Posted by: koherston | July 22, 2016

Photo of the Week: Smoky Mountain Star Trails #1

smoky mountain star trails

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

Facts: Mother and Father, the parents of one child, divorced after six years of marriage.

Mother reported witnessing behavior from the child that led her to be believe Father may have sexually abused the child. The proof showed the Department of Children’s Services conducted a full investigation and determined Mother’s allegations to be unfounded.

The proof also showed that Father’s girlfriend, Katrina, sometimes stayed overnight with him during his parenting time.

The trial court ordered that (1) Father’s parenting time be supervised, (2) Katrina not be allowed to stay overnight during Father’s parenting time, (3) he have no holiday parenting time unless Mother agrees, and (4) sole decision-making authority was awarded to Mother.

Father appealed.

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

tennessee divorceBecause of the legal and psychological significance of a parent’s visitation rights, persons seeking to restrict or eliminate visitation must demonstrate that there is probable cause that the child will be placed at risk if visitation is permitted. This effectively creates a presumption against severely circumscribing or denying visitation to noncustodial parents. Such drastic measures are only appropriate when arrangements less detrimental to the parent-child relationship are not available or workable as a practical matter.

There is a specific process the trial court must follow when limiting, suspending, or terminating visitation. First, the trial court must make a specific finding, based on definite evidence, that visitation would cause harm to the child. After making this finding, the trial court must then determine the least restrictive visitation plan as available and practical. In determining the least restrictive visitation plan, the trial court must make specific findings, based on definite evidence, that any less restrictive visitation would be harmful to the child. The burden of proof on both the issue of harm and the least restrictive visitation plan, is on the party seeking to restrict visitation.

In considering the issue, the trial court must bear in mind that it is the public policy of the state of Tennessee that courts shall grant parenting time with the noncustodial parent unless visitation will harm the child.

After reviewing the record, the Court went about the business of dismantling all the restrictions placed on Father’s parenting.

Regarding supervised visitation, the Court explained:

[T]here is no proof that Father exposed the child to inappropriate behavior, nor is there any proof that the child “saw something he shouldn’t have.”

Simply stated, there is no evidence in the record that Father’s unsupervised visitation would be harmful to the child. Consequently, we delete from the parenting plan the trial court’s order requiring supervised visitation.

As for the paramour provision, the Court found:

There is almost no evidence in the record regarding Katrina, and none that suggests her presence would pose a risk of harm or detriment to the child. Under these circumstances, we delete from the parenting plan the provision forbidding Katrina to spend the night with Father when the child is present.

What about the fate of the holiday parenting time provision?

[The trial court’s] approach might work fine, as long as the parties work together in a reasonable and cooperative fashion. If their working relationship sours, however, Mother is armed with a court order that grants her the power to deny Father from seeing the child on Christmas, birthdays, other holidays, and any additional vacation time. We agree with Father that the parenting plan should be crafted to entitle him to reasonable visitation time for holidays and vacations, without requiring Mother’s consent.

Sole decision-making?

Although Father asked that major decisions regarding the child, including those involving education, non-emergency health care, religious upbringing, and extracurricular activities, be made jointly between the parties, the trial court granted Mother sole decision-making authority. There is no evidence in the record supporting this decision, and the trial court made no findings of fact regarding why these decisions should not be made jointly. We hold that the parenting plan should be modified to allow major decisions regarding the child to be made jointly.

Accordingly, the trial was reversed and the parenting plan modified as explained above.

K.O.’s Comment: Kudos to my Knoxville colleague, David Valone, Esq., for a clean sweep on this appeal. Well done!

Mashburn v. Mashburn (Tennessee Court of Appeals, Eastern Section, June 30, 2016).

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

This opinion piece by Catherine Rampell in The Washington Post may be of interest.

Americans Are Becoming More Socially Liberal — Except When It Comes to Divorce

Contrary to popular belief, marriage isn’t dead. It’s not even dying.

The institution is probably more respected and admired than ever before — just not in a way that encourages millennials to partake in it.

You can see this in national survey data, recently released by the Centers for Disease Control and Prevention, about Americans’ views of various family arrangements.

