Facts: Mother and father are the parents of two children. After 4 ½ years of marriage, Mother filed for divorce.

Father wanted the children to be vaccinated, and Mother refused, believing vaccinations would harm the children. They eventually entered an agreed order requiring the children to be immunized before school started.

Once the order was entered, Mother changed her mind, renewed her objection to the children being vaccinated, and requested a religious exemption from the schools.

When Mother was found in civil contempt for violating the agreed order, she purged herself of contempt by allowing the pediatrician to vaccinate the children. While the children were being vaccinated, however, Mother caused an outburst. She also testified the three-year-old and five-year-old children “should have the right to make their own informed medical decisions.”

After Mother testified she had sex with other men after the parties’ separation, the trial court awarded the divorce to Father on the grounds of adultery. Because of the trial court’s concerns about Mother’s ability to provide medical care, Father was given sole decision-making authority over the children’s nonemergency healthcare decisions.

Mother appealed.

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

Adultery while separated. Mother argued her behavior was not adultery because she and Father were separated when she had sex with other men.

In Tennessee, acts after the separation can constitute grounds for divorce. It takes more than a mere separation to terminate the legal obligations voluntarily assumed in a marriage. With adultery, the fact that the parties were separated does not nullify a spouse’s infidelity, which substantially decreases the probability of future reconciliation.

The Court affirmed granting the divorce on the grounds of Mother’s adultery:

In her sworn testimony during the divorce proceedings, Mother admitted that she had sexual relationships with other men. It is undisputed that these acts occurred prior to the parties being divorce. Though Mother and Father were physically separated when these acts occurred, they were not legally separated pursuant to a court order. Accordingly, we affirm the trial court’s decision to award the divorce to Father based on Mother’s adultery as well as inappropriate marital conduct.

Decision-making authority. Mother opposes vaccinations on religious grounds and argued the trial court interfered with her fundamental right to raise her children.

Tennessee courts recognize that freedom of choice in matters of family life is a fundamental liberty interest, so the vast majority of parenting decisions should be left to the parents. In divorce cases, however, courts are called upon to intervene. The best interests of the children are paramount, which may require limitations on the rights of either or both parents.

Notably, Mother failed to submit a transcript or statement of the evidence. When that happens, the presumption of correctness afforded to the trial court’s findings of fact is essentially conclusive. Here, the Court had to presume there was sufficient evidence before the trial court to support its decision.

The trial court’s judgment was affirmed.

K.O.’s Comment: Mother argued that Father did not prove she committed adultery because he only relied on her sworn admissions that she had extramarital affairs. Mother complained that Father did not present documentary or physical evidence in the form of photographs or “semen samples.” The Court of Appeals curtly said, “We find this argument is without merit.”

This harkens back to the opinion that garnered Justice Kirby the prestigious honor of being named the World’s Most Awesome Judge. She described a similar argument as “preposterous,” noting “[t]he record need not include DNA evidence to support the trial court’s findings of adultery . . . .”

Is it a coincidence that this opinion was written by Judge Clement, who also received the World’s Most Awesome Judge designation?

King v. Daily (Tennessee Court of Appeals, Middle Section, November 30, 2018).