from 6:00 PM until the following Monday morning when she took the children to school or to their grandmother’s home. Mother also received parenting time every other Wednesday from 6:00 PM until the following morning when she took the children to school or to their grandmother’s home. She also received half of the school holidays and every other week during the summer.

To determine child support, the trial court had to determine Mother’s parenting time. The trial court stated:

[W]hen counting days, the day starts at midnight. Some lawyers like to tailor it to try to give their client the benefit of additional days but we are going to keep it simple. We are going to start a day just like they have always been counted, and they start at midnight. Whoever has the children for 12 hours and one minute with a 24-hour period, with the 24-hour period beginning at midnight — that is the person that gets credit for that day.

Using this methodology, the trial court determined Mother’s parenting time to be 110 days.

Mother appealed.

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

Mother argued the trial court erred in calculating the number of days she exercises parenting time for the purpose of determining her child support obligation. She argued a proper calculation results in a finding of 146 days of parenting time rather than 110.

The Tennessee Child Support Guidelines define “day” for the purposes of determining calculating child support as follows:

“Days” — For purposes of this chapter, a “day” of parenting time occurs when the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent or caretaker. The twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day. Accordingly, a “day” of parenting time may encompass either an overnight period or a daytime period, or a combination thereof.

After reviewing the record, the Court reasoned:

Mother should have been credited with 146 days of parenting time in the calculation of her child support obligation. Applying [the Child Support Guidelines], Mother’s parenting time beginning on Thursday at 6:00 p.m. until 7:00 a.m. the following Monday when Mother takes the children to school is calculated at four days; similarly, Mother’s mid-week visitation from Wednesday at 6:00 p.m. until 7:00 a.m. on Thursday is calculated at one day. As a result of the error in calculating Mother’s parenting time, we vacate the award of child support and remand the case for recalculation of the child support.

Accordingly, the trial court was reversed.

K.O.’s Comment: Lawyers should note the Child Support Guidelines allow periods of less than 12 hours to be aggregated into a “day” for purposes of calculating parenting time. Section 1240-2-4-.04(7)(3) states:

Except in extraordinary circumstances, as determined by the tribunal, partial days of parenting time that are not consistent with this definition shall not be considered a “day” under these Guidelines. An example of extraordinary circumstances would include a parenting situation where the ARP is scheduled to pick up the child after school three (3) or more days a week and keep the child until eight (8) o’clock p.m. This three (3) day period of routinely incurred parenting time of shorter duration may be cumulated as a single day for parenting time purposes.

Hooper v. Hooper (Tennessee Court of Appeals, Middle Section, April 25, 2014).

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

Posted by: K.O. Herston | June 6, 2014

Photo of the Week: Dragonfly

Dragonfly, Ijams Nature Center

Dragonfly, Ijams Nature Center

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

Facts: After 31 years of marriage, Wife filed for divorce. Shortly after the divorce action was filed, Husband pleaded guilty to two counts of first-degree murder and was sentenced to life without parole on each conviction. Husband remains incarcerated.

The surviving spouse of one of Husband’s victims obtained a $12 million judgment against Husband for wrongful death.

When dividing the marital assets, the trial court found that Husband dissipated $85,000 from the marital estate. $75,000 was due to the legal fees incurred in the defense of his criminal charges. $10,000 resulted from legal fees incurred by Wife because of the vexatious manner in which Husband conducted his defense of the divorce action.

Husband appealed.

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

Dissipation of assets requires a showing of intentional, purposeful, and wasteful conduct. The party alleging a dissipation of marital assets has the burden of persuasion and the initial burden of production. After the party alleging dissipation establishes a prima facie case that marital funds have been dissipated, the burden shifts to the party who spent the money to present evidence sufficient to show that the challenged expenditures were appropriate.

After reviewing the record, the Court concluded:

The evidence does not preponderate against the court’s determination that Husband dissipated $85,000.00 of marital funds. The $75,000.00 incurred in the defense of Husband’s criminal case was based on his illegal conduct that was intentional, purposeful and had produced no benefit to his family. With respect to the $10,000.00 the court determined that, given the facts of the divorce case, including Husband’s acknowledgment of the grounds for divorce, his incarceration, and the wrongful death judgment entered against him, the numerous motions he filed—which had to be defended by Wife—caused her to unnecessarily expend marital funds; this finding is supported by the record…. Husband has failed to introduce any proof that the $85,000.00 was an appropriate expenditure of marital funds.

Accordingly, the trial court’s judgment was affirmed.

Lloyd v. LLoyd (Tennessee Court of Appeals, Middle Section, April 24, 2014).

