Posted by: koherston | December 8, 2011

No Parenting Time Whatsoever and Equitable Division of Property: Winkler v. Winkler

Facts: Father and Mother were married 21 years and have one son. Mother obtained an order of protection for herself and Son and filed for divorce. At trial, Mother described the marriage:

Particularly after the birth of Son, she said, Father was controlling, angry, abusive, and demeaning to her and to Son. Mother claimed Father routinely referred to her as a “bitch,” often in front of Son and others, and that he tried to isolate her from her friends. Father sometimes put a screen saver on the family computer that read “Your Mamma’s a Bitch.” Mother was required to obtain Father’s approval before making any purchases, including groceries or gas; if she failed to do so, Father would become angry and take away her debit card. She testified that Father, when angered, broke household items, chased Mother through the house, and knocked her down, all in front of Son. When Son said he would call the police, Father responded by pulling the phone cord out of the wall. She recounted that Father regularly shot at neighbors’ pets with a BB gun, and threatened a neighborhood party with a shotgun. Father frequently used racial slurs in Son’s presence and elsewhere, answered the home telephone with racial insults, used a racial slur as the password for the home computer, and sanded the words “KKK” onto the hood of his truck. Mother claimed that Father would stay out late drinking, and would come home even more verbally abusive.

Mother described Father’s unhealthy relationship with Son. She said that Son is a straight “A” student, active in sports, and has never had disciplinary problems. Despite this, Father regularly called Son various derogatory names, and viewed pornography in Son’s presence. Father would make noises and distractions to interfere while Son was trying to study at home, to the point that Mother and Son would leave the house so Son could study. Father seldom attended Son’s football games, ostensibly because he objected to having to pay to attend. The only activity of Son in which Father participated was martial arts. Mother testified that when Father brought Son to the martial arts classes, Father would “engage” with the mother of two other students during the class time period and after the class, which made Son uncomfortable. In addition, Father would “spar” with Son, then eight years old, and knock him down to “make him tougher.” Overall, Mother expressed concern about Son visiting with Father at all.

Son, 15 years old at the time, testified and corroborated Mother’s account. Father’s testimony contradicted that of Mother and Son.

The trial court awarded the divorce to Mother, ordered Father to complete anger management, and—based on Father’s “abusive conduct” toward Son—directed that Father would have no parenting time with Son for one year. After Father completed anger management, he would be permitted to write letters to Son. After a year, Father would be permitted to return to court to seek additional parenting time. Regarding the marital estate, Mother received a $120,000 gift during the marriage that she used to pay down the mortgage on the marital residence. The marital residence was awarded to Mother, while Father was awarded a $30,000 lien on the property. Father appealed.

On Appeal: The Court of Appeals affirmed as to parenting and reversed as to property division.

Father argued the trial court erred by failing to award him any parenting time, which, in the absence of a finding of abuse, was tantamount to a termination of parental rights. Mother contended the trial court implemented the least restrictive visitation plan that was practical under the circumstances, and gave Father an avenue for restoring the parent/child relationship.

Tennessee Code Annotated § 36-6-301 provides:

After making an award of custody, the court shall, upon request of the non-custodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health . . . . If the court finds that the non-custodial parent has physically or emotionally abused the child, the court may require that visitation be supervised or prohibited until such abuse had ceased or until there is no reasonable likelihood that such abuse will recur.

The Court reviewed the case law establishing the high standard that must be met in order to suspend parenting time altogether.

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 making these determinations, 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 non-custodial parent unless visitation will harm the child.”

After reviewing the record, the Court observed:

The record is replete with evidence of Father’s domineering and abusive conduct towards both Mother and Son, in countless ways, large and small. Father’s conduct demonstrated his belief that his role as husband and father entitled him to be the despot of the household. . . . We find no abuse of discretion in the trial court’s order regarding Father’s parenting time. Indeed, the trial court’s wise order provides Father an avenue to form a relationship with Son, if it is not already damaged beyond repair. It is up to Father as to whether or not he will comply with the trial court’s order. In the meantime, Father finds himself lying in the bed that he has made, and this Court will not order otherwise. The trial court’s order as to the parenting arrangement is affirmed.

Regarding the marital residence, the Court reversed the trial court and removed Father’s $30,000 lien on the property.

We agree with Father’s insistence that the house is marital property. The $120,000 monetary gift from Mother’s friend was deposited into a joint account and then used to pay off the mortgage, and thus was transmuted. Nevertheless, the fact that such a large portion of the equity in the home came from a gift to Mother, while not determinative, may be considered.

In this case, at Mother’s level of income and expenses, it is highly unlikely that Mother will be able to accumulate the $30,000 to pay off the lien on the marital home, so when Son reaches majority, she will be forced to either sell the home or take on a mortgage payment that she cannot afford. We must respectfully conclude that “the legislative polices [favoring the use of property division to address economic disadvantage] are best furthered in this case by modifying the trial court’s property division to eliminate” the $30,000 lien and debt in favor of Father. Accordingly, we modify the property division by revising the award to Father of $30,000 and vacate the lien placed on the marital home to secure that payment.

Needless to say, you’re having a very bad day when the Court of Appeals tells you to lie in the bed you made.

Winkler v. Winkler (Tennessee Court of Appeals, Western Section, October 25, 2011).

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


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