Posted by: koherston | September 30, 2016

Photo of the Week: Fall is Coming

fall color creek

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

knoxville divorceFacts: Father and Mother, the parents of three children, were divorced in 2008. Father was named the primary residential parent, and Mother was ordered to pay child support. Mother was also ordered to pay one-half of of the children’s uncovered medical expenses.

Over the course of this postdivorce litigation, Father filed three petitions for criminal contempt alleging that Mother failed to pay child support, failed to pay her portion of the children’s uncovered medical expenses, and failed to allow Father’s parenting time.

The trial court ultimately found Mother guilty of multiple counts of criminal contempt for failing to pay her portion of the children’s uncovered medical bills, one count of criminal contempt relating to visitation on a school holiday, and multiple counts of criminal contempt for failing to pay child support. The trial court sentenced mother to the maximum of 10 days incarceration for each violation. Because mother had already served a portion of her sentence, her effective sentence totaled 403 days of incarceration.

Mother appealed. The trial court stayed the remainder of Mother’s sentence pending appeal.

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

The power of courts to punish a party for contempt comes from Tennessee Code Annotated § 29-9-102. The power to punish for contempt of court extends to a party’s disobedience of a lawful order of the court.

Contempt may be either criminal or civil. Criminal contempt is used to preserve the power and vindicate the dignity and authority of the law. Generally, sanctions for criminal contempt are designed to punish the contemnor and are unconditional in nature.

For each count of criminal contempt, Tennessee courts are generally limited to imposing a fine of $50 and to imprisoning an individual for not more than 10 days.

Tennessee courts have approved the practice of imposing the maximum 10-day sentence for a single instance of criminal contempt. Where the contemnor is convicted of more than one count, however, the sentencing court must determine whether the sentences should run consecutively or concurrently to one another.

Not every contemptuous act, or combination of contemptuous acts, justifies the imposition of a maximum sentence, particularly when consecutive sentencing is considered. Tennessee courts must consider the sentencing considerations set forth in Tennessee Code Annotated § 40-35-103 for guidance.

There is a presumption in favor of concurrent sentencing as opposed to consecutive sentencing. Tennessee Code Annotated § 40-37-115(a)(7) permits a Tennessee court to order consecutive sentencing when someone is sentenced for criminal contempt. This factor, standing alone, that does not justify the imposition of the absolute maximum sentence.

Although statutory criteria may support the imposition of consecutive sentences, the overall length of the sentence must be justly deserved in relation to the seriousness of the offenses and no greater than that deserved under the circumstances. The decision to impose concurrent four consecutive sentences is a matter entrusted to the sound discretion of the sentencing court.

Upon review of the record, the Court concluded the trial court erred by failing to consider whether it’s consecutive sentence was excessive:

For an order sentencing Mother to more than one year in jail in multiple 10-day increments, however, the trial court’s order is surprisingly sparse. First, we note that nothing in the trial court’s order indicates that it considered whether Mother’s sentence should be served consecutively or concurrently . . . . Further, the trial court completely omits any discussion of the factors contained in §§ 40-35-103 and 40-35-115(a). Moreover, the trial court’s order does not contain any factual findings underlying its contempt finding from which this Court could make an independent review of those factors. As noted by Mother, the trial court’s order fails to even indicate the statutory provision it is relying upon in finding Mother in contempt and imposing the sentence of incarceration.
*     *     *     *     *
Under the circumstances, we conclude that the trial court’s failure to make specific findings of fact and conclusions of law in its order, together with its apparent failure to even consider the excessiveness of the sentence imposed, creates an injustice or error of law sufficient to justify reconsideration. . . .

The trial court’s ruling was vacated and the matter remanded with instructions to consider whether Mother’s sentence was excessive under the circumstances.

K.O.’s comment: The Court sent a not-so-subtle message to the trial court when it said, “While we decline to to definitely state that Mother’s sentence was excessive, we encourage the trial court to fully consider the implications of its decision to incarcerate Mother for more than one year in reaching its ultimate decision. Such implications may include the best interest of the children and Mother’s ability to pay any future child support or arrearages.”

Burris v. Burris (Tennessee Court of Appeals, Middle Section, September 20, 2016).

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

Facts: Mother and Father, the parents of two children, were divorced in 2012. Mother was designated the primary residential parent. Father received 119 days of parenting time.

knoxville divorceIn 2015, Mother provided Father with a notice of intent to relocate to Pennsylvania, citing her desire to reside with her current husband, an employment opportunity, an educational opportunity, proximity to relatives and a church, and the availability of extracurricular activities for the children.

Father filed a petition in opposition to the requested relocation, asserting that the proposed relocation was neither reasonable nor in the children’s best interest.

The trial court found Mother’s proposed relocation lacked a reasonable purpose and, therefore, it denied Mother’s request to relocate the children. Father was designated the primary residential parent. Mother received 65 days of parenting time.

Mother appealed.

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

Tennessee’s parental relocation statute creates a mechanism for determining whether a parent who has custody of a child may relocate outside the state or more than 50 miles from the other parent within Tennessee.

Because Father did not have substantially equal parenting time, Tennessee Code Annotated § 36-6-108(d)(1) applies. That provision says:

(d)(1) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

(A) The relocation does not have a reasonable purpose;

(B) 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

(C) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

The parent opposing the relocation bears the burden of proof to establish one of these three grounds. The relocation shall be permitted if the opposing parent fails to prove any of the three grounds. If the court finds one of the grounds to be present, then the court must determine whether the relocation is in the best interest of the child.

The issue on appeal was whether the proof supported the trial court’s finding that Mother’s proposed relocation lacked a reasonable purpose.

Determinations concerning whether a proposed move has a reasonable purpose are fact-intensive and require a thorough examination of the unique circumstances of each case. The reasonable purpose of the proposed relocation must be a significant purpose, substantial when weighed against the gravity of the loss of the non-custodial parent’s ability to participate fully in their children’s lives in a more meaningful way. Tennessee courts have held that the desire of a primary residential parent to move to be near here or her extended family can form the basis for a reasonable purpose, particularly when this reason is augmented by additional considerations.

The Court found Mother’s proposed relocation had a reasonable purpose:

Here, Mother cited numerous reasons in support of her relocation, including (1) proximity to her husband; (2) availability of support from extended family; (3) an employment opportunity with an increased income; (4) the ability to pursue post-graduate education; and (5) the absence of reliable family support in Tennessee. She also claimed that the relocation would reduce the financial strain of maintaining two households and testified concerning specific educational and extracurricular activities for the Children. Father failed to respond to the majority of Mother’s stated reasons in his petition in opposition to the proposed relocation or at the hearing. He simply asserted that similar opportunities were available in Tennessee and that the relocation would disrupt the Children’s relationship with the maternal grandmother. He also claimed that the relocation was solely for the benefit of Mother and her current husband.

We agree that similar employment and educational opportunities may be available in Tennessee. However, Mother presented many other considerations in support of her proposed relocation. With all of the above considerations in mind, we conclude that the stated purposes for relocating are reasonable and substantial when considered together and that the purposes outweigh Father’s loss of co-parenting time. Accordingly, we need not address whether the relocation was in the best interest of the Children. We reverse the decision of the trial court.

K.O.’s Comment: For whatever reason, Father chose not to participate in this appeal. He did not file a brief or make any appearance whatsoever. The trial court had no one defending its decision on appeal.

Slavko v. Slavko (Tennessee Court of Appeals, Middle Section, September 9, 2016).

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

Posted by: koherston | September 23, 2016

Photo of the Week: Fall Color Abstract

Fall Color abstract

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

Posted by: koherston | September 21, 2016

The Best Age to Get Married If You Don’t Want to Get Divorced

This article by Christopher Ingraham in The Washington Post might be of interest.

The Best Age to Get Married If You Don’t Want to Get Divorced

Conventional wisdom has it that the older you are when you get married, the lower your chances for divorce. But a fascinating new analysis of family data by Nicholas H. Wolfinger, a sociologist at the University of Utah, suggests that after a certain point, the risk of divorce starts to rise again as you get older. Here’s what that looks like in chart form:

washington post

As you can see, the risk of divorce declines steadily from your teens into your late 20s, but somewhere in the early 30s it starts to creep back up again. As Wolfinger puts it: “Those who tie the knot after their early thirties are now more likely to divorce than those who marry in their late twenties.” The chart is based on a statistical analysis of data from the National Survey of Family Growth, a nationally-representative survey administered by the CDC every few years.

The greater divorce risk of younger couples makes some intuitive sense — in your teens and early 20s, you’re still figuring out who you are and what you want out of life. That person who was perfect for you at 19 may seem a lot less perfect by the time you’re 30.

But what about older couples? Let’s say you wait until 40 to get married — shouldn’t you have a pretty good idea of what you want by then, making your risk of divorce lower? Wolfinger thinks there’s a selection effect happening here — some people who wait a long time to get married simply may not be the marrying type, for instance. “Perhaps people who marry later face a pool of potential spouses that has been winnowed down to exclude the individuals most predisposed to succeed at matrimony,” Wolfinger writes.

It’s important to remember that we’re just talking about statistical risk here. If you wait until your 40s to get married, your relationship is by no means doomed. And waiting until later in life is still a much wiser option that marrying early. Looking at the raw divorce rates, for instance, Wolfinger found that people who married at age 35 or greater had a 19 percent risk of divorce, compared to a 20 percent risk for those aged 20 to 24, and a 32 percent risk for those who married before they were 20.

Another key point of context to note is that overall divorce rates are still on a 30-year decline from their peak in the early 1980s.

But the important thing, for Wolfinger, is that “we do know beyond a shadow of a doubt that people who marry in their thirties are now at greater risk of divorce than are people who wed in their late twenties. This is a new development.” And it will take some further research to suss out what this means for the demographics of marriage going forward.

Source: The Best Age to Get Married If You Don’t Want to Get Divorced (Washington Post, July 17, 2015).

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

Facts: Husband and Wife are residents of Bradley County, Tennessee. In September 2015, Husband and Wife met with Lawyer to discuss the preparation of documents necessary to dissolve their marriage. Shortly thereafter, Husband, acting through Lawyer, filed a complaint for divorce nearby in Rhea County. With Husband’s filing was a sworn Answer executed by Wife where she waved venue so as to enable the Rhea County court to handle the matter, along with an agreed parenting plan and marital dissolution agreement.

Wife subsequently retained counsel. Wife’s attorney filed a motion to retract Wife’s agreement to the parenting plan, marital dissolution agreement, as well as her waiver of venue. Wife’s attorney requested that the case be transferred to Bradley County.

The trial court judge denied the request to transfer the case to Bradley County.

Knoxville divorceA few months later, Wife’s attorney filed a motion requesting that the trial court judge recuse himself on the grounds that the judge had engaged in personal and extrajudicial activities “that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Specifically, the motion asserted that Wife had become aware through social media that the trial court judge was formerly an employee of Lawyer, the attorney for Husband, and that a close personal relationship has continued between the judge and Lawyer.

Wife discovered that the judge had an Instagram account. She requested to “follow” the judge’s account. The judge accepted her request. Wife then discovered two pictures of the judge and Lawyer drinking beer at a University of Tennessee football game in Nashville.

The trial judge denied Wife’s motion for recusal, explaining he was never a partner in Lawyer’s practice, they have no financial or business relationship, and the judge occasionally socializes with Lawyer and other members of the bar. The trial judge explained:

The 12th Judicial District has a long history of being a close knit bar with many members of the bench and bar maintaining friendships. This is evidenced by our annual bar dinner in many other instances. Even at one of our annual Judicial Conferences, there are numerous Bar/Bench joint social events. There is nothing ethically wrong with socializing with attorneys who practice before the Court. Camaraderie is encouraged and is healthy for the bar.

Wife appealed.

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

The right to a fair trial before an impartial tribunal is a fundamental constitutional right. Preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial.

A judge is required to recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. In other words, even when a judge subjectively believes that he or she can hear a case fairly and impartially, the judge still must recuse himself or herself when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. This objective standard is necessary because the appearance of bias is as injurious to the integrity of the judicial system as actual bias.

Lawyer argued that he is friends with all the judges in the 12th Judicial District, having practiced there for 34 years. Lawyer said if socializing between a judge and an attorney requires the recusal of the judge, then thousands of cases across Tennessee will be subject to scrutiny because of casual interaction between the judges and attorneys.

The Court determined that this case was different:

We agree with [Lawyer] that the mere existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal. However, this case is not simply about the friendship that exists between [Lawyer and the trial judge], but rather whether the depiction of that friendship on social media, as managed by [the trial judge] on his Instagram account, would lead a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, to find a reasonable basis for questioning the judge’s impartiality.
*     *     *     *     *
It is clear from the record in this case that [the trial judge] maintained a private account on Instagram which required him to approve all “follow” requests before the photographs posted by him on the account could be seen. It is also clear from the record that the photographs of the social interactions between [the trial judge and Lawyer], taken from [the trial judge’s] Instagram account and relied on in support of the motion seeking his recusal, depict a closeness to their friendship that undermined Wife’s confidence in [the trial judge’s] ability to remain independent and impartial, as stated by her in the affidavit filed in support of her motion. While we do not suggest that [the trial judge] is unable to put his personal friendship with [Lawyer] aside in order to fulfill his role as an impartial judge, we do conclude that the photographs [the trial judge] allowed Wife to view on his account, by accepting her “follow” request, would lead “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge,” to “find a reasonable basis for questioning the judge’s impartiality.”

Accordingly, the trial court was reversed and the case remanded to be assigned to different judge.

K.O.’s Comment: One interesting thing about this case, other than the unusual outcome, is the Court’s explanation that “the second photograph is the kind of self-portrait taken with a cellular telephone commonly referred to as a ‘selfie.'” The Court then cites a Texas opinion to explain that “a ‘selfie’ is a photograph a person takes of himself . . . with a cell phone for posting on social media.” LOL.

Am I doing this right?

Am I doing this right?

Frazier v. Frazier (Tennessee Court of Appeals, Eastern Section, August 26, 2016).

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

Posted by: koherston | September 16, 2016

Photo of the Week: Fall Color

fall color

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

Facts: Husband and Wife divorced after 27 years of marriage. The trial court approved their marital dissolution agreement in which Husband agreed to pay alimony in futuro in the amount of $1500 per month.

knoxville divorceHusband worked as a helicopter pilot for military contractors in the Middle East. His employment contracts were renewed annually and required him to be overseas for 60 days at a time.

Three years after the divorce, Husband’s employment contract began to require him to be overseas for 90 days at a time instead of 60 days. Husband chose not to renew his contract and accepted a lower-paying job.

Husband petitioned to modify his alimony obligation because of his reduced income.

After a hearing, the trial court’s found Husband’s employment change to be substantial and material change in circumstances. Specifically, the trial court found Husband no longer had the ability to do a 90-day rotation. The trial court reduced Husband’s alimony obligation to $900 per month.

Wife appealed.

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

Alimony in futuro is a form of long-term spousal support that can be awarded when the court finds that there is relative economic disadvantage and rehabilitation is not feasible. Such an award remains in the court’s control for the duration of the award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances. The party seeking to modify an alimony award bears the burden of proving that a substantial and material change in circumstances has occurred.

For alimony modification purposes, a change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change in circumstances is “material” when the change occurs since the date the alimony was ordered, and the change was not foreseeable at the time of the final decree or within the contemplation of the parties when they entered into a property settlement agreement.

The Court held that, standing alone, the change in Husband’s rotation length did not constitute a material change in circumstances:

Husband testified that, at the time of the divorce, he was between employment contracts, and that his overseas employment contracts, like the ones he had entered into before the parties’ divorce, were always for a year. Thus, at the time Husband entered into the marital dissolution agreement, the potential for a change in his employment was foreseeable, specifically, that his employment would either be terminated or subject to change each year. This foreseeability further undermines Husband’s argument that his decision not to renew his contract and to take a lower-paying job was a material change in circumstances.
*     *     *     *     *
The evidence did not establish an inability to complete the 90-day rotations; rather it shows a voluntary decision on Husband’s part, one effect of which was to decrease his income.

Accordingly, the trial court’s reduction of Husband’s alimony obligation was reversed and the previous award was reinstated.

Hauf v. Hauf (Tennessee Court of Appeals, Middle Section, August 26, 2016).

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

Facts: Mother and Father are the unmarried parents of two children. After parentage was established, Father sought equal parenting time.

Mother sent Father a notice of her intent to relocate with the children to the Nashville area. The letter told Father that Mother had accepted “an opportunity for advancement” with her employer.

Father filed a petition in opposition to the children’s relocation.

Unbeknownst to Father, Mother moved to Dickson with the children and moved in with Mother’s boyfriend, who she met six months earlier.

Although Mother would meet Father to exchange the children, she did not inform him that she had moved and did not provide him with her address. Mother enrolled the oldest child in kindergarten in Dickson but did not inform Father where the child was attending school. Mother did not provide Father’s information on the school enrollment forms, instead listing her boyfriend as the emergency contact. (!!!)

knoxville divorceWhen the case was tried, the trial court determined Mother was spending at least 60% of the time with the children prior to her relocation. The trial court then analyzed the case under the parental relocation statute — Tennessee Code Annotated § 36-6-108(d) — which creates a presumption in favor of relocation unless it lacks a reasonable purpose, poses a threat of harm to the children, or is motivated by a desire to defeat or deter the other parent’s visitation.

The trial court ruled Mother’s relocation did not have a reasonable purpose and was motivated by vindictive reasons intended to thwart Father’s visitation. After conducting the best interest analysis, the trial court designated Father as the primary residential parent and awarded visitation to Mother on alternating weekends and certain holidays.

Mother appealed.

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

Because the trial court was making an initial custody determination, the Court said it was error to apply the parental relocation statute. The parental relocation statute only applies after the initial custody determination.

When making an initial child custody determination, a trial court is required to decide what is in the child’s best interest as required by Tennessee Code Annotated § 36-6-106. Likewise, the final step of the trial court’s analysis under the parental relocation statute, in this case, was to consider the best interest of the child.

Here, the Court held the trial court ultimately performed the best interest analysis required for an initial custody determination despite the initial error in applying the relocation statute. The Court found the evidence supported the finding that Father should be the primary residential parent:

[T]he trial court found that Mother made visitation difficult for Father before and after the move and thwarted Father’s visitation for over a month after she moved. She unilaterally eliminated Father’s weekend visitation on several occasions after moving to Dickson, which resulted in periods of thirty to forty days when the children did not see Father. Mother failed to advise Father where the children lived or attended school and refused to provide him with her address at either residence in Dickson. Mother put her boyfriend’s name on the children’s school enrollment forms in the space designated for the father and as the emergency contact. Mother denied Father’s request for copies of the children’s birth certificates and social security cards. She taught the children to write their last names, which were legally hyphenated, without including Father’s last name. She acknowledged that the children now “go by” Dayhoff instead of their hyphenated name, as the children’s report cards confirmed. Mother took the children on two trips to Maryland and refused to provide Father with any type of itinerary or emergency telephone number where they could be reached . . . .

Finding these fact “certainly relevant” to the best interest analysis, the Court affirmed the trial court’s judgment even though the trial court erred in applying the parental relocation statute.

K.O.’s Comment: The Court of Appeals has repeatedly held that the parental relocation statute is inapplicable when the trial court is making an initial custody decision or parenting arrangement even if a parent is relocating. See, e.g., Nasgovitz v. Nasgovitz and Graham v. Vaughn. The parental relocation statute has no place in an initial custody determination.

This case stands for the proposition that even if the trial court screws up by applying the parental relocation statute when it shouldn’t, the end result may be preserved on appeal as long as the trial court conducted the best interest analysis required in initial child custody determinations.

Dayhoff v. Cathey (Tennessee Court of Appeals, Western Section, August 25, 2016).

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

Posted by: koherston | September 9, 2016

In Case You Missed It

In case you missed it, I am repeating this post from last week. The discount for my readers ends this Sunday night. Starting Monday, the cost to attend our annual update seminar increases. If you plan to attend, this is your last chance to save.

*     *     *     *     *

Knoxville divorce lawyersIt’s time to start planning for our annual Tennessee Family Law Update seminar. This November John and I will return to Memphis, Nashville, Knoxville, and Johnson City.

As always, the seminar will include my comprehensive review of the latest caselaw and legislation every Tennessee family-law attorney and mediator needs to know.

This year’s program will also include presentations on two special topics:

  • Ethical Investigation and Surveillance, and
  • Stress Management for Lawyers.

Those who register in the next two weeks will receive a $20 discount. This discount is only being promoted right here. Please feel free to share this offer with your colleagues through the “share this” buttons at the bottom of this post. After September 11, the price increases to $130.

Lawyers and mediators who attended last year’s seminar had this to say:

  • Every attorney who practices family law should regard this seminar as mandatory and essential to the success of their practice. — Sarah Shults, Esq., Erwin
  • Most beneficial and practical CLE I’ve been to. I will be an annual attendee. — Cameron Hoffmeyer, Esq., Lawrenceburg
  • Best CLE I have attended. — Allen Johnson, Esq., White Bluff
  • How soon can I register to attend next year? — Richard Elliston, Esq., Cleveland
  • Extremely informative and helpful to family-law attorneys new and old. Will definitely be back next year! — James Cook, II, Esq., Kingsport
  • Hands down the best family-law CLE I’ve ever attended. — Brittany Nestor, Esq., Maryville

Click here for details.


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

Posted by: koherston | September 9, 2016

Photo of the Week: Squirrel with Nut

squirrel with nut

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

Facts: Unmarried parents moved to Texas shortly after Child was born. When their relationship ended in 2010, a Texas court entered a parenting plan and set child support.

knoxville divorceIn August 2011, Father petitioned to enroll the Texas order in a Tennessee court, alleging that Child had lived in Tennessee for the six months preceding the petition. Father also filed a petition for an emergency modification of the parenting plan.

In 2012, the Tennessee court enrolled the Texas order, awarded custody to Father, and set Mother’s visitation.

In 2014, Mother filed a petition to modify custody.

The hearing took place in 2015. During the hearing, the trial court became aware of documents signed by Father indicating that Child resided in Texas during the six months in 2011 that Father had claimed Child lived in Tennessee. The following exchange took place between the trial court and Father:

THE COURT: August 2011, the child lived [in Memphis]? Remember, you’re under oath.
FATHER: Yeah, I know that.
THE COURT: Okay. Is the answer yes?
FATHER: I haven’t given you my answer yet. Give me a minute. Yeah, I’m going to give you the truth. You’re saying —
THE COURT: In August, did he live in Memphis?
FATHER: Yes, he was in Memphis.
THE COURT: Did he live in Memphis?
FATHER: Yes, he lived in — we were back and forth.
THE COURT: In July, did he live in Memphis?
FATHER: We were living in Memphis in July, going back and forth.
THE COURT: In June, did he live in Memphis?
FATHER: We were in Memphis, going back and forth.
THE COURT: In May, was he living in Memphis?
FATHER: I do not recall that because that was during the transition of getting employed, employment.
*     *     *     *     *
THE COURT: April, did he live in Memphis?
FATHER: No, sir, he did not.
THE COURT: Okay. I don’t — we don’t have jurisdiction.

Protip: When the judge asks you a question, be polite and respectful. Good grief.

The trial court found that Father fraudulently obtained the 2012 order granting him custody of Child, that all pending matters should be dismissed for lack of subject matter jurisdiction, and that all prior orders entered by the Tennessee court should be set aside as void.

Father appealed.

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

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified at Tennessee Code Annotated § 36-6-201, et seq., governs jurisdiction between Tennessee and other states over child custody proceedings. Among other things, the UCCJEA helps avoid jurisdictional conflict with courts of other states in matters of child custody, ensures that a custody order is rendered in the state that can best decide the case, and deters the abduction of children.

Under the UCCJEA, Tennessee will generally not acquire subject matter jurisdiction over a child custody dispute unless Tennessee is the child’s “home state.” Tennessee Code Annotated § 36-6-205(7) defines a child’s “home state” as the state where the child lived for at least six consecutive months immediately before the commencement of a child custody proceeding.

Father first argued that subject matter jurisdiction was not challenged by Mother after the 2012 order and, therefore, the issue was waived. The Court quickly rejected this argument because subject matter jurisdiction cannot be waived. It is the basis for a Tennessee court’s authority to act. It either exists or it doesn’t. If it doesn’t exist, then a Tennessee court has no authority to act.

Father then argued Tennessee had subject matter jurisdiction because he proved the Child lived in Tennessee when his petition was filed in August 2011. The Court dismissed this argument:

Whether or not Father realizes it, the Child’s “home state” for purposes of the UCCJEA and where the Child physically resided on the day the action commenced are legally distinct concepts. The proof in the record is abundantly clear; Tennessee was not the Child’s home state on the day of the proceeding or within the six months prior to Father’s initial petition. Accordingly, we conclude that the juvenile court did not err in finding that Tennessee does not have subject matter jurisdiction in this case.

The trial court was affirmed and, with the stroke of a pen, five years of legal proceedings in Tennessee litigation never happened.

K.O.’s Comment: The Court was clearly irritated with the soundness (or lack thereof) of Father’s arguments. The opinion refers to “Father’s perplexing argument,” notes “Father misquotes the [trial court order],” and says “[w]hether or not Father realizes it” before explaining the law.

But the Court’s frustration was not limited to Father. Commenting on the lack of an order appointing a special judge, the Court says: “As often seems to be the case with the Shelby County Juvenile Court, the special judge apparently appointed himself.”

One senses there was a bit of this going on in chambers:

knoxville divorce


In re Devin B. (Tennessee Court of Appeals, Western Section, August 25, 2016).

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

Posted by: koherston | September 5, 2016

You Need to Tell Your Child’s Teacher About Your Divorce

Now that school has resumed across Tennessee, this article by Michelle Maltais in the Los Angeles Times may be of interest.

You Need to Tell Your Child’s Teacher About Your Divorce

The school year is just beginning, but grades are already in on parent-teacher communication: needs improvement.

There’s a crucial disconnect between parents and teachers, both vital players in a child’s growth and development, according to the results of a new survey. VitalSmarts, a corporate training and leadership development company, surveyed 689 parents and 174 teachers from its national database of subscribers.

The results: Teachers feel parents aren’t telling them about the major changes in the home that affect the students in their classroom. Parents feel teachers don’t share revealing details about their child’s behavior at school.

But why would, say, an English teacher need to know that a student’s parents are divorcing?

Knoxville divorce“Teachers just sort of expect that they’re going to be told” about life-altering events in their students’ lives, said David Maxfield, vice president of research and one of the study’s co-authors. “The teacher wants to get updated on that kind of information because that has such a profound impact” on the child.

In fact, 94% of teachers surveyed felt it’s important for parents to inform them of a divorce or other rupture in the marriage. But only 23% of divorcing parents surveyed said they shared that with the teacher.

“When we talked to parents, the kinds of things you hear are, well, ‘I don’t really have a relationship with the teacher … besides, what’s the teacher going to do, anyway? They’re not going to mend my marriage,'” Maxfield said.

But, he said, consider how a divorce could affect the child and how that might manifest itself as disruptive behavior in the classroom. A teacher, without knowing what’s going on at home, would probably respond to that outburst as simply a behavioral problem, without knowing that the episode is rooted in something deeper.

If the teacher has context from parents, he or she can be more understanding. So when a child acts out, Maxfield said, an educator can address the root cause of the disruption when it occurs.

Other areas where there was a breakdown in communication: when someone in the family has a major illness or accident; a death in the family or a change in the child’s mood, such as depression.

Parents, on the other hand, said they felt in the dark about what their children were experiencing in the classroom. With teachers spending the bulk of the day with their kids, parents said they wanted to hear from teachers if they suspected problems, such as drug use, depression, autism or cognitive disorders.

The biggest obstacles in parent-teacher communication, the survey found, were a lack of relationship, shame about personal circumstances or a desire for privacy, scheduling challenges and a “what’s the point” sense of futility in talking.

Of course, the point of improved communication between teachers and parents is to create the best experience and environment for the student.

“The more the teachers understand the context of [children’s] behavior, the more successful they can be at their jobs,” Maxfield said.

Source: You Need to Tell Your Child’s Teacher About Your Divorce (Los Angeles Times, August 28, 2015).

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

Posted by: koherston | September 2, 2016

Photo of the Week: Winter in the Smokies

winter in smokies

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

panda madFacts: After 26 years of marriage, Husband and Wife divorced. The trial court approved their marital dissolution agreement (MDA) that addressed the division of assets and debt accumulated during the marriage.

Among other things, the MDA directed that until the marital residence was sold, Husband and Wife would equally divide the mortgage payment, insurance, and utilities. It also required Husband to pay for certain repairs to the home.

The MDA also contained the following enforcement provision:

In the event either party defaults in the performance of the provisions of this agreement and the other party is required to file an action to enforce the agreement and compel performance, the defaulting party will pay the attorney’s fees incurred by the other party.

Five months after the MDA was adopted by the trial court, Wife petitioned to hold Husband in contempt. She alleged he failed to reimburse her for his one-half portion of the mortgage payment, insurance, and utilities.

After a hearing, the trial court concluded that Wife was entitled to a judgment of $3884.73 for Husband’s portion of the maintenance of the marital residence. The court denied her request for attorney’s fees, however, based on its findings that Husband’s actions were not contemptuous.

Wife appealed.

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

Tennessee follows the American Rule which provides that litigants pay their own attorney’s fees absent a statute or an agreement providing otherwise. Under the American Rule, a party in a civil action may recover attorney’s fees only if (1) a contractual or statutory provision creates a right to recover attorney’s fees, or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.

The language of a fee provision in a marital dissolution agreement is subject to the usual rules of contract interpretation, and the award of such fees is limited to the situation agreed to by the parties. The court’s role in resolving disputes regarding the interpretation of a contract is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the language used.

The trial court has no discretion regarding whether to award attorney’s fees when the contract provides for the recovery of such fees in a certain situation.

The Court agreed with Wife that the MDA required the trial court to award attorney’s fees, explaining:

Pursuant to the MDA, Husband was required to remit payment for “one-half of the mortgage payments, insurance and utilities . . . until the property is sold.” He also agreed to “make certain repairs to the property” . . . and to execute such documents necessary to effectuate the agreement. The record reflects that Wife was required to file several actions to compel Husband’s performance and that he did not comply with the provisions of the MDA until after such actions had been filed and an order was entered by the trial court. . . . With these considerations in mind, we conclude that Wife is entitled to an award of attorney fees pursuant to the provisions of the MDA. We remand this case to the trial court for proceedings to determine the reasonable amount of such fees.

Wife also requested her attorney’s fees on appeal. Finding that an award of attorney’s fees on appeal was contemplated in the MDA, the Court remanded the case back to the trial court to determine Wife’s reasonable attorney’s fees both in the trial court and on appeal and award those fees to her.

Panda v. Panda (Tennessee Court of Appeals, Eastern Section, August 19, 2016).

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

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