Posted by: koherston | September 22, 2017

Photo of the Week: Rushing Water

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

Facts: Father and Mother, the parents of two children, presented with an uncontested divorce on grounds of irreconcilable differences. Their agreement was contained within the proposed final decree of divorce that incorporated a marital dissolution agreement and permanent parenting plan that had been signed by both parties.

At the hearing for the trial court to consider and either approve or reject the parties’ agreement, Mother requested certain changes to which Father objected. The trial court heard from both parties who revealed, inter alia, that Father was HIV-positive and in a relationship with a male paramour.

The trial court modified the final decree of divorce by including the following self-styled “injunctions”:

No homosexual activity around children. Father to avoid body fluid exchange with children, no bathing, showering, or sleeping with children. . . . Father may have no paramours around the children whatsoever.

Father appealed.

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

Under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 8 of the Tennessee Constitution, the government may not deprive an individual of life, liberty, or property without due process of law.

Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner. When a court’s determination turns on a question of fact, the courts must give litigants the chance to present evidence and to confront adverse witnesses.

Due process also requires appropriate notice in order to afford the litigant the opportunity to be prepared to present evidence

The Court determined the trial court made substantive changes to the parties’ agreement without affording Father due process of law:

[T]o comport with due process, the trial court should have afforded Father and Mother notice so they could be prepared to present competent evidence. That was not done in this case. Therefore, the judgment of the trial court must be vacated.

On remand, should the parties not present an agreement that is acceptable to the court, after affording the parties due notice and an opportunity to present evidence, the trial court should consider the ruling in Hogue v. Hogue before imposing generalized “paramour” and “lifestyle” restrictions. As we discussed in Hogue, restraints on visitation should be well defined. Moreover, restraints must involve conduct that competent evidence shows could cause harm to the child.

The Court then quoted the Hogue opinion:

[I]t is not necessary to create new and different visitation rules and restraints depending on sexual orientation. Visitation decisions should be guided by the best interests of the child. . . . Neither gay parents nor heterosexual parents have special rights. They are subject to the same laws, the same restrictions. Our courts should follow the same principles for placing restrictions on gay parents [that] they use on any parents; those principles provide that after making an award of custody, the trial courts are to grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship unless the court finds that visitation is likely to endanger the child’s physical or emotional health.

Thus, the trial court’s judgment was reversed and the case remanded for further proceedings.

Brantley v. Brantley (Tennessee Court of Appeals, Middle Section, September 15, 2017).

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

Facts: Husband and Wife settled their divorce after 20 years of marriage.

Their marital dissolution agreement contained this paragraph 13:

13. Retirement/pension plans: Upon entry of Final Decree of Divorce, one half of the funds and assets in the T. Rowe Price Roth IRA account ending in #5830, styled in the name of Husband, shall be, and is hereby, transferred to Wife, and said one half shall be divested out of Husband and vested absolutely in Wife.

Both parties testified that the “account ending in #5830” did not refer to an account number, but instead referred to an investor number. The investor number covered 12 accounts, some of which were retirement accounts, some of which were non-retirement brokerage accounts, and some of which were Uniform Transfers to Minors Act (UTMA) accounts for the benefit of the children.

It is undisputed that Husband divided the two retirement accounts in accordance with paragraph 13 but he did not divide the non-retirement account. Husband testified that he assumed paragraph 13 only addressed the retirement accounts managed by T. Rowe Price under that investor number.

Wife petitioned to have Husband found in civil contempt for failing to transfer half of the non-retirement portion of the T. Rowe Price account to her as required by paragraph 13 of the MDA. She also sought attorney’s fees per the MDA’s enforcement provision.

The trial court found the parties intended to divide both the retirement and non-retirement assets equally and that Husband fully understood this intent. Husband was found in civil contempt and ordered to be incarcerated until he pays Wife one half the value of the non-retirement funds contained in the account at the time of the divorce plus interest.

Husband appealed.

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

Husband argued the marital dissolution agreement was not clear or specific enough to warrant a finding of contempt.

In order to prevail on a civil contempt claim, the plaintiff must establish four elements.

First, the plaintiff must establish that the order alleged to have been violated is lawful. An order is lawful if it is issued by a court with jurisdiction over both the subject matter of the case and the parties.

Second, the plaintiff must establish that the order is clear, specific, and unambiguous. A person may not be held in civil contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable a reasonable person to know exactly what actions are required or forbidden.

Third, the plaintiff must prove that the defendant actually violated the order.

Fourth, the plaintiff must prove that the violation of the order was willful. If a person knows what he or she is doing and intends to do what he or she is doing, then that person is acting willfully.

If the court determines that a party has willfully violated a lawful and unambiguous order, the court may, in its discretion, hold the party in civil contempt.

The Court agreed that the MDA was too ambiguous to justify a civil contempt finding:

The provision of the order at issue addresses “retirement” assets managed by T. Rowe Price under “account ending in #5830.” The prime reserve account is identified on the T. Rowe Price statement as a “nonretirement” account with an “account number” that does not end in 5830, although the “investor number” does end in 5830. The evidence admitted at trial showed that T. Rowe Price managed 12 accounts for the parties, some of which were retirement accounts, some of which were nonretirement accounts, and some of which were UTMA accounts. The MDA was divided into sections which separately addressed retirement accounts, brokerage accounts, and that UTMA accounts. Thus, there was some discrepancy between the numbers and names used to describe the accounts on the T. Rowe Price statement and the numbers and names used to describe the accounts in the MDA. This discrepancy created an ambiguity. Of course, this ambiguity could be clarified by going beyond the four corners of the order to ascertain the parties’ intentions but the courts are not permitted to go beyond the four corners of the order in contempt cases to clarify an ambiguity. Accordingly, we are unable to conclude that the terms as expressed in the order, as they pertain to the nonretirement account, are clear, specific, and unambiguous.

*     *     *     *     *

[T]he order must precisely explain the details of compliance in a way that will enable a reasonable person to know exactly what actions are required or forbidden. We have concluded that the order, as it pertains to the non-retirement [] account, fails to satisfy this requirement. Therefore, Husband cannot be held in contempt for failing to comply with this provision.

Thus, the trial court’s civil contempt finding was reversed.

Scobery v. Scobey (Tennessee Court of Appeals, Middle Section, September 13, 2017).

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

Posted by: koherston | September 15, 2017

Photo of the Week: Smoky Mountain Black Bear Cub

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

Posted by: koherston | September 13, 2017

Same-Sex Parents Still Face Legal Complications

This article by Elizabeth Harris in The New York Times will be of interest. Same-sex parents in Tennessee can relate.

Same-Sex Parents Still Face Legal Complications

At gay pride marches around the country this month, there will be celebrations of marriage, a national right that, at just two years old, feels freshly exuberant to many lesbian, gay, bisexual and transgender Americans.

But while questions of marriage are largely settled, same-sex couples who choose to have children still face a patchwork of laws around the country that define who is and who can be a parent. This introduces a rash of complications about where L.G.B.T.Q. couples may want to live and how they form their families, an array of uncertainties straight couples do not have to think about.

“There are very different laws from state to state in terms of how parents are protected, especially if they’re unmarried,” said Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights. “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another. To know that you could drive into another state and not be considered a parent anymore, that’s a pretty terrifying situation.”

Adoption laws, for example, can be extremely contradictory. In some states, like Maryland and Massachusetts, adoption agencies are expressly prohibited from discriminating based on sexual orientation. At the same time, other states, like South Dakota, have laws that create religious exemptions for adoption providers, allowing agencies to refuse to place children in circumstances that violate the groups’ religious beliefs.

Alan Solano, a state senator in South Dakota, sponsored his state’s adoption legislation. He said he was concerned that if those groups were forced to let certain families adopt, they might get out of the adoption business entirely, shrinking the number of placement agencies in the state.

“I wanted to ensure that we have the greatest number of providers that are working on placing children,” Mr. Solano said. “I’m not coming out and saying that somebody in the L.G.B.T. community should not be eligible for getting a child placed with them. What I hope is that we have organizations out there that are ready and willing to assist them in doing these adoptions.”

But as a practical matter, lawyers who specialize in L.G.B.T.Q. family law say that in some areas, religiously affiliated adoption organizations are the only ones within a reasonable distance. Moreover, they say, such laws harm children who need homes by narrowing the pool of people who can adopt them, and they are discriminatory.

“There is a very serious hurt caused when you’re told, ‘No, we don’t serve your kind here,’ and I think that gets lost in the public discourse a lot,” said Susan Sommer, director of constitutional litigation for Lambda Legal. “There’s just this narrative that absolutely ignores, and almost dehumanizes, L.G.B.T. people. They’re missing from the equation here.”

There are a number of laws that can affect L.G.B.T.Q. families, from restrictions on surrogacy to custody, and the landscape is constantly shifting.

Within a single state, there can be layers of befuddling complexity, with certain rules in place that help gay families and others that restrict them. But even in states that tend to have friendly laws, life is more complicated for gay parents.

Alice Eisenberg and Anna Wolk live in Brooklyn, and they decided together to get pregnant. Ms. Eisenberg carried the child, and Ms. Wolk was an equal partner every step of the way. For legal reasons, the couple was married before their daughter, Olympia Bruce Lavender Wolk, was born, and both parents’ names are on the birth certificate.

Nonetheless, they are in the middle of doing a second-parent adoption.

The process varies from state to state — some states do not have them at all, instead offering stepparent adoptions — but in New York, the process is lengthy and complicated. Ms. Wolk must be fingerprinted and provide every address where she has lived, down to the month, going back decades. A social worker must do a home visit with the couple. The whole process will cost them about $4,000, they said, and could take a year to complete.

“We won marriage, and people thought the fight was over,” Ms. Eisenberg said. “But having to adopt your own child feels way more invasive, upsetting, disturbing.”

The Supreme Court has ruled that an adoption in one state must be honored in another, so even if a nonbiological parent is on the birth certificate — a right that stems from a recognition of the couple’s marriage — L.G.B.T.Q. family law experts strongly recommend an adoption, or some kind of judicial decree as the strongest protection.

“It seems both insulting and ridiculous,” said Ms. Sommer of Lambda Legal. “But sadly, the reality is, if you can manage it, you should do it.”

After all, what if something happens to the biological parent, and their family members want custody of the child? While traveling internationally, parental rights that stem from a judicial order are more likely to be respected than rights that come from being married if a country does not recognize your marriage. And if a couple breaks up, lawyers say that without an adoption, the nonbiological parent may have to spend hundreds of thousands of dollars in court to establish the right to custody.

“We don’t know which policies will continue on,” said Diana M. Adams, who owns an L.G.B.T.Q. family-law firm in New York City. “You’ll always be safer in more-conservative states and more-conservative countries if parentage is reliant on an adoption rather than on same-sex marriage.”

For many couples, that uncertainty is the most compelling reason to do a second-parent adoption, to head off problems they cannot foresee.

“We’re still coming from a place of fear about it,” Ms. Wolk said. “I don’t feel like right now we’re going to get into trouble not having completed it, but you never know what’s going to get overturned tomorrow.”

The political climate has made many people especially nervous, lawyers say. Alana Chazan has a family-law practice in Los Angeles, and she said that the busiest day of her career was Nov. 9, 2016, the day after Donald J. Trump was elected president.

“I have been telling people for years: Do a second-parent adoption, do a second-parent adoption, do a second-parent adoption,” she said. With the Supreme Court’s Obergefell v. Hodges decision in 2015 that made gay marriage legal nationwide, an expansion of parenting laws in California, and a feeling that the country was marching toward acceptance, Ms. Chazan said, many people seemed to think it would not be necessary.

“It was almost as though they thought I was scamming them as a lawyer, that I was just trying to take their money,” she said. “But no. With the election of Trump, a lot of people got that.”

When a second-parent adoption is finally complete, it can be a relief — but Ms. Wolk and Ms. Eisenberg said that when they leave the courthouse with their adoption decree, they have no plans to celebrate.

“I’m not going out to lunch to celebrate this,” Ms. Eisenberg said. “This feels like something, as a movement of queer people, we should be rallying against.”

K.O.’s Comment: Interested lawyers may want to attend the Tennessee Bar Association’s LGBT Law Annual Forum in Nashville next Friday.

Source: Same-Sex Parents Still Face Legal Complications (The New York Times, June 20, 2017).

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

Well, that didn’t take long.

A few weeks ago I wrote about the sudden avalanche of appellate decisions dismissing parental-rights-termination cases because the appellant’s lawyer signed the notice of appeal on behalf of the appellant.

Recently amended Tennessee Code Annotated § 36-1-124(d) requires that “[a]ny notice of appeal filed in a termination of parental rights action shall be signed by the appellant.”

Everything started on July 11 with In re Gabrielle W. In that case, the Eastern Section of the Court of Appeals held, as a matter of first impression, that an appellant’s failure to sign the notice of appeal in a termination-of-parental-rights case violates the statute and is a “jurisdictional default” requiring dismissal of the appeal.

Other parental-rights-termination appeals across the state quickly met the same fate. One month after the first dismissal, the first dissenting opinion arrived. Then another. Then another.

In my post on August 23, I wrote, “Supreme Court, here we come!”

Wasting no time, the Tennessee Supreme Court took an extraordinary action the very next day.

Here’s what happened.

In November 2016, the trial court in East Tennessee terminated Father’s parental rights. Father timely filed a notice of appeal signed by his attorney, but not by Father himself.

On July 13 — just two days after it issued its opinion in In re Gabrielle W. — the Eastern Section of the Court of Appeals ordered Father to show cause why his appeal should not be dismissed for lack of jurisdiction.

Father’s response included a constitutional challenge to Tennessee Code Annotated § 36-1-124(d). The Tennessee Attorney General’s office stated it would defend the constitutionality of the statute.

Before the Court of Appeals could say, “Hmmm, that’s interesting,” the Tennessee Supreme Court snatched the case right out from under them! The Supreme Court cited Tennessee Code Annotated § 16-3-201(d)(3), which allows the Court to assume jurisdiction over an undecided appeal pending in an intermediate court when there is a “compelling public interest.”

In other words, an undecided appeal pending before the Court of Appeals just skipped the Court of Appeals via a one-way ticket to the Supreme Court.

The Supreme Court ordered the parties to brief the following issues:

  • whether failure to comply with Tennessee Code Annotated § 36-1-124(d) is a jurisdictional defect, and
  • whether Tennessee Code Annotated § 36-1-124(d) it is unconstitutional based on separation of powers, due process, and/or equal protection grounds.

Emphasizing that time is of the essence, the Supreme Court ordered Father to file his brief within 15 days, the Attorney General’s office to respond 15 days thereafter, and scheduled oral argument for October 11 in Nashville.

K.O.’s Comment: (1) I applaud the Supreme Court’s action because, among other reasons, I’m tired of reading all the dismissals.

(2) What’s up with only giving Father’s lawyer 15 days to brief these broad issues of constitutional law?!? I hope Father’s counsel didn’t have any plans for the next few weeks and doesn’t need any sleep.

In re Bentley D. (Order of the Tennessee Supreme Court, August 24, 2017).

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

Posted by: koherston | September 8, 2017

Photo of the Week: Heavy Is the Head That Wears the Crown

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

Facts: Child was born in Guatemala 16 years ago. Child’s father abandoned the family over four years ago. Child’s mother struggled to provide for the family, which forced Child to drop out of school after the sixth grade because his mother was too poor to pay for him to continue. After dropping out of school, Child worked in the cornfields. Child’s family ate once or twice a day and typically ate only the corn they grew.

In 2015, Child left Guatemala and traveled to the United States, where he was apprehended by immigration authorities. He was placed in the temporary custody of his paternal uncle in Tennessee. Child has lived in Tennessee since that time, and has been enrolled in school in Tennessee.

In 2016, Child’s uncle petitioned for the appointment of a guardian for Child requesting, among other things, a specific finding regarding whether it is in Child’s best interest to be returned to Guatemala.

After hearing, the trial court found that both of Child’s parents had willfully abandoned Child. The trial court refused, however, to make a finding as to whether it was in Child’s best interest to be returned to Guatemala because the trial court ruled that it lacked jurisdiction to make such a determination.

Child’s uncle appealed.

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

Some children present in the United States without legal immigration status are in need of humanitarian protection because they have been abused, abandoned, or neglected by a parent. Special Immigrant Juvenile (“SIJ”) status is an immigration classification that may allow for these vulnerable children to immediately apply for lawful permanent resident status, i.e., a “green card.”

A child cannot apply for SIJ status without an order from the juvenile court that contains factual findings based on state law about the abuse, neglect, or abandonment, family reunification, and the best interest of the child. It should be noted, however, that the state court order does not grant SIJ status or a “green card”; only federal immigration authorities can grant or deny these benefits.

The state-court proceeding is just the first step of a three-step process to obtain a green card. Once the state court has made the specific findings, the child can apply to federal authorities for SIJ status. If SIJ status is granted, then the third step is applying for a green card.

The Court determined that the Tennessee trial court had jurisdiction to make the finding as to whether it is in Child’s best interest to be returned to Guatemala:

[T]he trial court had jurisdiction to hear the Petition for Appointment of Guardian pursuant to Tennessee Code Annotated § 34-to-101.

*     *     *     *     *     *

In the case now before us, [federal law] establishes that in order to apply for special immigrant juvenile status, the Minor must have, among other things, an order from a Tennessee court placing him in the custody of an individual appointed by the court, a determination that reunification with his parents is not viable due to abandonment [or other possible grounds] as found under Tennessee law, and a determination that it would not be in the Minor’s best interest to be returned to Guatemala. The trial court’s Order Appointing Guardian appointed the Minor’s uncle [as the] guardian of the Minor, placed the Minor in the custody of the Minor’s uncle, and found that reunification of the Minor with his parents was not viable due to willful abandonment. The trial court, however, failed to make a finding with regard as to whether it is in the best interest of the Minor to be returned to Guatemala. We note . . . that making such finding does not guarantee that the Minor will be granted special immigrant juvenile status. This finding, however, is a required predicate for the Minor to apply for such status.

The Petition for Appointment of Guardian properly contained a request seeking a finding regarding whether it is in the Minor’s best interest to be returned to Guatemala. We find and hold the trial court had jurisdiction to make this requested finding.

Thus, the case was remanded to the trial court to determine whether it is in Child’s best interest to be returned to Guatemala.

In re Domingo C.L. (Tennessee Court of Appeals, Middle Section, August 30, 2017).

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

Posted by: koherston | September 4, 2017

To Raise Better Kids, Say No

This article by Scott Sonenshein in The New York Times may be of interest.

To Raise Better Kids, Say No

Despite the temptation for parents to say yes to their children’s wishes, research shows there’s an insidious side to chasing after the newest thing others have. It fosters a sense of deficiency that can never be fully satisfied. First they want the doll, then all of the accessories — and of course the four-story Barbie mansion.

And so I’ve taken on the work of saying no sometimes. At first, not surprisingly, my daughters, aged 4 and 9, revolted. They called me a bad father and I got plenty of mean looks. But over time, they realized the fun that comes from a no. Now my daughters pretend that their Elsa doll plays with a package of Shopkins, giving both toys a second, and better, life.

It turns out that saying no pays off far beyond avoiding raising spoiled kids. When we always yield to our children’s wants, we rob them of the opportunity to find solutions by adapting what they already have. Kids who learn from denial realize at an early age that they won’t always have the perfect tool for every job. They might not know something, have something, or be something. But that’s not the end of pursuing goals — it’s the beginning of activating their resourcefulness to find another way.

Youngsters are naturally resourceful. Give toddlers a frying pan and all sorts of uses come to their minds. As adults, we’re stuck using it to make a stir-fry. Many years of chasing after things we don’t need erodes our own ability to make more out of what we already have. It also sets a bad example for our kids.

In one study, researchers asked elementary school children to help Bobo the Bear, a stuffed animal, reach his toy lion using some materials: building blocks, a pencil, an eraser, a ball, a magnet, a toy car and a wooden box.

As children grow older, their brains develop in ways that should make it easier for them to solve this type of problem. Indeed, the oldest children in the study (6- and 7-year-olds) reached the correct solution (i.e., using the wooden box to prop up the building blocks) faster, on average, than the younger participants, who were 5.

But there was one condition in the experiment when the younger children ended up outperforming the older kids. And it had nothing to do with innate talents or artistic tendencies.

The researchers made a subtle change in how they displayed the materials. Instead of laying them all out on the table, the researchers used the wooden box as a container to store everything else, such as the magnet and pencil. Upon seeing the box acting like a container, the older children struggled to expand it to anything beyond a container. For the younger children, the box remained just as flexible a resource as it was before.

Each time we acquiesce to our kids’ latest request to buy something, we subtly condition them that their resources have limited uses. An occasional veto will compel them, in this case literally, to think outside the box.

In American culture, abundance tends to be seen as a symbol of success, prompting some parents to say yes to things they can’t really afford. Witness the elaborate coming of age parties people across cultures and income levels throw for their children, even if it means going into debt.

Many people who grow up without much recognize resourcefulness as an essential skill to get by. Those of us fortunate to live in relative abundance can benefit from occasionally experiencing scarcity. To be sure, I’m not suggesting denying children a generous supply of things they actually need like healthy meals, warm clothes and love. But plenty of wishes we cater to teach the wrong message. By having children occasionally experience scarcity, we can help them solve problems more effectively.

In one study, a set of participants wrote a brief essay about a time in childhood when they didn’t have much, while a second set wrote about growing up having a lot. Afterward, the researchers presented both groups with a problem that required using Bubble Wrap in different ways. People assigned to the scarcity group had better solutions compared to the abundance group.

Why might thinking about scarcity lead people to view their resources more expansively? With abundance, people treat resources as what they appear to be on the surface, utilizing them in traditional ways. But when embracing scarcity, they give themselves freedom to use resources in new ways. Imagine the upside of a weekend full of “nos” — it’s likely to be one occupied with new experiences: invented games, a family dance party or time spent outdoors.

This strategy has worked wonders for our family, and I received the ultimate compliment after my older daughter’s most recent birthday party. It was “the best day of my life,” she gleefully told me. Instead of paying for a party, we had a scavenger hunt in a nearby park where we asked the kids to scour the area to find things they could use to solve challenges, like making containers to protect an egg from a 10-foot fall. There were three teams of kids, each with their unique combination from a variety of materials, including newspaper, cups, leftover Halloween jack-o’-lanterns, dirt, cotton and Bubble Wrap. The kids, naturally resourceful when we let them be, had a blast. And no eggs were broken.

All was good until we got home. “Can I open my presents now?” my daughter asked. “Yes,” I hesitantly replied. I’ll have plenty of other chances down the road for my next no.

Source: To Raise Better Kids, Say No (The New York Times, May 17, 2017).

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

Posted by: koherston | September 1, 2017

Photo of the Week: It’s Football Time in Tennessee!

 

But let’s not forget Vanderbilt’s win last year!

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

Facts: Husband and Wife divorced after 22 years of marriage.

During the last eight years of marriage, they jointly owned and operated a durable medical supplies company. Prior to starting the company, Wife worked as an elementary school teacher.

Both parties contributed to the company’s success. While Husband was responsible for the financial aspects of the business, Wife was the “face” of the company, focusing on marketing and networking.

After their separation, there were periods of time where the trial court put Husband solely in charge of the company and periods of time where Wife was solely in charge of the company.

After hearing the proof, the trial court awarded the company to Husband, specifically finding that the best prospect for successful operation of the company lies in the hands of Husband.

The marital estate was divided 51.8% to Husband and 48.2% to Wife.

The trial court also awarded Wife rehabilitative alimony followed by alimony in futuro.

Husband appealed.

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

Husband argued Wife is not economically disadvantaged.

“Economically disadvantaged” is a legal term of art. Its meaning is reflected in Tennessee’s alimony statute, Tennessee Code Annotated § 36-5-121(c)(1), which states, in pertinent part:

Spouses have traditionally strengthened the family unit through private arrangements whereby one (1) spouse focuses on nurturing the personal side of the marriage, including the care and nurturing of the children, while the other spouse focuses primarily on building the economic strength of the family unit. This arrangement often results in economic detriment to the spouse who subordinated such spouse’s own personal career for the benefit of the marriage.

Tennessee Code Annotated § 36-5-121(c)(2) further describes the “economically disadvantaged spouse” as one who “suffers economic detriment for the benefit of the marriage.”

In McKee v. McKee, the trial court explained the meaning of “economically disadvantaged” as follows:

[Husband] also requests alimony on the basis that he is economically disadvantaged because [Wife] earns more money. That is not is what is meant by economically disadvantaged. The legislature sets forth the policy basis for alimony in T.C.A. § 36-5-121(c)(1). . . .

In essence, a homemaker who sacrifices career opportunities for the marriage suffers a relative economic disadvantage. . . . [Husband] did not subordinate his career for the benefit of the marriage. Since he suffered no relative economic disadvantages, alimony is inappropriate.

The McKee Court affirmed the trial court’s ruling, stating, “[A]lthough [Husband] did make contributions as a parent, he did not suffer the ‘economic detriment’ described under T.C.A. § 36-5-121(c) by subordinating his career in order to make contributions as a homemaker or parent.”

If a court finds a spouse is not “economically disadvantaged,” then that spouse is not entitled to alimony and the court’s inquiry goes no further. Thus, before considering the statutory factors for alimony, Tennessee courts must first make the threshold finding that a party is “economically disadvantaged” as that term of art has been interpreted by Tennessee’s appellate courts.

Here, the Court found Wife is economically disadvantaged because she sacrificed her earning capacity to increase Husband’s:

On this record, we find no error in the court’s determination that Wife was relatively economically disadvantaged. . . . Since 2009, Husband and Wife devoted all their time and energy to [the company]. Both parties contributed to [the company’s] financial success, which allowed them to enjoy a high standard of living. The court divided the marital estate essentially equally but awarded [the company], the only income-producing asset, to Husband. Without the business she helped to build, Wife will be forced to start anew while Husband enjoys greater economic potential. Husband’s higher earning capacity postdivorce can be directly linked to Wife’s efforts to establish and grow the business.

Thus, the trial court’s judgment was affirmed.

Norman v. Norman (Tennessee Court of Appeals, Middle Section, August 28, 2017).

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

The Tennessee Supreme Court released for review and comment a proposed new rule governing collaborative practice in family-law matters.

The new rule is proposed by the Tennessee Bar Association, which studied the growing method of dispute resolution known as collaborative practice or collaborative divorce.

The petition describes collaborative practice as one where

Collaborative attorneys are hired pursuant to limited scope representation agreements whereby they represent clients for the purpose of assisting them reach a marital dissolution agreement, a parenting plan where necessary, and filing necessary documents to determine an uncontested resolution of the dispute. If the parties are unable to reach an agreement with their collaborative counsel, they obtain new counsel to prepare for litigation.

* * * * *

Typically, parties meet with each other and their attorneys in a series of joint sessions where they discuss their individual needs and goals for the divorce and for their postdivorce lives. With counsel, the parties develop and evaluate various options for maximizing their respective interests. . . .

Efficiency is promoted when parties jointly engage other neutral professionals, particularly neutral financial professionals who assist parties in gathering a complete profile of the parties’ assets and liabilities and preparing anticipated future budgets. The financial neutral works with both parties to develop and assess financial options. It is less expensive for one financial neutral (usually at a lower hourly rate) to gather all relevant financial information from the parties than for each attorney to mine the same financial data from their respective clients.

Among other things, the proposed rule defines the “collaborative family-law process,” lists the requirements for a collaborative family-law participation agreement, and discusses the considerations that determine whether a collaborative approach is appropriate for a particular party.

It also addresses the nature and limits of the privilege against disclosure of communications in collaborative cases. Importantly, the proposed rule formalizes the protection of communications with neutral experts, who are often engaged by the parties as part of the collaborative process.

The Tennessee Supreme Court wants to hear from you about the proposed rule. Written comments must reference docket number ADM2017-01195 and may be emailed to appellatecourtclerk@tncourts.gov.

K.O.’s Comment: Collaborative practice continues to grow in popularity, particularly in family law. The proposed rule is a reflection of that.

If you are interested in learning more about collaborative divorce or obtaining training in collaborative practice, contact one of the three collaborative practice groups in Tennessee:

You can also learn more about collaborative practice through the leading professional organization, the International Academy of Collaborative Professionals.

In Re: Petition to Adopt a New Rule of the Tennessee Supreme Court concerning the Practice of Collaborative Family Law (Tennessee Supreme Court, August 22, 2017).

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

Posted by: koherston | August 25, 2017

Photo of the Week: Smoky Mountain Whitetail

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

As I wrote about a few weeks ago, the legislature enacted a statute last year that requires parents appealing the termination of their parental rights to personally sign the notice of appeal, instead of the customary practice of the attorney signing the notice of appeal.

Because of this new procedural requirement, appeals in termination of parental rights cases are being dismissed left and right because the attorney signed the notice instead of the parent.

It started on July 11 with In re Gabrielle W., where the Court held that the failure of the parent to personally assign the notice of appeal deprived of the appellate courts of jurisdiction, thereby requiring that the appeal be dismissed.

Since that time many other appeals were summarily dismissed for the same reason. See, e.g., In re Catherine J., In re Mya V., In re Kendall H., In re Audrina E., In re David P., In re Dae’Jrien T.In re Nevaeh B., In re Homer D., and In re Jayden R. The list seems to grow daily.

In In re Jayden R., the Court dismisses the parent’s appeal for the same reasons as the cases listed above. In that respect, it’s no different from all the other cases. What makes In re Jayden R. noteworthy is that there is — for the first time — a dissenting opinion. Judge Bennett writes:

Tennessee Rule of Appellate Procedure 3(f) specifies the content of the notice of appeal [but also requires that] “a notice of appeal and a termination of parental rights proceedings shall indicate that the appeal involves a termination of parental rights case.”

*     *     *     *     *

[Tennessee Rule of Appellate Procedure 3] does not require the appellant’s signature on the notice of appeal in a parental rights termination case.

*      *     *     *     *

The language of Tennessee Code Annotated § 36-1-124(d) is simple and direct: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” [The statute] does not say the signature is a jurisdictional requirement . . . . Our statute does not say that absent the signature on the notice of appeal it must be dismissed . . . .

Reading the words in their natural and ordinary sense and without reading in any words not used, it appears that the legislature left the effect of Tennessee Code Annotated § 36-1-124(d), if any, up to the courts.

Judge Bennett then notes that if the new signature requirement is interpreted to require dismissal or deny jurisdiction, as the Court did in this case and the ones that preceded it, then constitutional requirements like the right to appointed counsel or to due process might be implicated depending on the circumstances.

After acknowledging that a statute enacted by the legislature can have the effect of amending rules promulgated by the Tennessee Supreme Court, Judge Bennett continues:

The existence of Tennessee Code Annotated § 36-1-124(d) does create some practical difficulties. Having rules of appellate procedure in statutes as well as in appellate rules makes it more difficult for appellate practitioners to locate all the rules they are expected to follow. A principal purpose of the Rules of Appellate Procedure is to bring together in one place a simplified, coherent, and modern body of law. The statute also destroys the uniform nature of notices of appeal, which could create confusion. Furthermore, Tennessee Rule of Appellate Procedure 8A, which specifically addresses appeals of termination of parental rights cases, makes no mention of Tennessee Code Annotated § 36-1-124(d) in the text or comments. In addition, Form 1 in Appendix A to the Tennessee Rules of Appellate Procedure, a sample notice of appeal, does not reflect the existence of Tennessee Code Annotated § 36-1-124(d) and neither does the sample notice of appeal form on the website of the Administrative Office of the Courts. Thus, it appears that our rules and forms may be misleading as to notices of appeal in parental rights termination cases.

Based upon the language of Tennessee Code Annotated § 36-1-124(d) and the absence of change or comment in Tennessee’s court rules, I conclude that the statute is not jurisdictional. Therefore, I respectfully dissent. Noncompliance with Tennessee Code Annotated § 36-1-124(d) should not lead to an automatic dismissal for lack of jurisdiction. Rather, the appellate courts should look at the entire circumstances regarding the failure to sign to determine the appropriate court action, if any.

Now that we have our first dissenting opinion, I am convinced the Tennessee Supreme Court will weigh in on this issue. I don’t know if it’ll happen with this particular case, however, because the Court also analyzed the substantive issues and ended up affirming the termination of parental rights.

UPDATE: After I wrote this post and scheduled it for publication, the opinion in In re Nevaeh B. was released. Just yesterday, the opinion in In re Homer D. was released. Same issues, same analysis, same results. However, Judge Clement wrote dissenting opinions in both Nevaeh B. and Homer D. that are consistent with the dissent written by Judge Bennett. So now we have three dissenting opinions on this interesting issue! Supreme Court, here we come!

K.O.’s Comment: (1) When I first wrote about this subject, Memphis attorney Linley Richter Jr., Esq., commented to ask why Tennessee Code Annotated § 23-2-104 wouldn’t control this issue. That statute provides that an attorney has the power to execute, on behalf of the attorney’s client, all “papers necessary and proper for the prosecution of the suit at any stage of its progress.” He raises a good question. An appealing party should consider that argument along with those discussed in the dissents. Maybe the next dissenting opinion will throw that into the mix.

(2) I also asked someone to explain the rationale for requiring that appealing parties only in parental rights termination cases be required to personally sign the notice of appeal. Nashville attorney Matt Muenzen, Esq., suggested the following:

My guess is that because there is an automatic right of appeal for TPR cases, court-appointed attorneys for parents in TPR cases felt that if they lost contact with their clients after the TPR hearing, they were concerned about the ethical implications of not filing appeals for their clients. Ultimately, this was slowing down permanency for children, so the legislature thought this was a good solution to expedite adoption timelines. At least that’s what I think.

That sounds like a plausible explanation to me. If anyone knows more about the reason for the statutory change, please share your knowledge by commenting below.

(3) If you represent one of the parties who had their case summarily dismissed on this basis, you need to request permission to appeal to the Supreme Court. The Supreme Court must address this issue, and you don’t want your client to be without a remedy if the Supreme Court agrees with the dissenters.

(4) This is my 1,000th post!!!

In re Jayden R. Dissenting Opinion (Tennessee Court of Appeals, Middle Section, August 11, 2017).

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

Facts: Mother and Father are the divorced parents of two daughters.

Their parenting plan provides for joint decision-making authority and says:

The parties shall each pay one-half (50%) of all private school tuition, school supplies, fees, extracurricular expenses, school trips, sports activities, graduation expenses, and any and all other school or extracurricular expenses incurred on behalf of the children, which expenses have been mutually agreed upon in advance of incurring the same.

Years later, Mother petitioned to hold Father in contempt for failing to pay his share of the oldest child’s private school tuition.

Father responded that Mother enrolled the oldest child at Girls Preparatory School (GPS) without obtaining his agreement. Instead, Father wanted the child to attend Notre Dame High School, a private, Catholic high school in Chattanooga.

Mother admitted enrolling the older child at GPS but said she did so because Father “unreasonably” withheld his approval, thereby forcing Mother to act unilaterally “because time is of the essence.”

After a hearing, the trial court determined that the oldest child should attend GPS but that Father should pay that portion of the GPS tuition that equals the tuition at Notre Dame High School, with Mother paying the balance. This results in Father paying 49% of the GPS tuition.

Father appealed.

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

The Tennessee Child Support Guidelines provide that a trial court may add “extraordinary educational expenses” to the base child support amount to pay for private school tuition when the trial court finds such a deviation to be in the best interests of the children.

Specifically, the Guidelines provide that

[e]xtraordinary educational expenses may be added to the presumptive child support as a deviation. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and/or secondary schooling . . . .

After reviewing the record and the operative parenting plan that requires the party to each pay 50% of private school expenses when the expenses have been mutually agreed upon in advance, the Court held the trial court’s ruling was inconsistent with the parenting plan:

The [] Parenting Plan . . . contains a clause requiring joint decision-making related to the children’s education, to wit: “major decisions regarding the children shall be made as follows: educational decisions made jointly.” Father argues that he was excluded from the decision-making process when Mother unilaterally enrolled the older child at GPS. From our review of the record, the evidence preponderates in favor of Father’s contention. Father testified that Mother informed him that she planned to enroll the older child at GPS. Father voiced his disagreement; nonetheless, Mother enrolled the child over Father’s protest. Mother’s testimony corroborates Father’s testimony. . . . Because Father was foreclosed from participating in the decision to enroll the older child at GPS, we conclude that he should not be made to pay tuition above what was contemplated in the . . . Parenting Plan[, which] provides that Father will pay one-half of the private school tuition [when the parties agree in advance]. . . . [W]e conclude that Father should be ordered to pay one-half of the Notre Dame High School tuition . . . going forward unless and until Mother and Father jointly agreed to enroll the child in another school.

The case was remanded to the trial court to enter a new order consistent with this ruling.

Pua-Vines v. Vines (Tennessee Court of Appeals, Eastern Section, August 2, 2017).

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

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