Posted by: koherston | April 1, 2016

Photo of the Week: April Fool’s Kidding Around

Step 1: Take aim

Step 1: Take aim

Step 2: Follow through!

Step 2: Follow through!

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

Facts: Child was born to unmarried parents in April 2013. From birth, Child resided continually in Mother’s custody.

Father testified he had no knowledge of Child’s birth or existence until June 2013, when Child was approximately three months old. Mother and Child began residing with Father at his sister’s home in July 2013. According to Mother, she and the child were soon forced to leave the home because of Father’s alcohol and marijuana use.

paternity tennesseeIn mid-August 2013, Mother discussed the possible adoption of Child with an adoption agency. Mother informed the adoption agency that Father was the biological parent.

Shortly thereafter, Mother voluntarily surrendered her parental rights and named Father as the biological parent in a sworn affidavit. Child was placed with a pre-adoptive family on August 19, 2013.

On September 20, 2013, Father was contacted about the possible adoption of Child. Father unequivocally objected to Child’s adoption. Despite instructions on how to do so, Father failed to establish paternity or obtain DNA testing showing him to be the biological parent of Child.

In October 2013, the adoption agency petitioned to terminate Father’s parental rights on grounds set forth in Tennessee Code Annotated § 36-1-113(g)(9)(A), namely that Father failed to establish paternity, failed to manifest an ability and willingness to assume custody of Child, and failed to provide reasonable support.

Subsequent DNA testing in March 2014 established Father as the biological parent of Child. Thus, at the time the termination petition was filed, Father had not established that he was the legal parent of Child.

The trial court found none of the grounds contained within Tennessee Code Annotated § 36-1-113(g)(9)(A) were applicable because Father “timely exercised any knowledge that he had as far as the process and procedure that was necessary for him to establish parentage of the minor child and [has] taken the necessary steps to establish parentage.” Thus, Father’s parental rights were not terminated.

The adoption agency appealed.

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

The issue concerns the applicability of the grounds for termination of parental rights provided for in Tennessee Code Annotated § 36-1-113(g)(9)(A). The adoption agency argued they apply to Father because he was not the child’s legal parent at the time the termination petition was filed. Father argued those particular grounds cannot be used to terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.

The grounds outlined in Tennessee Code Annotated § 36-1-113(g)(9)(A) are limited to termination proceedings involving a person who is not the legal parent of the child or putative biological fathers.

“Putative father” was defined by the Tennessee Supreme Court in In re Bernard T. as follows:

A biological father will be considered to be a child’s “putative biological father” only if (1) he has filed a petition to establish his parentage of the child, (2) he has filed a timely statement with the putative father registry, (3) the child’s mother has identified him as the child’s biological father in a sworn, written statement, (4) he has been identified as the child’s biological father by information that the court deems to be credible and reliable, (5) he has claimed to certain individuals that he believes that he is the child’s biological father, (6) his name is recorded on the child’s birth certificate, (7) he is living openly with the child and holding himself out to be the child’s father, or (8) he has entered into a permanency plan or plan of care under Tennessee law or under similar laws of other states or territories.

In other words, where a biological father engages in any of the actions outlined above, he will be considered the child’s putative father. The Bernard Court went on to specifically hold that the “grounds for termination in Tennessee Code Annotated § 36-1-113(g)(9) cannot be used terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.”

Put simply, the Bernard Court clearly and unequivocally held that the grounds contained in § 36-1-113(g)(9)(A), which includes the ground of failure to establish paternity, may not apply to putative biological fathers.

The Court of Appeals clearly disagreed with the Bernard Court’s holding, explaining:

Section 36-1-113(g)(9)(A) expressly states that it applies not only to “any person who . . . is not the legal parent or guardian of such child,” but also to “any person . . . who is described in § 36-1-117(b) or (c).”  The Bernard Court held that the descriptions contained within Sections 36-1-117(b) and (c) are used to determine whether a purported father is a putative biological father. Thus, the Bernard Court indicated that the descriptions under Sections 36-1-117(b) and (c) are essentially synonymous with the legal status of putative biological father. Because the language of Section 36-1-113(g)(9)(A) expressly indicates that the grounds contained therein may apply to any person “described in § 36-1-117(b) or (c)[,]” we can only conclude that the Tennessee General Assembly intended that the less stringent grounds contained in Section 36-1-113(g)(9)(A) must apply to putative biological fathers. Stated another way, the language of (g)(9)(A) declares that the grounds listed apply to putative biological fathers, while the holding of Bernard provides otherwise.

