Posted by: koherston | November 11, 2016

Photo of the Week: Snow Days

snow day

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

Facts: Mother and Father, who were never married, entered an agreed parenting plan establishing a long-distance parenting schedule because of Mother’s relocation with the children to Ohio (and later Nevada). The agreed parenting plan designated Mother as the primary residential parent.

tennessee divorceVery shortly thereafter, Father petitioned to change custody on the grounds that the agreed parenting plan had been procured by fraud. Specifically, Father claimed Mother represented in their negotiations that she was working as an “independent contractor.” Father belatedly learned that Mother actually was working as a licensed prostitute in Nevada at the Moonlight Bunny Ranch.

At the hearing, the proof showed the children were not exposed to Mother’s occupation. Furthermore, by the time of trial, Mother was out of the prostitution business and employed as a social worker in Nevada after having received her master’s degree in social work and her provisional license from the state of Nevada for social work.

The trial court found there was a material change in circumstances for the children because of Mother’s deceit and Mother’s occupation as a prostitute. The trial court further found it was in the children’s best interest that custody be awarded to Father. Notably, the trial court did not conduct a statutory best interest analysis of any sort.

Mother appealed. The Court of Appeals remanded the case to the trial court to conduct the statutory best interest analysis. I covered that appeal here.

On remand, neither party chose to present new evidence. The trial court conducted the required best interest analysis and, again, ruled to change custody from Mother to Father.

For the second time, Mother appealed.

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

The Court reversed the trial court’s finding that Mother’s temporary employment as a licensed prostitute constituted a material change of circumstances warranting modification of the parenting plan:

To qualify as “material,” the change in circumstances must be one that affects the child’s well-being in a meaningful way. There is no evidence in this record showing that Mother’s occupation as a licensed prostitute in Nevada has affected the children. . . . Because Father failed to establish the children were affected, we must hold that the evidence preponderates against the finding that Father established that Mother’s work as a licensed prostitute met the legal standard for a material change in circumstances.

The Court did find, however, that Mother’s hostility to Father and Stepmother constitute a material change of circumstances. With that threshold finding, the Court proceeded to consider the children’s best interest.

In child custody cases, the needs of the children are paramount; the desires of the parents are secondary. Questions related to custody and visitation should be directed toward promoting the child’s best interest placing him or her in an environment that will best serve his or her physical and emotional needs. To make this determination, Tennessee courts must consider the statutory factors found in Tennessee Code Annotated § 36-6-106(a).

Determining a child’s best interest is a fact-sensitive inquiry that does not call for rote examination of each of the relevant factors in any determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case.

The Court complained that much of the trial court’s best interest analysis relied on its finding that Mother’s work in prostitution was ongoing, which the Court found to be entirely speculative and contradicted by the evidence:

There is significant and substantial evidence supporting the conclusion that Mother is no longer working as a prostitute. The court admitted into evidence earnings statements from Mother’s current employment at the social worker, as well as copies of her provisional Nevada social workers license, and related diplomas and academic awards. As previously noted, there was no testimony at trial indicating that she was currently working as a prostitute.

After examining the evidence in detail, the Court found the trial court abused its discretion:

It is clear that both parents at times have acted in a manner that failed to put the children’s interest first. However, we find the trial court relied heavily on a finding that Mother’s work in prostitution was ongoing to reach its conclusion that it is in the children’s best interest to designate Father as the primary residential parent. We find the evidence does not support this conclusion. The trial court also failed to take into account Father’s a significant child support and medical arrearages of $10,027. We also find it significant that Father admitted to using illegal drugs in the family home when the children were present. For all of these reasons, we hold that the evidence preponderates against the trial court’s finding that the best interest of the children mandates that Father be the children’s primary residential parent. For reasons stated above, the trial court abused its discretion in designating Father as the primary residential parent.

Thus, the trial court’s judgment was reversed. Mother was restored to being the children’s primary residential parent. The Court of Appeals even ordered Father to deliver the children to Mother in Nevada “no later than 20 days following the entry of this order.”

K.O.’s Comment: (1) Because of the tremendous deference given to a trial court’s findings and discretionary decisions, it is rare for the Court of Appeals to find that the trial court abused its discretion. This case is among the few that show it can happen.

(2) When I covered the first appeal, I chastised the Court for including information that could identify the parties. This time around, the Court changed course, explaining:

In order to preserve the anonymity of the minor children and related individuals in this case, involving, as it does, sensitive matters, we have abbreviated their names.

C.W.H. v. L.A.S. (Tennessee Court of Appeals, Eastern Section, October 31, 2016).

