Conditioning Parenting Time on Actions of Non-Party Reversed in Memphis Divorce: Holdsworth v. Holdsworth

Facts: This 47-page (!!!) opinion begins with the following statement: “This is an appeal from an extremely contentious divorce.”

The parties married in 1994 and had one child together. In July 2013, they were divorced. Among other things, the trial court found Husband dissipated marital assets by writing checks to his girlfriend totaling $15,633 and ordered Husband to reimburse that amount to Wife.

The trial court also entered a permanent parenting plan designating Wife as the primary residential parent and provided a residential parenting schedule.

Husband appealed those rulings, among others.

non-partyPrior to Husband’s appeal of the July 2013 order being heard, however, Husband and his girlfriend were arrested when a sheriff’s deputy discovered a marijuana plants growing in their garage. Shortly thereafter, Wife filed a petition seeking to modify the parenting plan to impose certain restrictions on Husband’s parenting time. Among other things, Wife sought to condition Husband’s parenting time on his girlfriend’s submission to and passing of random drug tests.

The trial court modified the parenting plan and incorporated Wife’s proposed restrictions.

Husband filed a separate appeal from that order.

The two appeals were consolidated and heard together. Although virtually every possible issue was challenged on appeal, I think the only issues are worth mentioning (1) dissipation, and (2) conditioning Husband’s parenting time based on his girlfriend’s compliance with the parenting plan.

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

Dissipation. A party’s dissipation of marital or separate property is one of many factors a trial court may take into consideration in making an equitable division of a marital estate. While there is no statutory definition of dissipation, the term typically refers to the use of marital property for a purpose unrelated to the marriage, often to “hide, deplete, or divert” marital property after a marriage is irretrievably broken. The concept of dissipation is based on waste. In determining whether dissipation has occurred, the court must distinguish between dissipation and discretionary spending. While discretionary spending may be ill-advised, it is typical of the parties’ expenditures throughout the course of the marriage. Expenditures that constitute dissipation, on the other hand, are so far removed from normal expenditures that they can be characterized as wasteful or self-serving.

In determining whether dissipation occurred, Tennessee courts should consider the following: (1) whether the evidence presented at trial supports the alleged purpose of the various expenditures, and if so, (2) whether the alleged purpose equates to dissipation under the circumstances. The first prong is an objective test. To satisfy this test, the dissipating spouse can bring forward evidence, such as receipts, vouchers, claims, or other similar evidence that independently support the purpose as alleged. The second prong requires the court to make an equitable determination based upon a number of factors. Those factors include: (1) the typicality of the expenditure to this marriage; (2) the benefactor of the expenditure, namely, whether it primarily benefited the marriage or primarily benefited the sole dissipating spouse; (3) the proximity of the expenditure to the breakdown of the marital relationship; (4) the amount of the expenditure.

The evidentiary record contained copies of 41 checks Husband wrote to his girlfriend totaling $15,633.06. Husband was ordered to repay all of those monies to Wife. The Court reversed that ruling, reasoning:

Notwithstanding our conclusion that the evidence supports the trial court’s finding that the checks Husband wrote to [his girlfriend] constituted dissipation, we note that the trial court ordered Husband to reimburse Wife for the full amount of the checks. The trial court’s award ignores the fact that Husband also had an interest in the money. Here, because the trial court divided the parties’ marital assets equally, we conclude that Husband is entitled to one-half of the assets he dissipated. Therefore, we modify the amount of the trial court’s dissipation award to $7,816.53 to reflect Husband’s one-half interest in the dissipated assets.

Conditioning parenting time on actions of non-party. Husband argued the trial court erred in conditioning in his parenting time on his girlfriend’s compliance with the modified parenting plan. He argued that because his girlfriend is not a party to the lawsuit and, therefore, the trial court lacked jurisdiction to order her to submit to drug tests, it erred in requiring her compliance as a condition of his ability to exercise parenting time.

In a previous Tennessee case, Marlow v. Parkinson, 236 S.W.3d 744 (Tenn. Ct. App. 2007), the trial court enjoined the father from allowing the stepmother to interfere with the mother’s parenting obligations. On appeal, the Court reversed, stating the better practice would’ve been to join the stepmother as a party and issue an injunction against her. The Marlow Court noted that while many cases impose an obligation on a parent to police the activities of others while in the home where the child resides or in other locations when a parent is present with the child, the injunctions in those cases are tempered by the fact that the parent must have the ability to prevent the act that the trial court has prohibited.

Relying on this reasoning, the Court concluded:

[T]he trial court has essentially ordered Husband to police [his girlfriend’s] activities and require her compliance with the [parenting plan]. There is no evidence in the record that Husband has the authority or the ability to prevent [his girlfriend] from contacting the child. Likewise, there is no evidence that Husband has the authority or ability to require [his girlfriend] to submit to the drug tests or to prevent her from engaging in activities outside of his presence that would cause her to fail the drug tests. The better practice would have been to join [Husband’s girlfriend] as a party and issue an injunction against her. Thus, we conclude that the trial court erred in imposing restrictions on Husband that conditioned his parenting time on [his girlfriend’s] actions. On remand, the trial court is instructed to modify the [parenting plan] so that Husband’s parenting time is not conditioned on the actions of a non-party.

Accordingly, the trial court’s rulings on those two issues were reversed.

K.O.’s Comment: The appeal wasn’t all good news for Husband. As I mentioned above, there were many issues raised on appeal. One issue involved whether the girlfriend growing marijuana on Husband’s property constituted a material change sufficient to reconsider the parenting schedule. At the time of the underlying divorce trial in July 2013, the trial court found Husband’s girlfriend used marijuana. In the subsequent modification proceeding, Husband argued the discovery that his girlfriend grew her own marijuana rather than purchasing it was not a material change. Then the Court notes:

Perhaps more boldly, Husband contends that even if discovery of the marijuana plant is evidence of a material change in circumstance, is evidence of a positive change because [his girlfriend] is no longer buying drugs from drug dealers.

Surprisingly, that beautiful argument didn’t get very far with the Court, which concluded: “Our review of Husband’s testimony supports the trial court’s finding that Husband ‘has completely lost touch with reality.'”

Holdsworth v. Holdsworth (Tennessee Court of Appeals, Western Section, June 3, 2015).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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