Facts: Mother and Father divorced in 1998. At the time of the divorce, they shared custody of their two children. Father was ordered to pay $1500 per month in child support.

Less than a year later, after Mother’s chronic mental illness prevented her for caring for the children, the court transferred custody of the children to Father and terminated his child-support obligation. The Court order further provided, “[Mother] has a duty to pay child support, but the amount of that support is reserved.”

Thereafter, Mother provided no financial support for the children.

Over 16 years later, Mother filed a petition for contempt relating to a dispute over the division of Father’s retirement benefits. Father counterclaimed for back child support for the period during which he had sole custody of the children, specifically August 1999 through May 2004.

There was no dispute about whether Mother owes child support. The only question was what amount she owed.

Using the Child Support Guidelines that were in effect during the years in which Mother’s obligation was incurred, i.e., from August 1999 through May 2004, the trial court awarded Father retroactive child support in the amount of $36,246.

Mother appealed.

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

In Tennessee, a parent’s child-support obligation is governed by the Child Support Guidelines established by the Tennessee Department of Human Services pursuant to Tennessee Code Annotated § 36-5-101(e).

The Guidelines in effect from August 1999 through May 2004 provided that child support was based on the income of the noncustodial parent, which was Mother. Also, the Guidelines in effect at that time would consider the alimony Mother received from Father as income for purposes of calculating her child-support obligation, and that alimony was Mother’s primary source of income during the relevant period.

The current Guidelines, which were promulgated in 2005, are based on an “income shares” model that would also take Father’s income into account when establishing Mother’s child-support obligation. Moreover, the current Guidelines would not include alimony that Mother received from Father for purposes of determining her income.

For these reasons, Mother’s child-support obligation will likely be lower if calculated using the current Child Support Guidelines rather than those that were in effect prior to 2005.

Husband argued that the Guidelines in effect at the time Mother’s child-support obligation was incurred should be applied to determine the amount of retroactive child support due.

Mother argued the Guidelines in effect at the time Father filed his counterclaim for back child support should apply.

The Court held that the current Child Support Guidelines must be used to determine a child-support obligation that accrued prior to their creation:

In this case, the Child Support Guidelines directly address the issue at hand:

The Child Support Guidelines established by this Chapter shall be applicable in every judicial or administrative action to establish, modify, or enforce child support, whether temporary or permanent, whether the action is filed before or after the effective date of these rules, where a hearing which results in an order establishing, modifying, or enforcing support is held after the effective date of these rules.

Furthermore, the Child Support Guidelines set forth the following instructions for calculating the amount of retroactive child support due: “For the monthly [basic child support obligation], apply the Guidelines in effect at the time of the order, using the Child Support Worksheet. . . .”

Considering the foregoing, we conclude that the trial court should have calculated [Mother’s] retroactive child support obligation using the Child Support Guidelines in effect at the time of the court’s 2016 ruling.

Thus, the trial court’s judgment was reversed with respect to the calculation of Mother’s child-support obligation and remanded with instructions to recalculate child support using the Child Support Guidelines in effect at the time of trial in 2016.

Maher v. Woodruff (Tennessee Court of Appeals, Middle Section, April 13, 2017).

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

Facts: Husband and Wife divorced after 24 years of marriage. Wife served as a stay-at-home mother while Husband worked in his medical practice.

The trial court equally divided the marital property, with each party receiving assets totaling $3.4 million.

After finding that Wife had suffered economic detriment for the benefit of the marriage, the trial court awarded Wife alimony in futuro of $5000 per month plus alimony in solido of $4500 per month for 10 years. Husband was also ordered to maintain a $1 million life insurance policy to secure payment of Wife’s alimony awards.

Husband appealed.

On Appeal: The Court of Appeals modified the trial court’s ruling.

Tennessee Code Annotated § 36-5-121(l) gives the trial court the authority to order a party to maintain life insurance to secure the payment of an alimony obligation. Specifically, the statute states:

To secure the obligation of one party to pay alimony to or for the benefit of the other party, the court may direct a party to designate the other party as the beneficiary of, and to pay the premiums required to maintain, any existing policies insuring the life of a party, or to purchase and pay the premiums required to maintain such new or additional life insurance designating the other party the beneficiary of the insurance, or a combination of these, as the court deems appropriate.

Similarly, Tennessee Code Annotated § 36-4-121(e)(2) authorizes the trial court to impose a lien on marital property awarded to a party to secure the payment of alimony.

