The Tennessee Alternative Dispute Resolution (ADR) Commission was recently presented with the following question:

Is drafting a marital dissolution agreement or other legal document for presentation to the court by a Neutral in a mediation setting considered “participation as attorney” or is it considered an appropriate memorialization of a settlement agreement under Rule 31?

On April 25, 2017, the ADR Commission answered this question in Advisory Opinion 2017-0002.

But first, let’s review.

Family-law mediators are governed by Tennessee Supreme Court Rule 31. Rule 31 § 10(c)(1) provides that family-law mediators “shall refrain from participation as attorney, advisor, judge, guardian ad litem, master, or in any other judicial or quasi-judicial capacity in the matter in which the Rule 31 ADR Proceeding was conducted.”

Rule 31 Appendix A § 10(a)(1) requires the family-law mediator to (1) request that any settlement agreement “be memorialized appropriately,” and (2) discuss “the process for formalization and implementation of the agreement.”

Finally, Rule 31 § 10(c) says, “The Neutral may assist the parties in memorializing the terms of the parties’ settlement at the end of the mediation.”

Against this background, the ADR Commission determined that family-law mediators can only prepare a “memorandum of understanding” reflecting the terms of the parties’ agreement but the mediator cannot prepare the necessary legal documents for filing with the court:

A Rule 31 Listed Mediator may assist the parties in memorializing the terms of the agreement by preparing a Memorandum of Understanding (“MOU”). A Rule 31 Listed Mediator should not prepare a Marital Dissolution Agreement or other legal document for presentation to the court. If the parties have attorneys, then the attorneys can prepare the paperwork necessary for filing with the court. If the parties do not have attorneys, the parties can prepare the paperwork necessary for filing with the court.

The memorandum of understanding should reflect the terms of the parties’ agreement and state that the parties expect those terms to be reduced to a court order. The parties can then

take the MOU to a lawyer and have the lawyer draft a Marital Dissolution Agreement that uses the MOU and includes additional language prepared by the attorney.

If the parties do not have attorneys and/or they choose to fill out the parenting plan themselves and submit it to the court for approval, the Mediator may discuss with the parties which categories their MOU agreements pertain[] to within the body of the Parenting Plan. . . . If both parties agree on all items in the Parenting Plan, then the parties must reduce that Parenting Plan to a formal Order and that Order must be submitted to the court for approval. A Rule 31 Mediator should not prepare legal documents, such as a Parenting Plan, that can be filed with the court for the parties to a mediation that the Mediator conducted.

K.O.’s Comment: It is not easy to draft a good parenting plan or marital dissolution agreement. I often see ambiguous, confusing, and contradictory agreements drafted by lawyers.

As presently written, Rule 31 forces laypeople — many of whom are poor, some of whom may not even be literate — to draft their own court orders or hire another lawyer (or two) to do it. Is this consistent with the Tennessee Supreme Court’s Access to Justice initiatives?

tennessee mediationIf unrepresented parties hire me as their mediator and the mediation produces an agreement, why shouldn’t they be able to benefit from my skill, knowledge, and experience in drafting the required court orders? How does performing that service remove my neutrality?

Judges, wouldn’t you prefer that attorney-mediators prepare agreed parenting plans and marital dissolution agreements instead of leaving that task to pro se parties?

The rules need to be revised to allow unrepresented parties to receive this necessary service from attorney-mediators.

Source: Advisory Opinion No. 2017-0002 (ADR Commission, April 25, 2017)

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

Posted by: koherston | May 19, 2017

Photo of the Week: Dog Days of Summer

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

Facts: Mother and Father are the divorced parents of Child. This appeal involved several postdivorce disputes, only two of which are noteworthy:

  • the dispute over what constitutes a “day” for child-support purposes, and
  • the trial court’s calculation of Father’s gross income for child-support purposes.

cat child supportRegarding the calculation of parenting time, Father argued the agreed parenting plan entered at the time of divorce was incorrect. It said he has 140 days of parenting time each year. Father argued that the correct amount is 208 days. The trial court disagreed.

Regarding Father’s income for child-support purposes, the proof showed that Father received a piece of real estate as a gift. The trial court determined Father’s gross monthly income to be $8477:

  • farm income: $3500;
  • dividend & interest: $742;
  • capital gains: $1183;
  • annual cash gift: $1166; and
  • gift of real estate: $1886.

Regarding the gift of real estate, Mother’s attorney explained that “the way I came up with $1886 a month is I took a 30-year mortgage on a $400,000 house at 3.25% and put that in his income figure.” The trial court included that amount in its calculation of Father’s gross income.

Father appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Determining a “day” for child-support purposes. The Tennessee Child Support Guidelines define “day” as

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

The Court held the trial court correctly calculated Father’s parenting time:

[W]e conclude that the trial court was correct in counting the period beginning Saturdays at 11:00 a.m. and ending Mondays at 6:00 p.m. as two days rather than three days. Our calculation of the days in this case is as follows:

  • Saturday 11:00 a.m. through Sunday 11:00 a.m. = Day 1
  • Sunday 11:00 a.m. through Monday 11:00 a.m. = Day 2
  • Monday 11:00 a.m. through Monday 6:00 p.m. = 7 hours (not a day)

Father also asserts that his weekly overnight visits . . . that began on Wednesdays at 11:00 AM and end on Thursdays at 5:00 PM should count as two days instead of one day as the trial court held. Again, we agree with the trial court and calculate that time period as follows:

  • Wednesday 11:00 a.m. through Thursday 11:00 a.m. — Day 1
  • Thursday 11:00 a.m. through Thursday 5:00 p.m. — 6 hours (not a day)

Gifts of real estate as income for child-support purposes. The Child Support Guidelines define a parent’s “gross income” to include all income from any source, whether earned or unearned, including, but not limited to,

  • wages,
  • commissions and tips,
  • bonuses,
  • interest income,
  • net capital gains,
  • and gifts that consist of cash or other liquid instruments, or which can be converted to cash.

The Court ruled the trial court erred by including the gift of real estate in Father’s gross income:

[T]he trial court conceded in its findings of fact and conclusions of law that “there is no precedent for whether or not a one-time gift of a home should be considered in the child support calculations under Tennessee’s Child Support Guidelines as interpreted by our appellate courts.” Furthermore, other than the fact that the figures were proposed by Mother’s counsel, is not clear from the record how the trial court settled on a 30-year mortgage, or how it concluded that Father’s loan would be at an interest rate of 3.25%. The Child Support Guidelines allow a court the discretion to average a parent’s income over a period that is proper under the specific facts of a particular issue. However, in this case, we do not construe that principle to extend so far as imputing the value of Father’s home in Virginia into the calculation of his gross monthly income by fashioning a hypothetical mortgage at a speculative interest rate.

Thus, the trial court’s calculation of Father’s gross income to include the value of his home in Virginia was reversed.

K.O.’s Comment: (1) I have litigated the issue of what counts as a “day” for child-support purposes way more than should have been necessary. For whatever reason, this issue often confuses family-law attorneys and litigants. This is the first time I recall seeing the Court break down its calculation on an hour-by-hour basis. Perhaps they, too, are getting tired of explaining this.

(2) Father raised 10 distinct issues on appeal. The Court described it as a “‘throw everything at the wall and hope something sticks’ approach to this appeal, which was largely ineffective . . . .” Bryan Garner, author of The Winning Brief (3d. ed.), eschews this practice, instead recommending that lawyers raise no more than three or four key issues on appeal. If you don’t have a good argument, leave it out. You don’t want the Court to comment on one of your arguments the way they did on one of Father’s in this case: “Father makes absolutely no coherent argument on appeal as to how the trial court erred in awarding Mother attorney’s fees.” Ouch! Better to leave it out.

Sansom v. Sansom (Tennessee Court of Appeals, Middle Section, May 10, 2017).

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

Facts: Mother and Father are the parents of Child. They never married. Child lived with Mother.

The Tennessee Department of Children’s Services (DCS) received a referral alleging that Child had been exposed to drugs.

When Mother appeared in court, she notified the court that she was homeless and without income. After Mother tested positive for methamphetamine, the court placed Child in DCS custody.

After Child was removed from Mother’s custody, DCS approached Father about Child possibly living with him. When he was drug tested, however, Father also tested positive for methamphetamine.

Shortly thereafter, Child — who was three years old at the time — was given a hair follicle drug test and tested positive for methamphetamine. (!!!)

Child was found to be dependent and neglected. A permanency plan was developed that required Father to

  • sign all releases for DCS to obtain information;
  • submit to random drug screens;
  • refrain from being around those who use illegal drugs;
  • attend Child’s medical appointments;
  • show DCS with a valid lease;
  • show DCS with a valid driver’s license;
  • maintain stable housing for six months;
  • maintain contact with DCS;
  • provide proof of legal income; and
  • submit to an alcohol and drug assessment and follow any recommendations.

Father’s first alcohol and drug assessment recommended that he attend five meetings of a chemical dependency support group.

Energy drinks…yeah, that’s the ticket!

Father continued to fail random drug tests after completing the meetings. Father blamed the failed drug tests on Mother breaking into his residence and contaminating his tea with methamphetamine or, alternatively, resulting from his consumption of energy drinks.

Father’s second alcohol and drug assessment recommended no treatment at all.

A year later, mother surrendered her parental rights. DCS petitioned to terminate Father’s parental rights on grounds of substantial noncompliance with the requirements of the permanency plan.

The trial court found that Father had not substantially complied with the permanency plan because he failed to submit to random drug screens and did not provide proof of legal income. The trial court terminated Father’s parental rights.

Father appealed.

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

Tennessee law authorizes termination of parental rights when there has been substantial noncompliance by the parent with the court-approved permanency plan.

Substantial noncompliance is not defined in the termination statute. It is clear, however, that noncompliance is not enough; noncompliance must be substantial, i.e., of real worth and importance. In the context of the requirements of a permanency plan, the real worth and importance of noncompliance should be measured by both the degree of noncompliance and the weight assigned to that requirement. Terms that are not reasonable or related to the issues that led to removal are irrelevant, and substantial noncompliance with such terms is irrelevant.

A majority of the Court concluded that substantial noncompliance was not proven here:

[T]he trial court primarily relied on Father’s failure to submit to random drug screens as the basis for its finding that he had failed to substantially comply with the requirements of the permanency plan. It appears that the trial court gave little consideration to the fact that Father satisfied the majority of the requirements of the plan. . . . Father complied with all of the permanency plan requirements except for the drug screens and proof of income . . . . While we concede that Father’s failure to submit to drug screens undermines his attempts to regain custody of [Child], we have concern that the drug screening requirement may not garner the weight it did at the outset of these proceedings in light of the second drug and alcohol assessment, which recommended no further treatment.

*     *     *     *     *

In light of Father’s current alcohol and drug assessment, which recommended no further treatment, we cannot conclude that his failure to submit to random drug testing is substantial enough to warrant the grave consequences of termination of his parental rights at this point.

Thus, because DCS failed to meet its burden to prove grounds for termination of Father’s parental rights by clear and convincing evidence, the trial court’s ruling was reversed.

Dissent: Judge Susano dissented because “[t]he excuses given by [F]ather with respect to his failed drug tests strain credulity. His explanations are preposterous. The fact that he would use them tells me the that we are dealing with a practicing drug addict.” Judge Susano would’ve upheld the trial court’s termination of parental rights.

K.O.’s Comment: This is the first time Judge Susano has dissented where I have not agreed with him. While I certainly agree with his assessment of Father’s credibility, I’m not comfortable concluding that it proves Father is a practicing drug addict. That’s too big a leap for me to take considering the serious — and permanent — effects of a termination of parental rights.

In re Damien G. M. (Tennessee Court of Appeals, Eastern Section, May 3, 2017).

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

Posted by: koherston | May 12, 2017

Photo of the Week: Happy Mother’s Day!

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

Facts: Mother gave birth to Child in 2002. In 2007, Maternal Grandmother obtained custody of Child.

In 2015, Maternal Grandmother petitioned to terminate Father’s parental rights on grounds of wanton disregard and because Father was sentenced to serve over 10 years in prison. Maternal Grandmother sought to adopt Child.

Mother consented to the termination of her parental rights and the adoption of Child. Father did not.

Father has a lengthy criminal history related to drug trafficking. At the time of trial, he was serving a 25-year sentence. He also has an extensive history of discipline infractions while in prison.

Father testified that the criminal charges that resulted in his current incarceration occurred in 1997 in 1998, which was prior to when he met Mother. He went to jail in 2002 — two months after Child was born — and was not made aware of Child’s existence until Child was five or six years old.

The trial court found that Father’s criminal activities and his disciplinary actions in prison constituted grounds of wanton disregard for the welfare of Child. The trial court also found that termination of Father’s parental rights was in Child’s best interest.

Father appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Parental rights can be terminated on grounds of abandonment by engaging in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child. The law requires, however, that the parent have knowledge of the child’s existence at the time the actions constituting wanton disregard are taken.

The Court was persuaded by Father’s argument that he has not engaged in any criminal content since prior to Child’s birth:

While [Father’s] testimony at trial as well as the copies of his criminal convictions fully support a finding that he engaged in serious criminal behavior for many years prior to his incarceration, this conduct occurred prior to [Child’s] birth. His uncontradicted testimony is that he did not learn of her existence until she was five or six years old.

In addition, the trial court relied on [Father’s] disciplinary record in prison in sustaining this ground. . . . While the record shows that [Father] has engaged in a series of acts that have resulted in disciplinary measures being taken against him while incarcerated, these acts do not come within the purview of Tennessee Code Annotated § 36-1-102(1)(A)(iv), which requires the conduct to have occurred prior to the parent’s incarceration.

Because the evidence did not support grounds of wanton disregard, the trial court’s ruling on that particular ground was reversed. The other ground — the 10-year prison sentence when the child is less than eight years old – was affirmed, along with the finding that termination is in Child’s best interest. Thus, the termination of Father’s parental rights was affirmed.

In re Jeremiah N. (Tennessee Court of Appeals, Eastern Section, May 2, 2017).

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

Facts: Husband and Wife were married for 26 years. They have two adult children.

At the time of divorce, wife was 63 years old and retired because of health issues. Husband was 59 years old and earned $74,000 working as a mechanical engineer.

The trial court awarded marital property valued at $542,763 to Wife and $484,900 to Husband. It then reduced Wife’s share by $3425 for “legal fees” and $50,000 for repairs needed on the marital residence, which was also awarded to Wife. The effect was to reduce the total value awarded to Wife to $489,338, thereby creating a near-equal division of marital property.

Wife was also awarded alimony in futuro, and Husband was ordered to pay Wife’s attorney’s fees as alimony in solido.

Husband appealed.

On Appeal: The Court of Appeals modified and affirmed the trial court’s ruling.

Husband raised many issues on appeal. The only two I find noteworthy involved property division and the attorney’s fee award.

Equitable division of property. The equitable division of marital property requires the careful weighing of the relevant factors in Tennessee Code Annotated § 36-4-121(c) in light of the evidence presented by the parties.

Husband argued there was no evidence to support the trial court’s reduction of $53,425 from the value of the marital property awarded to Wife. The Court agreed, explaining:

We note that the trial court ultimately awarded to Wife her reasonable attorney’s fees as alimony in solido in the total amount sought by Wife. Ergo, a reduction of $3425 for attorney’s fees was unwarranted. Furthermore, with reference to the $50,000 in “repairs,” both experts testified that they had considered the condition of the marital residence when arriving at their conclusions concerning and appraised value. Additionally, the trial court indicated [] that the value placed on the marital residence reflected that “the conditions of the residence needing repair and maintenance have progressed.” Simply stated, the record in this matter does not support the reduction of Wife’s share of the marital assets in the amount of $53,425.