At first glance the report suggests that Americans may indeed be less devoted to the sacrosanctity of marriage — or at least that we’ve become more tolerant of once-stigmatized non-marital sexual behaviors . In 2002, for example, slightly more than 6 in 10 Americans said they thought it was okay for a young couple to live together without being married. By 2011-2013, the period of the most recent survey, the share had jumped to more than 7 in 10.

Similarly, the report finds that Americans have gotten more accepting of women who bear and raise children out of wedlock, of unmarried 18-year-old couples who decide to have sex and of same-sex couples who adopt children.

On these and other familial and procreative arrangements, Americans have become measurably more liberal. But on one crucial measure, they have become much more conservative.

That measure is divorce.

divorceRespondents were asked whether they agreed or disagreed with the statement that “Divorce is usually the best solution when a couple can’t seem to work out their marriage problems.” In 2002, about half of Americans disagreed. Within a decade, the share had risen to more than 60 percent. In the most recent data, younger Americans — a cohort with the lowest marriage rates on record, mind you — were especially likely to perceive divorce as an unacceptable response to marital strain.

How is it possible that Americans are simultaneously getting more traditional about marital commitment and less traditional about non-marital relations? How did we become more judgmental of divorce and less judgmental of people who “live in sin” or have children out of wedlock?

The answer lies in our evolving views of marriage itself.

Earlier generations saw marriage as a sort of foundational milestone, laid relatively early in life, that would help couples go on to achieve familial and financial stability. Today, it is seen more as a crowning achievement, appropriate and available only after lots of other boxes are ticked off first. And this brass ring ought to be indestructible by the time it graces your left hand.

Marriage has, in other words, gone from being a cornerstone achievement to a capstone one.

Marriage rates may have plummeted in recent decades, but the vast majority of never-married millennials still say they aspire to get hitched someday. They just want to get their ducks in a row first — and my, are those ducks multiplying. A survey from last fall found that young Americans believe they should wait to marry until they have a stable job, have reduced their debt levels or accumulated savings, have a college degree, have successfully cohabitated with their future spouse, have had previous serious relationships and even own their home.

We millennials still want our happily-ever-afters, but with an emphasis on the after.

Meanwhile, many of those intermediate milestones we now see as connubial preconditions have moved further out of reach. Mounting student loan debt, falling youth homeownership rates and stagnant or declining job opportunities are disqualifying many young Americans from this apparently elite institution, or at least turning them into less eligible bachelors and bachelorettes.

Wedlock is a luxury good that young Americans want, but view themselves — and just as important, their potential spouses — as too poor or otherwise unprepared to buy.

It is the layering of these two concurrent forces — the idealization of marriage, plus the declining marriageability (real or perceived) of so many of its would-be participants — that has ground down marriage rates, especially for lower-skilled Americans. And so young people put off marriage, though not necessarily the other milestones that used to almost exclusively follow marriage (such as childbearing).

It’s unclear why marriage has been elevated to such a high pedestal. Perhaps it’s the traumatic legacy of earlier decades of high divorce rates, which make today’s young people fear creating their own broken homes.

Or perhaps it’s the increasing association of marriage with wealthier, better-educated people. Elites have also adopted the capstone view of marriage and actually found it useful for forming more stable, successful, enduring unions.

So keep this in mind if you ever feel the temptation to urge some broke young couple to hurry up and get hitched already: Chances are they’re dragging their feet not because they don’t take marriage seriously but because they do.

Source:Americans Are Becoming More Socially Liberal — Except When It Comes to Divorce  (Washington Post, April 18, 2016).

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

Posted by: koherston | July 15, 2016

Photo of the Week: Buck in Winter

Buck in Winter

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

Facts: At the time Husband and Wife divorced, each had a retirement account with the other listed as the beneficiary. They executed a marital dissolution agreement that provided, in relevant part:

Each party agrees to waive any interest he/she may have in the other party’s retirement. Wife agrees to waive any interest she may have in Husband’s Eaton Vance Growth Fund, bank accounts and certificates of deposit.
*     *     *     *     *
Each of the parties shall execute, acknowledge and deliver any and all instruments and documents in writing which shall reasonably be required for purposes of effectuating the provisions and intent of this Marital Dissolution Agreement.