Nonetheless, the Court of Appeals is bound to follow the ruling of the Tennessee Supreme Court. The Court reasoned:

In sum, the Tennessee Supreme Court in Bernard deemed a putative biological father on par with a legal parent or guardian and, therefore, declined to apply the grounds contained in Tennessee Code Annotated Section 36-1-113(g)(9)(A) to putative biological fathers. In so holding, the Bernard Court relegated the grounds contained in Section 36-1-113(g)(9)(A) to applying only to those parents whose claims to children are so gossamer as to be virtually non-existent. Regardless of our concerns regarding the Bernard Court’s interpretation of Tennessee Code Annotated Section 36-1-113(g)(9)(A), however, we are not free to depart from the Tennessee Supreme Court’s unequivocal holding….

Based upon the holding in Bernard, the grounds contained within Tennessee Code Annotated Section 36-1-113(g)(9)(A) do not apply where the defendant parent is a putative biological father. Here, there is no dispute that Father qualifies as a putative biological father. Therefore, the trial court did not err in declining to terminate Father’s parental rights under any of the grounds contained in Section 36-1-113(g)(9)(A).

Accordingly, the trial court was affirmed.

K.O.’s Comment: It is rare to see the Court of Appeals say “we think the Tennessee Supreme Court got it wrong.” By itself, that makes this case noteworthy.

The Court of Appeals specifically notes that Justice Kirby heard the Bernard case when she was on the Court of Appeals and filed a dissenting opinion in which she said she would have terminated parental rights in that case. In other words, the Court of Appeals suggests Justice Kirby agreed with their interpretation when she sat on the Court of Appeals. They seem to be not-so-subtly suggesting to the adoption agency that there is at least one (powerful and persuasive, especially regarding family law) vote on the Tennessee’s Supreme Court to overturn the holding in Bernard should the adoption agency choose to request permission to appeal from the Supreme Court.

In re Ashton B. (Tennessee Court of Appeals, Western Section, March 15, 2016).

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

Facts: Father’s children were adjudicated dependent and neglected and put in the custody of the Department of Children’s Services (“DCS”) after Father committed domestic assault against Mother.

criminal recordsDCS petitioned to terminate Father’s parental rights to the children on grounds of, inter alia, wanton disregard for the welfare of the children.

Father was incarcerated at the time the petition was filed. He has a lengthy criminal history, most of which occurred 5 to 6 years prior to the filing of the petition to terminate his parental rights. Father is a Mexican national who now lives in Mexico.

After a trial, the trial court refused to terminate Father’s parental rights because it held there was insufficient evidence to establish grounds for termination.

The children’s guardian ad litem appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court and terminated Father’s parental rights.

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines “abandonment” to include when

A parent . . . is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent . . . has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and . . . the parent . . . has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child[.]

An incarcerated or recently incarcerated parent can be found guilty of abandonment only if the court finds, by clear and convincing evidence, that the parent’s pre-incarceration conduct displayed a wanton disregard for the welfare of the child. Thus, the parent’s incarceration serves only as a triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child.

Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, and substance abuse can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child.

It does not matter whether that conduct occurred during the four months immediately preceding the parent’s incarceration or at some earlier point in time.

After reviewing the record, a majority of the Court of Appeals concluded:

The statute now under discussion pertains to “conduct . . . that exhibits a wanton disregard for the welfare of the child[ren].”This part of the statute focuses as much on a parent’s state of mind vis-à-vis his children, as it does on the conduct itself. In other words, what does the bad conduct tell us about a parent’s concern for the welfare of his children or lack thereof? If you really love and care for your children, would you repeatedly get drunk and drive or batter your wife in your children’s presence?