Thus, the correct calculation of the trial court’s award is $542,763 to Wife and $484,900 to Husband, which is a 52.8%-47.2% division.

Unfortunately for Husband, the Court found “[t]his relatively small difference does not demonstrate an inequitable division of the marital estate,” and the trial court’s division of marital property was affirmed.

Attorney’s fees.  The trial court ordered Husband to pay Wife’s attorney’s fees as alimony in solido.

Prior to the entry of the final judgment, it was undisputed that Wife had already paid attorney’s fees of $23,300 and that she had done so with marital funds.

Husband argued that because Wife had already paid $23,300 of the total fee amount with marital funds, awarding $23,300 to Wife from Husband’s share of the marital estate would, in effect, force Husband to pay this amount twice.

The Court agreed and said it would be appropriate to charge Husband with half of the $23,300 amount, or $11,650. Thus, Wife’s claim for $40,710 in attorney’s fees was reduced by $11,650, thereby resulting in an award of $29,060.

Talley v. Talley (Tennessee Court of Appeals, Eastern Section, May 1, 2017).

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

Posted by: koherston | May 5, 2017

Photo of the Week: Twilight in the Smokies

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

This study by Leslie Ashburn-Nardo, an associate professor of psychology at Indiana University-Purdue University Indianapolis, might be of interest.

IUPUI study finds participants feel moral outrage toward those who decide to not have children

Data representing individuals from across the United States indicates that U.S. adults are increasingly delaying the decision to have children or forgoing parenthood entirely. Yet evidence suggests that voluntarily child-free people are stigmatized for this decision, according to a study published in the March 2017 edition of Sex Roles: A Journal of Research.

childfree tennesseeLeslie Ashburn-Nardo, an associate professor of psychology at Indiana University-Purdue University Indianapolis, recently investigated this bias against those who choose to not have children.

“What’s remarkable about our findings is the moral outrage participants reported feeling toward a stranger who decided to not have children,” Ashburn-Nardo said. “Our data suggests that not having children is seen not only as atypical, or surprising, but also as morally wrong.”

The findings are consistent with other studies of backlash against people who violate social roles and other stereotypic expectations. When people violate their expected roles, they suffer social sanctions. Given that more and more people in the U.S. are choosing to not have children, this work has far-reaching implications.

Ashburn-Nardo believes these findings offer the first known empirical evidence that parenthood is seen as a moral imperative.

“Having children is obviously a more typical decision, so perhaps people are rightfully surprised when they meet a married adult who, with their partner, has chosen to not have children. That they are also outraged by child-free people is what’s novel about this work.”

Participants read a vignette about a married adult person and then rated their perceptions of the person’s degree of psychological fulfillment and their feelings toward the person. The vignette varied only in terms of the portrayed person’s gender and whether they had chosen to have children.

“Consistent with many personal anecdotes, participants rated voluntarily child-free men and women as significantly less fulfilled than men and women with children,” Ashburn-Nardo said. “This effect was driven by feelings of moral outrage — anger, disapproval and disgust — toward the voluntarily child-free people.”

“Other research has linked moral outrage to discrimination and interpersonal mistreatment,” Ashburn-Nardo said. “It’s possible that, to the extent they evoke moral outrage, voluntarily child-free people suffer similar consequences, such as in the workplace or in health care. Exploring such outcomes for this demographic is the next step in my research.”

Source:  IUPUI study finds participants feel moral outrage toward those who decide to not have children (Sex Roles: A Journal of Research, March 2017).

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

Those of you who read my yearly legislative-update posts know that I don’t think much of our legislature when it comes to new family-law legislation. So my thoughts on their latest foray into Tennessee family law will come as no surprise.

First, some background.

Tennessee law, codified at Tennessee Code Annotated § 36-5-101(f)(1), has long provided that interest on a child-support arrearage accrues simple, non-compounding interest at the rate of 12% per year. The interest was mandatory. The high interest rate was designed to discourage the accumulation of an arrearage in the first place and to promote the prompt payment of child-support arrearages.

The legislature amended the statute — Tennessee Code Annotated § 36-5-101(f)(6) — in 2015 to allow parties the option of agreeing to waive both the principal and interest of a child-support arrearage as long as certain criteria were met and the court found it to be the best interest of the child.

Last month the legislature passed — and the governor signed — a wholesale revision of the law regarding interest on child-support arrearages. The new statute, which went into effect on April 17, 2017, provides that

  • interest on child-support arrearages that accrued prior to April 17, 2017 will still accrue mandatory interest at a rate of of 12% per year;
  • for child-support arrearages that accrued on or after April 17, 2017, there will be no interest unless the court makes a written finding that there should be;
  • in making this finding, the court is to consider whatever factors it finds relevant; and
  • if the court finds that interest should be awarded, the interest rate cannot be more than 4% per year.

Specifically, Tennessee Code Annotated § 36-5-101(f)(1) now reads:

If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage at the rate of twelve percent (12%) per year; provided, that interest shall no longer accrue on or after the effective date of this act unless the court makes a written finding that interest shall continue to accrue. In making such finding, the court shall set the rate at which interest shall accrue after consideration of any factors the court deems relevant; provided, that the interest rate shall be no more than four percent (4%) per year. All interest that accumulates on arrearages shall be considered child support. Computation of interest shall not be the responsibility of the clerk.

What is the rationale for this gift to deadbeat parents? According to the sponsors, Rep. Mike Carter of Ooltewah and Sen. Ken Yager of Kingston, the intent is reduce the financial burden on deadbeat parents, thereby magically increasing the amount of child support their children receive.

Put another way, they claim to believe that disincentivizing the prompt payment of child support will somehow encourage the prompt payment of child support.

Watch the debate in the House for yourself.

While the Fiscal Note acknowledges that “the proposed legislation may reduce the amount of child support exchanged amongst private parties” (Ya think?), did anyone consider what happens when a parent fails to pay the financial support required to provide the essential needs of his or her child? The child suffers, and the taxpayers have to step into the breach.

To add insult to injury, Tennessee can now boast that the optional interest rate on a judgment for past-due child support is capped at almost 2% lower than the mandatory interest rate on every other type of judgment.

But hey, at least our legislators gave us a “Children First” license plate. If only they meant it.

My editorializing aside, family-law attorneys need to be aware of this important change in the law because it is now in effect. Click a share button below to spread the word.

Source: Public Chapter 145 (April 17, 2017)

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

Posted by: koherston | April 28, 2017

Photo of the Week: Smoky Mountain Stream

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

Facts: Husband and Wife were married for nine years before Wife discovered Husband’s affair and filed for divorce. They have no children.

During the marriage, they moved frequently to accommodate Husband’s military career.

Husband retired from the military and worked as a helicopter instructor pilot for a contractor in Dubai. Including his military retirement and some rental income, he earned $21,600 a month.

Wife worked cleaning houses and earned $500 a month before she suffered a knee injury that prevented her from cleaning houses.

The trial court found that Wife planned to go back to school once she recovers from her knee injury so she can obtain a degree that will enable her to get a better-paying job. The trial court also found that Wife is in need of financial support from Husband.

After dividing the marital property and assigning the marital debt to Husband, the trial court ordered Husband to pay Wife rehabilitative alimony of $2500 a month for three years.

Husband appealed.

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

Once a court finds a party is economically disadvantaged relative to his or her spouse, the court may award alimony after considering the factors at Tennessee Code Annotated § 36-5-121(i). The court may award rehabilitative alimony, transitional alimony, alimony in futuro, alimony in solido, or a combination thereof.

If rehabilitation is possible, the Tennessee General Assembly has expressed its preference for rehabilitative alimony to allow for the economically disadvantaged spouse to achieve, with reasonable effort, an earning capacity that will permit them to enjoy a standard of living after the divorce that is reasonably comparable to the postdivorce standard of living expected to be available to the other spouse.

Husband argued the trial court should have denied alimony altogether because this was a marriage of short duration. Specifically, Husband argued that Wife was not absent from the workforce for a sufficient length of time to “impede” her career.

The Court found that Wife suffered economic detriment for the benefit of the marriage and, therefore, was economically disadvantaged:

Husband fails to cite any Tennessee authority that bars an award of rehabilitative alimony in a marriage with a duration of less than 10 years. . . .

[P]rior to the marriage, Wife quit her job to live with Husband in Europe, and Wife remained unemployed throughout the marriage, with the exception of one month of employment as a medical transcriptionist. Wife ended this employment when Husband requested that Wife assist him with two businesses, for which she took no salary. Therefore, Wife has been unemployed for over 10 years. Husband has a college degree, and he is a trained helicopter pilot. He has maintained employment throughout the course of the parties’ marriage. Since filing for divorce, Wife has applied for jobs but has been unable to find long-term employment. Additionally, since filing for divorce, she had undergone two surgeries, and she testified that she will need several months to recover. As found by the trial court, Wife plans to pursue an Associate’s degree in medical coding to seek future employment.

*     *     *     *     *

Wife has no income; Husband earns $16,509.17 per month from his employment [as a helicopter pilot] and an additional $5123.12 from other sources. Accordingly, Wife is economically disadvantaged relative to Husband, and Husband has the ability to pay the rehabilitative alimony award of $2500 per month for three years. From the record, we conclude that the evidence does not preponderate against the trial court’s findings on alimony.

Thus, the trial court’s judgment was affirmed. Wife was also awarded attorney’s fees both at trial and on appeal.

K.O.’s Comment: (1) Let’s remember that “economically disadvantaged spouse” is a term of art referring to a spouse who suffered “economic detriment” for the sake of the marriage or the family. It does not include a spouse who simply earns less than than other spouse when the lower-earning spouse did not subordinate his or her career to benefit the marriage or the family. See, e.g., McKee v. McKee. The record certainly supports the finding that Wife is an economically disadvantaged spouse.

(2) Tennessee caselaw differs on what constitutes a marriage of long or short duration depending on whether we’re dealing with property division or alimony. When dividing property, the distinction between a short and long marriage gets fuzzy as we approach 10 years. See, e.g., Ricketts v. Ricketts (property division case where 10-year marriage is not short but “cannot be considered to be of exceptionally long duration”). When analyzing alimony, the line between long and short takes longer to reach. See, e.g., Garman v. Garman (alimony case where 17-year marriage is neither short nor long).

Henson v. Henson (Tennessee Court of Appeals, Middle Section, April 24, 2017).

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

Posted by: koherston | April 24, 2017

Things I Like: Coppock on Tennessee Adoption Law

Dawn Coppock, Esq., is widely recognized as the preeminent authority on Tennessee adoption law. She also happens to be a wonderful person.

Celebrating my first adoption back in the 90’s

When I was a “baby lawyer” 20 years ago, one of the partners in the firm where I worked told me to handle a pro bono stepparent adoption for one of the firm’s clients. I had never done an adoption before, nor had any of the other lawyers in the firm. Without anyone to give me direction, I had to figure it out on my own.

My research quickly led me to Coppock on Tennessee Adoption Law. By following the clear instructions in the book, I successfully completed my first adoption.

 

Signing the “adoption promise” certificate

At some point during that first adoption I had a question so I called Dawn. I’m sure she gets calls from desperate lawyers all the time. Instead of saying, “Read my book, dummy,” she graciously pointed me in the right direction. She even gave me some cool ideas for a post-adoption “promise ceremony” for the child. I passed those ideas to the staff in the office, and they organized a marvelous ceremony that no one who was present will ever forget.

Since that time, we have become much more proficient in handling termination-of-parental-rights cases and adoption matters. What hasn’t changed, however, is our reliance on Coppock on Tennessee Adoption Law.

We consult that treatise whenever we do an adoption. It is indispensable. The definitive answer to almost any question begins with, “Coppock says . . . .”

Get it. Use it.

Earlier this year, the seventh edition of Coppock on Tennessee Adoption Law was released. The law has changed since the sixth edition was published in 2011, and all of the changes are addressed in the seventh edition. These changes include:

  • new procedures for legal fathers to deny paternity;
  • new caselaw on the required notice and due-process issues;
  • new grounds for termination of parental rights;
  • new proof requirements for failure-to-support grounds;
  • new time limits for revoking a voluntary surrender of parental rights;
  • changes in the rights of unmarried fathers and new procedures for proceeding without them; and
  • changes to the scope of appellate review of termination-of-parental-rights cases.

The seventh edition also features updated pleadings and new forms, such as new paternity affidavits.

Simply put, any lawyer handling adoptions in Tennessee should have this book. If you don’t have it, get it. It is the ultimate authority on Tennessee adoption law for lawyers and judges across the state.

Coppock on Tennessee Adoption Law, 7th ed. (Celtic Cat Publishing 2017).

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

Posted by: koherston | April 21, 2017

Photo of the Week: Cicada Up Close

koh_8270

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

Facts: Mother and Father divorced in 1998. At the time of the divorce, they shared custody of their two children. Father was ordered to pay $1500 per month in child support.

Less than a year later, after Mother’s chronic mental illness prevented her for caring for the children, the court transferred custody of the children to Father and terminated his child-support obligation. The Court order further provided, “[Mother] has a duty to pay child support, but the amount of that support is reserved.”

Thereafter, Mother provided no financial support for the children.

Over 16 years later, Mother filed a petition for contempt relating to a dispute over the division of Father’s retirement benefits. Father counterclaimed for back child support for the period during which he had sole custody of the children, specifically August 1999 through May 2004.

There was no dispute about whether Mother owes child support. The only question was what amount she owed.

Using the Child Support Guidelines that were in effect during the years in which Mother’s obligation was incurred, i.e., from August 1999 through May 2004, the trial court awarded Father retroactive child support in the amount of $36,246.

Mother appealed.

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

In Tennessee, a parent’s child-support obligation is governed by the Child Support Guidelines established by the Tennessee Department of Human Services pursuant to Tennessee Code Annotated § 36-5-101(e).

The Guidelines in effect from August 1999 through May 2004 provided that child support was based on the income of the noncustodial parent, which was Mother. Also, the Guidelines in effect at that time would consider the alimony Mother received from Father as income for purposes of calculating her child-support obligation, and that alimony was Mother’s primary source of income during the relevant period.

The current Guidelines, which were promulgated in 2005, are based on an “income shares” model that would also take Father’s income into account when establishing Mother’s child-support obligation. Moreover, the current Guidelines would not include alimony that Mother received from Father for purposes of determining her income.

For these reasons, Mother’s child-support obligation will likely be lower if calculated using the current Child Support Guidelines rather than those that were in effect prior to 2005.

Husband argued that the Guidelines in effect at the time Mother’s child-support obligation was incurred should be applied to determine the amount of retroactive child support due.

Mother argued the Guidelines in effect at the time Father filed his counterclaim for back child support should apply.

The Court held that the current Child Support Guidelines must be used to determine a child-support obligation that accrued prior to their creation:

In this case, the Child Support Guidelines directly address the issue at hand:

The Child Support Guidelines established by this Chapter shall be applicable in every judicial or administrative action to establish, modify, or enforce child support, whether temporary or permanent, whether the action is filed before or after the effective date of these rules, where a hearing which results in an order establishing, modifying, or enforcing support is held after the effective date of these rules.

Furthermore, the Child Support Guidelines set forth the following instructions for calculating the amount of retroactive child support due: “For the monthly [basic child support obligation], apply the Guidelines in effect at the time of the order, using the Child Support Worksheet. . . .”

Considering the foregoing, we conclude that the trial court should have calculated [Mother’s] retroactive child support obligation using the Child Support Guidelines in effect at the time of the court’s 2016 ruling.

Thus, the trial court’s judgment was reversed with respect to the calculation of Mother’s child-support obligation and remanded with instructions to recalculate child support using the Child Support Guidelines in effect at the time of trial in 2016.

Maher v. Woodruff (Tennessee Court of Appeals, Middle Section, April 13, 2017).

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

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