Posted by: koherston | January 20, 2017

Photo of the Week: River Reflection

river reflection

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

Posted by: koherston | January 18, 2017

13 Questions to Ask Before Getting Married

This article by Eleanor Stanford in The New York Times is interesting.

13 Questions to Ask Before Getting Married

When it comes to marriage, what you don’t know really can hurt you.

knoxville tn family lawWhether because of shyness, lack of interest or a desire to preserve romantic mystery, many couples do not ask each other the difficult questions that can help build the foundation for a stable marriage, according to relationship experts.

In addition to wanting someone with whom they can raise children and build a secure life, those considering marriage now expect their spouses to be both best friend and confidant. These romantic-comedy expectations, in part thanks to Hollywood, can be difficult to live up to.

Sure, there are plenty of questions couples can ask of each other early in the relationship to help ensure a good fit, but let’s face it: most don’t.

“If you don’t deal with an issue before marriage, you deal with it while you’re married,” said Robert Scuka, the executive director of the National Institute of Relationship Enhancement. It can be hard to keep secrets decade after decade, and reticence before the wedding can lead to disappointments down the line.

The following questions, intimate and sometimes awkward, are designed to spark honest discussions and possibly give couples a chance to spill secrets before it’s too late.

1. Did your family throw plates, calmly discuss issues or silently shut down when disagreements arose?

A relationship’s success is based on how differences are dealt with, said Peter Pearson, a founder of the Couples Institute. As we are all shaped by our family’s dynamic, he said, this question will give you insight into whether your partner will come to mimic the conflict resolution patterns of his or her parents or avoid them.

2. Will we have children, and if we do, will you change diapers?

With the question of children, it is important to not just say what you think your partner wants to hear, according to Debbie Martinez, a divorce and relationship coach. Before marrying, couples should honestly discuss if they want children. How many do they want? At what point do they want to have them? And how do they imagine their roles as parents? Talking about birth-control methods before planning a pregnancy is also important, said Marty Klein, a sex and marriage therapist.

3. Will our experiences with our exes help or hinder us?

Bradford Wilcox, the director of the National Marriage Project at the University of Virginia, pointed to research his organization has sponsored that indicated that having had many serious relationships can pose a risk for divorce and lower marital quality. (This can be because of a person having more experience with serious breakups and potentially comparing a current partner unfavorably with past ones.) Raising these issues early on can help, Dr. Wilcox said. Dr. Klein said people are “hesitant to explicitly talk about their past” and can feel retroactively jealous or judgmental. “The only real way to have those conversations in an intimate and productive way and loving way is to agree to accept that the other person had a life before the couple,” he said.

4. How important is religion? How will we celebrate religious holidays, if at all?

If two people come from different religious backgrounds, is each going to pursue his or her own religious affiliation? Dr. Scuka has worked with couples on encouraging honest discussion around this issue as the executive director of the National Institute of Relationship Enhancement. What is more, spouses are especially likely to experience conflict over religious traditions when children are added to the mix, according to Dr. Wilcox. If the couple decide to have children, they must ask how the children’s religious education will be handled. It is better to have a plan, he said.

5. Is my debt your debt? Would you be willing to bail me out?

It’s important to know how your partner feels about financial self-sufficiency and whether he or she expects you to keep your resources separate, said Frederick Hertz, a divorce lawyer. Disclosing debts is very important. Equally, if there is a serious discrepancy between your income and your partner’s, Dr. Scuka recommended creating a basic budget according to proportional incomes. Many couples fail to discuss sharing finances, though it is crucial, he said.

6. What’s the most you would be willing to spend on a car, a couch, shoes?

Couples should make sure they are on the same page in terms of financial caution or recklessness. Buying a car is a great indicator, according to Mr. Hertz. Couples can also frame this question around what they spend reckless amounts of money on, he said.

7. Can you deal with my doing things without you?

Going into marriage, many people hope to keep their autonomy in certain areas of their life at the same time they are building a partnership with their spouse, according to Seth Eisenberg, the president of Pairs (Practical Application of Intimate Relationship Skills). This means they may be unwilling to share hobbies or friends, and this can lead to tension and feelings of rejection if it isn’t discussed. Couples may also have different expectations as to what “privacy” means, added Dr. Klein, and that should be discussed, too. Dr. Wilcox suggested asking your partner when he or she most needs to be alone.

8. Do we like each other’s parents?

As long as you and your partner present a united front, having a bad relationship with your in-laws can be manageable, Dr. Scuka said. But if a spouse is not willing to address the issue with his or her parents, it can bode very poorly for the long-term health of the relationship, he said. At the same time, Dr. Pearson said, considering the strengths and weaknesses of your parents can illuminate future patterns of attachment or distancing in your own relationship.

9. How important is sex to you?

Couples today expect to remain sexually excited by their spouse, an expectation that did not exist in the past, according to Mr. Eisenberg. A healthy relationship will include discussion of what partners enjoy about sex as well as how often they expect to have it, Dr. Klein said. If people are looking to experience different things through sex — pleasure versus feeling young, for example — some negotiation may be required to ensure both partners remain satisfied.

10. How far should we take flirting with other people? Is watching pornography O.K.?

Dr. Klein said couples should discuss their attitudes about pornography, flirting and expectations for sexual exclusivity. A couple’s agreement on behavior in this area can, and most likely will, change down the line, he said, but it is good to set the tone early on so both partners are comfortable discussing it. Ideally, sexual exclusivity should be talked about in the same way as other day-to-day concerns, so that problems can be dealt with before a partner becomes angry, he said. Dr. Pearson suggested asking your partner outright for his or her views on pornography. Couples are often too scared to ask about this early in the relationship, but he has frequently seen it become a point of tension down the line, he said.

11. Do you know all the ways I say “I love you”?

Gary Chapman’s 1992 book, “The 5 Love Languages,” introduced this means of categorizing expressions of love to strengthen a marriage. Ms. Martinez hands her premarriage clients a list of the five love languages: affirmation, quality time, receiving gifts, acts of service and physical touch. She asks them to mark their primary and secondary languages and what they think is their partner’s, and discuss them. Mr. Eisenberg said that a couple needs to work out how to nurture the relationship, in a way specific to them.

12. What do you admire about me, and what are your pet peeves?

Can you imagine the challenges ever outweighing the admiration? If so, what would you do? Anne Klaeysen, a leader of the New York Society for Ethical Culture, said that couples rarely consider that second question. Ideally, marriage is a life commitment, she said, and it’s not enough to just “click together,” as many couples describe their relationship. A marriage must go deeper than that original “click.”

13. How do you see us 10 years from now?

Keeping the answer to this question in mind can help a couple deal with current conflict as they work toward their ultimate relationship goals, according to Mr. Eisenberg.

Dr. Wilcox said this discussion could also be an opportunity to raise the question of whether each partner will consider divorce if the relationship deteriorates, or whether they expect marriage to be for life, come what may.

K.O.’s Comment: After this article came out, a follow-up article was published with additional premarriage questions suggested by the readers. You can find that article here.

What questions do you think should be added to the list?

Source: 13 Questions to Ask Before Getting Married (The New York Times, March 24, 2016).

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

Facts: Mother and Father are the parents of two children. Everyone lived in Oklahoma until moving to Tennessee in 2005.

Mother and Father divorced in 2008 in Nashville. Under the operative parenting plan, Father was designated the primary residential parent. Mother was awarded 110 days of parenting time.

tennessee parental relocationOn March 2, 2015, Mother received via certified mail Father’s notice advising that he intended to move back to Oklahoma with the children.

On March 11, Father, apparently acting under the mistaken belief that Mother was avoiding receipt of the notice, filed a petition to relocate with the children.

Within 30 days of her receipt of the notice mailed by Father, Mother filed both an answer to Father’s petition and a counterpetition in opposition to Father’s proposed relocation. Mother alleged that Father lacked a reasonable purpose for the move.

During the opening statement of Father’s counsel, the trial court remarked that the burden of proof was on Father to establish a reasonable purpose. The trial court said, “The burden is . . . always on the petitioner, and had the mother filed a petition in opposition, the burden would be on her to prove no reasonable purpose.”

The proof showed that Father expected to inherit the family farm owned by his grandparents in Oklahoma. The grandparents needed Father’s assistance because of their advanced age and failing health. The children, ages 13 and 11, testified they wanted to move to Oklahoma with Father, although they expressed concern about living so far away from Mother. The children felt torn about having to choose sides.

The trial court denied Father’s petition to relocate, specifically finding that Father’s relocation was not for a reasonable purpose. The trial court emphasized that the relocation was not for “work purposes.”

Father appealed.

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

The Parental Relocation Statute, Tennessee Code Annotated § 36-6-108, governs a parent’s request to relocate with a minor child outside the state or more than 50 miles from the other parent within the state.

Tennessee Code Annotated § 36-6-108(d)(1) provides that the parent spending the greater amount of time with the child shall be permitted to relocate, notwithstanding an objection by the other parent, unless the court finds:

  • the relocation does not have a reasonable purpose;
  • the relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; and
  • the parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child.

Even if one of the three grounds is proven, the court may still permit relocation based on the best interest of the child.

Under the old common law, the burden of proof in a parental relocation case fell on the party who filed a petition seeking relief.

That common-law rule was first abrogated by the Tennessee Supreme Court in Aaby v. Strange, which held the custodial parent seeking to relocate had to file a petition, at which time the noncustodial parent could present evidence regarding the custodial parent’s motives for moving.

Then came the Parental Relocation Statute, which the Court found is now dispositive on this issue:

Since the enactment of the Parental Relocation Statute, this Court has held that, if the parent seeking to relocate spends the greater amount of time with the child, the parent opposed to the relocation bears the burden of proving one of the three statutory grounds found in Tennessee Code Annotated § 36-6-108(d)(1). We have described this holding as “well-established.” As a result, the common-law rule in these circumstances was altered such that the burden of proof falls on the noncustodial parent whether or not the noncustodial parent files the first petition.

In this case the trial court erroneously placed the burden on Father to prove that his relocation serve a reasonable purpose, rather than placing the burden on Mother to show that the relocation did not serve a reasonable purpose.

Having concluded that the trial court erred by placing the burden of proof on Father, the Court noted that the trial court failed to make findings regarding the children’s best interest. Because of this, the Court declined to conduct a de novo review of the record to determine the best interests of the children. Instead, the case was remanded for a new hearing on Mother’s opposition to Father’s proposed relocation.

Stanley v. Stanley (Tennessee Court of Appeals, Middle Section, December 30, 2016).

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

Posted by: koherston | January 13, 2017

Photo of the Week: Black Bear Cub

black bear cub

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

Facts: Husband and Wife divorced after 26 years of marriage. They have two children, both of whom are now adults.

Husband is 51 years old. Wife is 52.

Husband, a retired Air Force veteran, works as a pilot for FedEx. Wife worked as a teacher but retired in 2012 because of health issues.

knoxville divorceThe trial court concluded this was not an appropriate case for a 50-50 division of the marital estate. Specifically, the trial court found that Husband separate property includes income-generating assets in the form of deferred compensation and retirement benefits, all of which will continue to generate income for Husband after the divorce. Husband’s separate property, valued at approximately $500,000, was found to be far more valuable than Wife’s separate property. Moreover, the trial court found that Husband’s ability to acquire additional assets in the future will assist him in replacing the loss of his assets as a result of the divorce much more quickly than Wife would be able to under the circumstances.

Based on this analysis, the trial court divided the marital estate 62% to Wife and 38% to Husband.

Husband appealed.

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

A trial court’s division of marital property must be guided by the factors contained in Tennessee Code Annotated § 36-4-121(c). However, an equitable property division is not necessarily an equal one. It is not achieved by a mechanical application of the statutory factors, but rather by considering and weighing the most relevant factors in light of the unique facts of the case.

Husband argued the trial court placed too much emphasis on the relative ability of each party to acquire assets in the future and the respective values of their separate property.

The Court rejected Husband’s argument, noting the record reflects the trial court considered all the relevant statutory factors:

The division of marital property reflects the court’s consideration of not only factors (4) and (6) but also the other factors the court was required to consider. The court characterized the marriage as “a typical marriage partnership, where Husband earned a considerable income . . . [and] Wife was the primary caretaker of the parties’ children during the course of the marriage” and that, in addition to contributing income to the family from her employment during the marriage, Wife “made intangible contributions by being a good parent, primary caretaker [,] and taking care of the parties’ home. . . .” The court further recognized the significant disparity in the economic circumstances of the parties at the time of the divorce “as one of the reasons why the marital assets are to be awarded 60/40 in favor of Wife. . . .” [T]he findings are supported by the record, in the division is not the result of a misapplication of the factors.

Thus, the unequal division of the marital estate in this marriage of long duration was affirmed.

K.O.’s Comment: The general rule of thumb, as stated in Phelps v. Phelps and others, is that a long-term marriage supports a presumption that the marital assets should be equally divided. An unequal division of the marital estate in a long marriage is always a noteworthy event because it means the presumption of an equal division was rebutted. For some other examples of unequal divisions in long marriages, see Larsen-Ball v. Ball (60%-40% division), McKee v. McKee (75%-25% division), Raper v. Raper (63%-37%), Luttrell v. Luttrell (75%-25%), etc.

There are also cases where a significantly unequal division in a long marriage was found to be an abuse of discretion. See, e.g., Dawson v. Dawson (80%-20% division reversed and replaced by 60%-40% division).

Davis v. Davis (Tennessee Court of Appeals, Middle Section, December 29, 2016).

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

Facts: After 22 years of marriage, Husband and Wife divorced. Although many issues were raised on appeal, the most noteworthy one, in my opinion, was the question of whether Husband is voluntarily underemployed for child support purposes.

Husband has a bachelor’s degree in Fine Arts. His prior employment paid anywhere from $10-$13 per hour. When the parties’ first child was born, however, they agreed that Husband would be a stay-at-home parent. For over 16 years, Husband did just that.

east tennessee divorceTwo years before the divorce was filed, Husband returned to full-time employment outside the home working at a Trader Joe’s grocery store. He worked 37 hours a week at an hourly rate of $13.85. His gross annual income was approximately $26,600.

Wife argued that Husband was capable of earning more money considering his college education and professional abilities. She complained that he did not make enough effort to find a higher-paying job.

The trial court determined that Husband was not voluntarily underemployed for child support purposes.

Wife appealed.

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

The fairness of a child support award depends on an accurate determination of both parents’ gross income or ability to support. Typically, gross income equals a parent’s earning capacity or ability to support. In certain limited situations, however, the Tennessee Child Support Guidelines allow the court to impute additional gross income to a parent if the court finds a parent is willfully and/or voluntarily underemployed or unemployed. The regulation is designed to prevent parents from avoiding their financial responsibility to their children by unreasonably failing to exercise their earning capacity.

Under Tennessee law, there is no presumption that a parent is willfully or voluntarily underemployed or unemployed; to the contrary, the party alleging that a parent is willfully or voluntarily underemployed or unemployed carries the burden of proof. Determining whether a parent is willfully and voluntarily underemployed or unemployed are questions of fact that require careful considerations of all the attendant circumstances. In making this determination, the court must consider a parent’s past and present employment, education, training, ability to work, and any other relevant facts.

The Court rejected Wife’s argument that Husband was voluntarily underemployed:

In this case, the parties agreed that Husband would be a stay-at-home parent, which limited Husband’s ability to begin or maintain a career. Further, although Husband has a bachelor’s degree, he has never earned more than $14 per hour. In fact, his current pay of $13.85 per hour is the highest wage he has ever been paid. Considering all the attendant circumstances, we have determined the evidence in this record does not preponderate against the trial court’s finding that Husband is not voluntarily underemployed. Because Husband is not voluntarily underemployed, there is no basis upon which to impute additional income to Husband for calculating child support.

Thus, the trial court’s ruling as to voluntary underemployment was affirmed.

K.O.’s Comment: There’s a fair amount of caselaw in Tennessee addressing the issue of whether a stay-at-home parent is voluntarily underemployed. See, e.g., Blankenship v. Cox (relevant factors in deciding whether to impute income to a stay-at-home parent include whether the parent acted in the role of full-time caretaker while the parents were living in the same household, the length of time the parent staying at home has remained out of the workforce for this purpose, and the age of the minor children; the court may also consider any additional factors deemed relevant under the particular circumstances of the case); Wheeler v. Wheeler (wife not willfully underemployed where she had been stay-at-home parent for many years and two youngest children were ages 10 and 13 at time of trial); Luttrell v. Luttrell (reasonable decision to be a homemaker and stay-at-home parent does not amount to willful unemployment or underemployment).

Cain-Swope v. Swope (Tennessee Court of Appeals, Middle Section, December 23, 2016).

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

Posted by: koherston | January 6, 2017

Photo of the Week: Dogs at Play


dogs playing

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 a certified financial planner who owns his owns practice.

east tennessee divorceHusband testified that his practice typically receives two types of income. First, he earns direct commissions from the sale of financial products. Second, he earns resulting income from financial products he previously sold and continues to manage, commonly referred to as “trail” income.

For Husband, the trail income constitutes the majority of his income. For example, in 2014, Husband’s total revenue from his practice was $270,000, which was comprised of $50,000 in direct commissions and $220,000 in trail income.

The trial court ruled that Husband’s trail income generated by his ongoing management of his clients’ accounts was a divisible marital asset. The trial court valued that asset at $400,000, and awarded Wife a judgment for one-half, i.e., $200,000. Husband was ordered to pay Wife $2000 per month until the judgment is paid.

Father appealed.

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

Husband argued the trial court erred by including the value of his practice’s trail income, which Husband characterized as valuing his business goodwill.

It is well settled under Tennessee law that professional goodwill is not a marital asset that can be divided in a divorce proceeding. The rationale when valuing a professional practice results from the inequity of making one spouse pay the other for an intangible asset at a value that could not be realized by a sale.

While a professional business’s good reputation, which is essentially what goodwill consists of, is certainly a thing of value, it does not bestow a separate property interest on the owners of the business. The reputation of a law firm or some other professional business is valuable to its individual owners to the extent that it assures continued earnings in the future. It cannot, however, be separately sold by the owners.

Wife argued the trail income of Husband’s practice was not goodwill because (1) it could be sold or assigned, and (2) the financial planning industry has a standard method for valuing trail income.

Both Husband and another experienced financial planner testified that when a financial planning practice is sold, it is typically valued at one time the annual income from direct commissions plus two times the annual trail income.

The Court held the trail income from Husband’s practice was a tangible asset separate and apart from any goodwill of the practice:

Inasmuch as the undisputed evidence demonstrated that [Husband’s] trail income could be sold or assigned and that there exists a recognized methodology within the industry for valuing such trail income as sellable property, we conclude that the trial court properly determined [Husband’s] trail income to be a divisible marital asset. In contrast to professional goodwill, [Husband’s] trail income could be sold separately. We therefore determine this to be a controlling factor, distinguishing it’s nature as an asset from the concept of goodwill. Furthermore, the fact that [Husband] could assign his trail income for value upon his disability or death also supports the conclusion that such income constitutes a divisible marital asset.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: Goodwill can be valued and divided as part of a divorce in certain situations. In Hartline v. Hartline, the Court explained the difference between the personal goodwill of a practitioner and the business goodwill of a practitioner’s business, complete with staff, equipment, and a location that could be assumed by another practitioner. Business goodwill may be included in the business valuation where the practitioner has one or more partners or pre-established contracts that could be assumed by another practitioner. In those instances, the goodwill is a tangible asset that can be sold or assigned just like the trail income in the case above.

Fuller v. Fuller (Tennessee Court of Appeals, Eastern Section, December 21, 2016).

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

Facts: Grandmother is the paternal grandmother of Child. When Child was born, Mother, Father, and Child lived with Grandmother for more than 2 1/2 years.

Less than a year after Mother, Father, and Child moved out of Grandmother’s home, Mother and Father were arrested. Child was found to be dependent and neglected, and Child’s maternal grandparents were given custody of Child. During this time, Grandmother visited Child for 24 hours every other week.

A little over a year later, Mother regained custody of Child. The court prohibited Father from having any contact with Child because of Father’s substance abuse issues.

After Mother regained custody of Child, Grandmother said Mother allowed her to see Child a few times before all visitation stopped.

Grandmother petitioned for grandparent visitation of one weekend per month.

knoxville grandparent visitationThe last time Grandmother saw Child was approximately one year before trial. Grandmother testified she was unable to contact Mother because Mother’s phone number had changed. Grandmother explained that when she was able to visit with Child, she set up the visits by texting Mother.

Mother testified that Grandmother had her phone number and it had not changed. Mother was asked if Grandmother had contacted her since the last visit, to which Mother applied: “I remember maybe once. I was pregnant at the time and working, and I may have forgot, there was just one time that I remember. I don’t remember getting any phone calls, no voicemails, just texts.”

The trial court granted Grandmother’s petition for grandparent visitation. It found that Mother denied visitation for Grandmother and severed the grandparent-child relationship for reasons other than abuse or the danger of substantial harm. The trial court also found that severing this particular grandparent-child relationship was likely to cause substantial emotional harm to Child.

Mother appealed.

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

Although every aspect of the trial court’s ruling was appealed, the only argument I found noteworthy involved the issue of whether Mother opposed Child’s visitation with Grandmother.

In order to obtain grandparent visitation from a Tennessee court, the grandparent must prove, among other things, that the parent actually opposes the grandparent’s visitation with the child. Without parental opposition, the grandparent visitation statute, Tennessee Code Annotated § 36-6-306, cannot be invoked.

The Court held that Mother ignoring Grandmother’s text messages requesting visitation amounted to Mother opposing or denying visitation:

The evidence in the record on appeal shows that while Mother never specifically stated that Grandmother could not have visitation, Mother denied Grandmother visitation by ignoring or avoiding the text messages sent by Grandmother, which previously had been used as a method for setting up visitation. The end result was that Grandmother was denied visitation. The evidence in the record on appeal does not preponderate against the Trial Court’s finding that Mother denied Grandmother visitation.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: As explained in Huls v. Alford, imposing limitations and conditions on once liberal visitation does not necessarily mean the parent is opposed to visitation. Opposing visitation includes situations both where visitation is completely denied and where visitation is technically not opposed, but where the frequency and/or conditions imposed on the visitation by the parents are such that it equates to a denial of visitation.

Chamberlain v. Brown (Tennessee Court of Appeals, Eastern Section, December 19, 2016).

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

Posted by: koherston | December 30, 2016

Happy New Year!

Knoxville Divorce Lawyer

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

Posted by: koherston | December 28, 2016

2016 Year In Review

It’s been a busy year here at Herston on Tennessee Family Law.

I published 161 posts, 52 of which were the weekly photographs. So there were over 100 substantive posts related to family law. That’s a lot of reading, analysis, and writing.

2016 year in reviewThis blog was honored again this year to be selected by the ABA Journal as one of the top 100 blogs for lawyers. In the world of law blogging, there is no higher recognition. I certainly didn’t envision being among of the top bloggers when I began writing nearly eight years ago. But the ABA says it’s true, so who am I to argue, right? 🙂

The reach and influence of this blog continues to expand.

I see it in the objective data, such as another year of record traffic, ever-increasing numbers of subscribers, etc.

I also see it in my personal observations. When I go to court, I regularly meet lawyers and judges who tell me how much they enjoy the blog. People tell me when judges and Justices discuss the blog in continuing legal education seminars. Lawyers even tell me when they cite my posts in their arguments.

It’s humbling to think that what I often write from my couch while watching a baseball game reaches such a powerful, diverse, and influential audience.

Here is my personal list of the top 10 posts of the year. If you’re new here or don’t regularly read the blog, what’s your problem these posts would be a good place to start:

  1. A Personal Note about My Father
  2. Supervised Parenting Time, Paramour Clause, and Everything Else Reversed in Meigs County, TN Divorce: Mashburn v. Mashburn
  3. Attorney’s Fees Not Allowed in Nashville, TN Criminal Contempt Case Regarding Child Support: Watts v. Watts
  4. Tennessee Family Law Legislative Update 2016
  5. No Transmutation of $2.4 Million Inheritance Held in Joint Account in Benton County, TN Divorce: Douglas v. Douglas
  6. What Is the Remedy When a Party Violates the Automatic Injunction?: Coleman v. Olson Presents a Case of First Impression in Tennessee
  7. Drinking Beer at a Football Game Leads to Judicial Recusal in Rhea County, TN Divorce: Frazier v. Frazier
  8. Court Divided on Reasonable Purpose in Clarksville, TN Parental Relocation Case: Aragon v. Aragon
  9. Court Divided over Best Interests in Chattanooga Termination of Parental Rights: In re Chance D.
  10. Lawyer Sued After Prenuptial Agreement Invalidated in Knoxville, TN Divorce: Roberts v. Ray

Here are the 10 most popular posts of the year, as determined by the number of views:

  1. A Personal Note about My Father
  2. Court Divided over Best Interests in Chattanooga Termination of Parental Rights: In re Chance D.
  3. Tennessee Family Law Legislative Update 2016
  4. Supervised Parenting Time, Paramour Clause, and Everything Else Reversed in Meigs County, TN Divorce: Mashburn v. Mashburn
  5. Lawyer Sued After Prenuptial Agreement Invalidated in Knoxville, TN Divorce: Roberts v. Ray
  6. Civil Contempt of Court Reversed in Nashville, TN: Aryan v. Aryan
  7. No Voluntary Underemployment for Child Support Affirmed in Williamson County, TN: State ex rel. Brown v. Brown
  8. Termination of Parental Rights Not in Children’s Best Interest in Blountville, TN: In re Aiden R.
  9. Child Support Obligation Automatically Ends When Child Becomes Adult in Sevierville, TN Child Support Case: Mitchell v. Hall
  10. Trial Court Reversed for Failing to Award Attorney’s Fees in Nashville Child Support Modification: In Re Jasmine G.

I need to thank my paralegal, Melody, and my assistant, Bay, for alerting me to the typos they find after the posts are published.

So where do we go from here?

While I am pleased with the growing influence of the blog, I would really like to see more engagement from you, the readers. When I started this blog, I hoped it would become a place where lawyers and other interested parties could discuss Tennessee family law as we all watch it evolve. After all, I’m just a lawyer, like many of you, trying to make sense of it all. Readers get to see what I think, but they rarely see what you think.

I would like to see that change. I want you to share your thoughts with everyone. We have a platform. We have an audience. Let’s make this a conversation instead of a monologue.

On to 2017!

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

Posted by: koherston | December 26, 2016

In a Divorce, Who Gets Custody of Electronic Data? The Lawyers

This article by Jonah Bromwich and Daniel Victor in The New York Times just before the recent presidential election is interesting.

In a Divorce, Who Gets Custody of Electronic Data? The Lawyers

A marriage is not just the union of two people. It is also the union of their data. And when they divorce, the data often gets spilled.

The electorate is now witnessing a vivid example of this, arising from the separation of Anthony D. Weiner, a former congressman, and Huma Abedin, a top aide to Hillary Clinton. The F.B.I. is poring over their emails with a presidential election just days away.

Divorce lawyers and data analysts interviewed on Monday said less public versions of this story play out all the time.

knoxville divorce“The problem is, once they’ve already engaged in bad behavior, it’s out there,” said John Slowiaczek, the president-elect of the American Academy of Matrimonial Lawyers. “You can’t recapture it, you can’t bury it.”

No matter a person’s level of technical skill, it can be difficult to hide digital behavior from a spouse, a spouse’s lawyers or, in Mr. Weiner’s case, federal investigators.

In August, Ms. Abedin, one of Mrs. Clinton’s closest aides and confidantes, informed her husband, a disgraced former congressman and mayoral candidate, that she wanted to separate after his latest sexting scandal. A federal investigation of Mr. Weiner revealed a trove of messages, including some belonging to Ms. Abedin.

Nancy Berg, the president of the International Academy of Family Lawyers and a partner at the law firm Berg, Debele, DeSmidt & Rabuse, said that it was not uncommon to see situations like that of Ms. Abedin’s, where, she said, “her husband’s garbage is destroying her life.”

In divorce proceedings, lawyers and investigators routinely mine public social media profiles for a glimpse into the activities of the client’s spouse.

But their investigations go far beyond that, as they sift through whatever data they can legally obtain for signs of hidden assets or to catch the spouse in a significant lie. Lawyers are likely more focused on questions of finance and child custody than lurid questions of adultery or betrayal.

Even so, a computer “tells you everything about a person’s character,” said Brook Schaub, a forensic analyst and licensed private investigator at the accounting firm Eide Bailly. It has “become the file cabinet, the stationery, the social networking, the everything,” he said.

The data that can become publicly available depends largely on the individuals’ penchant for privacy and how careful they have been. Even those who value privacy during the relationship are at risk of the former spouse finding sensitive data.

The first steps taken after the divorce process begins can be critical.

Christine Leatherberry, a family lawyer in Dallas, said she recommended that her divorce clients create a new email account, stop sharing calendars and turn off the ability for apps on their phones to track their locations.

Someone committed to finding embarrassing or otherwise discrediting information about a spouse can most likely find a way, especially if he or she is willing to flout the law. Such revelations may not be admissible in court, but they could bring professional ramifications or personal embarrassment.

Take, for instance, the security questions that most important digital accounts, including email and banking, use to recover passwords if forgotten. Identifying your mother’s maiden name or the street you grew up on might foil distant identity thieves, but not a spouse.

Annette Burns, a family lawyer in Phoenix, suggested concocting untruthful answers that you could remember but that no one else could guess.

Frank Rudewicz, a principal at Marcum L.L.P. of Boston who focuses on forensic practice, said people had gone so far as to install malware on a spouse’s computer that would log keystrokes.

But there are also fully innocent and legal ways that a spouse can gain access to what was thought to be private data, especially among those lacking savvy with their technology.

As an example, a text message could go simultaneously to a phone and an iPad that was left with children or a former spouse, something many people forget or don’t know, especially if they didn’t set the devices up themselves.

“It’s so convenient to have our texts pop up all over, and all of our computers synced,” Ms. Burns said. “But if one of those computers is left at home, that means your separated spouse has access to everything.”

Mr. Slowiaczek said that the trend of social media evidence in divorce cases had started between five and eight years ago and had picked up “dramatically” over the last three to five years.

He said evidence from social media was a “primary source for virtually anyone who has any divorce practice whatsoever, for getting information not only to understand our own clients, but also to understand the dynamics of people on the other side of a case.”

Mr. Schaub described a case he had handled in which a father who had been unemployed for several years had claimed that he had been acting as a “Mr. Mom.” His computer use revealed a different story.

”His activity during the day is not dedicated to doting on the kids, it’s sitting at the computer, doing various things,” Mr. Schaub said, whether that be viewing pornography or racking up debts on online poker sites.

Ms. Leatherberry said she did not recommend people who have filed for divorce delete photos, texts or social media posts, because that could be considered destruction of evidence. But people should be aware that lawyers introduce text messages and social media posts into almost all of their hearings and trials, she said.

“Anything they put in a text or an email or in social media, assume it will be blown up onto a poster board in a courtroom one day,” she said.

Source: In a Divorce, Who Gets Custody of Electronic Data? The Lawyers (The New York Times, October 31, 2016).

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

Posted by: koherston | December 23, 2016

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

Facts: During the pendency of Husband and Wife’s divorce proceedings, Wife filed a motion asking that Husband be held in civil contempt for failing to pay certain expenses and perform certain acts as he had been ordered.

Husband and Wife eventually settled their divorce, and the trial court adopted their settlement agreement. That agreement provided that Husband and Wife agreed “to settle and compromise all of the matters in dispute between them.” At the time this agreement was reached, Wife’s motion for civil contempt had not been heard.

Two and a half months after the trial court approved the divorce settlement, Husband, acting through a new lawyer, filed an “abuse of process” action against Wife alleging that her purpose in filing the motion for civil contempt had been to harass him, cause him to incur unnecessary expenses, “weaken his resolve” to continue litigating the divorce, and to “settle for terms favorable to [Wife].” Husband requested damages for “emotional distress” and attorney’s fees. In an affidavit, Husband explained:

I felt like it was being held over my head during the rest of the litigation. . . . I felt like it was being used as a threat against me. . . .

I wanted the divorce settled. I was tired of the litigation ruining my life. It was costing a great deal of money for attorney’s fees, and the stress was unbearable. I agreed to the divorce terms to resolve this matter.

knoxville divorceWife filed a motion for summary judgment on the grounds that Husband’s cause of action was barred by the doctrine of res judicata. Wife also filed a motion requesting that sanctions be imposed against Husband’s counsel for filing a “frivolous” action.

The trial court granted summary judgment to Wife and dismissed Husband’s complaint for abuse of process. The trial court also granted Wife’s motion for sanctions against Husband’s counsel in the amount of $9745.25 for Wife’s reasonable attorney’s fees and expenses.

Husband appealed.

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

Res Judicata. The doctrine of res judicata or claim preclusion bars a second suit between the same parties on the same claim with respect to all issues which were, or could have been, litigated in the former suit. It promotes finality in litigation, prevents inconsistent or contradictory judgments, conserves judicial resources, and protects litigants from the cost of multiple lawsuits.

The party asserting a defense predicated on res judicata or claim preclusion must demonstrate (1) that the underlying judgment was rendered by a court of competent jurisdiction, (2) that the same parties were involved in both suits, (3) that the same claim or cause of action was asserted in both suits, and (4) that the underlying judgment was final and on the merits.

Where two claims arise out of the same transaction, however, the second suit is not barred by res judicata unless the plaintiff had the opportunity in the first suit to fully and fairly litigate the particular issue giving rise to the second suit.

The Court agreed that Husband’s “abuse of process” action was barred by res judicata:

Husband insists that he waited to file his complaint because he wanted to be sure the divorce judgment was final before he alleged that Wife had committed abuse of process. In no way does Husband allege that he was unaware of his potential claim for abuse of process when he entered into the consent order, and he certainly does not allege that Wife was concealing the basis for such a claim from him at that time. We determine that Husband had ample opportunity in the nine months between the filing of Wife’s contempt motion and the entry of the divorce judgment to fully and fairly litigate the basis for any potential abuse of process claim regarding the contempt motion by requesting a hearing on the motion before entering into a final consent order. We therefore conclude that the trial court did not err by granting summary judgment in favor of Wife and dismissing Husband’s complaint on the basis of res judicata.

Sanctions. The Court also affirmed the trial court’s award of sanctions against Husband’s counsel because “a reasonable pre-filing investigation of the factual and procedural history of the divorce proceedings, together with reasonable research into existing law, would have demonstrated to Husband’s counsel that a defense of res judicata was bound to prevail against Husband’s abuse of process claim.”

In a 2-1 decision, the majority decided not to award Wife her attorney’s fees on appeal.

Dissent: Judge Bennett dissented from the majority’s decision to deny Wife’s attorney’s fees on appeal:

In Tennessee, Rule 11 sanctions are proper “when an attorney submits a motion or other paper on grounds which he knows or should know are without merit, and a showing of subjective bad faith is not required.” The majority has held that Rule 11 applies. It follows that the appeal was “devoid of merit” as well and, therefore, in my opinion, Wife should be awarded her attorney’s fees for the appeal.

K.O.’s Comment: It is worth noting that the nearly $10,000 sanction was not awarded against the husband; instead, it was awarded against the husband’s lawyer. Be careful out there.

Parvin v. Newman (Tennessee Court of Appeals, Eastern Section, December 9, 2016).

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

Facts: Mother and Father are the divorced parents of three children. When they divorced in 2007, they agreed to share parenting time equally and designate Father as the primary residential parent.

In 2012, the trial court modified the parenting schedule to reduce Mother’s parenting time with the oldest child to 124 days. The schedule as to the other two children remained the same as before, i.e., equal time (182.5 days).

knoxville divorceIn 2014, the trial court again modified the parenting schedule to give Mother 147 days of parenting time with all three children via a schedule of alternating weekends during school and alternating weeks during summer vacation. It also modified the holiday schedule during the school year to follow the “regular schedule,” i.e., alternating weekends.

Under the modified parenting plan, Mother’s parenting time during the children’s Fall and Spring Break and their Christmas Vacation would be limited to alternating weekends.

Mother appealed.

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

Mother argued the school holidays should be shared equally by both parents, particularly since the summer vacation time is shared equally with alternating weeks.

The Court agreed:

Tennessee Code Annotated § 36-6-106(a) provides that, in determining the children’s best interest, the court “shall order a custody arrangement that permits both parents to enjoy the maximum participation possible . . . consistent with the factors set out. . . .” In the absence of specific findings by the court relative to Mother’s parenting time during vacation periods, the order does not appear to comply with the statute and, as a consequence, we are unable to affirm the schedules for the vacation periods.

The trial court’s parenting schedule for school holidays was vacated and remanded for the trial court to reconsider Mother’s parenting time for the Fall, Spring, and Christmas breaks in accordance with § 36-6-106 and to make appropriate findings relative thereto.

Lanier v. Lanier (Tennessee Court of Appeals, Middle Section, December 9, 2016).

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

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