Facts: After being hospitalized from Husband’s physical abuse, Wife obtained an order of protection prohibiting Husband from contacting Wife for one year.

Wife later filed for divorce, requesting, in part, that the one-year order of protection be modified to a permanent order of protection.

Husband never filed an answer to the complaint for divorce.

Wife obtained a default judgment. The trial court made permanent the order of protection. No appeal was taken.

Eleven months later, Husband filed a Rule 55.02 motion to dismiss the permanent order of protection.

The trial court denied Husband’s motion.

Husband appealed.

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

Tennessee Code Annotated § 36-3-601, et seq., provides the statutory framework governing orders of protection. This statutory scheme contains sections mandating that a definite time frame be specified for such orders. For example, Tennessee Code Annotated § 36-3-605 provides that upon the filing of a petition, an ex parte order of protection may be issued immediately (for good cause shown). The statute further provides:

(b) Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year, unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year, after which time a further hearing must be held for any subsequent one-year period. Any ex parte order of protection shall be in effect until the time of the hearing, and, if the hearing is held within fifteen (15) days of service of such order, the ex parte order shall continue in effect until the entry of any subsequent order of protection issued pursuant to § 36-3-609. If no ex parte order of protection has been issued as of the time of the hearing, and the petitioner has proven the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, the court may, at that time, issue an order of protection for a definite period of time, not to exceed one (1) year.
* * *
(d) Within the time the order of protection is in effect, any court of competent jurisdiction may modify the order of protection, either upon the court’s own motion or upon motion of the petitioner. If a respondent is properly served and afforded the opportunity for a hearing pursuant to § 36-3-612, and is found to be in violation of the order, the court may extend the order of protection up to five (5) years. If a respondent is properly served and afforded the opportunity for a hearing pursuant to § 36-3-612, and is found to be in a second or subsequent violation of the order, the court may extend the order of protection up to ten (10) years. No new petition is required to be filed in order for a court to modify an order or extend an order pursuant to this subsection (d).

Thus, at a hearing following entry of an ex parte order of protection, a trial court has only two options: (1) dissolve the ex parte order of protection; or (2) extend the order of protection for a definite period not to exceed one year.

Likewise, Tennessee Code Annotated § 36-3-608(a) provides “all orders of protection shall be effective for a fixed period of time, not to exceed one (1) year.”

After reviewing the record, the Court explained:

Construing the statutory scheme concerning orders of protection so that its component parts “are consistent and reasonable” and avoiding an interpretation of the statute that “would render one section of the act repugnant to another,” we determine that no authority provides for the issuance of a permanent, open-ended order of protection….

[W]e conclude that the permanent and unlimited order of protection issued by the trial court exceeded the authority granted by Tennessee Code Annotated § 36-3-601, et seq. We note, however, that Wife also requested in her divorce complaint that the trial court issue an injunction restraining both parties from, inter alia, “harassing, threatening, assaulting, or abusing the other. . . .” The trial court granted such an injunction on a temporary basis upon the filing of the complaint pursuant to Tennessee Code Annotated § 36-4-106, which provides that such injunction can be modified by the court. Because Wife sought a permanent order of protection in her complaint, which remedy is outside the authority granted by the order of protection statute, we will construe her request as one for a permanent injunction pursuant to Tennessee Rule of Civil Procedure 65. We therefore reverse the trial court’s grant of a permanent order of protection as void, such remedy being unavailable pursuant to Tennessee Code Annotated § 36-3-601, et seq. We modify the provision contained in the final decree to instead grant an injunction to Wife, which restrains Husband from “harassing, threatening, assaulting, or abusing” Wife.

Accordingly, the trial court’s ruling was reversed and the permanent order of protection was converted into a permanent restraining order.

Swonger v. Swonger (Tennessee Court of Appeals, Eastern Section, April 28, 2016).

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

Posted by: koherston | May 20, 2016

Photo of the Week: Autumn Thistle

autumn thistle

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

Facts: Mother and Father adopted Child.

Three years later, Mother and Father divorced. Father was designated the primary residential parent for Child while Mother received 80 days of parenting time.

Much post-divorce litigation ensued.

Seven months after the divorce, Father petitioned to terminate Mother’s parental rights on the grounds that Mother willfully failed to pay child support and failed to exercise her parenting time.

knoxville divorce lawyersMother moved to dismiss Father’s petition for lack of standing and, therefore, subject matter jurisdiction.

