Posted by: koherston | February 24, 2017

Photo of the Week: Tiny Spider

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

Facts: Mother and father are the never-married parents of Child. A parenting plan was entered designating Mother as the primary residential parent and granting Father 103 days of parenting time.

Several years later, Father petitioned to modify the parenting plan. Mother counter-petitioned to modify the parenting plan.

knoxville child custodyThe trial court heard proof that both parties failed to adhere to the parenting plan. For example, Father was allotted 2-3 telephone calls with Child each week, but those calls did not always occur. There was evidence that Mother traveled with Child to Canada for a weekend without notifying Father.

After hearing, the trial court found a material change in circumstance sufficient to change custody. After considering Child’s best interest, the trial court entered a parenting plan changing the primary residential parent to Father and granting Mother 130 days of parenting time.

Mother appealed.

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

To modify a parenting plan, Tennessee courts must engage in a two-step analysis. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred must the court determine whether modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors for consideration include

  • whether the change occurred after entry of the order sought to be modified,
  • whether the change was known or reasonably anticipated when the order was entered, and
  • whether the change affects the child’s well-being in a meaningful way.

A material change in circumstance regarding a change to the parenting schedule is a different concept from a change in circumstance with respect to a change of custody. The material change necessary to reconsider the parenting schedule is considered a “very low threshold” while the change necessary to reconsider the primary residential parent designation is considered a “more stringent standard.”

For example, to modify the parenting schedule, merely showing that the existing arrangement has proven unworkable is sufficient to satisfy the material change of circumstance test.

After reviewing the record, the Court concluded the proof did not establish a material change of circumstance sufficient to change custody:

The specific difficulties cited by the court here, however, are not of such a character or magnitude that, standing alone, would support a change in the primary residential parent; rather, they relate directly to the workability of the parenting plan and are more appropriately addressed by modifying the plan. . . .

No specific evidence relating to whether the changes in circumstances affected [Child’s] well-being was presented . . . .

[T]he matters cited by the court or more appropriately addressed in modifying the parenting schedule, rather than changing the designation of primary residential parent. The evidence preponderates against the court’s finding that Mother’s trip to Canada or the difficulties with Father’s phone visitation constituted a material change sufficient to modify custody.

Thus, the trial court’s judgment changing the primary residential parent designation was reversed.

K.O.’s Comment: Lawyers and judges often confuse the material change standards needed to modify either the parenting schedule or the primary residential parent designation. For some recent examples, see Newberry v. Newberry and Williamson v. Lamb.

To modify child custody, a.k.a. the primary residential parent designation, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). This is considered the more stringent standard because changing the primary residential parent is a comparatively more drastic remedy.

To modify other parts of a parenting plan, such as the parenting scheduling, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). As mentioned above, this is considered a very low threshold.

Here’s a handy slide I use each year in my Tennessee Family Law Update seminars:

knoxville divorce

Also, lawyers often overlook the necessity of proving how the change in circumstance is affecting the child’s well-being in a meaningful way. For example, see Kelly v. Kelly.

Remember, parenting plans are not modified “just because.” The lawyer must prove, and the trial court must find, a material change in circumstance sufficient to allow the court to consider the type of relief the lawyer requests. As part of this, the lawyer must show a significant impact on the child. If the lawyer glosses over step one (material change) on his or her way to step two (child’s best interest), the lawyer invites reversal on appeal.

In re Braylin D. (Tennessee Court of Appeals, Middle Section, February 7, 2017).

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

tennessee divorceFacts: Mother and Father are the unmarried parents of Child.

Within a week of Child’s birth, Father filed a petition to establish paternity and a parenting schedule. An agreed temporary parenting plan was entered.

Later, disputes regarding parenting and contempt landed the parents back in court.

The only issues I find noteworthy are the trial court’s decision (1) to not require Father to pay child support via a wage assignment, and (2) to change Child’s last name to Father’s last name.

Mother appealed.

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

Wage assignment and child support. Mother argued the trial court erred in failing to order Father to pay child support by wage assignment.

Tennessee Code Annotated § 36-5-501 requires that a wage assignment for the payment of child support is required in every case regardless of whether child support payments are in arrears. There are two exceptions to this rule:

  • if there is a written finding that it is not the child’s best interest to require a wage assignment, or
  • if there is a written agreement by both parties that provides for alternative arrangements, which agreement must be reviewed and approved by the court.

The Court agreed with Mother that it is error not to require an income assignment from Father:

In the present case, there is no written agreement between the parties for alternative arrangements for the payment of child support. As to the first exception, the trial court’s order does not contain written findings setting forth good cause to excuse Father from wage assignment.

Thus, the trial court’s decision not to order Father to pay child support by wage assignment was reversed.

Changing Child’s last name. Mother argued the trial court erred in changing Child’s surname to Father’s surname.

Tennessee Code Annotated § 68-3-305(b)(1) requires that the last name of a child born to an unmarried mother shall be the surname of the mother, the mother’s maiden surname, or a combination of those two surnames. A child’s surname does not change as the result of a paternity determination unless the court so orders.

Tennessee courts should not change a child’s surname unless the change promotes the child’s best interest. Among the criteria for determining whether changing a child’s surname will be in the child’s best interests are:

  • a child’s preference,
  • the changes potential effect on the child’s relationship with each parent,
  • the length of time the child has had its present surname,
  • the degree of community respect associated with the present and proposed surname, and
  • the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname.

The parent seeking to change the child’s surname has the burden of proving that the change will further the child’s best interests. The amount of proof required to justify the change is not insubstantial. Minor inconvenience or embarrassment is not sufficient. Likewise, the mere preference of a parent is not a reason to justify a name change under the statute.

At the trial, Father argued, “I want my daughter growing up having my last name, you know, having, you know, relation to the last name. It doesn’t make sense to me why [Mother] wouldn’t want her daughter to have her father’s last name, but her sisters’ dad’s last name.”

The trial court found Mother’s history of thwarting Father’s parenting time was also a consideration, as well as her hostility towards Father and his family. Based on this history, the trial court reasoned that changing Child surname would strengthen the relationship between Father and Child.

The Court rejected this reasoning, explaining:

[T]he sole reason for the trial court’s decision to change the child’s surname to Father’s surname was its concern over Mother’s previous attempts to thwart the relationship between Father and child and its belief that changing the child’s surname would somehow strengthen the relationship between the child and Father. The burden of proof was upon Father to support a finding that a change of surname would serve the best interest of the child. We find no evidence in the record to support a conclusion that changing the child’s surname to Father’s surname would improve the relationship between Father and the child.

Thus, the trial court decision to change Child’s last name to Father’s last name was reversed.

Howell v. Smithwick (Tennessee Court of Appeals, Eastern Section, February 1, 2017).

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

Posted by: koherston | February 17, 2017

Photo of the Week: Cicada Emerging

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

Facts: Mother and Father, the parents of one child, never married. Mother has one child from a previous marriage.

While Father was at work one day, Mother moved out of Father’s home and took their child. Mother refused to let Father see the child.

A few days later, Mother went into septic shock and was hospitalized for the next two months. During the time Mother was hospitalized, the child stayed with the maternal grandparents, who refused Father’s requests to visit or speak with the child.

Father petitioned for — and received — immediate temporary custody of his child.

Three months after being released from the hospital, Mother petitioned for custody, alleging that Father is unfit to care for their child because of his history of drug use.

After a trial, the trial court found both parents to be fit parents; however, stability and continuity was found to favor Father. The trial court designated Father as the primary residential parent and granted Mother visitation.

Mother appealed.

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

In determining the child’s best interest, Tennessee courts must consider the factors set forth in Tennessee Code Annotated § 36-6-106(a). The relevancy and weight to be given each factor depends on the unique facts of each case. In this case, two of those factors were of particular significance:

  • the importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment, and
  • the child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities.

Continuity in the child’s life. The Court determined the evidence supports the trial court’s conclusion that this factor favors Father:

Continuity in the child’s life is an important factor for consideration. . . . [T]he child has lived with Father almost his entire life and has continued living with Father through the course of the proceedings in this case. It would likely disrupt the child’s life if he were removed from Father and placed in a different home and environment. We hold that the importance of continuity in the child’s life favors Father.

Child’s relationship with sibling. Separating siblings is a drastic remedy. While there is a presumption against separating siblings, this presumption is rebuttable and must give way to other considerations in appropriate circumstances. The facts in a particular case may require that siblings be separated. The preference for keeping siblings together is simply one factor for the court to consider in determining the child’s best interest. It is not a controlling factor.

When courts are required to separate siblings, they should minimize the potentially harmful effects of the separation by including liberal visitation rights and other provisions enabling the siblings to continue their relationship with each other.

The Court reasoned:

In regard to separating the child from his half-brother, the trial court encouraged the parties to work together so that the child could have time with his half-brother. When making its ruling, the court asked that Father be liberal in allowing the child to spend time with his half-brother. It is clear that the trial court took the appropriate steps in crafting a visitation schedule which would facilitate a relationship between the child and his half-brother. The trial court’s ruling appropriately minimizes the potential harmful effects of separating the child from his half-brother. After weighing all of the relevant factors, there is sufficient evidence to rebut the presumption against separating siblings.

Taking everything into consideration, the Court concluded:

The parents both seem to have a strong relationship with the child. When Mother was unable to care for the child, Father bore the parenting responsibilities, strengthened his relationship with the child, and provided stability for the child. Father has made it clear that he is willing and able to fulfill his parental responsibilities and provide for the child. He also has shown that he intends to facilitate a relationship between the child and Mother and his half-brother. Furthermore, the record demonstrates that Mother has had some history of hindering the child’s relationship with Father. As discussed above, awarding custody to Father will facilitate continuity and stability for the child.

Thus, the Court affirmed the trial court’s finding that it is at the child’s best interest for Father to have custody.

K.O.’s Comment: Mother made a big mistake by refusing to let Father see his child. Similarly, the maternal grandparents blundered by refusing Father’s requests to speak with and visit his child. These early actions ended up hurting Mother. Such behavior is almost always a terrible idea. Avoid it except in the most extreme circumstances when it is necessary to protect the child’s safety. Even then, seek prompt relief from the court. Mother and her parents acted as if they were judges empowered to prohibit Father from parenting his child. I bet they wish they could go back in time and make different decisions. Others should learn from their mistakes.

Grigsby v. Alvis-Crawford (Tennessee Court of Appeals, Western Section, January 31, 2017).

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

Facts: The parties divorced after 40 years of marriage. Both were 64 years old at the time of trial.

Husband is a college graduate who is an executive in a company owned by his family, where he earns between $40,000 and $67,000 per year. He is healthy and has no present plan to retire.

Wife has a high-school education and has not worked outside the home in 38 years. She suffers from mental and physical ailments, including bipolar disorder, severe depression, and anxiety. She was hospitalized five times for mental health issues. The medical proof showed she is unable to work and will require medical care for the remainder of her life.

knoxville divorceAs often occurs in a marriage of long duration, the trial court equally divided the marital property.

Wife was determined to be the economically disadvantaged spouse who was incapable of rehabilitating her earning capacity. She will start receiving $2,165 per month in Social Security benefits at age 66, two years from the date of divorce.

Wife was awarded alimony in futuro of $1000 a month for two years, after which it will be reduced to $500 a month.

Wife appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

Property division. After classifying the parties’ assets as either separate or marital, Tennessee courts must divide the marital property in an equitable manner. This does not require that the property be divided equally. Dividing a marital estate is not a mechanical process, but rather is guided by considering the factors in Tennessee Code Annotated § 36-4-121(c).

After reviewing the record, the Court found error in the trial court’s division of marital property:

Based on the trial court’s findings on the disparity between the parties’ respective physical and mental health, earning capacity, financial needs, and the value of their separate property, which findings are supported by the evidence, we conclude that the trial court misapplied the statutory requirements for division of the marital estate. Applying the relevant statutory factors to the facts of this case, we have concluded that an equal division of the marital estate is not equitable to Wife.

The Court modified the trial court’s judgment by increasing Wife’s portion of the marital property from 50% to 55%.

Alimony in futuro. When determining whether to award alimony, Tennessee courts are required to consider the factors set forth in Tennessee Code Annotated § 36-5-121(i). While a trial court should consider all the relevant factors under the circumstances, the two most important factors to consider are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.

The Court determined the trial court’s alimony award was an abuse of discretion:

[A]s for the alimony award—that being $1,000 per month for two years and $500 per month thereafter—the trial court did not state the reasoning behind its decision to award these specific sums. . . .

*     *     *     *     *

Having considered the facts of this case and the relevant legal principles, we conclude the amount of alimony in futuro is not within the range of reasonable alternatives, principally because Wife has a need that is greater than the support awarded and Husband has the ability to pay more. . . .

Accordingly, we remand with instructions for the trial court to award Wife alimony in futuro in the sum of $2,500 a month for two years, beginning with the entry of the divorce decree, which award shall be reduced to $1,000 per month at the conclusion of the two years and continue for the remainder of Wife’s life or until she remarries of Husband’s death, whichever occurs first.

Thus, the trial court’s judgment as to property division and alimony was modified to give Wife more of both.

K.O.’s Comment: Regarding property, the Court holds that a 50/50 division of marital property constitutes a “misapplication of the statutory factors” on these facts and, therefore, was an abuse of the trial court’s discretion, but a 55/45 division reflects the proper application of the statutory factors. Is a 5% difference an abuse of discretion? How much confidence can trial courts have in the Court’s statement in Neas v. Neas that, “When it comes to the division of a marital estate, we do not tweak or second-guess trial courts”?

Gant v. Gant (Tennessee Court of Appeals, Middle Section, January 31, 2017).

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

Posted by: koherston | February 10, 2017

Photo of the Week: Black Bear Cub

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

This article from Science of Relationships discussing this study by Sarah J. Watkins and Susan D. Boon may be of interest.

Not In My Backyard: Daters Presume A Lot Of People, Except Their Own Partners, Cheat

Cheating on someone, or being cheated on, represents one of the more traumatic events that can occur in any romantic relationship. Although the reported incidence rate of infidelity varies considerably by sample and relationship type, suffice it to say that affairs are not uncommon in marital and non-marital relationships. And people (in those relationships) suspect it’s common – when asked, people generally presume that people cheat frequently (hence the prevalence of tabloid magazine lists on ‘how to spot a cheater’).

knoxville tn divorceYet, despite the apparent widespread presumption that staying true to another is no easy task, people likewise presume their own partners are highly unlikely to stray. A number of studies, mostly focused on married individuals, have documented a clear gap between the frequency of infidelity (i.e., people admitting they have cheated on their spouses) and individuals’ expectations that their partner has cheated. Basically, people believe others cheat, and even report doing it, but still don’t tend to think it has happened, or will happen, in their relationships.

In a recent study published in the Journal of Social and Personal Relationships, researchers identified daters’ (vs. married spouses) thoughts about the frequency of cheating in their own and others’ relationships. The researchers also wanted to see how well individuals’ expectations about what happens in their relationship might map on to reality. They surveyed nearly 200 individuals, ages 17-32 (89 males; 108 females), who had been dating their partners an average of about 22 months. Most indicated they were in an exclusive relationship…but were they? – keep reading!

As part of a larger study, all participants were asked a series of questions about infidelity in their own and others’ relationships so the researchers could compare what daters think happens in their own vs. others’ relationships. Here are some of the key findings:

  • Not surprisingly, almost all the daters indicated that it is very important their partners don’t cheat on them.
  • As such, most participants (more than 9 out of every 10) said they’d want to know if their partner has ever or does cheat on them.
  • Yet, despite how much people care about infidelity, the majority of participants (roughly 7 out of every 10) indicated that they had not had an explicit conversation with their partner about what “counts” as cheating or what they expect from their partners in the fidelity department.

Summary: People care a lot about (in)fidelity, but aren’t likely to discuss it with their partners. You may be thinking “Why would they discuss such things when of course everyone knows you’re not supposed to cheat?” Never mind the fact that there’s an enormous amount of variation in what constitutes cheating, but it gets more interesting:

  • These very same participants guesstimated that the average person of the opposite sex (in a similar type of dating relationship) has a roughly 40% chance of ever cheating on a romantic partner.
  • And about 9% of the study participants reported having actually cheated on their own partner at some point in the past.
  • But when asked directly, only 5% of participants believed that their own partner had cheated or will cheat at some point in the relationship.

In other words, daters in this study were unlikely to talk about infidelity with their partners but, at the same time, presumed that the likelihood of cheating in the general population was fairly high. And they reported actually cheating at twice the rate than they thought their own partners would cheat. Add this pattern of results to the lowest published rate of infidelity in dating relationships—14%—and it becomes pretty clear that folks are engaging in some fairly (risky) wishful thinking.

Do these results mean that people should be walking around looking for cues that their partner is a philanderer? Not at all. But the findings do highlight the degree to which people are motivated to really want to believe their relationships and partner is better than others. And that wishful thinking may blind individuals to real warning signs.

Source: Not In My Backyard: Daters Presume A Lot Of People, Except Their Own Partners, Cheat (Science of Relationships, July 19, 2016).

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

Facts: Mother and Father are the parents of four children. When they divorced, their agreed parenting plan designated Mother as the primary residential parent and gave both parents joint decision-making authority regarding the children’s religious upbringing.

Although the record is unclear, it appears Father moved to modify the parenting plan in some way (the motion was not included in the record on appeal).

knoxville divorceThe proof revealed extensive conflict over the children’s religious upbringing. Since the divorce, the parties have filed numerous petitions for contempt, orders of protection, and motions to modify the parenting plan arising out of, among other disagreements, the control of their children and their religious beliefs. Much of this conflict centers around Father’s refusal or interference with his children participating in extracurricular activities, such as Scouts, football, and other sports which he claims violates his religious beliefs.

The children’s therapist stated that one child “has become paranoid that ‘Jehovah’ is watching everything that he does and that he will be punished when his father takes him back to ‘Jehovah’s House.'” The children complained to the therapist about all the time they spent at Father’s church. The therapist said the children have increased anxiety, a distrust of Father, the feeling they are being forced to believe something they do not, and that he is not considerate of their own thoughts and beliefs.

The trial court granted Mother sole decision-making authority regarding the children’s religious upbringing, ordered that the children shall exclusively attend Mother’s church, and clarified that Father is not required to take the children to Mother’s church during his parenting time.

Father appealed.

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

Tennessee law provides that where parents are unable to agree on matters of great importance regarding the welfare of the children, primary decision-making authority should be placed in one parent or the other.

After reviewing the record, the Court affirmed the award of sole decision-making authority to Mother:

The record [shows] the extent of disagreement between the parents regarding the religious training of the children, the effect that disagreement is having on the emotional well-being of the children, and the anxiety they experience when they are required to go to church with Father. [The therapist’s] observations, opinions, and recommendation letters provide a substantial evidentiary basis for the decision to vest Mother with sole decision-making authority regarding the children’s religious upbringing. In an effort to bring a degree of stability to that aspect of the children’s lives as well as to diminish conflict between the parents, the court did not abuse its discretion in giving Mother that authority.

The Court modified the trial court’s ruling requiring the children to attend Mother’s church:

While mother is free to have the children attend [her church], there is no evidence in the record to support the order that they do so. Their religious upbringing is, on the state of the record before us, solely vested in Mother. While we acknowledge that the specific designation of [Mother’s church] may bring a degree of certainty to where the children go to church, in her motion Mother requested only that the order reflect that the children would not be forced to participate in or practice Fathers beliefs; granting her sole decision-making authority accomplishes that objective. Accordingly, we modify the order to remove the requirement that the children attend [Mother’s church.]

Thus, the trial court’s judgment was affirmed, as modified.

K.O.’s Comment: (1) Courts are understandably reluctant to delve into matters of religion. After all, the First Amendment generally gives parents the freedom to expose their children to whatever religious beliefs they choose. It also prohibits the government from favoring one religion over another. Nonetheless, courts have an obligation to act when children are being harmed by parental conflict. These issues require a delicate balancing act.

(2) Religious-dispute cases are few and far between. Compare this case with the Miller case, which involved a baptism.

Lewis v. Parmerter (Tennessee Court of Appeals, Middle Section, January 31, 2017).

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

Posted by: koherston | February 3, 2017

Photo of the Week: Black Bear

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

Facts: Mother and Father are the parents of Child. They entered an agreed parenting plan designating Mother as the primary residential parent and granting Father 74 days of parenting time.

A few years later, Mother petitioned for an ex parte restraining order and modification of the parenting plan because Father had incurred criminal charges for illegal drugs and, she asserted, exhibited increasingly threatening and addictive behaviors.

A temporary ex parte restraining order was entered that prevented Father from contacting Mother or Child.

A hearing occurred shortly thereafter, where Father appeared without counsel and was personally served with the petition and ex parte restraining order. The trial court granted Father visitation with Child so long as Child’s paternal grandmother was present to supervise.

knoxville divorceFather never filed a response to Mother’s petition. Mother filed a motion for a default judgment and mailed it to Father’s address. The motion gave notice that a hearing would occur on a certain date. Father did not respond or attend the hearing.

In a default judgment, the trial court found the parenting plan attached to Mother’s petition was in the best interest of Child. The parenting plan requires that Father’s visitation be supervised by one of his parents. It further provides that Father could have unsupervised visitation after completing an alcohol and drug assessment, following all recommendations therefrom, and passing two consecutive drug screens. Finally, the trial court awarded Mother $2620 in attorney’s fees and expenses.

Shortly thereafter, counsel for Father appeared and filed a motion to alter or amend the default judgment. In the motion, Father asserted he had not received Mother’s motion for default and had no notice of the hearing.

The trial court denied Father’s motion, finding that Father was fully aware of the proceedings as he had attended the hearing on the restraining order, was advised to get counsel, and failed to respond to Mother’s petition in the time prescribed by law. It also found Father’s address had not changed, and he received the order of default.

Father appealed.

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

Father argued the default judgment should be set aside because of “excusable neglect.”

Rule 55.02 of the Tennessee Rules of Civil Procedure provides that a default judgment may be set aside pursuant to Rule 60.02. Rule 60.02 provides relief from final judgment as follows:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect [.]

Obtaining postjudgment relief for “excusable neglect” involves three inquiries: (1) whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) whether the nondefaulting party would be prejudiced if relief were granted. However, it is not required that the moving party assert a meritorious defense if the default judgment was obtained in a way that violates the Rules of Civil Procedure. The trial court should grant relief on a default judgment when the plaintiff has failed to comply with required procedural safeguards.

After reviewing the record, the Court rejected Father’s argument:

It is well-established that pro se litigants are not excused from complying with the same substantive and procedural requirements that other represented parties must adhere to. Further, [Father] was given an alias summons at the [ex parte restraining order] hearing that expressly stated he had 30 days to file a defense or “judgment by default can be rendered against you for the relief sought in the complaint.”

*     *     *     *     *

The trial court found Father failed to file a timely response to Mother’s petition, despite being “fully aware” of the court proceedings. When a defendant fails to answer a complaint, the plaintiff may obtain a default judgment without a hearing on the merits. Father offered the trial court no explanation for his failure to receive or respond to the motion for default. Conduct that is flagrant and unexplained are characteristics of willful conduct. Further, a defendant acts willfully if he reads the summons and does nothing to respond to the complaint as directed by the summons. For these reasons, we find Father’s failure to respond was willful. Willfulness is a threshold inquiry to determine whether relief from a judgment is proper for “excusable neglect.” If the court finds that the defaulting party has acted willfully, the judgment cannot be set aside on “excusable neglect” grounds, and the court need not consider the other factors.

Thus, the trial court’s decision to deny Father’s motion was affirmed.

In re I.G. (Tennessee Court of Appeals, Middle Section, January 27, 2017).

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

Facts: An agreed parenting plan was entered in September 2012 granting Mother 245 days of parenting time to Father’s 120 days. Father, an airline pilot with an unfixed work schedule, was granted a “minimum” of 10 days each month. The parties were to operate in good faith toward coordinating Father’s parenting time around Father’s work schedule.

In April 2014, Father petitioned to modify the parenting plan, alleging that Mother had refused him additional parenting time.

tennessee divorceMother filed a counterpetition seeking a more consistent schedule rather than 10 days in any given month. Mother testified sometimes 20 to 30 emails were required to arrange Father’s parenting schedule. Mother testified to 70 occasions on which Father was late to pick up Child or canceled altogether.

Father testified that in his profession as a pilot, there is a bidding process by which one obtains his or her work schedule. The schedules are bid upon according to seniority. Father could try to bid for certain days to accommodate a precise schedule for visitation, or trade for it, but he could not guarantee he would get that schedule.

The trial court kept the parenting schedule as is but required Father to give a list of his available parenting days to Mother within 24 hours of receiving his schedule. Mother then has 36 hours to advise Father of which 10 days he will have that month. If Mother fails to respond within 36 hours, then Father can pick his 10 days. If Father misses or cancels any of those 10 days, the days are forfeited.

Mother appealed.

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

Mother argued the trial court should have approved her parenting plan which would establish a specific one-week schedule for Father to visit Child each month. According to Mother, Child needs consistency above all else.

The Court disagreed, and in doing so made some interesting comments regarding the maximum-participation provision:

Father is an airline pilot who must bid for his work schedule and is not currently in a position to guarantee specific days for his availability to visit the Child. The almost certain effect of adopting Mother’s proposed parenting plan would be to curtail the Child’s time with Father. Tennessee Code Annotated § 36-6-106(a) instructs courts to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.” This is not an ironclad rule, and may be superseded by other relevant factors, but, barring evidence to the contrary, our starting point is to proceed with an eye toward maximizing parenting time for each parent. Mother’s proposed parenting plan would almost surely limit the Child visitation time with Father. At various points in her argument, Mother asserts that Father places his career ambitions above the best interest of the Child. We believe, however, that the Child’s best interest is not served by forcing Father to choose between his career and a fixed visitation schedule. Father’s continued professional success as a pilot has and should continue to inure to the Child’s best interest. This of course in no way means that Father can cite his career to disregard the parenting plan. It means merely that a flexible visitation schedule serves to maximize the Child’s time with Father, while acknowledging the reality of Father’s profession. We find such a balance to be in the Child’s best interest, as did implicitly the [trial court.].

Thus, the trial court’s parenting plan was affirmed.

K.O.’s Comment: (1) In case you missed it, the Court says a trial court’s “starting point” when creating a parenting plan “is to proceed with an eye toward maximizing parenting time for each parent.”

(2) Compare this with the outcome in In re Cannon H., where the Court held that a flexible schedule very similar to the one above is only appropriate when the parents are able to communicate well. There, the Court said in the absence of effective communication between the parents, a structured schedule is required. Or compare it with Roland v. Roland, where the Court described a parenting schedule “based entirely on Father’s work schedule” as “unorthodox and problematic” and as having “no consistency from week to week.”

In re Maddox P. (Tennessee Court of Appeals, Middle Section, January 17, 2017).

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

Posted by: koherston | January 27, 2017

Photo of the Week: Zoey in the Snow

zoey in snow

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

Facts: Child 1 was born in February 2009. Shortly thereafter, Father was placed on probation after pleading guilty to a drug charge. In July 2009, he was found guilty of violating his probation.

In March 2010, Father was arrested for driving on a suspended license. A subsequent drug investigation resulted in Father’s arrest for violating his probation. Father was also charged with selling drugs.

Father has been continuously incarcerated since April 2010.

Child 2 was born in July 2010.knoxville divorce

In October 2010, Father pleaded guilty to two felonies, including the drug charge, and was sentenced to serve eight years in prison.

Father was also indicted on federal drug charges, pleaded guilty, and received a six-year sentence.

In January 2014, the Department of Children’s Services had the children declared dependent and neglected because of Mother’s drug use. The children have been in foster care since that time.

In December 2014, DCS petitioned to terminate the parental rights of both parents.

The trial court entered an order terminating Mother’s parental rights. As to Father, the trial court held that DCS failed to prove grounds to terminate his rights. The trial court found Father’s testimony “highly credible,” particularly his claims of innocence regarding the charges to which he pleaded guilty, the courses he completed while incarcerated, and his strong desire to return to society as a productive citizen.

The trial court went on to the second phase of the termination analysis and found it was in the children’s best interest terminate the parental rights of both parents. Because of the finding that no grounds were proven as to Father, only Mother’s parental rights were terminated.

Mother and DCS appealed.

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

The only noteworthy issue in this appeal concerns the grounds of Father’s wanton disregard for the welfare of the children.

Parental conduct exhibiting wanton disregard for a child welfare may occur at any time prior to incarceration. A parent’s incarceration acts as the triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child.

Tennessee Code Annotated § 36-1-102(1)(A)(iv) does not explicitly define wanton disregard, though Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of the child.

The Court observed that the trial court focused on Father’s conduct during incarceration rather than the proper analysis, i.e., his conduct prior to incarceration. Applying the proper analysis, the Court found the record provided clear and convincing evidence of Father’s wanton disregard for the welfare of his children:

Our courts have consistently held that an incarcerated parent who has multiple drug offenses and wastes the opportunity to rehabilitate themselves by continuing to abuse drugs, resulting in revocation of their parole and reincarceration, constitutes abandonment of the child, and demonstrates a wanton disregard for the welfare of the child. [Father’s] incidents demonstrate a pattern. The record makes it clear that Father has engaged in a course of conduct in which he was involved with drugs and other violations of the law. Father’s numerous drug charges and probation violations demonstrate that he has engaged in a pattern of conduct. This pattern has caused Father to be incarcerated continuously since April 2010. Prior to that, Father was in and out of jail. . . .

*     *     *     *     *

We hold, as a matter of law, that Father engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the Children.

Thus, the trial court’s finding that DCS failed to prove a ground to terminate Father’s parental rights was reversed. Because the trial court’s findings as to the children’s best interest was affirmed, both Mother’s and Father’s parental rights were terminated.

In re A.B., et al. (Tennessee Court of Appeals, Eastern Section, January 11, 2017).

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

Facts: Shortly after the birth of Child in early 2011, Father lost his job as a university researcher because of a lack of funding. Mother worked as a nurse practitioner. Mother and Father agreed that Father would stay home with Child.

For approximately one year, Father took care of Child during the day and brought Child to Mother’s place of work to breastfeed.

Knoxville daycareIn 2012, Father told Mother he wanted to return to work, so she obtained a nanny to care for Child. Father worked for approximately one week. Despite Father’s unemployment, Child began attending daycare in mid-2012 from 8:30 a.m. until 4:30 p.m.

In April 2014, Father accepted a job and relocated to South Dakota, where his parents and extended family lived.

Ten days after Father relocated, Mother filed for divorce. She requested primary custody of Child.

Father argued that he had been Child’s primary caregiver until he moved to South Dakota. Mother argued that rather than care for Child while he was at home, Father dropped Child off at her workplace, with a nanny, or a daycare.

The trial court found Mother more credible than Father. Specifically, the trial court found Mother’s testimony to be “appropriate” and “truthful,” and described her demeanor while testifying as “exceptional.” To the contrary, the court found Father’s testimony to be “problematic” and “self-serving,” and described his demeanor while testifying as “arrogant” and “controlling.” The trial court gave Mother’s testimony greater weight. Mother was designated as the primary residential parent.

Father appealed.

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

A final decree in a divorce action involving minor children must include a permanent parenting plan. A permanent parenting plan is a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establish of a residential schedule. Designating a residential schedule includes, among other things, designating the primary residential parent. Generally, the primary residential parent is the parent with whom the child resides more than 50% of the time. When the court divides residential time equally between the two parents, the court must designate one of them as the primary residential parent.

In determining who should be the primary residential parent and what the residential schedule should be, Tennessee courts must consider the factors set forth in Tennessee Code Annotated § 36-6-106(a).

After reviewing the record, the Court determined the evidence supported the trial court’s judgment:

[T]he primary caregiver, the parent who takes greater responsibility for the provision of necessities, typically forms the stronger emotional bond with the child. . . . Mother and Mother’s witnesses testified that Mother performed a vast majority of the tasks related to the child’s daily needs such as changing diapers, providing food, dressing the child, and in scheduling play dates with other children. . . .

Father testified that he believed Mother’s parents were responsible for the breakup of their marriage. Likewise, Mother testified that Father did not get along with her parents and made derogatory comments about them. To the contrary, Mother testified that she got along with his parents. Even more significant, she allowed the child to Skype with Father three times per week and flew the child to South Dakota for Father’s parenting time.

*     *     *     *     *

Following a thorough review of the record, we have determined that the trial court’s findings are supported by the preponderance of the evidence. The testimony supports the trial court’s finding that Mother acted as the primary caregiver, and hence, formed a stronger emotional bond with the child. Mother has also provided the child with a stable environment[] conducive to the child’s emotional and intellectual development. Additionally, Mother appears willing to foster a continuing, close relationship between the child and Father. With the foregoing in mind, we have determined that the trial court acted within its discretion in designating Mother as the primary residential parent.

Accordingly, the trial court’s judgment was affirmed.

Engh v. Engh (Tennessee Court of Appeals, Middle Section, January 10, 2017).

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

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