Posted by: koherston | July 21, 2017

Photo of the Week: Smoky Mountain Cub

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

Facts: Mother gave birth to Child in 1996. No father was listed on the birth certificate.

When Child was 17 years old, the State petitioned to establish paternity and require the father to provide health insurance for Child. DNA testing confirmed Father’s paternity a few months before Child’s 18th birthday. An order was entered, but it reserved the issue of child support.

Several months later, a hearing was held on Mother’s request to establish child support. The trial court determined that if the child-support award were made retroactive to Child’s birth, it would total over $132,000 without interest.

The trial court determined that the evidence supported a deviation from the child-support guidelines such that the award should not be made retroactive to Child’s birth, explaining:

Father had no knowledge of his parentage until [the] proceedings began and Mother, for reasons of her own, made a conscious effort to keep the child to herself. Ultimately, Mother chose not to take any steps to establish a legal relationship between the child and the father and specifically went out of her way to avoid establishing parentage. She testified that she had never indicated on any documents, including the child’s original birth certificate, that [Father] was the child’s father. She testified that she essentially maintained silence about [Father’s] parentage because she did not want to “rock the boat” in that she did not want Father to have contact or visitation with the child and that she did not want [Child] at Father’s home or involved in Father’s lifestyle. She testified that she did these things because she feared Father and what he might do to her and the child but she finally needed support enough to “list his name.” Because of Mother’s conduct[,] Father did not have the opportunity to bond with the child or establish a relationship with him. Additionally, the child’s own testimony indicates his own unwillingness to have contact or [a] relationship with his father because Father is perceived as being “the Bad Guy.” Mother has purposefully acted in a manner to prevent the formation of a father-son relationship. It would, therefore, be inequitable for the Court to reward her for such conduct.

Instead of making child support retroactive to Child’s birth in 18 years earlier, the trial court deviated from the child-support guidelines and only made the award retroactive to the date the petition to establish paternity was filed. Because of this, Father’s retroactive child-support obligation is a little over $7000 instead of over $132,000.

Mother appealed.

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

Once paternity is established, Tennessee law requires the court to establish child support. The child-support guidelines presume that child support should be awarded retroactively to the date of the child’s birth. Courts may, however, consider the following factors as a basis for deviating from the guidelines:

  • the extent to which the father did not know, and could not have known, the existence of the child, the birth of the child, his possible parentage of the child, or the location of the child;
  • the extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father’s possible parentage of the child, or the location of the child; and
  • the attempts, if any, by the child’s mother or caretaker to notify the father of the mother’s pregnancy, or the existence of the child, the father’s possible parentage, or the location of the child.

When the presumption of a retroactive child-support award back to the date of the child’s birth is rebutted by clear and convincing evidence, the court must deviate from the child-support guidelines to reduce, in whole or in part, retroactive child support.

Tennessee law does not permit this deviation where there is clear and convincing evidence that:

  • the father has a demonstrated history of violence or domestic violence toward the mother, the child’s caretaker, or the child;
  • the child is the product of rape or incest of the mother by the father of the child;
  • the mother or caretaker of the child, or the child has a reasonable apprehension of harm from the father or those acting on his behalf toward the mother, the child’s caretaker, or the child; or
  • the father, or those acting on his behalf, have abused or neglected the child.

The Court agreed this is an appropriate case for a deviation from the child-support guidelines:

Mother does not cite evidence and, in our review of the record, we discern no proof that preponderates against the finding that Father did not know of his son prior to the paternity test in 2013.

*     *     *     *     *

[Regarding domestic violence,] Mother states in her brief that Father “had been convicted of domestic assault against [her]”; the record, however, does not contain evidence of a conviction.

*     *     *     *     *

The court examined the evidence and concluded that there was not clear and convincing evidence of domestic violence so as to preclude the deviation in child support. We have reviewed the record, including the statement of evidence, and have found no proof that clearly and convincingly establishes a demonstrated history of violence or domestic abuse of Father toward Mother or the child or that Mother or the child has a reasonable apprehension of harm from Father. The holding that deviation from the guidelines was appropriate is supported by the evidence and not contrary to law.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: As of July 1, 2017, Tennessee now imposes an five-year limit on retroactive child-support awards unless the trial court finds “good cause” to exceed the limit. This five-year limit only applies to lawsuits filed after July 1, so it wouldn’t have affected this case.

Carr v. Sutton (Tennessee Court of Appeals, Middle Section, June 26, 2017).

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

Facts: Shortly after the parties’ divorce, Father was designated the primary residential parent of Child and Mother received 125 days of parenting time.

Two years later, Father petitioned to modify the schedule to reduce Mother’s parenting time to 80 days. He alleged that Mother was failing to exercise her parenting time as ordered.

Mother admitted she did not exercise all of her parenting time in the past, but complained that Father scheduled activities during her parenting time. She also chose not to enforce her parenting time on occasions when Child did not want to visit with her.