Father then amended his petition to add his mother — Child’s paternal grandmother — as a party.

Mother again sought dismissal because Grandmother lacked standing, too.

The trial court denied Mother’s motion to dismiss.

Mother requested an interlocutory appeal, which request was granted.

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

Standing is a judicially created doctrine that asks whether a party advancing a claim is properly situated to prosecute the action. Courts should refuse to entertain an action at the instance of one whose rights have not been invaded or infringed.

Standing to petition to terminate parental rights is statutorily restricted. In pertinent part, Tennessee Code Annotated § 36-1-113(b)(1) provides:

The prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child’s guardian ad litem, or the department [of children’s services] shall have standing to file a petition . . . to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child. The child’s parent, pursuant to subdivision (g)(11), shall also have standing to file a petition . . . to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child.

Tennessee Code Annotated § 36-1-113(g)(11) provides only a single circumstance when a parent can petition to terminate the parental rights of another parent, where the respondent “parent has been found to have committed severe child sexual abuse under any prior order of a criminal court.”

After reviewing the record, the Court explained:

Here, Father made no claim that Mother had been convicted of an offense involving severe child sexual abuse, and therefore, Father had no standing to petition to terminate Mother’s parental rights.

Grandmother also lacked standing to petition to terminate Mother’s parental rights. Father argues that standing is conferred on Grandmother as she is an “extended family member.” However, this argument takes the language of the statute out of context. The extended family member must be “caring for a related child.” Grandmother is not. However, even if she were, she would still lack standing.

To petition to terminate parental rights, the extended family member caring for a related child must be a “prospective adoptive parent.” Grandmother cannot be a “prospective adoptive parent.” To adopt, one must have more than intent or desire. Specifically, to adopt Ava, Grandmother would have to terminate the parental rights of her son, as well as those of Mother…. The allegations of the Petition make clear that she does not intend to terminate Father’s parental rights, and it is equally clear that Father does not intend to surrender his parental rights.

Accordingly, the trial court’s ruling was reversed. Father and Grandmother’s petition to terminate Mother’s parental rights was dismissed.

K.O.’s Comment: Father had no chance here. Parental rights can only be terminated as part of an adoption. A stepparent adoption is the only circumstance that permits one of the biological parent’s rights to remain intact. In all other cases, both biological parents’ rights must be terminated prior to the child’s adoption.

In re Ava B. (Tennessee Court of Appeals, Middle Section, April 27, 2016).

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

Posted by: koherston | May 16, 2016

Why Having Children Is Bad for Your Marriage

I knew that headline would get your attention!

This article by Matthew Johnson in the Washington Post may be of interest.

Why Having Children Is Bad for Your Marriage

Lots of women look forward to motherhood — getting to know a tiny baby, raising a growing child, developing a relationship with a maturing son or daughter. All over the world, people believe that parenting is the most rewarding part of life. And it’s good that so many mothers treasure that bond with their child, because the transition to parenthood causes profound changes in a woman’s marriage and her overall happiness … and not for the better.

Families usually welcome a baby to the mix with great expectations. But as a mother’s bond with a child grows, it’s likely that her other relationships are deteriorating. I surveyed decades of studies on the psychological effects of having a child to write my book “Great Myths of Intimate Relationships: Dating, Sex, and Marriage,” and here’s what the research literature shows.

When people marry, they’re usually in love and happy to be tying the knot. But after that, things tend to change. On average, couples’ satisfaction with their marriage declines during the first years of marriage, and, if the decline is particularly steep, divorce may follow. The course of true love runs downhill. And that’s before you factor in what happens when it’s time to start buying a car seat and diapers.

knoxville tn divorceFor around 30 years, researchers have studied how having children affects a marriage, and the results are conclusive: The relationship between spouses suffers once kids come along. Comparing couples with and without children, researchers found that the rate of the decline in relationship satisfaction is nearly twice as steep for couples who have children than for childless couples. In the event that a pregnancy is unplanned, the parents experience even greater negative impacts on their relationship.

The irony is that even as the marital satisfaction of new parents declines, the likelihood of them divorcing also declines. So, having children may make you miserable, but you’ll be miserable together.

Worse still, this decrease in marital satisfaction probably leads to a change in general happiness, because the biggest predictor of overall life satisfaction is one’s satisfaction with their spouse.

While the negative marital impact of becoming parents is familiar to fathers and mothers, it is especially insidious because so many young couples think that having children will bring them closer together or at least will not lead to marital distress. Yet, this belief, that having children will improve one’s marriage, is a tenacious and persistent myth among those who are young and in love.

It seems obvious that adding a baby to a household is going to change its dynamics. And indeed, the arrival of children changes how couples interact. Parents often become more distant and businesslike with each other as they attend to the details of parenting. Mundane basics like keeping kids fed, bathed and clothed take energy, time and resolve. In the effort to keep the family running smoothly, parents discuss carpool pickups and grocery runs, instead of sharing the latest gossip or their thoughts on presidential elections. Questions about one’s day are replaced with questions about whether this diaper looks full.

These changes can be profound. Fundamental identities may shift — from wife to mother, or, at a more intimate level, from lovers to parents. Even in same-sex couples, the arrival of children predicts less relationship satisfaction and sex. Beyond sexual intimacy, new parents tend to stop saying and doing the little things that please their spouses. Flirty texts are replaced with messages that read like a grocery receipt.

With nearly half of all births being to unmarried couples, some parents may think they have gamed the system by skipping the wedding. Not so. The relationship burden of having children is present regardless of marital status, gender orientation or level of income. In addition, the adverse impact of becoming a parent is found in other countries, including those with greater rates of nonmarital parenting and more generous family policies.

Not surprisingly, it is mothers, not fathers, who bear the heaviest cost of becoming parents. Even when both parents work outside the home and even in marriages in which both spouses describe themselves as sharing the burden of household chores, most parents slide toward gender-stereotypical ways of parenting. Women are more likely to become the “on call” parent, the one who gets up in the night to bring a child a tissue or who’s called by the school nurse.

As part of this pattern, new mothers tend to cut their hours in outside work, which often leads fathers to feel more of the burden of financial responsibility. A common pattern emerges in which dads start spending more time and energy on outside work and moms start doing an increasing percentage of the child care and housework. Cue the feelings of frustration, guilt and distress for both parents.

New mothers often talk about their social isolation, becoming disconnected from friends and colleagues and how their world feels like it’s shrinking. All of these changes lead to fundamental and long-lasting effects on new mothers’ circle of support, including with their spouses.

The consequences of the relationship strain can be serious. Marital stress is associated with many serious physical health problems as well as symptoms of depression and other mental health problems. The link between psychological and marital problems is strong enough that researchers have found that couples therapy is one of the most effective ways of treating depression and some other mental illnesses.

If the arrival of children is hard on marriages, is the departure of children good for marriages? Some marriages do improve once the children leave the nest. In other cases, the successful launch of the children leads spouses to discover they have few shared interests and there’s nothing keeping them together.

These downsides to having children may partly explain why more and more women in the United States and around the world are choosing not to procreate. According to the U.S. Census, the percent of childless American women (ages 15-44) increased a staggering amount in just two generations: from 35 percent in 1976 to 47 percent in 2010.

Despite the dismal picture of motherhood painted by researchers like me (sorry, Mom), most mothers (and fathers) rate parenting as their greatest joy. Much like childbirth, where nearly all mothers believe the pain and suffering was worth it, most mothers believe the rewards of watching their children grow up are worth the cost to their romantic relationships.

Source: Why Having Children Is Bad for Your Marriage (Washington Post, May 6, 2016).

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

Posted by: koherston | May 13, 2016

Photo of the Week: Summer Thistle

summer thistle

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

Two months after Child’s birth, Father petitioned to establish paternity, enter a parenting plan, set child support, and change Child’s last name to Father’s.

knoxville divorceFather argued Child’s last name should be changed to Father’s largely due to what Father described as a poor reputation associated with Mother’s last name. Regarding the reputation associated with Mother’s last name, Father testified that Mother had a reputation for being a “wild child, a party girl” and that Mother’s last name is associated with her father’s ownership of strip clubs.

After the hearing, the trial court ordered that Child’s last name be changed to Father’s surname. The trial court said the name change was

based, in part, upon a need for future continuity for Child, the fact that Father will be her primary residential parent when she enters public school, the fact that Mother’s history of multiple paramours makes it more likely than not that Mother’s surname will change in the future, and the parties’ respective reputations in the community.

Mother appealed.

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

Tennessee courts will not change a child’s surname unless the change promotes the child’s best interests. Among the criteria for determining whether changing a child’s surname will be in the child’s best interests are: (1) the child’s preference, (2) the change’s potential effect on the child’s relationship with each parent, (3) the length of time the child has had its present surname, (4) the degree of community respect associated with the present and proposed surname, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname.

