Posted by: koherston | October 21, 2016

Photo of the Week: Wild Turkey

wild turkeys

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

Facts: Mother and Father are the never-married parents of Child.

Father is a pilot for FedEx. His job requires him to travel approximately 15 days per month, and his schedule varies from month to month.

Mother is a nurse anesthetist. She works two 24-hour shifts per week, and her schedule also varies from month to month.

knoxville divorceOriginally, Mother was designated the primary residential parent and Father received 8 to 11 days of parenting time each month following a process where he would request days when he got his work schedule and he and Mother would come to some sort of agreement.

Years later, Father petitioned to modify the parenting plan to designate him as Child’s primary residential parent. He alleged that Mother had a history of mental instability that manifested itself during angry and violent outbursts in front of Child.

After hearing, the trial court ordered that a more structured parenting schedule would be best despite the logistical difficulties presented by Father’s variable work schedule. The trial court kept Mother as the primary residential parent and awarded Father parenting time during the second, fourth, and fifth weekends of each month, along with holiday and summer vacation time.

Father appealed.

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

Father argued the parenting schedule failed to permit both parents to enjoy the maximum participation possible in the life of Child.

The Court explained that “maximum participation possible” doesn’t mean what Father thinks it means:

Father’s argument suggests that permitting both parents to enjoy the maximum participation possible in the child’s life should be the court’s primary consideration in ordering a custody arrangement. That is not the case. The plain language of [Tennessee Code Annotated] § 36-6-106(a) directs courts to order custody arrangements that allow each parent to enjoy the maximum possible participation in the child’s life only to the extent that doing so is consistent with the child’s best interests. Indeed, the General Assembly has expressly declared that in any proceeding involving custody or visitation of a minor child, the overarching standard by which the court determines and allocates the parties’ parental responsibilities is the best interests of the child.

Although not expressly stated in its order, the juvenile court clearly determined that a parenting schedule requiring frequent communication and collaboration by Mother and Father would not serve [Child’s] best interests. Having reviewed the evidence of the vitriolic relationship between Mother and Father, we agree. Flexible parenting arrangements that require frequent collaboration can undermine the psychological well-being of the parents and expose the child to high levels of parental conflict when the parents cannot resolve disputes amicably. Such a custody arrangement requires a harmonious and cooperative relationship between both parents to be successful. The record before us clearly demonstrates that Mother and Father have not had that sort of cooperative relationship in the past. . . .  The only conclusion to be drawn from the record before us is that these parties need a parenting schedule that requires as little communication and collaboration as possible. We therefore readily reject Father’s suggestions that we alter the juvenile court’s parenting schedule by allowing Father to reschedule parenting time that conflicts with his [work] schedule, by providing a right of first refusal to care for the child when the other parent is unavailable, or by adopting an alternating weekly parenting schedule. Each of those suggested alterations would require increased communication between the parties that would diminish the parenting schedule’s chances of long-term success.

The parenting schedule established by the trial court was affirmed.

K.O.’s Comment: Father had another child with a different mother. He was trying to get custody of that child, too. The two cases were tried together and received the same analysis and ultimate outcome. The other opinion is In re Piper H.

In re Cannon H. (Tennessee Court of Appeals, Western Section, October 5, 2016).

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

Facts: When Mother and Father divorced in 2011, they entered an agreed parenting plan they gave them equal parenting time and designated Mother as the primary residential parent. The plan provided that once Child reached school age, they would decide where he would attend school.

After the divorce, Mother moved to Clarksville while Father remained in Columbia.

knoxville divorceA few years later, Mother petitioned to modify the parenting plan because the original plan did not specify where Child would live once he started school. Although Mother and Father filed competing proposed parenting plans, Father did not file a counterpetition to be named the primary residential parent.

Each parent proposed that Child would live with them during the school year while the other parent would have visitation every other weekend.

After hearing, the trial court changed the primary residential parent from Mother to Father for the upcoming school year. Mother was awarded visitation. The trial court invited Mother to file another petition to change custody at the end of the school year.

Mother appealed.

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

Tennessee courts apply a two-step analysis to requests for either a modification of the primary residential parent or the residential parenting schedule. The threshold issue is whether a material change in circumstance has occurred since the court adopted the current parenting plan. Only if a material change has occurred does the court consider whether a modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change has occurred, factors the courts consider include: (1) whether the change occurred after entry of the order sought to be modified; (2) whether the change was known or reasonably anticipated when the order was entered; and (3) whether the change affects the child’s well-being in a meaningful way.

Not every change in circumstance is a material change; the change must be considered significant before it will be considered material.

To further complicate things, the material change needed to modify the residential parenting schedule is different from the material change needed to modify custody. The material change needed to change the residential parenting schedule is considered a low threshold. Conversely, the material change needed to modify custody is considered a much more stringent standard.

To modify a residential parenting schedule, merely showing that the existing arrangement is unworkable is sufficient to satisfy the low threshold for finding a material change.

After reviewing the record, the Court concluded the proof supported a material change to modify the residential schedule but not enough to change the primary residential parent designation:

We conclude the preponderance of the evidence in this case does not establish that a material change has occurred sufficient to modify the primary residential parent. We recognize that [Child] has reached school age, and the current plan does not direct where he will attend elementary and middle school. Landon’s changing age, however, does not constitute a material change in circumstance sufficient to change the primary residential parent. Likewise, Father’s testimony that Mother allowed [Child] to call his step-father “Daddy” and to miss a small number of phone calls during baseball season is insufficient evidence of a material change. Although interference with the parent-child relationship can be a material change sufficient to modify the primary residential parent, the evidence in this record does not rise to that level.

We find the proof in this record, however, does establish a material change that meets the lower standard required for modification of the residential parenting schedule. Given the distance between the parents’ homes, the need to enroll [Child] in school, and the obvious failure of the parents to reach an agreement, there is sufficient proof that the alternating weekly residential schedule in the current plan is unworkable.

Thus, the trial court’s judgment was reversed and the case remanded for the court to determine a residential parenting schedule that is in the best interest of the child. In other words, Mother will remain the primary residential parent.

K.O.’s Comment: (1) While it’s understandable that, at the time of divorce, the parties opted to kick the can down the road regarding which school the child would attend, the best course of action usually is to confront those issues head on. Postponing a tough decision doesn’t make it go away; it usually just puts off the inevitable litigation for awhile.

(2) This is another case that illustrates my pet peeve: treating the supposedly meaningless PRP designation as a substantive award of “custody” when the parents share equal time. In equal time cases, neither parent is the primary residential parent as that term of art is defined in Tennessee Code Annotated § 36-6-402(4). If we are only designating a primary residential parent for state and federal statutes and certain insurance policies that require a determination of “custody,” as Tennessee Code Annotated § 36-6-410 states, why are the courts treating it as a substantive award of custody?

(3) I kind of understand the argument for using the higher material change standard for custody changes when one parent goes from equal time to less-than-equal time, as happened here and in Rigsby v. Edmonds. But to use that standard to disregard the trial court’s determination of the child’s best interest when there is no change in parenting time, as happened in Garrett v. Garrett, makes no sense to me. I wish the Court of Appeals would pay more attention to this issue. When the child’s best interest, as determined by a judge, isn’t followed because of a meaningless designation that’s required for wholly unrelated reasons, that is a problem for children in Tennessee.

Williamson v. Lamm (Tennessee Court of Appeals, Middle Section, September 30, 2016).

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

Posted by: koherston | October 14, 2016

Photo of the Week: Friday Night Lights

high school football

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

knoxville divorceFacts: Mother and Father are the parents of Child. At the time of Child’s birth, Father was incarcerated serving an effective 19-year prison sentence, although he will be eligible for parole in 2017. Child was removed from Mother’s care because of her substance abuse, mental health problems, and reports of neglect. The Department of Children’s Services (DCS) placed Child in foster care.

DCS petitioned to terminate Mother and Father’s parental rights so Child could be adopted. The grounds for terminating Father’s parental rights was that he has been sentenced to prison for 10 or more years and Child was under eight years of age at the time the sentence was entered.

Father argued the grounds should not apply because Child had not yet been born at the time of Father’s sentencing.

The trial court disagreed and terminated Father’s parental rights.

Father appealed.

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

In order to terminate the parental rights of a biological parent, a petitioner must first prove, by clear and convincing evidence, at least one of the listed grounds for termination. Among these grounds, Tennessee Code Annotated § 36-1-113(g)(6) provides a parent’s rights may be terminated if:

The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.

In a case of first impression in Tennessee, Father argued the statutory requirement that there be a “child under eight (8) years of age at the time the sentence is entered”was not satisfied because Child had not yet been born when Father was sentenced.

The question of whether a fetus constitutes a “child” or a “person” is one of the most divisive and hotly contested issues of our time. While the determination of public policy is primarily within the province of the legislature, it is the court’s duty to ascertain and give effect to the legislature’s intention and purpose.

When the statutory language is clear and unambiguous, courts must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute’s application. Where an ambiguity exists, courts must look to the entire statutory scheme and elsewhere to ascertain the legislative intent and purpose. The statute must be construed in its entirety, and it should be assumed that the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. The background, purpose, and general circumstances under which words are used in a statute must be considered, and it is improper to take a word or a few words from its context and, with them isolated, attempt to determine their meaning.

The Court first determined the plain language of the statute is ambiguous:

[T]he question of whether a fetus constitutes a “person” or “child” is a contentious issue about which reasonable minds continually disagree. Because of this vast disagreement, it is unclear by simply examining the terms “child” and “person” whether the legislature intended for a fetus to be considered a “child under eight” for purposes of Section 36-1-113(g)(6). Therefore, because the statutory language is ambiguous, we must look elsewhere to ascertain the legislative intent.

When statutory language is ambiguous, courts may reference the broader statutory scheme in deciphering legislative intent. It is a well-settled rule of construction that statutes in pari materia —  those relating to the same subject or having a common purpose — are to be construed together, and the construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.

Further, in ascertaining the intent of the legislature, courts may look to a statute’s subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.

The Court said the obvious purpose of § 36-1-113(g)(6) is to achieve permanency for children whose parents are subjected to the possibility of lengthy prison sentences.

The Court also noted the term “child” has been interpreted as including the period of pregnancy for at least two other statutory grounds for termination, namely wanton disregard for the welfare of the child and severe child abuse.

The Court concluded that, in this context, “child” includes an unborn child:

If we were to adopt Father’s interpretation of Section 36-1-113(g)(6), it would operate to contravene this legislative purpose. Under Father’s interpretation, a child born even one day after a parent is sentenced to ten or more years imprisonment would be deprived of the possibility of a stable home environment for the entirety of the parent’s incarceration, while a child born a day before sentencing would be afforded this protection. Such a result is contrary to reason. On the other hand, a construction of the statute to include the period of pregnancy serves the legislative goals of providing permanency and protecting the day-to-day needs of children.

Therefore, both the broader statutory scheme and the purpose behind the statute at issue support the conclusion that Tennessee Code Annotated § 36-1-113(g)(6) is an applicable grounds for terminating Father’s parental rights in this case.

Accordingly, the trial court’s judgment was affirmed. Father’s parental rights are terminated.

K.O.’s Comment: In In re Anthony R., the Court held the “wanton disregard” statute applies only when the parent has knowledge of the child’s existence. After all, you cannot disregard a child you don’t know exists.

Here, Father argued for the application of the same rule because he claimed he was unaware that Child had been conceived at the time of his sentencing. The Court rejected this argument because “termination under the statute at issue in this case is not based on the parent’s actions or knowledge, but is based on the parent’s status — i.e., having received a prison sentence of 10 or more years. Therefore, Father’s knowledge of the child at the time of sentencing is irrelevant.”

So it matters not whether the parent is aware of the child’s conception — if the parent of a fetus receives a prison sentence of 10 years or more, grounds exist to terminate his or her parental rights.

In re Adrianna S. (Tennessee Court of Appeals, Middle Section, September 29, 2016).

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

Posted by: koherston | October 10, 2016

Tennessee Family Law Update is Coming Soon. Register Today!

Knoxville divorce lawyersJohn and I are hard at work preparing our annual Tennessee Family Law Update seminars. Next month we 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 also includes presentations on two special topics:

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

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 | October 7, 2016

Photo of the Week: Profile of Buck in the Snow

snowy buck profile

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

This article by Ben Steverman on may be of interest to you.

Don’t Blame Divorce on Money. Ask: Did the Husband Have a Job?

A Harvard study finds it’s more complicated than financial strain, zeros in on the guy’s employment status.

Financial stress and fights over money can eat away at a marriage. But do they cause divorce? That’s a more complicated matter.

A Harvard University study suggests that neither financial strains nor women’s increased ability to get out of an unhappy marriage, starting in the 1970s, is typically the main reason for a split.

knoxville divorceThe big factor, Harvard sociology professor Alexandra Killewald found, is the husband’s employment status. For the past four decades, she discovered, husbands who aren’t employed full time have a 3.3 percent chance of getting divorced in any given year, compared with 2.5 percent for husbands employed full time. In other words, their marriages are one-third more likely to break up.

Examining 46 years of data on more than 6,300 married couples in the U.S., Killewald found a big shift in the risk of divorce in the mid-1970s. Couples married before 1975 were likelier to split up if women and men divided the housework equally, perhaps because the husband saw a threat to his traditional role in the household. Since 1975, housework hasn’t been much of a factor. The guy’s job has.

“Wives have more freedom in how they ‘do’ marriage,” Killewald said, but husbands are still expected to be the breadwinner.

The study, published in the American Sociological Review, didn’t include same-sex couples. Nor did it address men who choose to stay home with the kids. The vast majority of men without a full-time job in the sample were involuntarily unemployed.

Killewald had to untangle a couple’s working life—employment status, willingness to do housework—from their finances to see which of the two was the greater factor in divorce. She used a larger set of census data to predict wives’ economic dependence on their marriages—how much they would lose if they got divorced.

Her conclusion: The couples’ income and the wives’ economic independence didn’t correlate with a higher risk of divorce.

That’s surprising, said New York University sociology professor Paula England, but she said she finds the study’s methodology “very sound” and its conclusions convincing.

“I’m sure that financial strain hurts people’s well-being, but it doesn’t seem to be causing marriage breakup,” England said.

What did correlate with divorce in Killewald’s study? How a couple spends their time.

Wives spent 3.9 times as many hours as men doing housework in 1975, according to a 2012 study. More recently, in 2009 and 2010 data, wives were working around the house 1.7 times as long as their husbands—that is, still 70 percent more.

Couples married before 1975 who split the housework 50-50 were about 36 percent likelier to get divorced than couples in which the wives did three-quarters of the housework, Killewald found. Since 1975, however, there’s almost no correlation between the housework split and the marriage split.

Meanwhile, a husband’s job seems to matter more now. For couples married before 1975, the husband’s employment status barely affected their chances of divorce. It’s the decades since 1975 that saw a dramatic increase in correlation between his job status and their risk of divorce.

It’s hard to know whether husbands or wives are deciding to split in these cases, but England notes that previous studies have shown about two-thirds of divorces are initiated by women.

So what happened in 1975? Killewald said she saw similar changes when she divided her data at various points in the 1980s. Other sociological studies have suggested something did happen in the 1970s that changed men’s and women’s attitudes toward work and marriage.

“The late 1970s were really a time of change in what women expected for their careers,” Killewald said. What hasn’t changed nearly as much is the role men are supposed to play as husbands.

Source: Don’t Blame Divorce on Money. Ask: Did the Husband Have a Job? (, July 28, 2016).

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

Facts: Husband and Wife settled the issues in their divorce. At mediation they signed a marital dissolution agreement (MDA) that requires Husband to pay nonmodifiable alimony to Wife in the amount of $1000 per month for 48 months. It also divides the marital assets 52% to Husband and 48% to Wife.

Shortly thereafter, Wife sent a letter to the judge claiming her lawyer forced her to sign the MDA and physically prevented her from leaving the mediation when she asked to do so.