Fourteen years after the divorce, Husband died without a will. At the time of his death, Wife was still listed as a beneficiary to his 401(k) retirement account.

marital dissolution agreementThe administrator of Husband’s estate sued Wife for a declaratory judgment finding that Wife waived any interest in the 401(k) pursuant to the marital dissolution agreement.

Wife countered that Husband’s failure to remove her as the named beneficiary indicated his intent to gift the proceeds to her. (!!!)

Both parties filed for summary judgment. The trial court granted summary judgment to Wife.

The administrator appealed.

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

A marital dissolution agreement incorporated into a final decree of divorce is a contract that is binding on the parties. Generally, once a contract is formed it cannot be modified without consent and additional consideration for the new terms.

The Court of Appeals held there was no proof the contract — the marital dissolution agreement — had been modified:

Here, the MDA specifically addressed the divestment of Wife’s interest in the retirement account at issue. . . . While Husband failed to remove Wife as the named beneficiary, his failure does not evidence intent to modify when Wife possessed continuing obligations to waive any right she may have held in the account and to execute any documents reasonably required for the purpose of effectuating the provisions in the MDA. The record is simply devoid of any evidence establishing a modification of the MDA.

The trial court was reversed. Summary judgment was entered for the administrator of Husband’s estate.

K.O.’s Comment: Several cases with similar facts are discussed in the opinion. This happens more often than it should. The prudent attorney advises his or her clients to promptly take the steps necessary to effectuate the terms of the marital dissolution agreement.

Manning v. Manning (Tennessee Court of Appeals, Eastern Section, June 30, 2016).

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

Facts: Mother and Father are the parents of two children. When they divorced, they agreed Mother would be the primary residential parent for their daughter while Father would be the primary residential parent for their son.

Eight months later, Mother petitioned to modify Father’s child support obligation because of a significant change in parenting time — their son had begun residing with Mother full-time.

At the trial one year later, the trial court found their son had only spent two weekends with Father since Mother filed her petition. The trial court modified the parenting plan to reflect reality and increased Father’s child support obligation.

Notably, the trial court refused to make Father’s new child support obligation retroactive to the date of Mother’s petition. The trial court justified its decision “because the testimony suggests the Father has spent additional funds on the children.” Specifically, the proof showed Father sometimes paid for the children’s school lunches and “other functions.”

Mother appealed.

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

Mother argued the trial court abused its discretion by denying her request to modify Father’s child support retroactive to the date she filed her petition. She also claimed the trial court did not make adequate factual findings to support the conclusion that a retroactive modification was inappropriate.

Both Tennessee Code Annotated § 36-5-101(f)(1) and the Child Support Guidelines permit the trial court to modify child support retroactively to the date the action for modification was filed. By doing so, it removes any incentive an obligor parent might otherwise have in delaying litigation and resolution in an attempt to keep his or her child support payment lower for as long as possible.

The Court of Appeals determined the trial court’s refusal to make the child support modification retroactive was an abuse of discretion:

[W]e conclude that the trial court erred by failing to modify Father’s child support obligation retroactive to the date of Mother’s filing the petition to modify. The parties’ son had been residing with Mother for approximately five months before she filed her petition. Furthermore, Father admitted at trial that he had exercised minimal co-parenting time. The trial court provided no adequate factual or legal basis for allowing Father to avoid the payment of his child support obligation, pursuant to the Child Support Guidelines, for eleven months.

The Court reversed the trial court and modified Father’s child support obligation retroactive to the date Mother filed her petition.

Blackwell v. Blackwell (Tennessee Court of Appeals, Middle Section, June 29, 2016).

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

Posted by: koherston | July 8, 2016

Photo of the Week: Ultramarathoner

Ultramarathoner

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

Posted by: koherston | July 6, 2016

Tennessee Family Law Legislative Update 2016

TennesseeThings were relatively quiet on the family-law front this past legislative session. Notably missing, however, was any effort to update the various family-law statutes to account for the constitutionally-protected rights of same-sex parents. Until that happens, Tennessee children and their same-sex parents will continue to navigate in an atmosphere of legal uncertainty.