The parent seeking to change the child’s surname has the burden of proving that the change will further the child’s best interests.

After reviewing the record, the Court explained:

Father testified that Mother had a reputation for being a “wild child, a party girl,” and that Mother’s last name is associated with her father’s ownership of strip clubs. Father stated that he did not have any relatives sharing his last name in the counties in which the parties reside. As discussed previously, the court made numerous findings regarding Mother’s lack of credibility and expressed concerns about Mother’s “moral, physical, mental, and emotional fitness,” which are relevant to [the] “degree of community respect associated with the present and proposed surname” factor. Given the trial court’s extensive findings with respect to Mother’s credibility, fitness, and reputation, we conclude that the facts in the record do not preponderate against the trial court’s finding that the best interests of the Child are served by changing the Child’s last name to that of father.

Accordingly, the name change ordered by the trial court was affirmed.

In re: Izzabella B. (Tennessee Court of Appeals, Middle Section, April 22, 2016).

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

Facts: Husband and Wife divorced after 27 years of marriage. Wife is disabled and her earning capacity is far less than Husband’s.

The trial court awarded alimony in futuro to Wife in the amount of $2000 per month. The trial court provided for the automatic modification of alimony as follows:

If Husband’s earnings go below $50,000.00, then his alimony obligation shall be prorated based upon his loss of income. The proration shall come at the end of the year.

There is no decrease in alimony until [Wife] earns over $24,000.00. The Court finds that if she is able to earn $25,000.00 per year then Husband’s alimony obligation would decrease by ½ of that $1,000.00 or by $500.00 per year. If she gets a job and earns $34,000.00, $10,000.00 above the $24,000.00 threshold, then the spousal support would diminish by half of that $10,000.00 or by $5,000.00 per year.

Husband appealed.

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

The general rule is that alimony in futuro is not modifiable until a party files an application and makes the required showings. Tennessee Code Annotated § 36-5-121(a) provides that upon application of either party, the court may award an increase or decrease or other modification of the alimony award based upon a showing of a substantial and material change of circumstances. A change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change is “material” if it was not anticipated or contemplated at the time of the original divorce.

tennessee alimonyTennessee Code Annotated § 36-5-121(f)(2)(A) states that the court “may” modify alimony in futuro based on a showing of a material change in circumstances. Thus, modification of alimony is not automatic even after proving that a substantial and material change in circumstances has occurred. The party seeking to modify alimony must also affirmatively establish that modification is justified based upon the relevant factors in Tennessee Code Annotated § 36-5-121(i).

Nonetheless, Tennessee courts have approved automatic increases in alimony in limited circumstances, such as when a minor child will soon reach majority and the obligor is no longer required to pay child support. Because the ability to pay alimony is one of the most important factors in determining the amount of alimony, an automatic increase may be appropriate when child support is no longer required. By including the automatic modification provision, the trial courts in those cases spared the parties the additional expense and trouble that they would have otherwise incurred from having to re-open the question of alimony so soon after the court’s decree.

After reviewing the record, the Court concluded:

Except in cases involving unique circumstances that are expected to occur in the near future, automatic modifications are generally not appropriate….

Here, the changes in income on which the trial court predicated its automatic modifications of alimony are not certain to occur “so soon after the court’s decree” or, for that matter, at any point in the near future. Consequently, the advantage of automatically modifying alimony is likely to be overcome by the effects of other unpredictable events…. [T]he statutory provisions governing alimony modification are better tools to manage Husband’s alimony obligation than an attempt to predict the status of all the relevant modification factors at a distant point in the future.

In addition, although the need of the obligee spouse and the obligor’s ability to pay are important factors in initially setting the amount of alimony, they are not the only factors. Moreover, in a subsequent proceeding to modify an alimony award, other factors may be more important. Consequently, automatically modifying alimony based solely on income thresholds will seldom be appropriate.

Accordingly, the portion of the trial court’s judgment that automatically modifies the amount of alimony based on the parties’ future income levels was vacated.

Longstreth v. Longstreth (Tennessee Court of Appeals, Middle Section, April 20, 2016).

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

Posted by: koherston | May 6, 2016

Photo of the Week: Love Is in the Air

bull elk smelling cows

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

Facts: This is a legal malpractice case that should serve as a cautionary tale to Tennessee lawyers.

Husband hired Attorney to draft a prenuptial agreement in anticipation of Husband’s marriage to Wife.

Attorney was a solo practitioner who had never drafted a prenuptial agreement before. He used a standard form from 1993 as a guide in drafting this prenuptial agreement.

The prenuptial agreement contained the following boilerplate provision:

Each party declares and acknowledges that there has been a full and complete disclosure of the assets of each party, to the other party, as shown in Exhibit “A” attached. Each party acknowledges that he or she knows and understands the value of the property and the legal and moral consequences of this Agreement, and the legal and moral consequences of this release of the rights in the property. Dustin and Amy declare that they have been advised that they have the right to have this Agreement examined by an attorney, tax advisor, or other counselor of his/her choice. Each party does not desire or does not want any rights in the property, whether acquired before marriage, or during marriage, owned and titled in the name of the other party. The assets of each party are attached in Exhibit “A” hereto.

Exhibit A listed various assets. Notably, dollar values were not assigned to each asset, and the overall net worth of either party was not provided.

Husband and Wife went to attorney’s office and executed the prenuptial agreement. Wife claimed she was not advised to hire independent counsel and believed Attorney represented both her and Husband, which belief was shared by Husband. She did not negotiate the terms of the prenuptial agreement or suggest changes.

Husband and Wife subsequently married. Seven years later, they divorced.

tennessee prenuptial agreementWife challenged the validity of the prenuptial agreement, arguing Husband failed to make a full and fair disclosure of his assets or overall net worth and that she did not possess independent knowledge of that information.

Following the hearing, the trial court ruled the prenuptial agreement was invalid because a reasonable disclosure of assets had not been made and because Wife did not possess independent knowledge of the same.

The trial court granted Wife’s request for temporary spousal support. Husband and Wife later entered into a marital dissolution agreement.

Husband filed a legal malpractice lawsuit against Attorney alleging that Attorney was negligent in drafting the prenuptial agreement. Husband alleged damages of $149,000.

The trial court granted summary judgment for Attorney based on the boilerplate language in the prenuptial agreement that says each party knows the value of the other party’s property.

Husband appealed.

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

Husband argued the court erroneously relied upon the boilerplate language in the prenuptial agreement and failed to consider the countervailing testimony of the parties in the divorce action.

In order to prove damages in a legal malpractice action, a plaintiff must prove that he would have obtained relief in the underlying lawsuit, but for the attorney’s malpractice; consequently, the trial of a legal malpractice claim becomes, in effect, a “trial within a trial.”

Regarding prenuptial agreements, Tennessee Code Annotated § 36-3-501 provides as follows:

[A] prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is determined, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. The terms of such agreement shall be enforceable by all remedies available for enforcement of contract terms.

The Tennessee Supreme Court has held that the proponent of a prenuptial agreement must prove the knowledgeably requirement by either (1) demonstrating that a full and fair disclosure of the full nature, extent, and value of the proponent spouse’s holdings was made or (2) establishing that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the holdings.

After reviewing the record, the Court concluded:

We agree with [Husband]. Parol evidence is inadmissible to add to, vary, or contradict contract language. Here, the evidence was not offered to add to, vary, or contradict a term in the contract. Rather, the evidence was offered to establish that Wife did not enter into the contract with the requisite knowledge, thereby invalidating the Agreement pursuant to section 36-3-501…. At issue in the divorce proceeding and now in this “trial within a trial” is whether a valid prenuptial agreement existed. [K]nowledge is simply an element that must be proven to establish the existence of a valid contract. Section 36-3-501 likewise provides that only agreements that have been entered into “freely, knowledgeably and in good faith and without exertion of duress or undue influence” are “enforceable by all remedies available for enforcement of contract terms.”

In determining whether the spouse seeking to avoid the agreement possessed independent knowledge, the Court suggested consideration of the following factors:

the parties’ respective sophistication and experience in business affairs, the duration of the relationship prior to the execution of the agreement, the time of the signing of the agreement in relation to the time of the wedding, and the parties’ representation by, or opportunity to consult with, independent counsel.

The record reflects that genuine issues of material fact remain as to whether Wife possessed independent knowledge of the full nature, extent, and value of the holdings as evidenced by the conflicting testimony presented by the parties. Likewise, genuine issues of material fact remain as to whether Defendant breached the applicable standard of care in drafting the Agreement. With these considerations in mind, we conclude that the trial court erred in granting summary judgment.

Accordingly, the trial court’s judgment was reversed and the legal malpractice case was remanded for trial.

K.O.’s Comment: I say it in my annual review seminars each year and I’ll say it again: lawyers who are not proficient in family law should refrain from drafting prenuptial agreements. They are fraught with danger. The drafting lawyer is all but guaranteed the prenuptial agreement will be scrutinized and likely challenged by a motivated lawyer if the parties divorce. (I should know — I represented Wife at the trial court level and succeeded in invalidating the prenuptial agreement in this case.) If the prenuptial agreement is invalidated, the drafting lawyer may be on the receiving end of a legal malpractice lawsuit, like Attorney was here. Lawyers who dabble in family law should consider referring clients seeking prenuptial agreements to lawyers who focus exclusively on family law. I’m sure the attorney in this case wishes he had done so.

Roberts v. Ray (Tennessee Court of Appeals, Eastern Section, April 13, 2016).

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

Facts: After the children were adjudicated dependent and neglected, the maternal great-grandparents were awarded temporary custody. The children lived with the great-grandparents for the next six years.

Once custody was restored to the biological parents, the great-grandparents petitioned for grandparent visitation. The biological parents opposed visitation.

grandparent visitationThis is the second appeal in this case. In the first appeal, the trial court ruled the great-grandparents lacked standing under Tennessee’s grandparent visitation statute. The Court of Appeals reversed and remanded the case back to the trial court for a decision on the merits.

The great-grandparents requested visitation every other weekend, two weeks in the summer, and birthdays and holidays.

After hearing, the trial court awarded the great-grandparents visitation for eight hours one day a month plus visitation on December 26 and four hours on each child’s birthday.

The great-grandparents appealed.

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

The great-grandparents argued the trial court erred by not awarding them enough visitation.

The decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal and state constitutions, explicitly prohibit any judicial assumption that grandparent/grandchild relationships always benefit the child, as contrary to the parents’ fundamental right to raise their children as they see fit.

To avoid such an assumption, the Tennessee constitution and Tennessee’s grandparent visitation statute require a grandparent seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Both the federal constitution and Tennessee’s grandparent visitation statute require the petitioning grandparent to show that visitation was opposed or denied in order for the court to consider ordering visitation.

In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interest, and the court must accord special weight to the parent’s determinations.

Based upon the language of the grandparent visitation statute, i.e., Tennessee Code Annotated § 36-6-306, an award of grandparent visitation must be based upon three required elements: (1) the presence of one of the situations enumerated in Tennessee Code Annotated § 36-6-306(a); (2) opposition to grandparent visitation by the custodial parent or parents; and (3) the presence of a danger of substantial harm to the child.

Once the trial court finds the above three elements have been met, the trial court is charged with ordering “reasonable visitation.”

After reviewing the record, the Court reasoned:

Here, we conclude that the trial court’s award of visitation was not an abuse of discretion because it sufficiently recognized the importance of both the parents’ fundamental interests to their children and the children’s busy schedules. While we commend [great-grandparents] for their taking care of their great grandchildren for several years, we cannot conclude that the trial court erred in not ordering more visitation than it did. Although [great-grandparents] suggest that the parents and children would benefit from their help by saving on child care or transportation, the fact remains that both Mother and Father object to such an involved visitation schedule. In his testimony, Father stated that [great-grandparents’] request for bi-monthly visitation would conflict with the children’s activities. Mother also expressed a concern that visitation would conflict with her and Father’s parenting time, already limited by their joint-parenting arrangement. This Court, too, recognizes that the children’s schedules currently revolve around attending school; playing baseball; becoming interested in starting new sports, such as football and basketball; visiting other family members, such as grandparents and cousins; and spending time between the homes of both Mother and Father….

Furthermore, the children, as shown by the testimony, lead active lives. To require them to incessantly remain in flux, against their parents’ wishes, is simply not in their best interest. The children’s active lives, along with their need for stability, stand in contradiction to [great-grandparents’] request for more visitation with the children.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Based on their proposed visitation schedule, it appears the great-grandparents in this case viewed themselves as “equals” as compared to the parents. They were wrong. Grandparent visitation disputes are not comparable to visitation disputes between parents. A grandparent visitation case is not a contest between equals. I wonder if the great-grandparents here might have received more visitation had they proposed something more reasonable.

In re Dayton R. (Tennessee Court of Appeals, Western Section, April 7, 2016).

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

Posted by: koherston | April 29, 2016

Photo of the Week: Humpback Whale Tail

humpback whale

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

Facts: Mother and Father divorced in Chattanooga.

knoxville tn child support guidelinesMother was designated the primary residential parent for Child. Husband was ordered to pay child support.

Many issues were disputed and appealed. The only one I find of interest concerns the allocation of the federal tax exemption for Child.

Regarding the federal tax exemption, the trial court ordered that the exemption be alternated between the parties each year.

Mother appealed.

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

Mother argued the Child Support Guidelines mandate that she receive the federal tax exemption.

Mother relied on § 1240-2-4-.03(6)(b) of the Child Support Guidelines, which says the child support schedule is based on the assumption that the “alternate residential parent will file as a single wage earner claiming one withholding allowance, and the primary residential parent claims the tax exemptions for the child.

After reviewing the record, the Court concluded:

The allocation of exemptions for minor children is discretionary and should rest on the facts of the particular case. It is not mandated Wife be awarded the exemption. Our courts have not held this “rule” is obligatory on the trial courts. The regulations simply describe the methodology used to compute spouses’ respective net incomes, and it is merely a mathematical assumption with no bearing on the trial court’s discretion to award the tax exemptions. Thus, the court was not required to allocate the tax exemption solely to Wife after hearing the entirety of the evidence, including testimony as to income, upon which it determined child support. The trial court did not abuse its discretion in alternating the allocation of the federal tax exemption.

Accordingly, the trial court’s ruling was affirmed.

K.O.’s Comment: There is nothing new about this holding. I have covered it again and again. Despite this, I sometimes see child support magistrates and lawyers who believe exactly as Mother did here, i.e., that the primary residential parent is automatically entitled to the tax exemption because the child support schedule is based on that assumption. I’m covering this particular issue again in an effort to reduce the number of incredulous looks I get from opposing counsel when I argue the tax exemption can and should be allocated to the obligor.

Bidelman-Dye v. Dye (Tennessee Court of Appeals, Eastern Section, March 29, 2016).

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

This article by Debra Cassens Weiss in the ABA Journal may be of interest.

Lawyer Is Suspended for Using Email Information Obtained by Client by Guessing Password

A Missouri lawyer has been suspended for using information obtained by his divorce client by guessing his wife’s email password.

The Missouri Supreme Court indefinitely suspended lawyer Joel Eisenstein with leave to apply for reinstatement in six months, the St. Louis Post-Dispatch reports. A disciplinary hearing panel had sought indefinite suspension with leave to reapply in a year.

Eisenstein’s client had obtained his wife’s payroll documents and a list of direct examination questions prepared by the wife’s lawyer for an upcoming divorce trial, according to the Missouri Supreme Court opinion. The client gave the information to Eisenstein in November 2013.

A disciplinary hearing panel found that Eisenstein used the payroll information during a settlement conference before trial. Opposing counsel learned Eisenstein had the list of questions in February 2014 when it was included in a stack of exhibits that Eisenstein gave the lawyer during trial.

During a hearing that followed, Eisenstein admitted he viewed the information and didn’t immediately disclose it.

Afterward, Eisenstein sent the opposing lawyer an email that read: “Rumor has it that you are quite the ‘gossip’ regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel”

According to the Missouri Supreme Court, ethics rules required Eisenstein to promptly disclose to opposing counsel that he had received the information from his client so that appropriate measures could be taken. The court also said the threatening email Eisenstein sent to opposing counsel was prejudicial to the administration of justice.

Two dissenting justices said Eisenstein should not be allowed to reapply for reinstatement in 12 months, rather than six months.

The dissenters also said it was inappropriate for Eisenstein to solicit the bar and judiciary to influence the state supreme court in the ethics case. “One of these solicitations,” a dissenter wrote, “took the form of an email titled ‘I’m too old for this xxxx!!’ [Expletive deleted.]” The email included Eisenstein’s “complete history” of the case that “varies greatly from the facts” found by the disciplinary hearing panel, according to the dissent. Eisenstein is 70 years old, according to the Post-Dispatch.

Eisenstein has been disciplined five times before. In 1991 and 1999 he was admonished for ex parte communications with a judge. In 1997 he was suspended after pleading guilty to a misdemeanor for failing to file a tax return. In 2001 he was admonished for failing to respond to a request for information regarding an ethics complaint. And he was admonished in 2004 for failing to inform a court of material facts relevant to a pending issue.

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

Posted by: koherston | April 22, 2016

Photo of the Week: Mottled Bald Eagle Taking Flight

mottled bald eagle

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

Facts: Mother and Stepfather filed a petition to terminate Father’s parental rights and adopt the child.

After a trial, the trial court found clear and convincing evidence of grounds to terminate Father’s parental rights and that termination was in the child’s best interest.

The trial court entered an order stating its conclusions and attached a transcript of its oral ruling from the bench detailing its specific factual findings.

Father appealed.

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

Under Tennessee law, the proof in a termination of parental rights case must show, by clear and convincing evidence, at least one statutory ground and that termination is in the child’s best interest. Clear and convincing evidence is evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This heightened standard of review prevents unwarranted termination or interference with a biological parent’s parental rights.

Tennessee Code Annotated § 36-1-113(k) provides that in termination of parental rights matters:

The court shall ensure that the hearing on the petition takes place within six (6) months of the date that the petition is filed, unless the court determines an extension is in the best interests of the child. The court shall enter an order that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the hearing. If such a case has not been completed within six (6) months from the date the petition was served, the petitioner or respondent shall have grounds to request that the court of appeals grant an order expediting the case at the trial level.

knoxville divorceThe statute explicitly requires trial courts to “enter an order which makes specific findings of fact and conclusions of law” in termination cases. Tennessee courts have interpreted this to require that each parental termination order set forth the findings of fact that underlie the conclusions of law.

In the In re Adoption of Muir opinion, No. M2002-02963-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2003), the Court held, “Because of Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of making oral findings from the bench and later adopting them by reference in their final order.” The Muir Court explained that “trial courts must prepare and file written findings of fact and conclusions law with regard to every disposition of a petition to terminate parental rights, whether [such findings] have been requested or not.”

Subsequent decisions held a trial court’s noncompliance with this rule fatally undermines the validity of parental termination order.

After reviewing the record, a majority of the Court concluded:

In this case, the trial court made no written findings of fact in its final order. Instead, the final order attached a transcript of the court’s oral findings given from the bench at the close of the trial. The written order then listed the court’s conclusions of law…. [T]his is insufficient under Tenn. Code Ann. § 36-1-113(k). When such findings of fact are not made, “we cannot simply review the record de novo and determine for ourselves where the preponderance of the evidence lies as we would in other civil, non-jury cases. . . . [W]e must remand the case for the preparation of appropriate written findings of fact and conclusions of law.” For the reasons stated above, we vacate the trial court’s final order and remand the case with directions to prepare the written findings of fact and conclusions of law as required by Tenn. Code Ann. § 36-1-113(k).

Accordingly, the trial court order was vacated and the matter remanded for written findings.

Dissent: Judge Swiney wrote a dissenting opinion, explaining:

The majority vacates and remands this case because the trial court attached to its final order a transcript of its oral findings rendered from the bench at the close of trial, which, the majority concludes, is insufficient under the statute as “an order that makes specific findings of fact. . . .” The majority correctly cites the language of In re: Adoption of Muir, wherein this Court stated: “Because of Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of making oral findings from the bench and later adopting them by reference in their final order.” This Court has invoked this language many times over the years, and I have joined in some of these opinions.

However, upon due consideration, I now question applying the apparent Muir rule that oral findings and conclusions, no matter how thorough or detailed, as transcribed and incorporated into a final order by reference, somehow do not comply with Tenn. Code Ann. § 36-1-113(k). Why is this so? Provided the findings and conclusions are sufficiently detailed, a separate question, what difference does it make under the statute whether the trial court has its oral findings transcribed and incorporated by reference in its final order, or instead later types them out or has them typed out by an assistant? In each of these scenarios, we have what we need for appellate review as required by statute, an order that makes specific findings of fact and conclusions of law….

I question only whether Tennessee Appellate courts should continue to follow Muir and balk at transcribed oral findings and conclusions in parental rights termination cases simply because they initially were uttered aloud, no matter how very detailed and thorough they are.

K.O.’s Comment: I agree with Judge Swiney. Precedent is sometimes followed just because it’s precedent. Occasionally one needs to ask, “Does this longstanding interpretation make any sense?” Usually it does. But sometimes — as is the case here — it is difficult to see the rationale. I appreciate that Judge Swiney is willing to reconsider things when they no longer make sense to him. I don’t think this merits the prestigious “World’s Most Awesome Judge” designation, but it’s certainly a step in the right direction.

In re K.J.G. (Tennessee Court of Appeals, Eastern Section, March 28, 2016).

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

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