The evidence in this case clearly shows a man who has no qualms about engaging in criminal conduct….

Over the course of time, the father in this case was arrested for theft, multiple D.U.I. offenses, repeated traffic offenses, domestic violence against the biological mother of the children central to this appeal, multiple illegal border crossings, and even extortion. These arrests resulted in multiple incarcerations and/or deportations. When viewed in their totality, these offenses clearly indicate that the “parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders [father] unfit or poses a risk of substantial harm to the welfare of the child[ren].”

Is this the conduct of a man who is concerned with his children’s welfare? The question is rhetorical in nature. He says he illegally crossed the border on multiple occasions in an attempt to see his children. Where is the proof of this other than his own self-serving statement? During the five years his children have been in DCS custody, where is the proof that, outside of a couple of phone conversations, he made any real attempt to maintain a meaningful relationship with his children?…

Father’s criminal conduct in fact led to a number of incarcerations and deportations. He must have known — or is certainly charged with knowledge — that his conduct could land him in jail or ensure a one-way ticket back to Mexico. He apparently did not care how all of this could and would affect the welfare of his children….

The evidence on the issue of best interest is clear, convincing, and overwhelming. It is in the best interest of the children to terminate father’s parental rights and allow these children to be adopted by a family who will love and care for them.

Accordingly, the trial court’s judgment was reversed and Father’s parental rights were terminated.

Dissent: Judge Swiney dissented from the majority opinion, writing:

[T]he majority accurately outlines Father’s record of criminal misdeeds. I do not in any sense belittle the wrongness of Father’s offenses. However, going back five or six years to dredge up DUIs, for example, is a stretch when it comes to terminating a parent’s right to his or her child, a fundamental right….

Clearly, in every case there is some point in time at which prior conduct so far in the past becomes irrelevant or at least its impact lessens as to whether a parent has displayed wanton disregard for the welfare of his or her child. This reasoning applies to a single incident of domestic violence, even though it is indeed a loathsome act. I submit that an additional legion of parents may well be at risk of losing their parental rights under such a sweeping interpretation of wanton disregard as adopted today by the majority.

Thus, Judge Swiney would affirm the trial court’s decision declining to find wanton disregard.

K.O.’s Comment: I have long been critical of the scope of the “wanton disregard” ground for termination of parental rights. See my comment in this post from February 2014.

In the In re Anthony R. opinion, the Middle Section was (I think) critical of the jurisprudence on this issue when it wrote, “By defining [wanton disregard] by examples, Tennessee courts have recognized ‘wanton disregard’ in much the same way as Justice Potter Stewart identified pornography: ‘[we] know it when [we] see it.'” I am glad to finally see some critical analysis of the scope of this particular ground for termination of parental rights. I think courts should apply a more critical eye when petitioners rely on wanton disregard.

In re K.F.R.T. (Tennessee Court of Appeals, Eastern Section, March 10, 2016).

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

Posted by: koherston | March 25, 2016

Photo of the Week: Bald Eagle

bald eagle

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

Facts: Mother and Father married in 2009 and had one child. They divorced in September 2013. An agreed parenting plan was entered in December 2013 awarding 210 days of parenting time to Mother and 155 days to Father.

Much post-divorce litigation ensued. Of interest here is Mother’s petition to modify the parenting plan to reduce Father’s parenting time and obtain sole decision-making authority.

The trial court modified the parenting plan after finding the parties had proven unable and unwilling to communicate effectively and co-parent in the child’s best interest. The trial court rearranged the parenting schedule but left the number of parenting days the same as before. Notably, the trial court made the following ruling:

In the event that the parties are unable to settle future co-parenting issues among themselves, they shall complete the parenting classes again and they shall complete mediation before filing any additional motions before the court.

Mother appealed.

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

Regarding parenting classes, Tennessee Code Annotated § 36-6-408(a) provides, in relevant part, as follows:

In an action where a permanent parenting plan is or will be entered, each parent shall attend a parent educational seminar as soon as possible after the filing of the complaint.

After reviewing the record, the Court reasoned:

We agree that the statute permits successive attendance in cases where numerous parenting plans are entered. However, the statute does not require attendance before a party may seek relief from the court. Such a requirement unnecessarily hinders a party’s access to justice. Accordingly, the court erred by requiring attendance in an education seminar before seeking further relief from the court.

Thus, the trial court’s requirement that the parties attend a parent education seminar before seeking relief from the court was reversed.

Hawk v. Hawk (Tennessee Court of Appeals, Eastern Section, March 9, 2016).

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

Posted by: koherston | March 21, 2016

A Personal Note about My Father

Robert Herston

Robert O. Herston

There will be no case summary today.

Today I want to write about something more important than the law. I want to write about the importance of being a good parent after divorce. And I want to write about my father.

My father died Wednesday, March 16, at age 79. He had been hospitalized since November. When we last spoke earlier that week, he was the same as always—witty, curious, and fully engaged. A sudden and unexpected turn for the worse on Sunday left him on life support with no hope of recovery.

When this post is published on Monday morning, I will be in Nashville burying my father in a veteran’s cemetery with military honors.

My parents divorced when I was around four years old. At the time, Tennessee followed the “tender years doctrine,” which created a legal presumption in which custody of young children automatically went to the mother unless she was clearly shown to be unfit. (The tender years doctrine is no more. Tennessee Code Annotated § 36-6-101(d) now expressly provides that gender is of no consequence.)

My dad ended up seeing me and my sister every other weekend.

As is the case with many divorced parents, he was angry about the unfairness of it all.

Being little children, my sister and I didn’t understand why he and our mother didn’t live together anymore. Naturally, we would ask him.

He always bit his tongue, kept his frustration and anger to himself, deftly changed the subject, and changed the focus to something fun. We eventually stopped asking.

Throughout my childhood, he never made a derogatory remark about my mother or stepfather in my presence. I am sure he wanted to many times over. But he didn’t.

Today I recognize how that small act of kindness was such a wonderful gift to me and my sister.

All too often I see divorced parents who are consumed with the unfairness of their situation. They are quick with disparaging comments about the other parent.

I certainly understand the temptation to make derogatory comments about the other parent.

While it may give the parent momentary pleasure to speak his or her mind, the parent does lasting damage to his or her children.

My father always took the high road. He kept his children out of the fray. He protected us from the damaging aftershocks of his divorce.

For that I am forever grateful.

Today I want to celebrate those divorced parents who always put their children’s needs above their own. It isn’t always easy to bite your tongue. But it is an act of loving kindness toward your children. One day your children will appreciate your selflessness in having done so.

I know I do. Thank you, Dad.

Me and my dad in 2014

Me and my dad in 2014

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

Posted by: koherston | March 18, 2016

Photo of the Week: Harbor Seal

harbor seal

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

Posted by: koherston | March 16, 2016

How Divorce after 50 May Affect Your Retirement Savings

This article by Janet Kidd Stewart in the Chicago Tribune is of interest.

How Divorce after 50 May Affect Your Retirement Savings

Getting unhitched this year?

If you’re past 50, it’s critically important to pay attention to how your retirement savings weathers the storm.

Divorce filings tend to surge at the beginning of the year, experts say, whether from pent-up demand after the holidays or to avoid having to endure another loveless Valentine’s Day.

Parents with kids in school tend to hold out until the end of a school year, but when it comes to couples in middle age and beyond — the so-called gray divorce — the beginning of the year is often clean-slate time, said Tracy Stewart, a certified divorce financial analyst, accountant and financial planner in College Station, Texas.

The overall numbers are getting big. Divorce rates among 50-plus couples roughly doubled between 1990 and 2013, and 30 percent of divorced women 62 and older who are single live at or below the federal poverty line, said Susan Brown, a Bowling Green State University professor who has chronicled gray divorce trends.

Her research on poverty and divorce, which she expects to publish in an academic paper, found that 14 percent of men who divorce after 62 are in poverty. Just four percent of couples that age — the age of Social Security eligibility — are at or below the poverty line.

“It’s scary, because the gray divorce demographic group is growing,” Brown said.

Divorce can be particularly complex for people getting close to retirement, even if there are no children’s custody issues because of an empty nest.

Beyond simply figuring out potential spousal Social Security benefits for marriages of 10 or more years, there are typically more assets to divide.

There often are more illiquid investments, and more paycheck uncertainties as older workers struggle to stay employed at their current salaries.

“Most people treat retirement plans as a last item on the list, below the house and jewelry,” said Howard Phillips, author of “Dividing Retirement Plan Assets in a Divorce” (divorcepensionrights.com).

While the present value of a retirement plan might be a couple’s largest asset, couples going through crisis tend to worry most about current cash flow and assets they use every day, he said.

That might be changing, however.

Fifty-plus couples account for a big share of those choosing collaborative divorce, a type of representation that involves both sides committing to working out the best long-term financial outcome for both parties, rather than fighting through a judge or mediator, Stewart said.

“They’re mature enough to know they’re going to keep seeing each other through adult children and grandchildren,” so they opt for a less adversarial split, she said.

Maintaining the peace is particularly important when there are illiquid assets, such as a pension, that can’t be cashed out by one party, said Wendy Wood, an attorney in Bryan, Texas.

“My preference is always to make a clean break” when dividing assets, Wood said. In real life, however, that’s not always possible. Government workers, for example, might be in line for rich traditional pensions but have few liquid assets with which to cash out a spouse.

Retirement plan divisions in a qualified domestic relations order also are notoriously vague, so paying more attention to the details now is crucial, Phillips said.

And don’t forget to scrutinize your beneficiary designations. Some states treat divorce as an event that essentially nullifies existing designations, and federal labor laws generally prohibit prenuptial agreements from dictating survivor rights when it comes to retirement plans, Phillips said.

Finally, acknowledge the fear surrounding the process as a way to deal with it and move on, suggests Stewart.

“I remember a client who told me she was scared down to her toes by the whole process, and I think most husbands and wives alike are really scared,” she said. “They’re going forward (with the split) but don’t know how much they’ll get or really whether they’ll be able to supplement it because it’s hard to step up a career after 50, particularly when their personal life is in disarray.”

Source: How Divorce after 50 May Affect Your Retirement Savings (Chicago Tribune, February 15, 2015).

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

Facts: While their divorce was pending in another court, Wife petitioned the trial court for an order of protection. She alleged being in fear of abuse from Husband based on an incident that occurred nine days earlier and what she claims was Husband’s history of controlling and abusive behavior.

After hearing, the trial court granted an order of protection ordering Husband not to abuse or stalk or threaten to abuse or stock Wife or their children. The court also ordered Husband have no contact with and stay away from Wife and their son. The trial court set the order to expire after 45 days.

Husband appealed.

On Appeal: The Court of Appeals dismissed Husband’s appeal as moot.

A domestic abuse victim may file a sworn petition seeking an order of protection from the court. Once a petition is filed, the court is authorized to issue an ex parte order of protection upon a showing of good cause. Within 15 days, the court must hold a hearing on whether to dissolve or extend the ex parte order. At the hearing, the petitioner must establish domestic abuse by a preponderance of the evidence. If the ex parte order is extended, it must be for a definite time, not to exceed one year.

For the Court of Appeals to render an opinion in any case, it must be faced with a live controversy. Cases must remain justiciable from the time they are filed until the moment of final appellate review. A case ceases to be justiciable when it no longer serves as a means to provide some sort of judicial relief to the prevailing party. A moot case has lost its justiciability either by court decision, acts of the parties, or some other reason occurring after commencement of the case.

Tennessee courts can choose to hear a moot case (1) when the issue is of great public importance or affects the administration of justice, (2) when the challenged conduct is capable of repetition and of such short duration that it will even paid judicial review, (3) when the primary subject of the dispute has become moot but collateral consequences to one of the parties remain, and (4) when the defendant voluntarily stops engaging in the challenged conduct.

After reviewing the record, the Court concluded:

We conclude this case is moot. Because the order of protection from which [Husband] appeals has expired, we can provide no relief to [Husband]. Generally, appellate courts should dismiss appeals that have become moot. Only under exceptional circumstances do we consider an appeal when it is no longer justiciable. This case does not present one of those exceptional circumstances. At the time of this appeal, [Husband and Wife] were parties to a pending divorce proceeding. An injunction restraining both parties from abusing the other is automatically in force until the divorce petition is dismissed, the parties reach an agreement, or the divorce court modifies or dissolve the injunction.

The Court went on to find Husband’s appeal “frivolous” because it was lacking in justiciable issues after the order of protection expired. In an exercise of its discretion, the Court awarded Wife her reasonable attorney’s fees.

K.O.’s Comment: (1) Was Husband’s appeal frivolous? After all, the appellate courts can hear a moot case when the primary subject of the dispute has become moot but collateral consequences to one of the parties remain. Having an order of protection entered against someone can affect that person long after the order of protection has expired, e.g., when applying for certain jobs, government security clearances, etc. Under the circumstances, not only do I question whether Husband’s appeal was frivolous, but I question the Court’s decision not to review the trial court’s findings at all. In effect, Husband has been denied any appellate review of the trial court’s findings and and may forever be haunted by the trial court’s finding that he committed domestic abuse.

(2) This is a memorandum opinion. As such, it “shall not be cited or relied on for any reason in any unrelated case” pursuant to Tennessee Court of Appeals Rule 10.

Honeycutt v. Honeycutt (Tennessee Court of Appeals, Middle Section, March 2, 2016).

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

Posted by: koherston | March 11, 2016

Photo of the Week: Glacier Face

glacier

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

Facts: Husband and Wife were married in 1992. The day before the wedding, Wife presented Husband with a prenuptial agreement drafted by Wife’s attorney.

The prenuptial agreement reflected the parties’ agreement to relinquish any right each would have in the other’s property in the event of the death of either party. The prenuptial agreement also expressly stated Wife’s desire that her son receive her real estate.

Wife was diagnosed with cancer in 2010, for which she had surgery. Shortly thereafter, she executed a will leaving Husband a car, some personal property, and a life estate in her real property.

Wife’s cancer returned, and she died in December 2012. Her will was admitted to probate. Upon learning of his meager beneficial interest under Wife’s will, Husband filed a petition for an elective share, which in this case would be 40% of the net estate.

After the trial, the trial court ruled the prenuptial agreement was invalid because it did not provide an adequate disclosure of Wife’s assets.

Wife’s estate appealed.

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

In Tennessee, prenuptial agreements are binding if they are entered into freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. Prenuptial agreements must meet this standard whether they are construed in the probate context or the divorce context.

There are two ways to prove a prenuptial agreement was entered into knowledgeably. First, one can show the spouse seeking to avoid the agreement was provided with a full and fair disclosure of the nature, extent, and value of the other spouse’s holdings. Second, in the absence of sufficient disclosure, the agreement may still be enforceable if one demonstrates that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the other spouse’s holdings.

Whether one spouse had sufficient knowledge of the other spouse’s holdings depends upon the particular facts and circumstances of each case. Relevant factors include the parties’ respective sophistication and experience in business affairs, the duration of the relationship prior to the execution of the agreement, the time of the signing of the agreement in relation to the time of the wedding, and the parties’ representation by, or opportunity to consult with, independent legal counsel.

Tennessee law does not require that a spouse have knowledge of the specific appraised values of the other spouse’s assets, but knowledge of the other spouse’s overall net worth is necessary.

After reviewing the record, the Court upheld the trial court’s ruling invalidating the prenuptial agreement, explaining:

Here, it is undisputed that Husband was not provided with any disclosures of [Wife’s] holdings when he executed the antenuptial agreement. Accordingly, the agreement can only be binding if such disclosures were unnecessary because Husband had sufficient independent knowledge of [Wife’s] holdings….

There is no evidence to support a finding that Husband knew the extent or value of [Wife’s] business interest, bank accounts, and investments, which were significant, when he signed the agreement. Therefore, there is no factual foundation upon which to conclude that Husband had knowledge the “full nature, extent, and value” of [Wife’s] holdings.

Accordingly, trial court’s judgment that the prenuptial agreement was unenforceable was affirmed.

K.O.’s Comment: In a footnote, the Court of Appeals notes something interesting about this particular prenuptial agreement.

The 1992 antenuptial agreement, which consists of only two pages, reveals that the possibility of divorce was not a consideration because it does not discuss the parties’ property rights in the event of a divorce — only death — giving true meaning to the phrase “until death do us part.”

In re Estate of Hillis (Tennessee Court of Appeals, Middle Section, February 25, 2016).

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

Facts: Mother and Father, the parents of three children, divorced in 2003. Father was ordered to pay $1400 per month for child support until the middle child turned 18.

18thIn May 2011, in anticipation of the middle child turning 18 the following month, Father filed a petition to modify child support.

Discovery ensued. The final hearing did not take place until March 2014. In the meantime, Father unilaterally reduced his child support payment in February 2012 to $400 per month without the authority of a court order.

After the trial, the trial court modified Father’s child support obligation but elected not to make it retroactive to when the middle child turned 18. Instead, the trial court made the modification effective as of the date of its ruling in March 2014. As a result, a judgment for child support arrearages was entered against Father in the amount of $15,637.

Father appealed.

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

Tennessee Code Annotated § 36-5-101(f)(1) provides in relevant part that no child support order may be modified retroactively “as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties.”

It is well established that a trial court has the discretion to make a child support modification effective as of the date of the modification petition, the date of the final hearing, or any appropriate date in between. Here, the trial court made the modification effective as of the date of the final hearing, which was nearly three years after the middle child turned 18.

After reviewing the record, the Court concluded:

[The legal principles explained above] do not apply, however, to reduction of child support due to a child’s reaching the age of majority and the concomitant expiration of the parental duty to support. First, except in statutorily defined situations not present here [e.g., when the child is disabled], a court has no authority to order child support beyond majority, or beyond the time established by statute. Consequently, an order of support for a particular child expires at the time the child reaches majority.

Second, our courts have also taken the position that a reduction in child support due to the emancipation of a child should not be considered a modification as that term is used in Tennessee Code Annotated 35-5-101(f)(1), but instead is simply the application of a rule of law derived from the legal principle that parents generally owe no duty of support to their adult children…. [P]roration of child support for an emancipated child is not a retroactive modification of the child support award and its application does not require a petition to, or an order from, the court….

[Father] argues persuasively that the Trial Court should have selected a less arbitrary date, namely that of the June 14, 2011 aging out of the child. Indeed, June 14, 2011 is the only date consistent with the case law cited above and the explicit expectations of the parties in their agreed parenting plan. In our judgment, the Trial Court erred in designating the date of the final hearing, March 31, 2014, as the effective modification date as such a date is contrary both to Tennessee law and the agreement of the parties. We reverse the Trial Court as to this issue, and remand for a new calculation of [Father’s] arrearages or credits, if any, taking into account what [Father] has paid through the hearing on remand.

Accordingly, the trial court’s ruling was reversed.

K.O.’s Comment: Tennessee Code Annotated § 34-1-102(b) requires each parent to financially support their child “until the child graduates from high school or the class of which the child is a member when the child attains eighteen (18) years of age graduates, whichever occurs first.” After that date, there is no longer a legal obligation to provide financial support.

Mitchell v. Hall (Tennessee Court of Appeals, Eastern Section, February 26, 2016).

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

Posted by: koherston | March 4, 2016

Photo of the Week: Curious Sea Otters

curious sea otters

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

Facts: Mother and Father, the parents of one child, divorced after 3 1/2 years of marriage.

Mother and Father are both paramedics. Their work schedules require them to work a rotating shift of 24 hours on and 48 hours off. Mother’s schedule differs from Father’s in that it allows her one full week off from work every four weeks.

Father requested an equal parenting time arrangement of alternating weeks. Mother sought substantially more parenting time than Father.

The trial court designated Mother the primary residential parent. Mother was awarded 183 days of parenting time while Father was awarded 182 days. The parents were ordered to exercise parenting time every other week, with exchanges taking place on Saturday at noon. The trial court specifically found:

Father has a true desire to equally parent the child and share the responsibilities with the Mother. The Mother does not have the same desire for equal parenting. The Mother’s desire to have more time than the Father is unreasonable in the court’s opinion, and not in the child’s best interest.

Mother appealed.

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

When a Tennessee court makes a determination regarding a child’s residential arrangements, it must make a “custody determination” that is based on the child’s best interest.

In ascertaining the child’s best interest, the court is directed to allow each parent to enjoy the maximum participation possible in the life of the child consistent with the factors set out in Tennessee Code Annotated § 36-6-106(a), the location of the residences of the parents, the child’s need for stability, and all other relevant factors.

After reviewing the record, the Court reasoned:

Mother contends that the trial court failed to place the appropriate weight on several factors, including the fact that she has been the child’s primary caregiver…. [W]e cannot say the trial court abused its discretion in devising a residential schedule that allows both parties “to enjoy the maximum participation possible in the life of the child.” In reaching this conclusion, we are mindful of the broad discretion trial judges hold in fashioning parenting arrangements, especially given their ability to observe the witnesses and make credibility determinations…. The result reached by the trial court is not outside the spectrum of rulings that reasonably results from applying the correct legal standards to the evidence. Therefore, we decline to “tweak” the parenting plan in hopes of achieving a more reasonable result.

Accordingly, the trial court’s parenting schedule was affirmed.

Spencer v. Spencer (Tennessee Court of Appeals, Middle Section, February 25, 2016).

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

Facts: Husband and Wife divorced after approximately three years of marriage.

At trial, each introduced an expert appraiser to testify about the current value of the marital residence. Husband’s expert testified the house was worth $535,000. Wife’s expert testified the house was worth $505,000.

The trial court averaged the two appraisals to reach a value of $517,500. The trial court then deducted 6% of the value to cover a broker’s commission and closing costs that the parties would have to pay if the home were sold. The trial court found the marital home had a mortgage balance of $301,300, which the parties did not dispute. After deducting the 6% commission and the mortgage balance, the trial court determined the equity in the house was $185,150.

Husband appealed.

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

Tennessee trial courts are charged with placing a “reasonable value” on marital property when dividing the marital assets in a divorce case.

When the parties present conflicting evidence of valuation, the court has discretion to value the property at issue from the range of values presented by the parties and their witnesses.

After reviewing the record, the Court concluded:

The parties submitted no evidence that they were planning to sell the marital home. Therefore, Husband argues, the trial court erred by deducting 6% of its value to cover closing/transaction costs before determining the value of each party’s interest in the residence. Wife agrees. Because both parties agree that the trial court should not have reduced the value of the house by 6%, and because we are aware of no factual or legal basis for this reduction, we reverse this aspect of the court’s ruling and revise the value of the parties’ equity in the house from $185,150 to $216,200 ($517,500 – $301,300 = $216,200).

Accordingly, the trial court’s valuation was reversed.

K.O.’s Comment: This result is consistent with several cases holding it is error to deduct the cost of selling an asset unless the proof shows a party intends to dispose of the asset in the near future. See, e.g., Gaither v. Gaither. Perhaps that is why Husband and Wife agreed.

I wish Wife instead had advocated Judge Susano’s concurring opinion in Gaither where he expressed his view that “it is sometimes appropriate to take into account the cost of selling an asset even though there is no present intent to sell.” I would like to see the appellate courts explain when it is appropriate to discount the present value to reflect the cost of sale when there is no present intent to sell.

Yates v. Yates (Tennessee Court of Appeals, Middle Section, February 24, 2016).

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

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