After three years of what the Court describes as “extensive and acrimonious litigation,” the case was finally tried.

Father testified that Mother had been exercising 125 days of parenting time for a little over a year, and he believed 125 days was appropriate.

Child, who was 17 years old at the time of the hearing, expressed a preference for minimal parenting time with Mother.

The trial court modified the parenting schedule to give Mother 90 days of parenting time. The trial court also awarded Father his attorney’s fees in the amount of $32,000.

Mother appealed.

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

Mother argued the trial court abused its discretion in reducing her parenting time to 90 days when even Father agreed she should receive 125 days.

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the arrangement must prove that a material change in circumstances has occurred. If a material change in circumstances has occurred, the trial court must then determine whether a modification is in the child’s best interest.

The determination of whether a material change in circumstance occurred requires a different standard depending on whether a parent is seeking to modify custody, i.e., change the primary residential parent designation, or modify the parenting schedule. A lower threshold is required for modification of a parenting schedule.

First, the Court affirmed the trial court’s finding that a material change of circumstances sufficient to change the parenting schedule had occurred. Specifically, the record confirms that Mother’s attempts to exercise her parenting time were thwarted by either Father’s scheduling of activities or Child’s desire not to visit with Mother.

The Court affirmed the reduction of Mother’s parenting time from 125 days to 90 days:

The order in this case contains sufficient findings as to the reason and the fact that constitute the basis for the custody determination. The order also reflects the court’s performance of the appropriate two-step analysis. Here, the court crafted a plan that adequately represented the Child’s best interest, while also ensuring that Mother was given specific inconsistent co-parenting time before [] Child reached the age of majority. With these consideration in mind and recognizing the court’s broad discretion, we hold that the record supports the court’s modifications.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) The entirety of the Court’s analysis of the change in parenting time is contained in the block quote above. It would be more helpful to lawyers and litigants if the Court had explained its reasoning instead of providing only conclusory statements.

(2) Here, the trial court awarded Mother less parenting time than what even Father requested. Compare this with McDaniel v. McDaniel, where the trial court abused its discretion by awarding the mother 39 days less than what even the father proposed.

Kennedy v. Kennedy (Tennessee Court of Appeals, Middle Section, June 23, 2017).

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

Posted by: koherston | July 14, 2017

Photo of the Week: Just a Squirrel Trying to Get a Nut

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

Facts: Husband and Wife divorced after 17 years of marriage.

Husband was 55 years old at the time of trial, and had worked for the local government for 32 years. He had elected to retire no later than April 2019.

Wife was 53 when the case was tried. Injuries from a car accident during the marriage led to Wife’s addiction to prescription medications, which led to heroin use, which led to inpatient drug treatment.

The trial court awarded Wife alimony in futuro. Husband was ordered to pay Wife $980 per month until he retires. Once he retires, the alimony payment will automatically drop to $720 per month. The alimony terminates whenever Wife receives Social Security benefits.

Husband appealed.

On Appeal: The court of Appeals affirmed 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.

Automatic modifications of alimony are generally not appropriate except in cases involving unique circumstances that are expected to occur in the near future, such as when a minor child will soon reach majority and the obligor is no longer required to pay child support.

By including an automatic modification provisions in such cases, trial courts spare the parties the additional expense and trouble they would have otherwise incurred from having to reopen the issue of alimony so soon after the court’s ruling.

The Court found this to be one of the exceptional cases where an automatic modification of alimony is appropriate:

[I]t it is undisputed that Husband will retire and begin drawing his pension no later than April 2019, which is roughly three years after the trial court entered its order. Also undisputed is the amount of his pension; the trial court found that “[u]pon his retirement on April 10, 2019, Husband will receive a monthly pension of $3596 per month gross income.” There is little uncertainty here about what will happen with Husband’s employment . . . although it is possible, as the trial court noted, that his poor health may cause him to retire earlier. We are of the opinion that this case presents “circumstances that are expected to occur in the near future” warranting the future automatic modification ordered by the trial court. Such a ruling promotes judicial economy, and saves both parties time and money. We find no abuse of discretion in this provision of the trial court’s judgment.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: For a similar argument with a different outcome, read Naylor v. Naylor, where the court declined to automatically modify the obligor’s alimony obligation at his anticipated retirement, explaining:

Courts deal with the present. They do not address future events that may or may not occur as anticipated or, indeed, it may not occur at all. Courts will decline to act where there is no need for the court to act or where the refusal to act will not prevent the parties from raising the issue at a more appropriate time. . . Questions involving reaching far into the future are best left to future judicial determination rather than crystal-ball gazing. Given the myriad scenarios that might arise between the divorce trial and Husband’s anticipated retirement, the trial court did not abuse its discretion in relying only on the present circumstances of the parties in reaching its decisions.

McBroom v. McBroom (Tennessee Court of Appeals, Western Section, June 21, 2017).

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

Facts: Mother and Father are the parents of Child. When they divorced in Texas, Mother was designated the primary residential parent. They subsequently moved to Tennessee.

In 2015, Mother notified Father of her intention to relocate with Child back to Texas to accept an employment opportunity. Mother was also motivated by the fact that her boyfriend lives in Texas.

Father petitioned in opposition to the relocation.

The proof showed Mother has a college degree in music education. Mother was working as a substitute teacher. While she does not have a Tennessee teaching license, the proof showed she could obtain one simply by applying for it.

The trial court found Mother’s relocation lacked a reasonable purpose because Mother was seeking to move to Texas to be close to her boyfriend, not because of her career in music education.

Mother appealed.

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

Tennessee’s Parental Relocation Statute is found at Tennessee Code Annotated § 36-6-108. It establishes different standards for analyzing the proposed relocation depending on whether the parents do or don’t spend substantially equal parenting time with the child.

When parents share substantially equal parenting time, no presumption is created for or against a parent’s request to relocate. The trial court must determine whether the relocation is in the child’s best interest.

When, as in this case, the parents do not share substantially equal parenting time, the statute provides that the parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

  • the relocation does not have a reasonable purpose;
  • the relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
  • the parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the parent spending less time with the child.

The parent opposing the relocation bears the burden of proving one of these scenarios by a preponderance of the evidence.

In Aragon v. Aragon, the Tennessee Supreme Court recently held that the “reasonable purpose” ground is not intended to be a guise under which the trial court may determine whether the parent’s decision to relocate is wise or fair or is in the child’s best interest. Instead, it allows the parent to relocate unless the relocation “has no reasonable purpose at all.”

Applying the Aragon standard, the Court held that Father failed to prove that Mother lacked any reasonable purpose at all for moving:

[I]t appears that the trial court in this case [] improperly placed the burden of proof on Mother to show a reasonable purpose for the move rather than placing the burden on Father of proving that”[t]he relocation does not have a reasonable purpose.”

*     *     *     *     *

Mother is not required to present any evidence to “establish” that she diligently pursued job opportunities in Tennessee in order to be allowed to relocate; rather, the burden remains at all times on the parent opposing relocation to show that the move lacks a reasonable purpose.

*     *     *     *     *

Father argues, however, that the evidence does not preponderate against the trial court’s finding that Mother’s main purpose for relocating is to be closer to her boyfriend. [O]ur inquiry is far more limited than ascertaining the reasonableness of any and all of the custodial parents purposes in relocating. Rather, the Aragon Court directed that courts consider only “the limited question of whether [the relocating parent’s] stated purpose for moving . . . was reasonable. As we perceive it, the Aragon decision appears to have contemplated the situation where a relocating parent may have multiple reasons for moving, but, as long as there is at least one validly stated purpose for moving, the relocating parent must be allowed to move with the child. . . . Here, Mother’s motivation for moving may very well be that she wants to be closer to her boyfriend. Mother’s stated purpose, however, is to accept a job offer that allows her increased income, as well as the opportunity to work in her chosen field. The evidence shows that . . . Mother has been offered a job in Texas that could lead to a full-time teaching job in Mother’s chosen profession, and Father has simply not shown that Mother’s decision to move to pursue better employment is unreasonable. Father’s reliance on Mother’s purported ulterior motive and lack of reasonable efforts is not enough to meet his burden of proving that there is no reasonable purpose at all for Mother’s proposed relocation. . . . Mother, pursuant to statute, must be permitted to move.

Thus, the trial court’s judgment was reversed. Mother may relocate to Texas with Child.

K.O.’s Comment: This is the first appellate opinion to apply the holding of Aragon. The Court seems a little uneasy about the resulting outcome:

We are mindful that the current standard under Tennessee law places a much more substantial burden on the parent opposing the relocation than before because it is difficult, if not impossible, to prove a negative. Regardless of our concerns about the standard, however, we are not free to depart from the Tennessee Supreme Court’s unequivocal holding.

Any change in the law of parental relocation will have to come from the legislature.

Stringer v. Stringer (Tennessee Court of Appeals, Middle Section, June 16, 2017).

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

Posted by: koherston | July 7, 2017

Photo of the Week: Little Lambs

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

This article by Robin Eileen Bernstein in The Washington Post may be of interest.

What Happens When a Spouse Dies in the Middle of a Divorce?

There’s no shortage of books, blogs and websites with advice for grieving widows. But if you’re part of a smaller club of people widowed while getting divorced, you’re pretty much on your own.

I know because this happened to me.

Two years after my husband and I separated — but before we reached a divorce settlement — he died of a heart attack at age 57. Overnight I went from almost-ex to widow. We had each moved on: He was living with his girlfriend, and I was happily dating. Nearly six years later, I still feel as if I was widowed on a technicality. A real widow doesn’t have a divorce lawyer and a Match profile. A real widow is pining for her spouse, inconsolable.

“That’s the only model of widowhood people have,” said Rachel Bart, 51, an attorney and former New Yorker living in Gan Yavne, Israel, who was divorcing her husband when he died six years ago. When someone suggested she join a widows support group, initially she balked. “Why would I go?” she said. “We were separated.”

Sometimes she calls herself a “partial widow.” To make her point, she mentioned a friend whose fiance died three weeks before their wedding. “She doesn’t get to call herself a widow and I do?” Bart said. “That’s ridiculous.”

“It’s called disenfranchised grief,” said Michelle Palmer, a clinical social worker and executive director of the Wendt Center for Loss and Healing in Washington. “It’s also referred to as the grief that has no voice, because it’s a grief that our society typically does not recognize.”

It occurs in situations that fall outside the norm and might also include, for example, mourning the death of a former spouse or an extramarital lover. A widow who was about to be divorced has no defined place in society, so we often don’t know what we’re supposed to do.

Even responding to condolences can be awkward. “There’s an element of not wanting to accept sympathy for something that is a misconception on their part,” said Bailey Poland, 27, a graduate student in Findlay, Ohio, whose husband died unexpectedly two months after they split up. “They feel for me in a way that doesn’t feel accurate to my experience. It’s a different kind of pain than they’re assuming.”

Finding precise language is a struggle. Is he a late husband? A late-soon-to-be-ex? “There is really no right word,” Poland said.

Lauren Krulik, a 51-year-old homemaker in Northport, N.Y., avoided the word “widow” altogether. She and her husband had been living apart for three years and each was in a new committed relationship when he died. “I didn’t feel like I was his wife,” she said. “So why would I feel like I was his widow?”

These partial widows, or whatever they decide to call themselves, often end up creating their own protocol for coping with their loss. At the funeral for my husband, my kids and I grieved with his family, with whom I’m still close, and his girlfriend and I each gave a eulogy. Next to Krulik at her husband’s funeral, along with her kids and his family, was her boyfriend of two years, who helped handle the arrangements. She no longer felt married; but not everyone saw it that way, including the rabbi. “He insisted that I was the wife, and that was the end of that,” Krulik said. She had to persuade him to mention her husband’s girlfriend in his eulogy.

Sometimes a separation pulls families apart. A week after Bart’s husband’s death, his sister, with whom she’d been close, said that as far as they were concerned, Bart and her husband were already divorced, so she was no longer part of their family. “I not only lost him, but suddenly I lost his whole family, too,” Bart said.

When Poland’s husband died, she and her in-laws drew close and put aside the separation. But because her husband had spread nasty rumors about her during their split, some people refused to shake her hand or speak with her at his funeral last year. “I became the villain,” she said. Her father-in-law came to her defense, but she said that even today some of those friendships have not been repaired.

Sometimes there are uncomfortable emotions, such as a sense of relief, especially if the estranged spouse suffered from mental illness or substance abuse. But it doesn’t mean you don’t mourn the person. “The hardest part is trying to be appropriate and authentic at the same time,” said Pam Gillette, 56, a former Florida school principal. Because of her husband’s betrayals and addiction, she moved away with her kids to Greensboro, N.C.; he died the following year. “You don’t want to admit that you miss the person who hurt you so badly.”

Both Gillette and Krulik have had people remark on how “lucky” they are to have avoided a potentially bitter divorce. I’ve had it said to me, too. But this gallows humor isn’t necessarily welcome. “It’s a terrible thing to say,” Krulik said. “My children lost a wonderful father. That is not lucky at all.”

Then there’s the headstone inscription, which can require the skills of a diplomat. Do I write “Beloved Husband” about a man I was divorcing? Do I acknowledge his new relationship and if so, how? I decided to put “loving father” up top, followed by “caring husband,” and on the last line “beloved companion.” Krulik omitted any mention of husband or companion, a decision she feels was appropriate.

Dating, too, raises questions, such as when to ‘fess up about your unusual single status, especially if potential partners assume “widow” meant a happy marriage, not one ending in separation. Do you put it on your Match profile, as I did initially? Or wait till you meet?

Ayelet Prizant, 45, an editor and writer in Brooklyn, says it depends. When a guy she just met expressed sympathy upon learning she was widowed, she felt it was too soon to reveal details of her separation from a man she had still loved. So she replied simply that they weren’t on the best terms when he died. “I want them to know that it was a little bit different, a little bit atypical,” she said.

It’s about what you and your date can tolerate, Palmer explained. “Do you sit down at a first date and say ‘hi, so here’s my super-complicated story’?” she said. “Probably not.

Atypical widows might feel uneasy if the end of a promising new relationship is harder to handle than the death of a spouse. When Bart and her boyfriend broke up last year, she admitted to being more devastated than when her husband died, and then feeling guilty about it. Likewise, my heartache at the breakup of my first serious post-widowhood relationship was a glimpse into what a “real” widow might endure.

Krulik said that her husband’s desire to leave their marriage was far more traumatic than his death. “They say divorce is like a death, and it really is,” she said of their separation, which felt to her like “the real death.” It seemed wrong to call him her late husband and getting engaged three months after his death only magnified her discomfort. Now happily remarried, she’s found a solution. “Lately I’ve been calling him my first husband,” she said. “That makes it easier!”

Source: What Happens When a Spouse Dies in the Middle of a Divorce? (The Washington Post, May 23, 2017).

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

Facts: Two years after Husband, 40, met Wife, 18, at the dry cleaners, they married.

Shortly after the relationship began, Wife moved in with Husband and stopped working at the dry cleaners. Husband, the owner of a rent-two-own business, provided for them both, and Wife soon became financially dependent on Husband.

Two days before the parties were to leave to go on vacation and get married, Husband took Wife to his lawyer to sign a prenuptial agreement. Wife was informed that the lawyer was not her attorney and that she could get independent legal advice if she wished to do so, something she never did.

After Wife met with Husband’s lawyer for 30-45 minutes while he explained the prenuptial agreement to her, the parties signed it. Notably, the agreement prohibited an award of alimony to either party, defined marital and separate property, and provided that Wife would receive $100,000 as alimony in solido if the parties divorced after five years of marriage.

Husband and Wife had two children. Wife was a stay-at-home mother and homemaker while Husband continued working in his business.

After 13 years of marriage, Wife filed for divorce.

At trial, the validity of the prenuptial agreement was challenge. The trial court ruled the agreement has been entered into by Wife knowingly, voluntarily, and without duress or undue influence. The trial court found the agreement to be valid and enforceable, except for the provision that prohibited alimony or Wife’s alimony, which the court found to be unreasonable and invalid.

The trial court proceeded to divide the marital property, awarding Wife nearly $1.6 million.

Husband appealed.

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

Prenuptial agreements are favored by public policy in Tennessee.

Tennessee Code Annotated § 36-3-501 requires the parties to make a full and fair disclosure of the nature, extent, and value of their financial holdings unless the other spouse has independent knowledge of that information.

What constitutes “full and fair” disclosure varies from case to case depending upon a number of factors, including the relative sophistication of the parties, the apparent fairness or unfairness of the substantive terms of the agreement, and any other circumstance unique to the parties and their specific situation.

While disclosure need not reveal precisely every asset owned by a party, at a minimum, full and fair disclosure requires that each party be given a clear idea of the nature, extent, and value of the other party’s property and resources. A simple and effective method of proving disclosure is to attach a net worth schedule of assets, liabilities, and income to the agreement itself.

In the absence of a full and fair disclosure, a prenuptial agreement may still be enforced if the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the other spouse’s property and holdings. Factors relevant to that assessment include, but are not limited to, 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 Court concluded that the entire prenuptial agreement was invalid, not just the prohibition on alimony:

As the proponent of the Agreement, Husband had the burden to prove, by a preponderance of the evidence, that the Agreement was entered into by Wife freely, and knowledgeably, and in good faith. While antenuptial agreements are favored by public policy, Tennessee courts do not simply rubberstamp their validity. The circumstances surrounding the signing of the agreement must be transparent and attended by a sufficient disclosure of property interests.

[Here,] there is the element of Wife being rushed to sign the Agreement. Although Husband had mentioned to Wife that he desired antenuptial agreement months before, Husband and Wife signed the Agreement when the parties met with [Husband’s attorney] only two days before departing on vacation to be married. Husband testified at trial that he encouraged Wife to seek independent counsel, and even offered to pay for it. Nevertheless, even crediting Husband’s testimony as the Trial Court implicitly did, it is at best doubtful that Wife could have obtained independent counsel and made an informed decision before setting out so soon on vacation to be married as planned. . . . Wife’s opportunity to secure independent counsel to review the Agreement was illusory in practice.

In addition to the lack of independent counsel for Wife, there is the issue of the dramatic disparity between the parties in terms of sophistication. Husband was a wealthy, college-educated, and successful businessman. Wife was 20 years old, less than half Husband’s age, and a GED was the summit of her formal education. Wife was financially dependent upon Husband. The balance of worldly sophistication in this relationship was decidedly one-sided. . . .

*     *    *    *    *

The Trial Court found the Agreement invalid insofar as it purported to Wife’s alimony. We decline to cherry-pick the Agreement to find enforceable provisions because we believe that the context in which Wife signed the agreement was such that none of it is valid or enforceable.

Thus, the trial court’s ruling that any part of the prenuptial agreement was valid or enforceable was reversed. The case was remanded back to the trial court for additional proceedings.

K.O.’s Comment: (1) The Court also made this observation that may be helpful to Tennessee family-law attorneys:

While it is not a direct linear relationship, the more sophisticated the spouse is, the less time he or she may well need in order to be able to enter into the agreement freely, knowledgeably, and in good faith without duress or undue influence. Conversely, the less sophisticated the spouse is, the more time he or she may need.

(2) Prenuptial agreements are inherently risky. The drafting attorney must assume that, in the event of divorce, the agreement will be scrutinized by a highly-motivated attorney. It is reasonable in most situations for clients to expect the drafting attorney to produce an enforceable agreement. Prenuptial agreements present a minefield of risk for the unwary. Lawyers who dabble in family law should exercise caution and not hesitate to refer the matter to more experienced family-law attorneys.

(3) The best practice is always that both parties are represented by counsel. In fact, I insist on it for each prenuptial agreement I draft. If, like here, the client wants something done two days before leaving town to get married, my advice would be to decline the representation or, at a minimum, document in the file that the client was advised of your reservations about the agreement’s validity under the circumstances.

Grubb v. Grubb (Tennessee Court of Appeals, Eastern Section, June 9, 2017).

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

Posted by: koherston | June 30, 2017

Photo of the Week: Smoky Mountain Elk Bugling


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

Facts: Father and Mother married five months before Child was born.

After Child was born, Mother served as the primary caregiver. Father showed little interest in interacting with and had little involvement with Child.

A few years after Child’s birth, Father relocated to Illinois. Mother remained in Tennessee. A divorce action began shortly thereafter.

While the divorce was pending, the trial court ordered equal parenting time, with each parent receiving two weeks of parenting time every month.

After the trial, and with Father in Illinois and Mother in Tennessee, the trial court designated Mother as the primary residential parent. Mother was awarded 299 days of parenting time, and Father was awarded 66 days.

Father appealed.

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

Father argued that only 66 days of parenting time failed to maximize his participation in Child’s life. He had proposed a schedule giving him 137 days.

Mother responded that Father’s proposed schedule would allow her little downtime with Child and would also give Child little time for extracurricular activities in Tennessee.

Tennessee Code Annotated § 36-6-106(a) provides that, taking into account the child’s best interest, the trial court should adopt a parenting plan that permits each parent to enjoy the maximum participation possible in the child’s life that is consistent with the factors set forth in the statute. The relationship between the child in each parent should be fostered because of the fundamental importance of the parent-child relationship to the welfare of the child. The location of the parents’ residences, the child’s need for stability, and all other relevant factors must be considered.

The Court determined that only giving Father 66 days of parenting time was an abuse of discretion:

We find that the evidence preponderates against the parenting plan that limits Father’s parenting time to only 66 days a year. The prior period of equal parenting time allowed [Child] to develop a closer relationship with [] Father and Paternal Grandmother. During that period, [] Child also engaged in extracurricular activities in Illinois, such as sports, Girl Scouts, and dance, which Father and Paternal Grandmother described as an important part of [] Child’s life. We conclude that the evidence preponderates in favor of the parenting plan that does not so greatly minimize the parenting time of Father.

Thus, the trial court’s parenting plan was reversed and the case remanded for the trial court to adopt a plan that increases Father’s parenting time.

K.O.’s Comment: Absent extenuating circumstances, Tennessee lawyers should generally consider 80 days of parenting time to be the floor. See, e.g., In re Grace N.

Long-distance cases are tricky because the child is burdened with considerable travel time, which typically requires limits on parenting time. In one long-distance case, for example, parenting time of 93 days was affirmed on appeal. See In re Gabriel V.

While 66 days was not enough parenting time on these facts, it is possible for a parent to receive far less time than even that. See, e.g., In re Emily M., where only 24 days of parenting time was affirmed because the parent had concealed significant mental-health issues.

As with almost all family-law issues, it comes down to the specific facts of each case. Still, the cases cited above offer some guidance to Tennessee family-law attorneys and trial-court judges.

Neveau v. Neveau (Tennessee Court of Appeals, Eastern Section, June 7, 2017).

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

Facts: Mother and Father divorced in 2012. The court approved their agreed parenting plan designating Mother as the primary residential parent while awarding each parent equal parenting time with Child. Both parents lived in Maury County.

Approximately 1 1/2 years later, Mother and Child moved to a new home in Lewis County that is a 30-minute drive from Father’s home.

Father filed a motion to enroll Child in school in Maury County.

Mother petitioned to modify the parenting plan to increase her parenting time to 261 days and enroll Child in school in Lewis County.

The trial court changed the primary residential parent designation from Mother to Father so Father could enroll Child in school in Maury County. The trial court explained:

The only real issue in this matter is who will have to make the 60-70 mile round-trip per school day when it is their week to have the child and the child is in enrolled in the other county. . . . Since it was  Mother’s decision to move, she should have reasonably foreseen that her decision would affect Father and that increased travel time would be a factor that had to enter into her decision.

The trial court did not address the best-interest analysis.

Mother appealed.

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

When a parent petitions to modify a parenting plan to change the primary residential parent, the threshold issue is whether there has been a material change of circumstances since the parenting plan took effect.

Although there are no bright-line rules for determining whether a material change of circumstances has occurred, Tennessee courts should consider

  • whether a change has occurred after the entry of the parenting plan,
  • whether the change was not known or reasonably anticipated when the parenting plan was entered, and
  • whether the change is one that affects the child’s well-being in a meaningful way.

Not every change in a child’s life or the life of the child’s parents rises to the level of a material change warranting a change in the primary residential parent.

If the court finds there has been a material change in circumstances, then it must determine whether it is in the child’s best interest to modify the parenting plan as requested. The best-interest analysis requires the court to consider the factors in Tennessee Code Annotated § 36-6-106(a).

The Court vacated the trial court’s ruling and remanded it for factual findings regarding the child’s best interests:

In this case, the trial court did not mention the child’s best interests in its order. Therefore, this Court cannot discern whether the trial court considered that part of the two-step modification analysis.

The case was remanded to the trial court to enter findings of fact and conclusions of law as to Child’s best interest.

K.O.’s Comment: Is the trial court’s finding of a material change sufficient to change the PRP designation on these facts consistent with Garrett v. Garrett?

In Garrett, the parties shared equal time, the PRP/mother moved to a neighboring county, and the children had to change schools. The trial court made the father the PRP so the children could continue to attend the same schools they always had. The Court of Appeals held the trial court erred in finding a material change sufficient to change the PRP designation because the situation was reasonably foreseeable:

The [School] Board’s policy regarding enrollment was readily available to the Parents. Additionally, it was entirely foreseeable and reasonably anticipated that the Parents would live in different school zones, thereby necessitating a decision regarding which school the Children should attend in accordance with relevant policies regarding enrollment. . . . Accordingly, we hold that the trial court erred in modifying the custody arrangement by designating Father as the primary residential parent.

How is this case any different?

In re Gunner F. (Tennessee Court of Appeals, Middle Section, June 6, 2016).

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

Posted by: koherston | June 23, 2017

Photo of the Week: Julia On Patrol


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

Facts: Mother and Father are the divorced parents of four children.

They lived in Texas until, according to Father, Mother moved the children to Tennessee in 1998 without his knowledge or consent. He admitted traveling to Tennessee on one occasion in 1999 or 2000 to visit with the children for approximately two hours. Aside from that, he had no other contacts with the State of Tennessee. Thereafter, Father resided in Texas while Mother and the children resided in Tennessee.

Mother obtained a divorce by default in Tennessee in 1999. Father’s child-support obligation was also established by default in 2001.

In 2002, Father’s lawyer in Texas wrote a letter to Tennessee’s Child Support Services requesting an administrative review of their determination that Father’s child support was in arrears.

In February 2015, Tennessee petitioned to hold Father in contempt for not paying his court-ordered child support.

Father made a limited appearance to vacate Tennessee’s child-support orders because Tennessee lacked personal jurisdiction over him.

The trial court determined that Tennessee had personal jurisdiction over Father because he requested an administrative review of his child-support arrearage and the fact that he visited the children in Tennessee. Father’s motion to vacate the prior orders was denied.

Father appealed.

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

The lawful authority of a court to adjudicate a case before it depends upon the court having jurisdiction over the subject matter and the parties.

Subject matter jurisdiction refers to the power of a court to adjudicate the particular type of case brought before it.

Personal jurisdiction refers to the power of a court to render a binding judgment over the parties to the case.

The Tennessee Uniform Interstate Family Support Act (“UIFSA”) governs child-support cases between residents of different states, including when Tennessee may exercise personal jurisdiction over a nonresident.

Tennessee Code Annotated § 36-5-2201 says when Tennessee may exercise personal jurisdiction over a nonresident in an interstate child-support matter. Subsection (a)(2) allows for personal jurisdiction when the nonresident enters a general appearance or files a “responsive document having the effect of waiving any contest to personal jurisdiction.” Subsection (a)(8) provides a catchall allowing personal jurisdiction on any basis consistent with the Tennessee or U.S. constitutions.

General appearances consist of acts from which it can reasonably be inferred that the party recognizes and submits itself to the jurisdiction of the court. A general appearance may be made by the filing of pleadings or orally in open court. Any appearance that contests the merits of the complaint without raising the jurisdictional defense is considered a general appearance.

The Court determined that Father’s request for an administrative review did not constitute a general appearance for filing of a responsive document:

Assuming, arguendo, that [Father] sent a letter or some type of document to the State seeking administrator review of his child-support obligation, such a request would not be sufficient to constitute an answer or appearance permitting the trial court to exercise personal jurisdiction in this matter. . . . A letter or other document sent to the State that was not intended to be filed with the trial court would not constitute the filing of a pleading sufficient to waive the issue of personal jurisdiction.

After reviewing the applicable constitutional law, the Court explained that Father’s contacts with Tennessee must be sufficient for a court to conclude that the Father should reasonably anticipate being haled into court in Tennessee. The Court held that standard was not satisfied here:

[T]he only contact that [Father] had with Tennessee was his single two-hour visit to Tennessee to locate the children in 1999 or 2000. This one visit, standing alone, is clearly insufficient to establish minimum contacts with Tennessee. Otherwise, [Father] resided in Texas and did not purposefully avail himself of the benefits of Tennessee law in any manner.

Thus, the trial court’s prior child-support orders are void for lack of personal jurisdiction. Mother will have to use a Texas court to establish and collect child support from Father.

State ex rel. Spurlock v. Torres (Tennessee Court of Appeals, Western Section, May 30, 2017).

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

Facts: Mother and Father had a five-year relationship. By the time it ended, Father lived in Illinois and Mother in Tennessee.

Mother got pregnant. After Child was born, Father visited Mother and Child in Tennessee on several occasions. Father also voluntarily paid two child support payments of $400 each.

When Child was 14 years old, the State petitioned to establish paternity on Mother’s behalf. DNA testing confirmed Father’s paternity. The State then sought to establish both ongoing and retroactive child support from the date of Child’s birth.

Mother said Father was ashamed to have a child out of wedlock because of his family’s religious beliefs. She testified he pressured her to abort two prior pregnancies and paid for the abortions. She vehemently denied telling Father he was not Child’s parent. She claimed she asked him to take a paternity test on several occasions. According to Mother, Father stopped contacting her shortly thereafter.

Father testified he had doubts Child was actually his, and shortly after Child’s birth Mother told him he was not the father. He claimed he requested a paternity test on several occasions but Mother refused. Father admitted that although he knew there was a possibility the child was his, he never filed a paternity action.

The trial court found Father knew of his parentage and could have established paternity. In addition to ongoing child support, the trial court ordered Father to pay retroactive child support going back to Child’s birth totaling $160,000. The trial court also ordered Child’s last name to be changed to Father’s last name.

Father appealed.

On Appeal: The Court of Appeals affirmed the child support but reversed the name change.

Retroactive child support. Tennessee law is clear that biological parents must support their children until they reach the age of majority. This obligation exists regardless of whether a court order exists or whether the parents were ever married.

In paternity cases, the Child Support Guidelines impose a presumption that retroactive child support will be awarded from the date of the child’s birth. That presumption can be rebutted, however, when the father was not aware of the child’s existence or “the equity between the parties” requires.

The Court found neither of these exceptions were supported by the evidence:

[A] review of the trial transcript [] reveals that the court consider the equities between the parties. In fact, the [trial] court found that Father failed to establish, by clear and convincing evidence, that the equity between the parties justified a deviation from the Guidelines.

The [trial] court concluded that “Father did know he was the father of [Child] and he could have establish paternity, and the relationship of father and child, prior to the filing of Mother’s petition.”

*     *     *     *     *

The evidence suggests that, even if Mother did later recant her statement that [Child] was Father’s child, Father should have known, or strongly suspected, that he was likely the child’s father. . . . Father had been in a relationship with Mother for five years, and he was frequently visiting Mother in Tennessee around the time the child was conceived. Further, the evidence shows that Father and Mother had likely conceived a child on at least one other occasion prior to the [Child] pregnancy. In the months following [Child’s] birth, both parents held her out as Father’s child, and even if he had some doubts concerning the child’s paternity, at least for a time, Father evidently believed [Child] was his. Father admitted that he believed there was a possibility that he was [Child’s] father, but he never petitioned a court to establish paternity.

There being no abuse of discretion, the trial court’s judgment for retroactive child support going back to Child’s birth was affirmed.

Child’s surname. Mother argued the trial court erred in ordering Child’s surname to be changed to Father’s surname because Father never requested such a name change.

Tennessee law requires that the decision to change a surname be found to be in the best interest of the child, and the party seeking the name change bears the burden of proof. A change of a child’s surname, therefore, is not an inevitable consequence of a paternity proceeding.

Because Father conceded that he did not present evidence that changing Child’s name was in her best interest, the Court determined the trial court erred by changing Child’s surname. Thus, the name change was reversed.

K.O.’s Comment: Had this litigation been initiated after July 1, 2017, the recent amendment to Tennessee Code Annotated § 36-2-311(a)(11)(G), which effectively creates a five-year limit on retroactive child-support awards in the absence of “good cause,” would have reduced Father’s child-support arrearage by approximately two-thirds, i.e., from $160,000 to roughly $56,000.

There is no dispute that Father had a legal obligation to provide financial support to Child from day one. The trial court rejected his claims that he did not believe Child was his. Under such circumstances, should he be relieved of his obligation to support a child he created? Our legislators think so. Do you?

Parrish v. Griggs (Tennessee Court of Appeals, Western Section, May 25, 2017).

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

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