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

Facts: Mother and Father are the unmarried parents of Child.

knoxville divorceAll the way back in 1999, the trial court approved the parties’ agreed order establishing paternity, awarding custody to Mother, ordering Father to pay Child’s birth expenses and medical insurance, and stating that the parties agreed no additional child support should be owed.

Despite this agreement and order, Father made monthly payments to Mother over the next 13 years totaling $61,555.

In 2012, Mother filed a petition to establish ongoing child support and receive child support retroactive to Childbirth in 1997.

The trial court found the 1999 agreed order was void and ordered Father to pay retroactive child support of $105,359 plus Mother’s attorney’s fees in the amount of $17,000.

Father appealed.

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

Agreements, incorporated in court decrees or otherwise, that relieve a natural or adoptive parent of his or her obligation to provide child support are void as against public policy.

Nonetheless, Tennessee Code Annotated § 36-5-101(j) permits an agreement as to child support so long as it is

  • in writing,
  • approved by the court,
  • incorporated into a court order, and
  • contains the parties’ acknowledgment that they may not alter the agreement without court approval.

The Court reversed the trial court’s ruling on the validity of the 1999 agreed order, holding that the 1999 order

did not entirely relieve Father of his obligation to remit support when he retained the possibility to maintain the cost of medical insurance or to remit payment for future medical expenses. There is also no evidence of an agreement not to seek support in the future should a substantial and material change in circumstances occur. To the contrary, the evidence reflects that Father remitted monthly payments to Mother until she filed a new petition to set child support. Additionally, the court’s failure to issue a factual finding justifying the deviation from the child support guidelines does not render the 1999 order subject to attack when the time for direct appeal of the order passed. With these considerations in mind, we hold that the 1999 order was final and not void on its face and that the trial court’s setting of retroactive child support was an impermissible modification of the 1999 order.

Thus, the award of retroactive child support was reversed. The Court also reversed the award of Mother’s attorney’s fees.

State ex rel. Rogers v. Lewis (Tennessee Court of Appeals, Western Section, October 21, 2016).

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

Posted by: koherston | November 4, 2016

Photo of the Week: High School Football

high school football scoreboard

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

Facts: Mother and Father married in 2007. Their child was born the following year.

In the summer of 2012, they began having marital problems. This culminated in a physical altercation that resulted in Mother’s arrest. Upon her release from jail, Mother moved into the home of a friend.

Mother filed a complaint for divorce on July 5, 2012.

Four days later, Mother became ill. She was hospitalized the following day and diagnosed with a serious, sometimes fatal inflammatory disease.

knoxville divorceMother’s mother, i.e., Grandmother, came to the hospital. They discussed Mother’s desire that the proceeds of her $400,000 life insurance policy, for which Father was the beneficiary, be used to benefit the child. Grandmother created a handwritten document naming herself as the beneficiary of Mother’s life insurance policy, with the child named as a contingent beneficiary. Mother signed the document, it was submitted to the insurance company, and the beneficiary changed.

Mother’s symptoms progressed rapidly. Nine days after being admitted to the hospital, she died.

After Mother’s death, the proceeds from her life insurance policy were paid to Grandmother in accordance with the handwritten change of beneficiary.

Father brought an action against Grandmother to recover the proceeds from Mother’s life insurance policy.

The trial court found Mother changed the beneficiary of her life insurance policy in violation of the automatic injunction that went into effect when she filed her complaint for divorce. Regardless, the trial court concluded the appropriate remedy was to ensure that the insurance proceeds be utilized for Mother’s intended purpose, which was to benefit the child. The trial court ordered that the remaining insurance proceeds be deposited with the court for the use and benefit of the child.

Father appealed.

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

When a complaint for divorce is filed, Tennessee Code Annotated § 36-4-106(d) requires that certain temporary injunctions automatically go into effect. Of the injunctions listed in the statute, subsection (2) is at issue in this case:

An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life, health, disability, homeowners, renters, and automobile, where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. “Modifying” includes any change in beneficiary status.

Thus, upon the filing of a divorce complaint, a temporary injunction is automatically issued that prevents either party from changing the beneficiary on any insurance policy that involving either party or their children.

In this case, it was undisputed that Mother changed the beneficiary on her life insurance policy one week after filing for divorce. Her action clearly violated the plain language of the statutory injunction.

This raises the question: what is the proper remedy for violating the statutory injunction? Believe it or not, no Tennessee cases have directly addressed this issue.

The Court analyzed this case of first impression:

[T]he general purpose of temporary injunctive relief under Tennessee law, including the Section 36-4-106(d) injunction, has been described as an effort “to preserve the status quo.” Other sources have described the purpose of similar statutory injunctions as “to preserve the marital status quo and to prevent dissipation of marital assets during the pendency of a dissolution proceeding.”

*    *    *    *    *

First, Tennessee law is clear that a divorce action is abated by the death of one party. Furthermore, . . . an action taken in violation of the Section 36-4-106(d) injunction is not void per se, but is voidable depending on the circumstances. Despite this fact, other Tennessee law leads us to the conclusion that the court must have the power to invalidate an action taken in violation of the automatic divorce injunction when justice requires, regardless of the death of one of the parties to a divorce. . . . [A]llowing the trial court to return the parties to the preexisting state of affairs when the Section 36-4-106(d) injunction is violated comports with the purpose of the statute to maintain the status quo throughout the divorce proceedings.

*    *    *    *    *

The question then becomes whether the equities in this case balance in favor of returning the life insurance policy to its status before Mother violated the automatic statutory injunction. . . . [T]he record before us shows that the equities in this particular case favor a return of the insurance proceeds to Father.

Father testified at trial that the couple had accumulated a number of debts during the marriage, including a home mortgage, two cars, and a consolidation loan. Had the couple divorced prior to Mother’s death, those debts would have been equitably divided between the couple. Mother then would have presumably been free to change the beneficiary on her life insurance policy, absent further order from the divorce court. Because of Mother’s untimely and tragic death, however, Father testified that he was obligated to pay all of the couple’s accumulated marital debt. However, when Mother changed the beneficiary on her life insurance policy in clear violation of Section 36-4-106(d), she deprived Father of considerable funds from which to pay these marital debts that she helped to accumulate. Still, we cannot ignore Mother’s clear desire that the child remain financially secure in the event of her death. . . . [T]here are simply no facts in this case that would lead this Court to believe that Father will not adequately provide for the child if the life insurance proceeds are awarded to him. In this particular situation, we conclude that a return to the status quo prior to Mother’s improper change in beneficiary is warranted.

Based on the foregoing, we conclude that equity supports Father’s request that Grandmother be ordered to return the life insurance proceeds to him because Mother changed the beneficiary on her policy in violation of Tennessee Code Annotated § 36-4-106(d)(2). Accordingly, all of the life insurance proceeds that were realized from Mother’s life insurance policy should have been returned to Father.

Thus, the trial court’s judgment was reversed. Grandmother will have to return all of Mother’s life insurance proceeds to Father.

K.O.’s Comment: The opinion explains the source of the parties’ marital difficulties stemmed from Mother’s belief that Father was having an affair. At that time, Mother was pregnant with the couple’s second child. Father admitted that he told Mother her pregnancy was a “mistake.” Further, he admitted that when Mother informed him she was going to the hospital, his only response was, “Good luck with that.”

Although Father denied having an affair, he admitted to posting a picture with his now-girlfriend on social media the day before Mother’s memorial service that said the two could now make their relationship “Facebook official.”

Father wasn’t exactly a sympathetic character, to put it mildly. But the law protects both parties in a divorce, including the unsavory ones.

knoxville divorce

Coleman v. Olson (Tennessee Court of Appeals, Middle Section, October 20, 2016).

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

Posted by: koherston | October 31, 2016

Tennessee Family Law Update Arrives in Two Weeks!

Knoxville divorce lawyersJohn and I are putting the finishing touches on this year’s Tennessee Family Law Update seminar.

Two weeks from today (!!!) we begin our tour of Memphis, Nashville, Knoxville, and Johnson City.

If you haven’t already, sign up today!

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.

20151120_102031

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

Posted by: koherston | October 28, 2016

Photo of the Week: Bear Eating Walnut

black bear walnut

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

Facts: When Mother and Father divorced, they entered an agreed parenting plan giving Mother 285 days of parenting time and 80 days for Father.

Ten months later, Father petitioned to change custody. He alleged Mother was failing to properly parent and supervise their daughter. Father specifically alleged that Mother failed to supervised their daughter with respect to the daughter’s schoolwork and use of social media.

knoxville divorceAt trial, Father shared with the court a number of his daughter’s social media posts, conversations, and “likes,” which Father deemed inappropriate for a 14-year-old child. Father admitted he was unaware of any measures taken by Mother to address the concerns. He also noted he did not make any suggestions to Mother about how the issue should be handled. Father also testified that their daughter was doing poorly in school. He proposed holding their daughter out of dance until her grades improved, but Mother was not responsive to that proposal.

Father rested his case at the conclusion of his testimony. Mother moved to dismiss, arguing that Father failed to prove a material change in circumstances.

The trial court found Father’s proof was inadequate to carry the burden of showing a material change in circumstance and, therefore, dismissed his petition.

Father appealed.

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

Courts apply a two-step analysis to requests for modification of the primary residential parent or the parenting schedule. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred will the court determine whether modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors the court’s consider include:

  • whether the change occurred after the entry of the order sought to be modified;
  • whether the change was known or reasonably anticipated when the order was entered; and
  • whether the change affects the child’s well-being in a meaningful way.

A change in circumstance regarding a parenting schedule is different from a change in circumstance regarding custody. The threshold for establishing a material change where the issue before the court is a modification of the parenting schedule is much lower.

The Court concluded Father failed to show a material change for either type of modification:

Father failed to meet his burden of proving that any allegedly material change occurred that affected the well-being of the parties’ daughter. While Father testified, apparently credibly, that he was concerned about his daughter’s use of social media and her academic performance, he failed to present evidence of any kind that Mother had failed to supervise the daughter in those areas.

Although the threshold is much lower when determining whether a material change in circumstance has occurred with respect to a modification in visitation, Father similarly failed to prove by a preponderance of the evidence that such a change had occurred with respect to this issue. As noted above, Father presented credible concerns regarding his daughter’s social media behavior and academic performance but he failed to prove any material change in circumstance warranting modification of the parenting schedule. Because Father failed to prove any material change, we do not consider whether modification would be in the daughter’s best interest. Accordingly, we affirm the decision of the trial court that Father failed to meet his burden to prove that a material change in circumstance occurred with respect to both the issue of primary residential parent and of visitation.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) Parents sometimes forget that they must establish a causal connection between the change and a meaningful impact on the child. The impact can be positive or negative, but a causal connection must be shown. A good example of this is Galaway v. Galaway, where the Court explained that not every change in a child’s life or the life of her parents rises to the level of a material change warranting a change in the parenting plan.

(2) I love it when the Court explains modern life in the stiffest way possible. Here, the Court explains what a “like” is:

A social media user’s “like” of social media content, which generally occurs by tapping or clicking a specified button on the user interface, generally denotes that the user enjoyed or identified with said content. In many cases, when a user “likes” a piece of content, that “like” is made public to a varying degree based on the users privacy settings.

knoxville divorce

Kelly v. Kelly (Tennessee Court of Appeals, Middle Section, October 19, 2016).

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

Facts: Father and Stepmother petitioned to terminate Mother’s parental rights to Child so Stepmother could adopt Child.

knoxville divorceThe proof showed Mother was a heroin addict. She earned money through prostitution to support her drug habit.

During the four months preceding Mother’s incarceration, the trial court found Mother earned income from prostitution and used that income to purchase heroin.

Based on these findings, the trial court found Mother willfully failed to support Child during the relevant four-month period. It also found that termination of Mother’s parental rights was in Child’s best interest. Mother’s parental rights were terminated.

Mother appealed.

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

Mother argued that although there was evidence she was earning income by engaging in prostitution, there was no evidence regarding how much she was earning, or whether this would’ve been sufficient income to allow her to provide support for Child.

Grounds for termination of parental rights by “abandonment” may be shown when a parent has willfully failed to make reasonable payments toward the support of the child during the relevant four-month period.

The party seeking termination of parental rights must prove by clear and convincing evidence that the opposing party had the capacity to pay support but made no attempt to do so and did not have a justifiable excuse.

Tennessee courts have indicated that in addition to evidence of the parent’s income during the relevant time frame, the party seeking termination must also present evidence of the parent’s expenses during that time. Without that basic information, the court is unable to determine whether the parent had the capacity to provide support.

The Court found the proof of Mother’s income and expenses lacking:

Here, there was some evidence that Mother was employed as a prostitute at various times throughout the child’s life. In addition, Mother, without providing dates, testified as to other jobs she held over the years. No proof was introduced, however, as to Mother’s actual or approximate income during the relevant four-month period. Furthermore, the record contains no evidence of Mother’s expenses during the relevant time period from which this Court could conclude that Mother had the capacity to pay support. Under these circumstances, [Father and Stepmother] failed to present clear and convincing evidence that Mother failed to pay support despite her capacity to do so.

The trial court’s ruling as to willful failure to support was reversed. The trial court terminated Mother’s parental rights on other grounds, however, and the termination was affirmed by the Court.

K.O.’s Comment: The trial court found that during the relevant four-month period Mother “was prostituting in order to obtain money to satisfy her drug habit.” Must one show exactly how much Mother was earning and how much she was spending on heroin? This opinion suggests as much. I doubt Mother kept records. Compare this case with In re Courtney N., where the mother’s purchase of a cell phone was sufficient to show she “had money available to her, from whatever source, and decided not to pay child support without any justifiable excuse.”

In re Michael B. (Tennessee Court of Appeals, Middle Section, October 6, 2016).

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

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.

20151120_084033

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

« Newer Posts - Older Posts »

Categories

%d bloggers like this: