Facts: Husband and Wife divorced after 18 years of marriage. The issue on appeal involves the classification of a joint account as Wife’s separate property.

During the marriage, Wife inherited funds from her late father. She placed them in a Wells Fargo account that was a joint account with a right of survivorship held in both her and Husband’s names. She testified she decided to create the joint account with a right of survivorship so, in the case of her death, the account would avoid being subject to probate. The inheritance tax consequences were also less with a joint account with a right of survivorship.

Several months after establishing the account, Wife began withdrawing $5000 per month to purchase various marital assets. Husband never deposited or withdrew any funds from the account. Husband also did not participate in the management of the account.

tennessee separate propertyThe year before the parties separated, Wife sought to remove Husband from the account. Wife said this was for tax purposes. She obtained a transfer letter from Wells Fargo that would remove Husband from the account.

After Husband did not sign the transfer letter, Wife noticed the parties’ daughter had signed Husband’s name. The daughter testified that Wife asked her to sign Husband’s name. Wife submitted the letter and had Husband removed from the account.

Husband testified he had no knowledge that he had been removed from the account until the parties separated.

At the time of trial, the account was valued at approximately $2.4 million.

The trial court found that Wife’s intent by titling the account in both parties’ names was for estate planning purposes and to avoid certain estate taxes. The trial court concluded Wife had no intent to gift the funds to the marital estate. Therefore, the account was classified as Wife’s separate property.

Husband appealed.

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

Tennessee law distinguishes between separate property and marital property in divorce proceedings. The trial court is charged only with providing an equitable division of the parties’ marital property. Accordingly, the trial court must first classify the parties’ property as marital or separate. Typically, property that is acquired during the marriage is deemed marital property. On the other hand, “separate property” includes, among other things, property acquired by a spouse at any time by gift, bequest, devise or descent.

Separate property can become marital property subject to division, however, through the doctrine of transmutation. When the parties treat separate property in a way that manifests an intent that the property become marital property, transmutation occurs. The rational underlying this doctrine is that dealing with property in such a way creates a rebuttable presumption of a gift to the marital estate. This presumption is based upon the provision in many marital property statutes that property acquired during the marriage is presumed to be marital. The presumption can be rebutted by evidence of circumstances or communications clearly indicating an intent that the property remain separate.

The party claiming that the separate property has been transmuted into marital property carries the burden of demonstrating that transmutation has occurred.

One of the ways transmutation can be proven is by evidence that property has been titled in the names of both spouses. Such property may begin as separate property but be subsequently placed in the names of both spouses. The theory is that dealing with property in this way creates a rebuttable presumption of a gift to the marital estate. The presumption, however, may be rebutted based upon evidence clearly indicating an intent that the property remain the spouse’s separate property.

The Court found Wife successfully rebutted the presumption created by the joint account, explaining:

The joint titling of the Account raises a presumption that Wife intended for the property to be a gift to the marital estate. . . . Wife testified that her intent was not to gift the Account to the marital estate. Instead, she testified that her intent in jointly titling the Account was for estate planning purposes, such as avoiding certain tax consequences. Wife specifically stated that she wanted the Account to avoid the probate process, and she believed that titling the Account jointly with a right of survivorship would accomplish this goal. . . . In addition, the parties do not dispute that Husband had no involvement with the Account other than being listed on it. Husband never participated in any management of the funds and did not utilize the funds for any reason. Equally important, Wife’s occasional use of funds from the Account for her family is insufficient to demonstrate that she intended for the Account to be a gift to the marital estate. Accordingly, we conclude that Wife has rebutted the presumption that she intended for the funds in the Account to become marital property.

Husband also argued he was fraudulently removed from the account because his daughter signed the transfer letter instead of him. The Court rejected this argument, too, explaining that the account was never marital property in the first place. Thus, Wife’s actions merely converted the form of property that was already separate into a different form of separate property. The Court said the result would be the same even if Husband’s name was still listed on the account.

K.O.’s Comment: Although the appeal only concerns the classification of the Wells Fargo account, the parties included in the appellate record a bunch of pleadings that had nothing to do with the issue presented. The Court chastised them in a footnote, explaining:

[W]e note that both parties failed to present this Court with a record that had been culled down to only relevant materials pursuant to their obligations in Tennessee Rule of Appellate Procedure 24. The technical record appears to contain a litany of documents unrelated to the Account at issue, such as restraining orders, motions for pendente lite support, various other motions, parenting class certificates, and documents regarding the parenting plan. The parties also included sixty exhibits totaling well over 1,000 pages in the record on appeal, approximately fifteen pages of which have any relevance to this appeal.

This practice does not promote the speedy resolution of cases and may be a ground for dismissal of the appeal. In the interest of judicial economy, this Court exercises its discretion to consider the merits of this appeal despite the foregoing deficiencies. However, we caution litigants to consider the implications of their decisions when creating the record on appeal, as we may not be so forgiving in the future.

Ouch. Over 1000 pages in the record, and only 15 pages are relevant to the appeal. Trial court clerks across the state are sharpening their knives just reading that.

Remember, the Court of Appeals expects lawyers to cull the appellate record down to only those items relevant to the issues presented on appeal. Doing so will keep you in the good graces of your trial court clerk and will also avoid a public scolding from the Court.

Douglas v. Douglas (Tennessee Court of Appeals, Western Section, August 8, 2016).

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

Posted by: koherston | August 19, 2016

Photo of the Week: It’s Been One of Those Weeks

funny bull

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

Posted by: koherston | August 17, 2016

Dates Confirmed for Tennessee Family Law Update 2016

Knoxville divorce lawyersWe’re hitting the road again this November! Here are the dates for this year’s CLE seminar tour:

  • Memphis: Monday, November 14, 2016 — Holiday Inn at University of Memphis
  • Nashville: Tuesday, November 15, 2016 — Nashville School of Law
  • Knoxville: Wednesday, November 16, 2016 — U.T. Conference Center
  • Johnson City: Thursday, November 17, 2016 — Millennium Centre

Like last year, each presentation will begin at 8:30 a.m. and end shortly before 12 noon.

Lawyers and family-law mediators should go ahead and hold the date on your calendars now. I don’t want to hear any whining about scheduling conflicts in November (you know who you are!).

Additional information and registration details will be provided soon, including an early registration discount only available to readers of this blog. The Seminars page will always have the most up-to-date information, too.

KOH_1726

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

Facts: Husband and Wife divorced after 18 years of marriage.

On the day the case was scheduled to go to trial, Husband and Wife entered into a written agreement signed by both parties and their lawyers where Husband agreed, in relevant part, to pay Wife $2100 from his monthly military retirement benefit of $3678.

The trial court placed the parties under oath, and both confirmed their understanding and approval of the agreement in open court.

After the trial court accepted the agreement, Husband was assigned a disability rating that classified $687 of the monthly benefit as disability pay, thereby changing the amount of the retirement benefit to $3080.

knoxville divorceHusband later filed a Rule 59.04 motion to set aside the judgment approving the agreement.

The trial court denied Husband’s motion, finding that both parties were represented by counsel, both are well-educated, and they freely and voluntarily entered into the agreement. The trial court also found there was no mistake entitling Husband to relief.

Husband appealed.

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

The Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, permits state courts to divide a military retiree’s retirement benefit in a divorce proceeding. It provides, however, that “the Federal Government will not make community property payments that exceed 50 percent of disposable retired or retainer pay.”

Husband argued the agreement violates federal law because it gives Wife roughly 57% of Husband’s retirement pay.

Husband’s argument has been rejected before.

In Gonzalez v. Gonzalez, the Court of Appeals held the 50% limit in the Uniformed Services Former Spouses Protection Act only addresses the amount to be paid by the government. It does not prohibit the husband from agreeing to provide his ex-wife with 100% of his military retirement pay as part of a comprehensive property settlement.

In Selitsch v. Selitsch, the Court of Appeals held the Act did not preclude spouses from contractually agreeing to divide non-disposable retired pay, i.e., disability pay.

The Court rejected Husband’s argument again, explaining:

Parties are free to contractually determine the division of military retirement pensions and disability benefits, and a court may order a party to pay such monies to give effect to the agreement. . . . Husband and Wife entered into a contractual agreement, whereby Husband voluntarily agreed to pay Wife $2,100.00 per month directly from his military pension. Moreover, the parties in this case specifically noted in their agreement that “[i]n the event that Husband becomes disabled and/or is no longer eligible to receive his retirement benefit for any reason, then he shall continue to pay unto Wife the sum of $2,100.00 per month for the entirety of his life.” Based on the language in the agreement, it is clear that the parties contemplated the possibility of Husband’s retirement pay changing and intended Husband’s obligation to pay Wife $2,100.00 per month to remain, irrespective of such change. Thus, we reject Husband’s insistence that he entered into the agreement under a mistake of fact.

K.O.’s Comment: Military retirement benefits can be tricky for lawyers and litigants alike. Family-law attorneys who rarely deal with these benefits should consider consulting with or referring to those who do. Several attorneys with expertise on this subject can be found in areas near military bases, such as Clarksville, TN.

I have seen military retirees draft their own benefit-division agreements without utilizing the services of a lawyer, much less an experienced family-law attorney. More often than not, the results prove to be disastrous. As this case illustrates, there is often nothing a lawyer can do to correct the mistake after-the-fact. Military retirees are advised to use a lawyer every time.

Collins v. Collins (Tennessee Court of Appeals, Middle Section, August 1, 2016).

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

Posted by: koherston | August 12, 2016

Photo of the Week: Wagon in Winter

wagon in winter

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

Facts: Mother and Father are the parents of one child. They divorced after six years of marriage.

In their proposed parenting plans, both Mother and Father opposed joint decision-making regarding the child’s education and nonemergency healthcare.

joint decision-makingMother testified that Father frequently did not send the child to preschool and that he did not review the child’s school documents. She further testified that they have a history of controversy and argument over the child’s medical history, diagnosis, and prognosis. She stated that Father refuses to acknowledge that the child has asthma and a food allergy to cashews even though the child had been diagnosed with both. Mother also testified as to an occasion when Father took the child to a walk-in clinic, without informing Mother of the visit or that the child was prescribed medication.

For his part, Father testified that the parties have had “a ton of parental issues” since Mother made allegations that Father sexually abused the child, which allegations were later determined to be unfounded. He further testified that Mother does not provide him with information regarding the child including medical and school records. Father acknowledged the child’s asthma diagnosis but testified that he does not believe the child has asthma because he has never witnessed the child with asthma-related symptoms.

The trial court ordered the parents to make decisions jointly, stating:

I think both parents should be involved in discussing with each other educational decisions, nonemergency healthcare, religious upbringing and extracurricular activities. I have faith in both of you that you can do that from this point forward. Bottom line is you will have to or some other judge will arrange this if you can’t do it yourselves.

Mother appealed.

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

Where the parents are unable to agree on matters of great importance to the welfare of their minor children, the primary decision-making authority must be placed in one parent or the other.

Tennessee Code Annotated § 36-6-407(b) states that the “court shall order sole decision-making to one (1) parent when it finds that: . . . Both parents are opposed to mutual decision making; or . . . One (1) parent is opposed to mutual decision making, and such opposition is reasonable in light of the parties’ inability to satisfy the criteria for mutual decision-making authority.”

After finding “ample evidence” of the parties’ difficulty communicating and reaching consensus regarding education and nonemergency healthcare decisions, the Court ruled:

[W]e conclude that joint decision-making on matters involving the child’s nonemergency healthcare and education is not in the child’s best interest. Further, Mother is the most suitable person to exercise this important function. Although Mother argues on appeal that she should also be awarded sole-decision making authority for the child’s religious upbringing and extracurricular activities because Father opposed joint-decision making, Mother did not make this argument in the trial court. To the contrary, Mother testified that it was in the child’s best interest that these decisions be made jointly.

For the foregoing reasons, we remand with instructions for the trial court to modify the permanent parenting plan to change the decision making authority from “joint” to “Mother” for the decisions pertaining to the child’s education and nonemergency healthcare.

Madden v. Madden (Tennessee Court of Appeals, Middle Section, July 28, 2016).

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

Once again, I am honored to have been selected by my colleagues in the Knoxville Bar as being among the best divorce, family law, child support, and adoption lawyers in Knoxville.

Top Lawyers in KnoxvilleCityView magazine explains:

Each year, Cityview calls upon the members of the Knoxville Bar Association to determine which attorneys in East Tennessee are the best in their respective fields. The one criterion we most want the participating attorneys to consider when casting their ballots is whom they would recommend to friends and family if a particular matter fell outside of their practice specialties. This year, we asked local attorneys to cast votes in 64 categories.

Tennessee does not allow attorneys to advertise that they specialize in certain areas of the law, but as a consumer, choosing an attorney with experience in the correct area is essential. To that end, we have compiled this listing to assist you should you ever need legal counsel in East Tennessee.

Winners in most categories were so close in total votes that we are listing them alphabetically. We feel confident that all of the attorneys listed would provide wonderful representation, but the results of this poll represent only one method of determining who are the best legal professionals in our area. We strongly advise you to use not only this information but to use other quality sources of information.

Source: CityView magazine, Knoxville’s “Top Attorneys” 2016 (July/August 2016).

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

Posted by: koherston | August 5, 2016

Photo of the Week: Shaggy

shaggy boy

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

Facts: Mother and Father are the divorced parents of an autistic child. When they divorced, they agreed that Father would pay the tuition for the child to attend a special preschool for autistic children and that any other fees would be divided between them.

As the child aged, the child started attending the Currey Ingram Academy. Father continued paying the tuition in lieu of child support.

Years later, Father stopped paying the tuition payments on time. Mother petitioned to modify the parenting plan to require Father to pay the tuition and to divide the remaining educational expenses between the parties.

The trial court found Father to be voluntarily underemployed and imputed income to him. Using the Tennessee Child Support Guidelines, Father’s child-support obligation was set at $1116 per month.

The trial court then ordered an upward deviation for extraordinary educational expenses. The trial court equally divided the tuition between the parties, thereby adding $890 per month to Father’s child-support obligation, for a total obligation of $2006 per month.

Father appealed.

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

Extraordinary educational expenses may be added to the presumptive child support amount as an upward deviation. Tennessee’s Child Support Guidelines specify:

Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and/or secondary schooling that are appropriate to the parents’ financial abilities and to the lifestyle of the child if the parents and child were living together.

In determining the amount to award as extraordinary educational expenses, the court should take into consideration any financial aid received by or on behalf of the child.

The Court affirmed the trial court’s judgment, explaining:

We agree with the trial court that the Child is a special needs child. He was diagnosed with autism at a young age. Both parents praised the education provided at Currey Ingram and described the Child’s progress as outstanding. . . .

[T]he question before the court was whether the cost of a Currey Ingram education was “appropriate to the parents’ financial abilities and to the lifestyle of the child if the parents and child were living together.” Both parents agreed to send the Child to Currey Ingram, and it was the only school he ever attended. Moreover, the parents’ income, as imputed by the court, exceeded $200,000 per year. Mother obtained the largest financial aid package available at Currey Ingram, a fifty-percent reduction in cost. We conclude that the current cost of attending Currey Ingram is commensurate with the parents’ financial abilities.

The Court also awarded Mother her attorney’s fees on appeal.

Thayer v. Thayer (Tennessee Court of Appeals, Middle Section, July 26, 2016).

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

Posted by: koherston | August 1, 2016

Tell the American Bar Association Why You Read This Blog

I guarantee you have no idea how much time it takes to maintain this blog.

I have to read all the Tennessee family law opinions issued by the appellate courts, figure out which ones are “blog worthy” (not many), and then draft the posts that are published on this blog.

It is a HUGE time commitment that never ends.

Last year I asked for two minutes of your time to tell the American Bar Association why you read this blog.

You delivered.

Because of your comments, this blog was included in the ABA’s list of the top 100 legal blogs, a.k.a., the Blawg 100. It is the only blog covering family law and the only Tennessee blog to make the cut.

Once again, the ABA wants to know why you read this blog.

And once again I ask that if you enjoy this blog, please take two minutes of your time to tell the ABA why you read this blog, what you enjoy about it, how it benefits you, etc.

The comments are limited to 500 characters or less. Sharing your thoughts should take no more than two minutes.

They’re only accepting comments until this Sunday, August 7, so please take a moment right now and CLICK HERE to share your thoughts with the ABA.

Thank you. I really appreciate it.

Source: American Bar Association “Blawg 100 Amici” (August 2016).

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

Posted by: koherston | July 29, 2016

Photo of the Week: Smoky Mountain Star Trails #2

smoky mountain star trails

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

Facts: Husband and Wife divorced after 26 years of marriage.

Husband is 53 years old. He has a GED and works in the concrete industry, as he has for most of his working career. His annual income is approximately $67,000.

Wife is 52 years old. She has a Ph.D. and is a university professor earning approximately $112,000 a year.

tennessee alimonyDuring the marriage, the parties agreed Wife’s career would take precedence over Husband’s career. As a result, Husband performed more childcare responsibilities, homemaking activities, and made more employment concessions, such as relocating from Atlanta to Nashville for Wife’s career.

The trial court determined Husband is economically disadvantaged and has a need for alimony “given the disparity in earning capacities” between the parties. The court awarded Husband alimony in futuro of $1450 per month.

Wife appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Wife argued the award of alimony in futuro had no factual basis other than the disparity of earnings between the parties.

The Court of Appeals was troubled by the lack of factual findings:

We have determined that the trial court has not made adequate findings relative to the determination that Husband has a need for alimony and that Wife has the ability to pay; that rehabilitative, transitional, or other short-term alimony is not feasible; or that Husband required long-term support. Moreover, we fail to see the factual basis of an award of $1,450 per month when Husband’s testimony did not account for an excess of approximately $1,300 per month, and Wife’s testimony showed an excess of approximately $400. In the absence of such findings, we are unable to afford the trial court’s decision the deference normally afforded to such decisions.

For the foregoing reasons, we vacate the award of $1,450 per month in alimony in futuro and remand for reconsideration of the type, duration and amount of alimony, if any, to be awarded.

The case was sent back to the trial court for further proceedings.

Dissent: Judge Swiney filed a dissenting opinion opining that the trial court made adequate findings. He also says Husband is an economically-disadvantaged spouse because he is incapable of earning enough to allow his postdivorce standard of living to be reasonably comparable to that of Wife’s. Judge Swiney then gets to the heart of the matter:

This case does illustrate the difficulty courts are faced with because of conflicting goals in alimony cases. First, as correctly stated by the majority, “[T]here is a statutory bias toward awarding transitional or rehabilitative alimony over alimony in solido or in futuro.” Gonsewski v. Gonsewski, 350 S.W. 3d 99, 109 (Tenn. 2011). Then, however, courts are instructed by statute, also as set out by the majority, that alimony in futuro is appropriate when there is a relative economic disadvantage and that rehabilitation is not feasible as defined by the statute as already discussed. This inherent conflict is evident from the facts in this case. We have a spouse, Husband, who makes approximately $67,000 a year in a stable job. Certainly, Husband has the financial ability to take care of himself. However, we have the other spouse, Wife, who because of her greater income is able to enjoy a post-divorce standard of living much higher than what Husband can afford solely on his income.

Judge Swiney would have affirmed the trial court.

K.O.’s Comment: Let me begin with this disclaimer: I have not read the record like the Court did. With that caveat, I believe both the majority and dissenting opinions are wrong.

I saw nothing in the trial court’s findings indicating that Husband “suffered economic detriment for the benefit of the marriage.” See Tennessee Code Annotated § 36-5-121(c)(1)-(2).

In the absence of that finding, how is Husband economically disadvantaged relative to Wife? We know the mere fact that there is a disparity in earnings does not render Husband economically disadvantaged. For example, in McKee, the Middle Section held that despite a wide income disparity, the husband was not economically disadvantaged because he did not subordinate his career for the sake of the marriage. In Rogin, the Western Section held that despite a large disparity in earnings, there was no economic disadvantage where the husband did not subordinate his career for the family’s needs.

Without proof and a finding that Husband suffered economic detriment for the benefit of the marriage, how is this even an alimony case?

Assuming arguendo it is an alimony case, the dissent concedes Husband is capable of self-sufficiency. The Tennessee Supreme Court explained in Mayfield that “[a]n award of alimony in futuro is appropriate when the economically disadvantaged spouse cannot achieve self-sufficiency and economic rehabilitation is not feasible.” Despite Husband’s admitted capability for self-sufficiency, Judge Swiney would affirm the award of alimony in futuro.

Judge Swiney is correct that it often appears there are “conflicting goals in alimony cases.” The statutes certainly could use some clarification. But until that happens, family law attorneys and trial courts have to look to the often contradictory interpretation of the statutes from the appellate courts.  The Tennessee Supreme Court tried to clarify things in Gonsewski and more so in Mayfield, but we still see puzzling outcomes like this one. If alimony law in Tennessee is appears to have conflicting goals, it is because both the legislature and the appellate courts — in opinions like this one — have made it so.

Donaldson v. Donaldson (Tennessee Court of Appeals, Middle Section, June 30, 2016).

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

Facts: Husband and Wife divorced after six years of marriage.

There was no equity in the marital residence. Both parties were listed as co-borrowers on the mortgage. The appraised value of the home was $147,100.

Several judgment liens were filed against the marital home for credit card debt and medical bills, and at the time of trial, the judgment liens totaled $43,327.74. The total recorded indebtedness against the property was $211,266.74. Thus, the home had a negative equity of $64,166.74.

The parties were able to stay current on their mortgage payments, but Husband testified that he was “working week-to-week with money” and did not have an excess.

Wife wanted the trial court to order the house sold and to order Husband to pay the deficit that would remain after the sale based on the liens and mortgage liability.

Because of the judgment liens, the trial court found there was no way for the house to be sold and the debt extinguished so as to allow closing and transfer of the deed. Neither party had the present ability to accomplish this.

mortgage divorceThe trial court decided to award the home to Husband and ordered him to indemnify and hold Wife harmless from the mortgage debt.

The trial court did not require Husband to refinance the mortgage or sell the home, finding:

There is no possible way to relieve Wife from liability on the mortgage indebtedness unless the property is allowed to go to foreclosure. Neither Husband nor Wife has the present ability to pay $60,000.00, which is the approximate amount that would be required to sell the property and satisfy the mortgage/lien indebtedness.

Wife appealed.

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

It is not uncommon in divorce cases to turn over the ownership of a marital asset to one party while the parties remain jointly liable for the debt associated with the asset. While it is possible to order one party to make the monthly payments on a joint debt, the court cannot absolve the other party from his or her liability to the creditor. It is also unlikely that a creditor will readily agree to release a solvent debtor simply because of a divorce. Thus, if the party who has been ordered to make the monthly payments on a joint debt defaults, the other party becomes responsible for the debt and the late charges and runs the risk of damage to his or her credit rating.

Courts and divorce lawyers have devised several ways to address this problem. The court may order, or the parties may agree, that the person awarded the property will refinance it or obtain a new loan in his or her own name and then use the proceeds to pay off the existing joint debt. The court may also order, or the parties may agree, that the property will be owned jointly until a date certain when the property must either be financed or sold. Finally, the parties or the courts may include a “hold harmless” provision in the decree or marital dissolution agreement in which the parties are required to indemnify and hold each other harmless from any and all future obligations stemming from ownership of the property they receive.

Under the circumstances, the Court of Appeals was fine with the trial court’s solution:

In the absence of any other feasible alternatives, the trial court in this case opted for the third option, ordering Husband to “indemnify and hold Wife harmless from any debt associated with the marital residence.” We recognize that neither Wife nor Husband is placed in an advantageous situation. However, as the trial judge aptly stated, “a divorce doesn’t mean a fresh start.” We cannot say that the trial court erred in its conclusion that Wife must remain a co-borrower on the mortgage due to the parties’ financial constraints.

The trial court was affirmed.

K.O.’s Comment: Fun fact—This opinion contains the first reference to “Facetiming” that I’ve seen from the Court of Appeals.

Henegar v. Henegar (Tennessee Court of Appeals, Middle Section, June 29, 2016).

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

Posted by: koherston | July 22, 2016

Photo of the Week: Smoky Mountain Star Trails #1

smoky mountain star trails

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

Facts: Mother and Father, the parents of one child, divorced after six years of marriage.

Mother reported witnessing behavior from the child that led her to be believe Father may have sexually abused the child. The proof showed the Department of Children’s Services conducted a full investigation and determined Mother’s allegations to be unfounded.

The proof also showed that Father’s girlfriend, Katrina, sometimes stayed overnight with him during his parenting time.

The trial court ordered that (1) Father’s parenting time be supervised, (2) Katrina not be allowed to stay overnight during Father’s parenting time, (3) he have no holiday parenting time unless Mother agrees, and (4) sole decision-making authority was awarded to Mother.

Father appealed.

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

tennessee divorceBecause of the legal and psychological significance of a parent’s visitation rights, persons seeking to restrict or eliminate visitation must demonstrate that there is probable cause that the child will be placed at risk if visitation is permitted. This effectively creates a presumption against severely circumscribing or denying visitation to noncustodial parents. Such drastic measures are only appropriate when arrangements less detrimental to the parent-child relationship are not available or workable as a practical matter.

There is a specific process the trial court must follow when limiting, suspending, or terminating visitation. First, the trial court must make a specific finding, based on definite evidence, that visitation would cause harm to the child. After making this finding, the trial court must then determine the least restrictive visitation plan as available and practical. In determining the least restrictive visitation plan, the trial court must make specific findings, based on definite evidence, that any less restrictive visitation would be harmful to the child. The burden of proof on both the issue of harm and the least restrictive visitation plan, is on the party seeking to restrict visitation.

In considering the issue, the trial court must bear in mind that it is the public policy of the state of Tennessee that courts shall grant parenting time with the noncustodial parent unless visitation will harm the child.

After reviewing the record, the Court went about the business of dismantling all the restrictions placed on Father’s parenting.

Regarding supervised visitation, the Court explained:

[T]here is no proof that Father exposed the child to inappropriate behavior, nor is there any proof that the child “saw something he shouldn’t have.”

Simply stated, there is no evidence in the record that Father’s unsupervised visitation would be harmful to the child. Consequently, we delete from the parenting plan the trial court’s order requiring supervised visitation.

As for the paramour provision, the Court found:

There is almost no evidence in the record regarding Katrina, and none that suggests her presence would pose a risk of harm or detriment to the child. Under these circumstances, we delete from the parenting plan the provision forbidding Katrina to spend the night with Father when the child is present.

What about the fate of the holiday parenting time provision?

[The trial court’s] approach might work fine, as long as the parties work together in a reasonable and cooperative fashion. If their working relationship sours, however, Mother is armed with a court order that grants her the power to deny Father from seeing the child on Christmas, birthdays, other holidays, and any additional vacation time. We agree with Father that the parenting plan should be crafted to entitle him to reasonable visitation time for holidays and vacations, without requiring Mother’s consent.

Sole decision-making?

Although Father asked that major decisions regarding the child, including those involving education, non-emergency health care, religious upbringing, and extracurricular activities, be made jointly between the parties, the trial court granted Mother sole decision-making authority. There is no evidence in the record supporting this decision, and the trial court made no findings of fact regarding why these decisions should not be made jointly. We hold that the parenting plan should be modified to allow major decisions regarding the child to be made jointly.

Accordingly, the trial was reversed and the parenting plan modified as explained above.

K.O.’s Comment: Kudos to my Knoxville colleague, David Valone, Esq., for a clean sweep on this appeal. Well done!

Mashburn v. Mashburn (Tennessee Court of Appeals, Eastern Section, June 30, 2016).

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

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