There were several laws passed this year of which family-law practitioners should be aware. Below is a summary of the ones I think are most important.

Adoption. Public Chapter 919 makes several technical and procedural changes to Tennessee’s adoption laws. For example, it changes the definition of abandonment for terminating parental rights such that if there are not four consecutive months of non-incarceration preceding the filing of the petition or the parent’s incarceration, a four-month period is created by aggregating the shorter periods of non-incarceration.

Parental relocation. The parental relocation statute was amended by Public Chapter 814 to include the prefatory clause: “After custody or co-parenting has been established by the entry of a permanent parenting plan or final order, if a parent who is spending intervals of time . . . .” This merely codifies Tennessee caselaw. See, e.g., Nasgovitz v. Nasgovitz. This amendment became effective April 14, 2016.

Statutory injunction. Public Chapter 734 makes the statutory injunction found in Tennessee Code Annotated § 36-4-106(d) applicable in non-divorce cases involving child custody, including post-divorce and parental relocation matters. The injunction has to be attached to and served with the petition.

Intercounty Transfers. The procedure for an intercounty transfer in child support and child custody cases has been streamlined by Public Chapter 668. Now the requesting party must serve the other party with the pleading seeking the transfer. If the receiving party does not file an objection within 15 days “from the date the notice of the filing was mailed” (???), the case can be transferred without any further action being required.

Juvenile Court appeals. Public Chapter 716 extends the time period for appealing a magistrate’s order to the juvenile court judge from five days to 10 days.

Juvenile Court petitions. Public Chapter 598 amends Tennessee Code Annotated § 37-1-120 to require that petitions filed in juvenile court contain information similar to that which the UCCJEA requires be included in complaints for divorce.

Tennessee Consolidated Retirement System QDRO’s. Although not part of the 2016 legislative session, Tennessee Code Annotated § 8-36-128 was created in 2013 to require TCRS to start honoring qualified domestic relations orders “at a time designated by the state treasurer.” As of July 1, 2016, that time is now. TCRS benefits are now divisible by QDRO. The rules can be found here. The model QDRO can be found here.

Unless otherwise noted, these bills became effective July 1, 2016.

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

Posted by: koherston | July 4, 2016

Happy Independence Day!

I hope you have a safe and relaxing Fourth of July.

Divorce Lawyers in Knoxville

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

Posted by: koherston | July 1, 2016

Photo of the Week: Snowy Panorama

Snowy Panorama

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

Facts: Father and Mother divorced after 14 years of marriage. They have four children. During most of the marriage, Mother was a stay-at-home parent while Husband was the financial provider for the family.

tennessee divorce lawyerAbout a year before the divorce, Mother began working as a teacher’s assistant. She also enrolled in a community college with the goal of being a math teacher someday. Mother testified it would take her eight years of being a part-time student in order to complete her education.

The trial court awarded Mother rehabilitative alimony of $2500 per month for 15 years. Mother was also awarded her attorney’s fees plus an additional $3000 in attorney’s fees in contemplation of the appeal.

Father appealed.

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

Duration of alimony. Father argued the 15-year duration of the alimony award was excessive in this 14-year marriage.

Tennessee law recognizes four types of spousal support:

  • alimony in futuro,
  • alimony in solido,
  • rehabilitative alimony,
  • and transitional alimony.

In this case, the trial court awarded Mother 15 years of rehabilitative alimony.

Rehabilitative alimony is intended to assist an economically-disadvantaged spouse in acquiring additional education or training which will enable the spouse to achieve a standard of living comparable to the standard of living that existed during the marriage or the post-divorce standard of living expected to be available to the other spouse.

Trial courts have broad discretion to determine whether spousal support is needed and, if so, the nature, amount, and duration of the award.