Wife’s award of alimony in solido of $4500 per month for 10 years is fundamentally an award of a definite sum of money, i.e., $540,000 payable in monthly installments over 10 years. The sum is payable in full, regardless of future events such as the death of Husband or the remarriage of Wife. It is a vested right not subject to modification. Conversely, the alimony in futuro award of $5000 per month is subject to modification in the future.

Husband argued the expense of maintaining a $1 million life insurance policy would be cost prohibitive.

With Husband being awarded $3.4 million in assets, the Court felt a $1 million life insurance policy to secure payment of the alimony award was unnecessary:

Under appropriate circumstances, courts have placed a lien on the obligor spouse’s property to secure the payment of alimony in solido in lieu of requiring the maintenance of a life insurance policy. Because the award of alimony in solido is for a definite sum, we conclude that placing a lien on Husband’s assets in the amount of $540,000 would reduce the amount of life insurance necessary to secure Husband’s alimony obligations but would also provide Wife with a means of enforcing the alimony in solido award. We therefore modify the trial court’s judgment to impose a lien upon a portion of Husband’s assets in the amount of $540,000 in order to secure the alimony in solido award to Wife. . . . We also modify the trial court’s judgment by reducing the amount of Husband’s court-ordered life insurance obligation from $1 million to $500,000, which amount we determine to be sufficient to secure Husband’s alimony in futuro obligation.

Thus, the trial court’s judgment was modified and the case sent back to the trial court to determine which of Husband’s assets should be encumbered by a lien.

Stratienko v. Stratienko (Tennessee Court of Appeals, Eastern Section, March 31, 2017).

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

Posted by: koherston | April 14, 2017

Photo of the Week: Bull Elk Chasing a Wannabee

koh_9470

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

Posted by: koherston | April 12, 2017

When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.)

I found this article by Christopher Mele in The New York Times to be of interest.

When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.)

When couples get divorced, children are not the only ones who can get caught in custody disputes. Fights over other members of the family — beloved pets — can be equally acrimonious.

Courts have traditionally treated pets as personal property in such cases, but that is starting to shift as some state lawmakers and advocacy groups promote the notion that the legal system should act in the best interests of the animals.

Old photo of me and my dogs

Courts have awarded shared custody, visitation and even alimony payments to pet owners, and starting about 15 years ago, more states began allowing people to leave estates or trusts to care for their pets.

One case in San Diego that gained national headlines featured a pointer-greyhound mix named Gigi, who was the focus of a contentious divorce between Dr. Stanley and Linda Perkins.

At first, they were granted joint custody of Gigi, but neither human was satisfied with the arrangement, according to news accounts. A court fight followed that took two years and cost about $150,000 in legal fees. It involved a court-ordered “bonding study” conducted by an animal behaviorist and a videotape, “A Day in the Life of Gigi,” showing the dog spending time with Ms. Perkins, who was ultimately awarded sole custody in 2000.

A survey in 2014 by the American Academy of Matrimonial Lawyers reported a 27 percent increase in pet-custody cases over the five previous years, with 20 percent of respondents citing an increase in cases where judges had deemed pets an asset in a divorce.

Animals caught in a tug of war were not limited to dogs and cats, the academy said. Exotic pets — including an iguana, an African grey parrot, a python and a giant 130-pound turtle — were involved in disputes.

Alaska became the first state to enact pet-custody legislation, which allows a court to consider the animal’s well-being. The measure, which defines animals as a “vertebrate living creature not a human being,” was signed into law last year and took effect in January.

If Charlene Lima, a member of the State House of Representatives in Rhode Island, gets her way, her state will follow Alaska’s example. Ms. Lima, who owns a 6-year-old husky named Keiko, introduced legislation similar to Alaska’s last month.

My beloved Lexie

Ms. Lima’s bill says that a judge “shall consider the best interest of the animal” in a divorce or separation. Ms. Lima said she planned to introduce specific guidelines to be considered, such as which spouse most cared for the animal and took it to the vet, and whose lifestyle was best suited to pet ownership.

“A lot of time I think it’s used as retribution,” Ms. Lima said, referring to fights over pets. “People can get really vicious in divorces, and using emotional attachment to a pet is something they can use to gain leverage.”

Ms. Lima joked that after news reports about her proposal, “a lot of people called and wanted to know if my husband and I were having problems.”

David Favre, a law professor at Michigan State University and editor in chief of its Animal Legal and Historical Center, theorized that custody battles flare when there are fewer or no children in a family and pets have become the focus of a couple’s emotions.

Mr. Favre said the law in Alaska was intended to reduce conflicts in divorces, but a side effect has been that it has drawn greater attention to pet-custody questions.

Judges in divorce cases historically have gone through the same steps in determining pet ownership as they did with personal property. They figured out which property belonged to the couple (rather than just each spouse), how much each piece was worth and whether some agreement was in place about who got what, the center’s website noted.

“It is, I think, a shift when they get this kind of visibility in the legal system,” Mr. Favre said about pets. “They’re not a piece of furniture. You would not ask a judge to consider the best interest of a piece of furniture.”

My beloved Emma

Jeff Pierce, legislative counsel for the Animal Legal Defense Fund, noted that the American legal system has long held a split view of how animals should be treated. While pets are considered personal property, there are also laws that prohibit cruelty to animals.

“On one hand, we insist that cats, dogs, rabbits and horses are like sofas, cars and tables, but on the other hand, the law says you can do whatever you like to your sofa, car and table, but you can’t do that to your pets,” he said.

Judges have had the discretion to look out for a pet’s interest in custody cases, but Mr. Pierce said the chance that they might appear to be an activist judge may have given them pause, adding that the legislation gives them political cover.

“We totally welcome this development in the law, and we think it’s going to accelerate,” he said.

K.O.’s Comment: (1) For more information on the new law in Alaska, check out this article from the Washington PostIn a first, Alaska divorce courts will now treat pets more like children.

(2) For now, Tennessee still views pets as property to be divided. Perhaps the law students operating the chapter of the Student Animal Legal Defense Fund at the University of Tennessee College of Law will help change that someday. In the meantime, I have seen situations where parties have agreed to share ownership of pets or have an agreed-upon visitation schedule ordered by the court.

Source: When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.) (The New York Times, March 23, 2017).

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

Facts: Husband and Wife divorced in 2014. Nearly a year later, Wife petition for civil and criminal contempt. She alleged that Husband failed to pay the full amount of spousal support required by their marital dissolution agreement.

After Wife’s counsel completed the direct examination of Wife, Husband’s counsel moved to dismiss on the grounds that Wife failed to elect whether she was seeking civil or criminal contempt. Wife agreed to voluntarily dismiss the criminal contempt claim and proceed solely on her civil contempt claim.

Even though Wife had not concluded her proof, the trial court granted the motion to dismiss after finding that Wife “has failed to sustained the requisite burden of proof, that is by clear and convincing evidence, of any ‘civil’ contempt.”

Wife appealed.

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

Burden of proof. Wife argued the trial court applied the wrong burden of proof when it said Wife failed to prove civil contempt “by clear and convincing evidence.” The Court agreed:

The trial court’s ruling is patently incorrect in that it applied an incorrect legal standard, i.e., clear and convincing evidence as opposed to preponderance of the evidence. The quantum of proof needed to find a person guilty of civil contempt is a preponderance of the evidence. . . . [Husband] argues that the trial court’s analysis of civil contempt using the clear and convincing evidence standard was harmless error. We disagree. . . . Having applied an incorrect legal standard, the trial court erred. [T]his error alone is sufficient for reversal of the trial court’s decision.

Completion of proof. Wife also argued the trial court erred when it dismissed her petition for civil contempt before she completed her proof.

The trial court acknowledged that Husband’s oral motion to dismiss was presented “in a bit of an unusual procedural context in that it was made at the end of the direct examination of” Wife. This “unusual procedural context” did not stop the trial court from dismissing Wife’s case, however. The Court found this, too, was reversible error:

Tennessee Rule of Civil Procedure 41.02(2), which governs involuntary dismissals in bench trials, provides [that an action can be dismissed] “[a]fter the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiff’s evidence . . . [and] has shown no right to relief. . . .”

Rule 41.02(2) clearly contemplates that the proper time to lodge a motion for involuntary dismissal is after plaintiff “completed the presentation of plaintiff’s evidence. . . .” Accordingly, this Court has consistently held that a trial court’s dismissal of the case prior to the close of plaintiff’s proof is reversible error.

Thus, the trial court’s order dismissing Wife’s civil contempt action was reversed. The case is remanded back to the trial court for further proceedings.

K.O.’s Comment: Family-law attorneys need to avoid pleading contempt actions as “civil and/or criminal contempt.” Civil and criminal contempt are different animals with different purposes, burdens of proof, notice requirements, available remedies, etc. They also must be tried separately from one another. Laweyers need to specify one or the other. For more about the differences between the two, see, e.g., Duke v. Duke.

Parsons v. Parsons (Tennessee Court of Appeals, Western Section, March 30, 2017).

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

Posted by: koherston | April 7, 2017

Photo of the Week: Bee At Work

koh_7784

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

Facts: Mother and Father are the never-married parents of Child. They entered into an agreed parenting plan that designated Mother as the primary residential parent and allowed both parents to share substantially equal time with Child.

Six years later, Father petitioned to change custody because of issues with Mother’s mental health, physical health, the condition of her home, and the parties’ disagreement regarding Child’s education.

Although details are not provided, the opinion makes clear that there was also significant concern about the propriety of Mother’s communications with the then seven-year-old Child. Mother also posted disparaging remarks about Father online; for example, she sometimes referred to Father as “my Turkish enemy.”

During the trial, Mother conceded that she had shared details about the custody case with Child. Mother said she did not believe there is any age too young to talk to a child about most things.

The principal at Child’s school testified that she had several conversations with Mother concerning inappropriate topics to discuss with children.

The Court Appointed Special Advocate (CASA) volunteer expressed her concern about Mother’s inability to control what she said to Child.

For a variety of reasons not discussed in this post, the trial court determined that Father should be the primary residential parent and have sole decision-making authority.

Regarding the substantive issues discussed in this post, the trial court entered an injunction prohibiting Mother from:

  • referencing Father at all on social media or making disparaging remarks about Father on social media;
  • having any conversations with Child about the court proceedings or about topics that are “adult-only issues”; and
  • making any disparaging remarks about Father to Child or in Child’s presence.

Mother appealed.

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

Mother argued the injunction violates both the United States Constitution and the Tennessee Constitution as an impermissible prior restraint on speech.

An impermissible “prior restraint” exists when the exercise of First Amendment rights depends upon prior approval of public officials. A system creating prior restraints bears a heavy presumption against its constitutional validity.

In the context of protected speech, “prior restraint” is a label used in constitutional law to describe administrative or judicial orders that forbid a communication when issued in advance of the time that the communication is to occur. Thus, governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.

Both the United States Constitution and the Tennessee Constitution provide broad protections to prevent the abridgment of a person’s right to freedom of speech. These protections require the application of strict scrutiny review when a court is presented with the question of whether a person’s fundamental rights, such as freedom of speech, have been infringed. Strict scrutiny requires that the restraint on speech be narrowly tailored to serve a compelling governmental interest.

The trial court’s injunction constitutes a “prior restraint” because it restrains a parent’s speech in the context of a child-custody dispute. Under the circumstances, the danger of physical or emotional harm to the child must be balanced against the parent’s First Amendment rights. In doing so, courts must consider whether the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest. The government has a compelling interest in protecting children from harm.

The Court determined that the injunction did not violate Mother’s First Amendment rights:

Mother’s conversations with the child were unquestionably harmful, as were Mother’s social media posts. By her own admission, Mother often posted the details of the parties’ custody dispute on social media for the purpose of communicating with Father. . . .

*     *     *     *     *

Under these facts, it is entirely proper for the [trial] court to restrict Mother from making disparaging and clearly defamatory remarks about Father online or to the child or in the presence of the child. . . . Such remarks are not worthy of constitutional protection. And we conclude that the restrictions placed on Mother in this regard to not unduly burden constitutionally-protected speech. . . . In light of their adverse effect on [Child], the record also supports restricting Mother’s communication to the child about the court proceedings and other topics specifically identified in the order. The demonstrated harm outweighs Mother’s free-speech rights.

Nonetheless, we conclude that certain of the restrictions placed on Mother’s communications were overbroad or vague. The prohibition against any mention of Father by Mother on social media would prohibit even the most benign reference to Father. And the prohibition against Mother discussing “adult-only issues” with her child leaves a reasonable basis for doubt as to what topics, beyond those specifically mentioned in the order, Mother may not discuss. Consequently, we modify the [trial] court’s injunction to remove the prohibitions against (1) any reference by Mother to “Father at all on social media” or (2) discussions of “adult-only issues” beyond those topics specifically referenced in the injunction. Our ruling, however, does not preclude the [trial] court from expanding its injunction in the future to cover additional topics provided the restraints on Mother are supported by adequate factual findings and are narrowly tailored to limit the prohibited speech.

Thus, the trial court’s injunction was affirmed as modified after removing the speech prohibitions that were overbroad or vague.

K.O.’s Comment: It’s unusual to see constitutional law regarding free speech in a family-law opinion. In fact, the Court was unable to find any Tennessee cases directly on point so it had to look to decisions from other states. Now we have a Tennessee case holding it is not unconstitutional for a court to restrict a parent’s speech if the evidence shows the speech is harmful to the child.

Gider v. Hubbell (Tennessee Court of Appeals, Middle Section, March 29, 2017).

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

Facts: Mother and Father are the never-married parents of Child.

After they broke up, the juvenile court designated Mother as the primary residential parent and awarded Father parenting time every other weekend and additional time on Wednesdays.

Nine months later, Father petitioned to change the primary residential parent designation. He alleged Mother was uncooperative and confrontational, unwilling to foster his relationship with Child, and attempting to alienate Child from him. Among other things, the proof showed:

  • Mother did not inform Father of Child’s school events or medical appointments. Mother became so uncooperative that Father began making the appointments himself;
  • Mother made false accusations of abuse against Father, including three reports to the police and two reports to the Department of Children’s Services, neither of which ever filed any charges against Father;
  • Mother filed an assault report against her live-in boyfriend, and he was arrested. Child was in the home during the incident. Despite the domestic violence, the couple married two months later;
  • Mother testified that she and her husband recently celebrated their one-year anniversary when, in fact, the relationship ended after four months. Mother wanted her then-husband to testify that they had an ongoing relationship because she thought it would help her;
  • Mother’s now-estranged husband said he heard Mother tell Child directly that she did not want Child to visit Father; and
  • Mother’s now-estranged husband said he and Mother abused pain pills and tried methamphetamine when Child was in the home.

The trial court changed custody, naming Father as the primary residential parent and granting Mother 120 days of parenting time.

Mother appealed.

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

Tennessee courts apply a two-step analysis to requests for either a modification of the primary residential parent or the residential parenting schedule.

The threshold issue is whether a material change in circumstance has occurred since the court adopted the current parenting plan. Only if a material change in circumstance has occurred will the court consider whether a modification to the current parenting plan would be in the child’s best interest by examining the best-interest factors in Tennessee Code Annotated § 36-6-106.

Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors the court considers include (1) whether the change occurred after the entry of the order sought to be modified, (2) whether the change was known or reasonably anticipated when the order was entered, and (3) whether the change affects the child’s well-being in a meaningful way.

Not every change in circumstance is a material change. The change must be significant before it will be considered material.

The Court made quick work of Mother’s challenge:

When viewed in light of Mother’s unfounded abuse reports and derogatory comments about Father, Mother’s uncooperative behavior evidence is an unwillingness to allow Father a role in [Child’s] life. Maintaining and encouraging a relationship between the child and the noncustodial parent is important to the child’s well-being. . . .

Mother married a man that she had filed assault charges against twice. Thus, a convicted abuser lived in her home with [Child] for at least four months after the entry of the custody order. . . . Mother’s relationship with [her husband] was a relevant change to [Child’s] home environment. As we have stated before, exposure to domestic violence may certainly have a negative impact on a child.

Thus, the trial court’s decision to change the primary residential parent was affirmed.

In re Ashton V. (Tennessee Court of Appeals, Middle Section, March 22, 2017).

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

Posted by: koherston | March 31, 2017

Photo of the Week: Be Alert for April Fool’s Day

koh_7404

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

Facts: This case involves the never-married parents of Child. The trial court had to determine Father’s retroactive child support obligation/arrearage after Child had graduated from high school and became an adult. The time period at issue was Child’s four years in high school.

Mother has multiple sclerosis. Although she continued to work as a dispatcher, she often needs assistance with certain daily living skills.

Partly based upon Mother’s health issues, when Child started high school he began residing with Mother’s stepfather (Step-Grandfather) during the school week. On weekends and during summer vacation, Child returned to Mother’s home.

The trial court found Mother was entitled to child support throughout Child’s high-school years when Child resided with Step-Grandfather during the school week because Child was still under the care and control of Mother. During Child’s high-school years, the child support worksheet reflects 285 days of parenting time for Mother and 80 days for Father.

Father appealed.

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

Father argued that Step-Grandfather should have been considered the caregiver providing primary care and supervision of Child and, therefore, the primary residential parent for purposes of child support throughout Child’s high school years.

The Child Support Guidelines state that the child support worksheet should reflect the number of days each child spends with each parent and/or nonparent caretaker. The Guidelines define “caretaker” to mean any designated nonparent who provides the primary care and supervision for the child. The Guidelines further explain how if custody or guardianship of a child is awarded to a nonparent, then each parent is responsible for paying his or her share of the child support obligation to the nonparent caretaker.

The Court found Mother to be the primary residential parent during Child’s high-school years:

[N]o court order was ever entered at naming a primary residential parent prior to Child’s emancipation[; thus,] such a designation now is relevant only to an award of retroactive child support. The law is well-settled in Tennessee that because the obligation to support a child follows the child, a nonparent custodian has standing to petition for child support.

*     *     *     *     *

Inasmuch as Step-Grandfather has not petitioned for retroactive child support or been added as a party to this action, the trial court did not have subject matter jurisdiction to award child support to Step-Grandfather and properly did not consider such a ruling.

*     *     *     *     *

[N]either party has provided authority for the proposition that a nonparent who has never been granted custody of a child and is not seeking custody or support is in a position to be named the primary residential parent. Considering the unique set of facts before us, we have found no authority that would allow for such a designation of Step-Grandfather, a nonparty to this case and a family member of Mother’s who testified that even when caring for Child, he considered the parents to be the overriding decision-makers and the emergency contacts for Child. . . .

If we were to adopt Father’s argument that Mother should not be considered the primary residential parent on days when she accepted assistance from a family member[/nonparent caretaker] . . . we would place the trial court in an untenable position of attempting to apportion various percentages of caretaking days throughout the year among one parent’s family members. We find this argument unavailing and not in keeping with the Child Support Guidelines.

Thus, the trial court’s finding that Mother was the parent with primary responsibility for Child during Child’s high school years and, therefore, that Mother was entitled to child support for that time period was affirmed.

State ex rel. Williams v. Woods (Tennessee Court of Appeals, Western Section, March 21, 2017).

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

Facts: This is a parental relocation case where the Court of Appeals split 2-1 over what is meant by a “reasonable purpose” for a parent’s relocation.

The facts of the case can be found in this post discussing the Court of Appeals’ decision.

In the 2-1 decision from the Court of Appeals, the Majority held “the reasonable purpose of the proposed relocation must be a significant purpose, substantial when weighed against the gravity of the loss of the other parent’s ability to participate fully in their children’s lives in a more meaningful way.”

The dissenting judge argued “reasonable” should be interpreted to mean ordinary, usual, rational, moderate, fair, and sensible, just as it is elsewhere in Tennessee law.

The Tennessee Supreme Court accepted Father’s request to review the case.

On Appeal: The unanimous Tennessee Supreme Court reversed the Court of Appeals.

Tennessee’s Parental Relocation Statute, Tennessee Code Annotated § 36-6-108, sets out a comprehensive framework for resolving disputes involving the relocation of a primary residential parent.

Where the parents are not spending substantially equal periods of time with their child, the parent seeking to relocate must notify the other parent of the intent to relocate and state his or her reasons for the proposed relocation. The burden then falls to the parent opposing the move to file a petition and prove one of the grounds enumerated in the statute. If this burden of proof is carried, the trial court may consider the best interest of the child and decide whether to permit the relocation. If this burden of proof is not carried, the trial court is obligated to grant permission for the relocation.

Rather than leave the decision in parental relocation matters to trial courts, with widely varying approaches, results, and timelines, the statute creates a mandatory structure that drastically limits the trial court’s discretion and compresses the timeline for resolution. The statute includes a presumption in favor of permitting relocation when the parents do not spend equal intervals of time with the child.

The Supreme Court determined the legislative history surrounding the enactment of Tennessee Code Annotated § 36-6-108 does not support the Majority’s interpretation of “reasonable” to mean “significant” or “substantial,” nor does it support an approach in which the trial court weighs the purpose of the proposed relocation “against the gravity of the loss of the noncustodial parent’s ability to participate fully in their children’s lives in a more meaningful way”:

Rather, the statutory structure and legislative history both indicate an intent to make relocation case is relatively clear-cut, to permit the parent who has been spending the majority of the residential parenting time with the child to relocate with the child without court intervention, except in unusual cases in which the other parent proves that the move is vindictive, risks serious harm to the child, or has no reasonable purpose at all.

*     *     *     *     *

We note that [the Majority’s] view of the term “reasonable purpose” encourages trial courts to consider evidence that has little to do with the proposed purpose of the move and more to do with the perceived overall fairness of the primary residential parent’s decision to relocate or whether the move is in the child’s best interest.

For example, in the case at bar, the trial court factored into its decision Mother’s assertion that, because neither parent could secure employment, she accepted work abroad with the understanding that Father intended to remain in middle Tennessee after he received his nursing education, but after obtaining the benefit of their bargain, Father decided not to seek a nursing job in Tennessee. These facts would be pertinent if the trial court were charged with deciding whether Father’s proposed relocation was fair to Mother; it was not, however, tasked with making that determination. The testimony relied upon by the trial court in fact ranges far afield from an evaluation of the limited question of whether Father’s stated purpose for moving to Arizona was reasonable. The rigid structure of § 36-6-108—in which best interest is reached only if and when the parent opposing the move proves one of the grounds—suggests that the “reasonable purpose” ground is not intended to be a guise under which the trial court may determine whether the parent’s decision to relocate is wise or fair or in the child’s best interest.

Accordingly, we overrule [prior caselaw in Tennessee] insofar as it interpret[s] the term “reasonable purpose” in § 36-6-108 to mean “a significant purpose, substantial when weighed against the gravity of the loss of the noncustodial parents ability to participate fully in their children’s lives any more meaningful way.” The term “reasonable purpose” should be given its ordinary meaning.

In the future, a “reasonable” purpose should be read to mean an ordinary, usual, rational, moderate, fair, or sensible purpose.

Thus, the trial court’s denial of permission for Father to relocate to Arizona with the child was reversed along with the trial court’s modification of the parenting plan to designate Mother as the primary residential parent.

K.O.’s Comment: (1) This opinion was written by Justice Holly Kirby, the still-reigning World’s Most Awesome Judge. Prior to her elevation to the Supreme Court, she wrote the bulk of the family-law opinions from the Western Section. I predict she will write most of the family-law opinions issued by the Supreme Court during her tenure. Lawyers with family-law cases before the Supreme Court should expect her views on family-law matters to be particularly influential on her colleagues.

(2) This ruling makes it easier for a primary residential parent to relocate with the child. It substantially rewrites “reasonable purpose” jurisprudence in Tennessee by explicitly reversing the legal standard that originated in Webster v. Webster and was applied in cases like Carman v. Carman, Sanko v. Sanko, Thornloe v. Osborne, Redmon v. Redmon, and many others. Notably, the Webster opinion that started it all was also written by then-Judge Kirby.

(3) This is only the second time the Tennessee Supreme Court has addressed Tennessee’s Parental Relocation Statute, Tennessee Code Annotated § 36-6-108. The other time was in Kawatra v. Kawatra, which dealt with how to measure each parent’s time with their child.

Aragon v. Aragon (Tennessee Supreme Court, March 16, 2017).

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

Posted by: koherston | March 24, 2017

Photo of the Week: Grey Tree Froglet

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

Posted by: koherston | March 22, 2017

Divorce Rate in U.S. Drops to Nearly 40-Year Low

This article by Abigail Abrams in Time Magazine may be of interest.

Divorce Rate in U.S. Drops to Nearly 40-Year Low

The U.S. divorce rate dropped for the third year in a row, reaching its lowest point in nearly 40 years, according to data released Thursday.

Marriage rates, on the other hand, increased last year. In 2015, there were 32.2 marriages for every 1,000 unmarried women age 15 or older, according to the National Center for Family and Marriage Research at Bowling Green State University. This represents a jump from 31.9 in 2014 and is the highest number of marriages since 2009, which suggests that marriage rates may be stabilizing after decades of decline.

On the divorce side, the 2015 rate was 16.9 divorces per 1,000 married women age 15 or older, which is down from 17.6 in 2014 and a peak of almost 23 divorces in 1980.

The two measurements are not necessarily related, and it’s tough to know why divorce rates are going down, but it could be that as cohabiting becomes less stigmatized, people don’t look to marriage to shore up an unstable relationship. Marriage rates had been declining for years in part because younger generations have waited longer to get married. But researchers have found that typical marriages still have about a 50% chance of lasting. (This number has been widely debated, since first marriages are much more likely to survive than second or third.)

Divorce and marriage rates vary drastically in different groups of people. The wealthy and well-educated tend to marry and stay together much more than those who are less well-off. The new divorce data show Washington, D.C., had the highest divorce rate in the country last year with nearly 30 marriages per 1,000 ending in divorce. Hawaii had the lowest. Conservative states like Utah and Alaska had the highest marriage rates in 2015, while Rhode Island had the lowest.

tennessee divorce

Source: Divorce Rate in U.S. Drops to Nearly 40-Year Low (Time Magazine, November 17, 2016)

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

Facts: Mother and Father are the divorced parents of two children aged 13 and 12. Their agreed parenting plan at the time of divorce designated Father as the primary residential parent and awarded Mother 160 days of parenting time.

Five years later, Father petitioned to modify the parenting plan to restrict Mother’s parenting time to supervised visitation. Father alleged that Mother had been attempting to undermine one of the children’s relationship with Father, and that Mother was allowing Child to engage in unsupervised access to the Internet such that Child was posting age-inappropriate materials online.

The trial court expressed concern about Child and Mother’s activities on the Internet, commenting that Mother posting fully-clothed pictures of the children on sites such as Facebook and Instagram would be tempting to child predators.

The trial court temporarily restricted mother’s visitation to supervised visitation at a local supervised-parenting center known as the Exchange Club.

Mother was also ordered to complete a Rule 35 evaluation, which evaluation concluded that Mother was capable of caring for the children on an unsupervised basis. Specifically, the evaluator concluded that Mother demonstrates the capacity to care for the children in a loving, careful, and thoughtful manner, and does not represent a danger of harm to herself or others.

Despite this proof, the trial court granted Father’s petition to modify the parenting plan and ordered that Mother’s parenting time be limited to six hours of supervised visitation on Saturday and six hours on Sunday every other weekend. The new parenting plan does not allow Mother to have any holiday time with the children, and gives Father sole decision-making authority. The trial court also stated, “If I see one more [Internet] post with that child’s face on it, I may be cutting off all visitation together totally.”

Mother appealed.

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

Except in certain extreme circumstances, the public policy of the State of Tennessee requires courts to fashion custodial arrangements with the least restrictive visitation limits possible on the alternate residential parent in order to encourage the parent-child relationship.

Tennessee Code Annotated § 36-6-301 allows for supervised visitation if the court finds that visitation is likely to endanger the child’s physical or emotional health, or that the parent has physically or emotionally abused the child.

Supervised visitation may also be warranted based on findings consistent with Tennessee Code Annotated § 36-6-406.

Finally, a trial court may also consider the child’s safety and any risk of substantial harm posed by a parent in its best-interest analysis under Tennessee Code Annotated § 36-6-106.

The Court found the proof did not satisfy the standard required to order supervised visitation:

Father argues that examples of Mother’s irresponsible/dangerous conduct warranting supervised visitation include Mother’s lack of supervision over [Child’s] Internet usage, [Child’s] posting on social media sites and uploading makeup tutorials, . . . Mother not following the Exchange Club’s rules during supervised visits, e.g., giving the children gifts on no-gift days, and manipulating [Child] into wanting to live with her Mother. Based on our entire review of the record, we cannot agree that these occurrences rise to the level necessary to impose supervised visitation. . . . [T]he evidence does not support the finding that Mother is a threat to [Child’s] well-being. We also conclude that the remaining allegations made by Father, which were predominantly adopted by the trial court, do not rise to the level required for the trial court to limit Mother’s parenting time to 12 hours of supervised visitation every other week.

Because the evidentiary record did not support the trial court’s decision to impose supervised visitation, the trial court’s judgment was reversed.

K.O.’s Comment: (1) Supervision of a parent’s visitation is a significant intrusion on the parent-child relationship. While it is sometimes necessary in order to protect the child while permitting the continuation of the parent-child relationship, it is not to be undertaken lightly by a party or a court.

(2) Although this opinion does not say it, other cases make clear Tennessee courts may only restrict a parent’s visitation rights after finding “clear and definite evidence” that permitting continued visitation will jeopardize the child physically, emotionally, or morally. This evidentiary standard effectively creates a presumption against severely restricting or denying visitation. See, e.g., Mashburn v. Mashburn.

Allen v. Allen (Tennessee Court of Appeals, Western Section, March 7, 2017).

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

Posted by: koherston | March 17, 2017

Photo of the Week: Mountain Laurel in Bloom

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

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