The trial court held a hearing on the allegations in Wife’s letter. The trial court questioned the mediator, who said he did not witness any conduct by Wife’s attorney consistent with Wife’s allegations. The trial court then reviewed and approved the marital dissolution agreement.

knoxville divorceWife got a new lawyer — her sixth! — and filed a motion to alter or amend the order approving the MDA.

At the hearing, Wife testified that, on the day she went to mediation and signed the MDA, she was suffering from “a lack of being able to make clear judgment calls.” She also claimed Husband had threatened her with “information regarding pornographic materials that he was going to use and post against me.” Finally, she claimed her then-attorney pressured her and refused to allow her to leave until she signed the MDA.

The trial court found Wife was not credible and denied her motion to alter or amend.

Wife appealed.

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

Tennessee courts have held that a marital dissolution agreement is a contract and, as such, generally is subject to the rules governing construction of contracts. Marital dissolution agreements have consistently been found to be valid and enforceable contracts.

Duress. Duress is defined as “a condition of mind produced by the improper external pressure or influence that practically destroys the free agency of a party, and causes him to do and act or make a contract not of his own volition, but under such wrongful external pressure.” When such pressure exists is a question to be determined by the age, sex, intelligence, experience, and force of will of the party, the nature of the act, and all the attendant facts and circumstances.

The alleged coercive event must be of such severity, either threatened, impending, or actually inflicted, so as to overcome the mind and will of a person of ordinary firmness. To constitute duress, the danger must not only exist, but must be shown to have actually operated upon the mind, and to have constituted the controlling motive for the performance of the act sought to be avoided.

The burden of proof lies with the party asserting duress.

The Court rejected Wife’s claim of duress because the trial court found her to lack credibility and considerable deference must be accorded to such a finding.

Mental incapacity. Persons seeking to show mental incapacity must prove either (1) they are unable to understand in a reasonable manner the nature and consequences of the transaction, or (2) they are unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of their condition. It is not enough to prove that a person was depressed or had senile dementia. To prove mental incapacity, the person with the burden of proof must establish, in light of all the surrounding facts and circumstances, that the cognitive impairment or disease rendered the contracting party incompetent.

It is rare for a court to find that a contract is unenforceable based on the unsound emotional state of a contracting party. The party seeking to avoid a contract on this basis must show that he or she had no reasonable perception or understanding of the nature or terms of the contract.

The Court rejected this argument, too, because Wife’s evidence was insufficient:

The only evidence supporting Wife’s assertion that she was mentally incompetent at the time of the mediation is Wife’s own testimony. There is no medical proof in the record regarding Wife’s physical or mental condition. Wife testified that she suffers from post-traumatic stress disorder, multiple sclerosis, and “cognitive dysfunction.” Regarding her alleged cognitive dysfunction at the time of the mediation, Wife testified:

A.  At that particular point in time I was suffering from a lack of being able to make clear judgment calls.
Q.  How so?
A.  I was suffering from — I had not been able to sleep, I had been traumatized, and I was not having the ability to make clear decisions at that point.

This testimony — in two relatively short answers — is the sum total of the evidence Wife presented regarding her mental incapacity. Husband testified that, during the mediation, Wife appeared alert, lucid, responsive, aware of what was going on, and “able to communicate very well.” When Wife was asked on cross-examination whether she considered herself to be intelligent, she responded, “as intelligent as you, sir.” The trial court noted its own observations of Wife over the course of several hearings, stating that it found her lucid, intelligent, responsive, and that “she knew what she was doing, that she was working with her lawyer.” We hold that the evidence does not preponderate against the trial court’s judgment [that] Wife did not establish mental incapacity as a defense to the enforcement of the MDA.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: In a footnote, the Court says Mother’s attorney on appeal — her seventh lawyer at that point (!!!) — “filed a motion to withdraw as Wife’s counsel after filing a brief and reply brief and orally arguing on Wife’s behalf. We granted her motion . . . . Apparently, Wife is now proceeding pro se.” I have never seen that before. Yikes.

Richards v. Richards (Tennessee Court of Appeals, Eastern Section, September 26, 2016).

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

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.

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