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

Facts: Mother and Father were married and had one child. They divorced in 2011. Mother was designated the primary residential parent and awarded 254 days of parenting time. Father received 111 days.

At the time of divorce, Mother worked at a hospital making $44,000 per year. She also attended a nurse practitioner program.

In anticipation of her upcoming graduation from the nurse practitioner program, Mother began looking for employment opportunities. Mother sent Father a certified letter proposing that she relocate to Mississippi with the parties’ daughter, for employment as a nurse practitioner and also to live closer to her family.

Father filed a timely objection to Mother’s proposed relocation and petitioned to modify the parenting plan.

At the hearing, Mother testified she had been offered a job in Mississippi as a nurse practitioner with a starting salary of almost $80,000. She further testified she looked for positions in Jackson or McNairy County but found no job openings as advantageous is the job she was offered in Mississippi. Mother did not apply for any jobs in Tennessee.

Father testified he had not personally searched for available nurse practitioner jobs in the area but opined that “surely” there were such jobs available.

The trial court denied both Mother’s proposed relocation and Father’s petition to modify the parenting plan. It found Mother did not make reasonable efforts to find a similar job closer to home. It also found Father to be very active in the child’s life and daily activities such that the proposed relocation would limit his involvement in the child’s life.

Mother appealed.

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

One of the most common post-divorce flashpoints occurs when the primary residential parent decides to move with his or her child or children to another city or state. The farther the move, the more intense the opposition because of the move’s effect on visitation and the ability of the other parent to foster and maintain an appropriate relationship with his or her child or children.

In Tennessee, parental relocation is governed by Tennessee Code Annotated § 36-6-108. The framework in the statute sets out different standards for relocation, depending on whether the parents spend substantially equal intervals of time with their child. Under the statute, when parents spend substantially equal amounts of time with the child, “[n]o presumption in favor of or against the request to relocate with the child shall arise,” and the trial court must determine whether the relocation is in the child’s best interest.

Where the parents do not spend substantially equal intervals of time with the child, Tennessee Code Annotated § 36-6-108 has a legislatively mandated presumption in favor of the relocating custodial parent. The relocation statute mandates a grant of permission to relocate unless the parent opposing relocation proves at least one of the three enumerated grounds. The court does not reach the issue of whether the move is in the best interest of the child unless one of the grounds is proven. The parent opposing the relocation bears the burden of proof to establish one of these three grounds, and if he or she fails to do so, the relocation must be permitted.

In this appeal, the only ground at issue was whether Mother’s proposed relocation had a “reasonable purpose.” There are no bright-line rules with regard to what constitutes a reasonable purpose for a proposed relocation. Determinations concerning whether a proposed move has a reasonable purpose are fact-intensive and require a thorough examination of the unique circumstances of each case. In assessing whether a proposed relocation has a reasonable purpose, courts take into account both economic and non-economic factors. Regardless, the reasonable purpose of the proposed relocation must be a significant purpose, substantial when weighed against the gravity of the loss of the non-custodial parent’s ability to participate fully in their children’s lives in a more meaningful way.

On appeal, Father argued that as long as he showed Mother did not look “hard enough” for a job closer to McNairy County, he carried his burden of proving the lack of a reasonable purpose for Mother’s proposed relocation.

Father’s position is contrary to the established burden of proof in parental relocation cases. The burden was not on Mother to prove the reasonableness of her planned relocation; to the contrary, the burden was Father to establish that the relocation was not for a reasonable purpose.

The Court of Appeals rejected Father’s argument, writing:

[R]elevant economic factors that are typically considered include, without limitation, the relative significance of the increase, the cost of living in the proposed location compared to the present location, . . . opportunity for career advancement and economic betterment of the family unit. As the party with the burden of proving lack of reasonable purpose, however, the onus was on Father to produce evidence from which such a comparison could be made. Mother testified that nurse practitioner job positions available in the general McNairy County and Jackson, Tennessee areas were not suitable for her, that they were either temporary positions or included requirements she did not meet. In response, Father proffered only his own testimony criticizing Mother for not applying for nurse practitioner positions near McNairy County and speculating that “surely” there were such nurse practitioner jobs available in his area. This does not suffice to meet his burden of proving that Mother’s proposed relocation does not have a reasonable purpose….

Accordingly, we must reverse the trial court’s denial of Mother’s request for permission to relocate with the parties’ daughter. The trial court is directed to grant Mother’s request for permission to relocate, and the cause is remanded for further proceedings such as modification of the parties’ parenting schedule to accommodate Mother’s relocation.

Accordingly, the trial court was reversed.

K.O.’s Comment: Father obtained very helpful findings from the trial court regarding the “gravity of loss” to him and the child if Mother’s relocation were allowed. Those findings could have formed an independent basis for rejecting Mother’s proposed relocation apart from the sufficiency of her job search. See, e.g., Carman v. Carman or Thorneloe v. Osborne. The opinion does not indicate whether those findings were argued or emphasized.

Redmon v. Redmon (Tennessee Court of Appeals, Western Section, April 29, 2014).

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

Posted by: K.O. Herston | May 30, 2014

Photo of the Week: Smoky Mountain Sunset

Smoky Mountain Sunset, Great Smoky Mountains National Park

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

Facts: Child was born out of wedlock to Mother and Father. After Mother was arrested while intoxicated and charged with child neglect, Child went into the protective custody of the Department of Children’s Services (DCS). A permanency plan was established and revised a few months later.

Eight months later, DCS petitioned to terminate Mother’s parental rights. The petition alleged four grounds for termination. First, it alleged abandonment by willful failure to support due to the fact that Mother had not provided child support for Child. Second, the petition alleged abandonment for failure to provide a suitable home, specifically alleging that Mother had made no reasonable effort to provide a suitable home for Child since she was removed from Mother’s care, in spite of reasonable efforts by DCS to assist her in establishing a suitable home. Next, the petition alleged that termination was proper due to Mother’s substantial noncompliance with the permanency plans. Finally, the petition alleged the existence of persistent conditions that in all reasonable probability would cause Child to be subjected to further abuse or neglect and that prevented the Child’s safe return to Mother’s care.

After a hearing, the trial court found that all four grounds for termination had been proven by clear and convincing evidence and that it was in Child’s best interest for termination to occur. Accordingly, the parental rights of Mother and Father were terminated.

Mother appealed.

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

Mother argued DCS failed to make reasonable efforts to reunify her with Child.

Under certain circumstances, DCS has a statutory obligation to use “reasonable efforts” to preserve, repair, and restore a parent-child relationship when DCS intervenes in family matters. Thus, when circumstances require that children be separated from their parents, DCS may be required to use reasonable efforts to make it possible for the child to return safely to the child’s home. In addition, when DCS commences a parental rights termination proceeding, it may be required to demonstrate that it has used reasonable efforts to reunify the family before a court will grant its termination petition.

DCS is not required to use reasonable efforts to reunite a parent with his or her child every time it removes a child from a parent’s custody. For example, reasonable efforts are not required if the trial court determines that certain statutorily defined “aggravated circumstances” exist per Tennessee Code Annotated § 37-1-166(g)(4)(A). The decision to pursue a termination of parental rights on the grounds of abandonment, persistence of conditions, and substantial noncompliance generally invokes DCS’s statutory duty to make reasonable efforts to facilitate the safe return of a child to the child’s home.

“Reasonable efforts” entail more than simply providing parents with a list of service providers and sending them on their way. The Department’s employees must use their superior insight and training to assist parents with the problems the Department has identified in the permanency plan, whether the parents ask for assistance or not. However, DCS does not have the sole obligation to remedy the conditions that required the removal of the children from their parents’ custody. When reunification of the family is a goal, the parents share responsibility for addressing the conditions that led to removal. Reunification is a two-way street, and the law does not require DCS to carry the entire burden of this goal. If parents desire the return of their children, they must also make reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions that required the Department to remove their children from their custody.

After reviewing the evidentiary record in great detail, the Court concluded:

Based on the totality of the circumstances in this case, we find that DCS failed to present clear and convincing evidence that it made reasonable efforts to assist Mother and to reunify her with [Child]. Basically, DCS supervised Mother’s visits with [Child]; it provided her with transportation to a single visit; it submitted the necessary requests for funding for Mother’s parenting classes, alcohol and drug assessment, and mental health assessment; it provided Mother with the names of providers for domestic violence classes; and it administered Mother’s drug screens. From the evidence before us, it appears that DCS failed to satisfy its responsibility of assisting Mother with transportation to and from visits when needed, despite her reports of transportation problems; it made no effort to help Mother obtain the intensive outpatient treatment recommended by the alcohol and drug assessment; it made no attempt to aid Mother with obtaining counseling or a medication management evaluation as recommended by the mental health assessment; it failed to assist Mother with the requirement that she apply for TennCare and submit her diagnoses for a determination of eligibility; it wholly failed to make an effort to assist Mother or even provide her with guidance concerning her unstable housing and her employment problem; and it made no attempt to communicate with the Georgia agency to request support services for Mother after she moved (aside from sending the request for the ICPC home study, which Mother specifically requested). In our view, there is no clear and convincing evidence that DCS exercised “reasonable care and diligence” to provide the services needed by Mother in order to assist her with accomplishing the requirements of the permanency plan.

Accordingly, the trial court’s judgment was reversed.

In re Josephine E.M.C. (Tennessee Court of Appeals, Eastern Section, April 17, 2014).

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

This article by Stephanie Hanes in the Christian Science Monitor may be of interest to readers of this family law blog.

Best predictor of divorce? Age when couples cohabit, study says.

A new study suggests the age when couples start cohabiting – whether married or unmarried – correlates with divorce rates, adding new nuance to studies about cohabitation and marriage.

For years, social scientists have tried to explain why living together before marriage seemed to increase the likelihood of a couple divorcing. Now, new research released by the nonpartisan Council on Contemporary Families gives an answer:

It doesn’t. And it probably never has.

This is despite two decades of warnings from academics and social commentators who pointed to studies that claimed a correlation between “shacking up” and splitting up – warnings that increased as the number of couples living together before marriage skyrocketed.

As it turns out, those studies that linked premarital cohabitation and divorce were measuring the wrong variable, says Arielle Kuperburg, a professor at the University of North Carolina, Greensboro, who produced much of the research released Monday. The biggest predictor of divorce, she says, is actually the age at which a couple begins living together, whether before the wedding vows or after.

“Up until now, we’ve had this mysterious finding that cohabitation causes divorce,” she says. “Nobody’s been able to explain it. And now we have – it was that people were measuring it the wrong way.”

Couples who begin living together without being married tend to be younger than those who move in after the wedding ceremony – that’s why cohabitation seemed to predict divorce, Professor Kuperburg explains. But once researchers control for that age variable, it turns out that premarital cohabitation by itself has little impact on a relationship’s longevity. Those who began living together, unmarried or married, before the age of 23 were the most likely to later split.

“Part of it is maturity, part of it is picking the right partner, part of it is that you’re really not set up in the world yet,” she says. “And age has to do with economics.”

Indeed, other research released by the nonpartisan academic group Monday suggests that the longer couples wait to start living together, the better their chances for long-term relationship success.

This makes sense to historian Stephanie Coontz, director of research and public education at the Council on Contemporary Families.

“Marriages require much more maturity than they once did,” she says. In the 1950s, husband and wives stepped into well-defined gender rolls. “Nowadays, people come to marriage with independent aspirations and much greater ideas of equality. Maturity is so important, and negotiating skills are so much more important.”

Over the past 50 years, the number of couples who live together before marriage has increased some 900 percent.

There has also been some softening of the perceived link between these living arrangements and divorce: In 2012, the Centers for Disease Control released a report saying that couples who moved in together while engaged had no greater risk for divorce than those who moved in after they were married; other researchers said the difference between premarital cohabitating couples and married couples seemed to be lowering, at least for those who moved in together in the 1990s.

But the hand-wringing continued.

“People, even well read people, end up having a lot of misinformation about what makes divorce more or less likely,” says Virginia Rutter, professor of sociology at Framingham State University in Massachusetts. “The big message [of the new reports] for me is thank goodness there is now really good, clear, unambiguous research that can help us get rid of the ‘cohabitation is the issue’ approach. It goes from the easy answer – that life’s problems are about character – to the more challenging answer, that life’s problems are about context – [about] what are the resources that you are empowered to pull together to create a good life.”

Indeed, Sharon Sassler, a professor at Cornell University in Ithaca, N.Y., argues in a different academic paper made public Monday that the length of time a couple has been romantically involved before moving in together is also crucial to whether they end up divorcing. That, she says, has connections to a host of educational and financial factors.

Those with higher education levels tend to take longer to move in with their partners, she found. Half of college-educated women moved in with their partners after at least a year; one-third were romantically involved for two years before joining house. Data from the most recent National Survey of Family Growth show that more than half of women with only a high school degree in a cohabitating relationship moved in with their partner in less than six months.

Professor Sassler found in her research that many couples with lower incomes and less education decided to move in together because of financial pressures. She argues that it is the type of premarital cohabitation that predicts divorce, not necessarily cohabitation in itself.

This jibes with another one of Kuperburg’s findings: that there are two general types of cohabitation, one that the couples view as the first step toward marriage, engagement ring or not, and one that is done without the same commitment, or out of perceived convenience.

“People who think they are going to get married act the same as people who are married,” she says. “People who are not sure, they act very differently. They have different work habits, health habits. But living together to ‘test drive’ the marriage? According to my research, that shouldn’t hurt marriage at all.”

Source: Best Predictor of Divorce? Age When Couples Cohabit, Study Says (Christian Science Monitor, March 10, 2014)

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

Posted by: K.O. Herston | May 23, 2014

Photo of the Week: Above the Trees

Above the Trees, Great Smoky Mountains National Park

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

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