The Court found the trial court abused its discretion by awarding 15 years of rehabilitative alimony:

We do agree with Father’s assertion, however, that the fifteen-year duration of the alimony awarded is excessive. Here, the parties were married for fourteen years. Furthermore, Mother appears to be in good health both mentally and physically. Most importantly, Mother testified that she would be able to earn her degree in eight years attending classes part-time. A thorough review of Mother’s testimony reveals absolutely no basis for an alimony duration that is nearly twice as long as it will take Mother to complete her education and longer than the parties’ marriage. With regard to transitional alimony, which is similar to rehabilitative alimony other than the disadvantaged spouse’s ability to be rehabilitated, this Court has previously noted that “this Court has affirmed an award of transitional alimony for a period of eight years at most. . . .” Under these circumstances, we direct the trial court that . . . the award should extend no longer than Mother anticipates that she will need to achieve her educational goals, i.e., eight years.

Prospective attorney’s fees. Mother was awarded her attorney’s fees plus an additional $3000 in attorney’s fees in anticipation of the appeal. The Court made quick work of this award, explaining:

This Court has previously held that a trial court commits an error of law and abuses its discretion when it awards fees for future litigation. Indeed, when a party is seeking attorney fees incurred on an appeal, that request, absent any statute or rule directing otherwise, must be directed first to the appellate court in a timely fashion. The trial court was therefore not authorized to award any fees to Mother in expectation of this appeal. The award of $3,000.00 in appellate attorney’s fees is therefore reversed.

Accordingly, the trial court was reversed and the matter remanded for further hearing on other matters.

K.O.’s Comment: While there are no outer limits regarding the duration of rehabilitative alimony, the Court of Appeals ruled in Lunn that transitional alimony cannot be awarded for more than eight years. If the need for transitional alimony extends beyond eight years, it should be converted to alimony in futuro, as occurred in Lubell.

Hopwood v. Hopwood (Tennessee Court of Appeals, Middle Section, June 23, 2016).

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

Most termination of parental rights cases focus on grounds for termination. If grounds are proven, it often seems as if the second prong of the legal analysis — whether termination is in the child’s best interest — is an afterthought. This case is noteworthy because although grounds were proven, it was not proven that termination was in the children’s best interests.

Facts: Mother and Father are the parents of three children. After both parents were incarcerated, the Tennessee Department of Children’s Services (DCS) obtained temporary custody. Over one year later, DCS petitioned to terminate their parental rights.

The trial court found that although DCS had proven grounds for terminating both parents’ rights, termination was not in the best interest of the children. The trial court dismissed the petition.

The children’s guardian ad litem appealed.

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

The Court reviewed the proof regarding grounds for termination and found DCS did not prove grounds sufficient to terminate Father’s parental rights but had proven two separate grounds sufficient to terminate Mother’s parental rights. The Court’s analysis then turned to whether termination of Mother’s parental rights was in the children’s best interest.

Because not all parental misconduct is irredeemable, Tennessee’s termination of parental rights statutes recognize the possibility that terminating an unfit parent’s parental rights is not always in the child’s best interests.

Because denial of a petition to terminate parental rights does not in and of itself affect the custody of a child, the Court’s task is not to choose between two home situations. Instead, the inquiry should address itself to the impact on the child of a decision that has the legal effect of reducing the parent to the role of a complete stranger. Ultimately, the burden of proof on this issue rests with DCS, not the parent opposing the petition. Like the statutory grounds for termination, clear and convincing evidence must prove that termination is in the child’s best interest. The statutory best-interest factors are located at Tennessee Code Annotated § 36-1-113(i).

The Court agreed with the trial court that termination was not in the children’s best interest, explaining:

We conclude the proof in this record does not clearly and convincingly establish that termination of Mother’s parental rights is in the best interest of the children. DCS presented little to no proof concerning the impact on the children of terminating Mother’s parental rights. The children have a variety of health and behavioral needs, but they were doing well in their foster care placement and receiving the necessary services. They had been living in their current foster homes [for many months]. At the time of the hearing, these foster homes were not adoptive. In fact, in the case manager testified the main motivation behind DCS’s petition to terminate parental rights was a desire to broaden the search for potentially adoptive parents. While permanence for these children is one of the primary goals, severing forever the children’s relationship with Mother will not necessarily achieve that end, especially in light of the fact that grounds for terminating Father’s rights were not proven. It remains to be seen whether Father will be able to regain custody. . . .

*     *     *     *     *

While Mother has not yet made a lasting adjustment to her circumstances, we cannot find, based on the record before us, that Mother would be unable to make a lasting adjustment in the near future. She took significant steps in the right direction while incarcerated. The DCS case manager agreed Mother had accomplished as much as she could to change her circumstances while incarcerated. The case manager also admitted that Mother had the ability to properly parent her children when she was not incarcerated and not impaired.

We also note Mother’s relationship with her children. DCS presented proof that Mother had not been able to establish a relationship with her youngest child prior to Mother’s incarceration. However, there was proof of a loving bond between Mother and [the two older children].

Accordingly, the dismissal of DCS’s petition to terminate parental rights was affirmed.

In re Aiden R., et al. (Tennessee Court of Appeals, Eastern Section, June 23, 2016).

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

Posted by: koherston | June 24, 2016

Photo of the Week: Happy Friday from Herston Law Group!

Herston Law Group, Knoxville divorce

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

Posted by: koherston | June 22, 2016

Divorce and the Shared Mortgage

This article by Lisa Prevost in The New York Times may be of interest.

Divorce and the Shared Mortgage

Deciding what to do with the house can be a major quandary for couples getting a divorce, particularly when they share a mortgage.

When there is equity in the home, each spouse typically wants to take a share as part of the settlement agreement. But if one person wants to remain in the home, rather than sell it and split any profit, then that spouse will likely have to qualify for a mortgage on his or her own.

Spouses who choose to stay may have to refinance their mortgages in order to cash out enough equity to pay off an ex. But even a spouse who has the financial resources for a buyout without drawing on home equity will still probably have to get a mortgage in his or her name.

“The person walking away wants their share of the equity, but also wants their name off the mortgage as soon as possible,” said Kathleen B. Connell, a family law lawyer and lecturer in Atlanta.

The mortgage obligation can tie up that person’s credit, and “if there’s a default,” Ms. Connell added, “the mortgage company is going to sue them both, regardless of what the divorce agreement says.”

One of the first questions to be answered, then, is whether a spouse who wants to keep the house or apartment can qualify for a mortgage independently. And if so, would that spouse be able to afford all the other expenses associated with living in that home?

“The really important thing for both parties is to flesh out all of their expenses — how much it really costs,” said Cynthia Thompson, the founder of Divorce Planning Solutions, a financial planning firm in White Plains, N.Y., specializing in divorcing clients. “Not just the mortgage but every detail.”

Ideally, this preparation should happen early on in the divorce process — too often, Ms. Thompson said, people are “arguing, litigating, fighting, having no idea of the whole picture.”

Ms. Thompson frequently advises her clients to find out how much mortgage they can qualify for while divorce negotiations are ongoing. This information can be key: If they discover, for example, that cashing out equity will raise the mortgage to an unaffordable level, they might instead seek to divide some other asset differently to compensate for the equity share, she said.

Both parties might also agree to give the spouse staying in the home more time to increase income or otherwise find a way to qualify for a mortgage, Ms. Connell said. This could take a few months or a couple of years, she said, adding that the shorter the financial tether to each other, the better.

“The longer you’re in bed financially with someone, when it comes to divorce, you’re just asking for trouble,” she said.

Spouses planning to count child support and alimony/maintenance as income for the purposes of qualifying for a mortgage should know that lenders will require proof of at least six months’ receipt of that income before closing, said Jody Bruns, a mortgage banker and the president of the Divorce Lending and Real Estate Association in Chicago, which trains mortgage professionals in the financing hurdles for divorcing clients.

In addition, she said, Fannie Mae guidelines require at least a three-year continuance of this income from the date of loan application.

People should not assume that their lawyers are well-versed in the particulars of mortgage guidelines, or that they know what loan underwriters will be looking for in the settlement agreement, she said.

“The important point to be made is that working with a qualified mortgage professional during the settlement process can help identify many of the hurdles,” she said.

Source: Divorce and the Shared Mortgage (New York Times, October 30, 2015).

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

Facts: Mother and Father divorced in 2009. Father was ordered to pay $629 per month in child support and a portion of the children’s uncovered medical expenses.

Knoxville divorce lawFive years later, Mother petitioned that Father be held in criminal contempt on 23 counts for failing to pay child support and seven counts for failing to pay his portion of the uncovered medical expenses. Mother also sought a judgment for the arrearage and her attorney’s fees.

The trial court found Father guilty of criminal contempt and entered a judgment against Father for the arrearage. Mother was also awarded her attorney’s fees.

Father appealed the award of attorney’s fees.

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

At common law, the power of courts to punish for contempt was vast and undefined. Because of the potential to abuse this unlimited power, the Tennessee legislature adopted specific statutory provisions to limit and define the contempt power. Accordingly, punishment for contempt may now be exercised only within the fixed rules of law.

Conduct punishable as contempt is outlined in Tennessee Code Annotated § 29-9-102 and includes the willful disobedience of any lawful order. After a finding of contempt, the statutes permit courts to award several different remedies, depending on the facts of the case and whether the contempt is civil or criminal in nature.

A court can imprison or fine an individual to compel compliance with a court order. This is typically referred to as civil contempt and is only available when the individual has the ability to comply with the order at the time of the contempt hearing. In civil contempt, the imprisonment is meted out at the insistence and for the benefit of a private litigant. Compliance will result in release from prison. So it is said the contemnor carries the keys to the prison in his or her pocket.

Additionally, a court can imprison or fine an individual simply as punishment for contempt, which is known as criminal contempt. Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law. Thus, sanctions for criminal contempt are generally both punitive and unconditional in nature. A party who is in criminal contempt cannot be freed by eventual compliance.

Tennessee Code Annotated § 29-9-103(b) limits the punishment that a court may impose for a finding of criminal contempt:

(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).

Under this provision, Tennessee court have found that an award of attorney’s fees in the context of criminal contempt is generally not authorized by Tennessee law.

Tennessee Code Annotated § 36-5-103(c) allows courts to award attorney’s fees in certain cases involving child custody, alimony, or child support. It states:

The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

The Court overruled several opinions and concluded attorney’s fees are not allowed in criminal contempt actions to enforce child support orders or adjudicate custody:

By its express terms, section 36-5-103(c) authorizes a court to award a party attorney’s fees incurred in two situations: (1) when the fees are incurred “in enforcing any decree for alimony and/or child support . . . .”; or (2) when the fees are incurred “in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties . . . .”

A criminal contempt petition does not serve either of these objectives. Unlike civil contempt, a criminal contempt petition does not seek to vindicate private rights or enforce a prior order. Instead, the purpose of criminal contempt is to uphold the authority and power of the trial court. Proceedings for criminal contempt are designed to punish past behavior rather than coerce compliance with a court’s order or influence future behavior. Any benefit to the private party in a criminal contempt proceeding is merely tangential to the primary purpose of upholding the court’s authority.

Therefore, because criminal contempt petitions do not operate to enforce child support orders or adjudicate custody, we conclude that Tenn. Code Ann. § 36-5-103(c) does not authorize a court to award attorney’s fees related to criminal contempt. Further, as discussed above, attorney’s fees are not within the statutory limits to criminal contempt under Tenn. Code Ann. § 29-9-103.

Thus, the trial court’s award of attorney’s fees was reversed.

K.O.’s Comment: In reaching this decision, the Court examined several cases regularly cited in support of the opposite holding and determined that, in fact, those cases do not support the opposite holding at all. The court specifically overruled contrary holdings in Uria, Dhillon, and others.

(2) Tennessee courts have permitted an award of attorney’s fees as compensatory damages for civil contempt. Those cases remain undisturbed.

(3) Appellant’s counsel, Jeff Levy, Esq., did some excellent lawyering here. He is to be commended on a job well done.

Watts v. Watts (Tennessee Court of Appeals, Middle Section, June 8, 2016).

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

Older Posts »

Categories

Follow

Get every new post delivered to your Inbox.

Join 1,040 other followers

%d bloggers like this: