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

This article by J.B. Wogan in Governing is interesting.

A New Strategy for Collecting Child Support: Debt Forgiveness

Officials in Westchester County, N.Y., want to help low-income fathers who are behind in their child support payments.

“These guys aren’t deadbeats,” says Kevin McGuire, the county’s social services commissioner. “They’re dead broke.”

In a 2006 study of nine states, 70 percent of late child support payments were owed by parents who made no more than $10,000 a year. For these parents, the average child support obligation equaled about 83 percent of their reported income, according to the Urban Institute.

In Westchester, officials see employment as the main solution for getting fathers to comply with child support orders. But job assistance programs alone hadn’t solved the problem in the past, and Joseph Kenner, the county’s deputy commissioner of social services, thought he knew why.

“What I felt was missing was some kind of carrot,” Kenner says.

In the county’s Responsible Employed Active Loving (R.E.A.L) Parenting Pilot for Stronger Families, the carrot is the opportunity for non-custodial parents to eliminate most of the debt they owe to the county government. (It does not, however, affect debt they owe to families.)

Here’s how the program works: The county Department of Social Services recruited 25 volunteers — unemployed fathers on public assistance who have child support debt anywhere from $2,000 to $80,000 — to take 40 hours of classes over 10 weeks. The classes cover a range of topics, from financial management to parenting to career counseling. At the end of the 40 hours, the county reduces participants’ debt by 25 percent. That’s the first carrot.

If the fathers find a job and keep it for 90 days, they can get their debt reduced another 25 percent. And if the fathers keep up with their current child support payments for an entire year, they can get their debt reduced to $500.

The result so far? Almost three-fourths of the fathers will have their debt reduced. At least five are on track to complete all three milestones, having already attended the classes and kept a new job for at least 90 days. Another 12 have completed the classes but haven’t met the program’s employment and child support payment goals yet.

Clinton Bess, one of the volunteers who is set to have his debt reduced to $500, says his last few jobs didn’t cover his child support obligations. “My take-home pay was sometimes negative,” he says. Bess now works as a motorman for the New York City Metropolitan Transportation Authority and as a street cleaner for the Yonkers Business Improvement District.

Westchester County isn’t the only government testing the waters on this issue.

In Wisconsin, a debt forgiveness program made participating parents more likely to pay child support and pay down their debt than parents outside the program. Texas was also able to increase the frequency and consistency of child support payments by adding mandatory courses on parenting, budgeting and relationship skills to the workforce development program.

The R.E.A.L. Parenting pilot is an amalgam of these promising initiatives. The pilot’s strength, Kenner says, is that it does more than forgive debt. It also incorporates intensive case management, drawing lessons from a statewide debt forgiveness pilot conducted by New York’s Office of Temporary and Disability Assistance in 2009.

Kenner and his boss, McGuire, tell the pilot’s participants that the program might one day go statewide — information they hope will motivate them to succeed.

“What you’re doing is going to help a lot of other guys in a lot of other parts of the state,” McGuire told a group of fathers in early June. “We have an investment in you. You are not just a name on a birth certificate.”

Besides the potential financial benefits of the pilot, county leadership hope it will lead to stronger relationships between children and their parents. When parents are current on child support payments, research suggests they interact more with their children.

“We owe it to our kids — and we owe it to our dads who have fallen away — to try and get them a second chance,” says Westchester County Executive Robert Astorino.

Astorino, a Republican, noted that the pilot ought to appeal to people across the political spectrum. As a conservative, he likes that the program rewards parents for finding employment and paying their current child support. Left-leaning officials in the county, he says, tell him they like its emphasis on second chances.

“This is something in today’s climate,” he says, “that everybody can get behind.”

Source: A New Strategy for Collecting Child Support: Debt Forgiveness (Governing, June 27, 2017).

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

Facts: Husband and Wife divorced after 30 years of marriage.

During much of the marriage, Wife was a homemaker and stay-at-home parent. At the time of divorce, Husband earned $113,000 per year while Wife earned $32,000 per year.

After equally dividing the marital property, the trial court awarded Wife transitional alimony of $500 per month for 12 years.

Husband appealed.

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

Husband argued that Wife failed to demonstrate a need for alimony in the amount and for the duration ordered by the trial court

Transitional alimony is designed to aid a spouse who possesses the capacity for self-sufficiency but needs temporary financial assistance to adjust to the economic reality of one income. Thus, it is characterized as a form of short-term support. Regarding the duration of transitional alimony, Tennessee’s appellate courts have ruled that transitional alimony should not be awarded for more than eight years.

Alimony in futuro is intended to provide support on a long-term basis until the death or remarriage of the receiving spouse. This long-term support is awarded when the receiving spouse’s earning capacity is not capable of rehabilitation.

The Court found an error in the trial court’s judgment, but it wasn’t quite what Husband was hoping for:

Wife’s monthly income was roughly a third of Husband’s monthly income. And, as she is now in her fifties, it is unlikely that she could obtain additional training to allow her to earn a higher salary before she reached retirement. . . .

The evidence does not preponderate against the trial court’s finding that Wife had a need for alimony. . . .

As for the duration of the alimony, the court’s award was designed such that Wife would receive payments until she reached the age at which she could claim Social Security retirement benefits. Wife originally requested 15 years of alimony, but the trial court focused on the early retirement benefit age instead.

*     *     *     *     *

[D]ue to the disparity in income and relative earning capacity between the spouses, we conclude that the court’s award of transitional alimony should be modified to an award of alimony in futuro. Under the circumstances of this case, an award of alimony for a period of 144 months, or 12 years, constitutes long-term support.

Thus, the trial court’s judgment was modified to change the type and duration from transitional for 12 years to alimony in futuro for an indefinite period of time.

K.O.’s Comment: Long-time readers of this blog were not surprised by the outcome of this appeal after having read Lunn and Lubell.

Roby v. Roby (Tennessee Court of Appeals, Middle Section, August 1, 2017).

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

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

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

Mother lives in Tennessee. Father lives in Colorado.

In a child-custody dispute, the Tennessee trial court designated Mother as the primary residential parent and provided that Father could exercise parenting time with Child in Tennessee.

The trial court also established Father’s child-support obligation. Notably, the trial court found that while “fairness may require a downward deviation for Father’s travel expenses in the future,” no downward deviation is appropriate at this time.

Father appealed.

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

The purpose of the child-support guidelines is to ensure that children receive support reasonably consistent with their parents’ financial resources.

The child-support guidelines permit deviations from the presumptive amount of child support in limited circumstances. When deviating from the presumptive amount, primary consideration must be given to the best interest of the child.

One of the circumstances in which a deviation may occur is “if parenting time-related travel expenses are substantial due to the distance between the parents.” In such circumstances, the court may order the allocation of travel expenses by deviation, taking into consideration the circumstances of the parties as well as which parent moved and the reason the move was made.

The Court declined to reverse the trial court’s decision to disallow a downward deviation at this time:

In this case, the trial court acknowledged that there may be substantial travel expenses related to the exercise of parenting time on the part of the Father. However, the court determined that a downward deviation was not appropriate at the time based upon the relevant financial situation, employment obligation, and ease of travel or lack thereof for both parties. Significantly, the court properly took into consideration Father’s voluntary decision to live in Colorado. The trial court had the opportunity to hear and see the witnesses testify and, therefore, was in the best position to judge their credibility. Accordingly, we decline to second-guess the trial court’s determinations without sufficient proof. We find no abuse of the court’s discretion in its ruling on this issue.

Thus, the trial court’s refusal to reduce Father’s child-support obligation to account for his travel expenses was affirmed.

In re Conner F. (Tennessee Court of Appeals, Eastern Section, July 26, 2017).

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

Facts: Child was removed from the parents’ custody and determined to be dependent and neglected. Five months later, the Department of Children’s Services (DCS) petitioned to terminate Father’s parental rights. After a trial, the trial court entered a judgment terminating Father’s parental rights to Child.

Father filed a notice of appeal. Notably, Father did not personally sign the notice of appeal. Once alerted to the error, Father filed an amended notice of appeal containing his signature.

DCS argued that the Court of Appeals lacked subject-matter jurisdiction because of Father’s failure to sign the initial notice of appeal.

On Appeal: The Court of Appeals dismissed Father’s appeal.

As of July 21, 2016, Tennessee Code Annotated § 36-1-124(d) requires that “[a]ny notice of appeal filed in a termination of parental rights action shall be signed by the appellant.”

Rule 4A of the Tennessee Rules of Appellate Procedure requires that the notice of appeal be filed with the appellate court clerk “within 30 days after the date of entry from the judgment appealed from . . . .”

If the notice of appeal is untimely, the Court of Appeals lacks subject-matter jurisdiction over the appeal.

The Court agreed that Father’s failure to personally sign the notice of appeal within 30 days of the trial court’s judgment required that his appeal be dismissed as untimely:

In the action before us, Father did not sign his initial notice of appeal. The record reflects that the initial notice of appeal incorporated a form that had been completed and signed by Father’s attorney. Accordingly, we conclude that Father’s initial notice of appeal in this matter is deficient because it lacks the appellant’s signature. As such, the initial notice of appeal did not confer jurisdiction on this Court. We note that Father subsequently filed an amended notice of appeal . . . attempting to comply with Tennessee Code Annotated § 36-1-124(d). Father’s amended notice of appeal was filed . . . more than 30 days following entry of the trial court’s final judgment.

*     *     *     *     *

We have determined that the initial notice of appeal failed to invoke this Court’s jurisdiction due to its lack of compliance with Tennessee Code Annotated § 36-1-124(d). The final judgment was filed on February 13, 2017, and the amended notice of appeal was subsequently filed on April 7, 2017, well beyond the 30-day time limit following entry of the final judgment. Because a timely notice of appeal is mandatory and jurisdictional in all civil cases to confer jurisdiction on the appellate court, we therefore determined that an untimely filed amended notice of appeal in compliance with Tennessee Code Annotated § 36-1-124(d) is not sufficient to confer jurisdiction on this Court.

Accordingly, Father’s appeal was dismissed for lack of subject-matter jurisdiction.

K.O.’s Comment: (1) Tennessee family-law attorneys need to be aware of this procedural quirk that is unique to termination of parental rights cases. In another opinion issued shortly before this one, In re Gabrielle W., the Court describes the new statutory requirement as “unforgiving” and it notes that it fails to provide any “safety valve.” The Court says the failure of the appellant in a termination of parental rights case to personally sign the notice of appeal is a “jurisdictional default” requiring the dismissal of the appeal.

(2) If anyone can explain the rationale for requiring that appealing parties only in termination of parental rights cases personally sign the notice of appeal, instead of the lawyer signing it as is permitted in every other scenario, please do so in the comments below.

In re Catherine J. (Tennessee Court of Appeals, Western Section, July 24, 2017).

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

Posted by: koherston | August 4, 2017

Photo of the Week: Tranquil Stream in the Smokies

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

Facts: Mother and Father, the parents of Child, never married, and their relationship ended several months after Child was born.

Several years later, they entered an agreed parenting plan that allowed Father to have parenting time one weekend per month and for extended periods during school holidays. By then, Mother was married and living in Nashville, while Father was living in Michigan.

In 2015, Father petitioned to modify the parenting plan to designate him as the primary residential parent.

The proof showed Mother had recently separated from her husband and moved in with her mother. Mother was kicked out of her mother’s home after a physical altercation. In the most “Tennessee” statement I’ve seen in an appellate opinion in quite some time, the Court described the altercation:

[Mother] explained she had thrown a bowl of grits at her mother during an argument about money and the two ended up scuffling on the floor. She admitted that [Child] witnessed the fracas and, in fact, emerged from it with grits on his face.

At the close of Father’s proof, Mother moved that Father’s case be involuntarily dismissed because he had failed to prove a material change in circumstances. The trial court agreed, and Father’s petition was dismissed.

Father appealed.

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

Modifying a parenting plan requires a two-step analysis. First, the party petitioning to change the parenting plan must establish that a material change in circumstance has occurred. If the court determines that a material change has occurred, then it must determine whether the modification is in the child’s best interest. Thus, the threshold issue in every case in which a parent seeks to modify a parenting plan is whether a material change in circumstance has occurred since the parenting plan was adopted.

Because not all changed circumstances of parents and their children warrant a reconsideration of the child’s best interest, a change in circumstance generally must be “significant” before it will be considered material. Additionally, while there are no hard and fast rules for determining whether a material change in circumstance has occurred, courts may consider:

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

Upon review, the Court determined that Father had proven a material change in circumstances:

Mother and her husband separated . . . . Shortly thereafter, the ranch where Mother had been working and living for three years was sold by its owners. Having lost her husband, her job, and her home in a short period of time, Mother briefly moved in with her mother. That arrangement was short-lived, however, and Mother moved out following an altercation with her mother . . . . Compared to the apparent stability in Mother’s life when the initial permanent parenting plan was entered, it is not a stretch to say that the changes that occurred in Mother’s life in 2015 were significant. Faced with that evidence, however, the trial court found only that Mother “had a very difficult four-month period of time.” The problem with the trial court’s assessment, in our view, is that it infers a subsequent improvement in Mother’s stability that is not reflected in the record. While a fleeting period of hardship may not rise to the level of a material change in circumstance, it is difficult to make that determination without evidence that the period of hardship is, in fact, fleeting.

*     *     *     *     *

It is our view that Father met his initial burden of proving, by a preponderance of the evidence, a material change in circumstance for purposes of modifying the primary residential parent. Thus, the burden of proof shifted to Mother. While Mother’s evidence may demonstrate that the changed circumstances in her life were only temporary and do not warrant such a modification, the record before us does not contain evidence to support that conclusion. We therefore reverse the trial court’s dismissal of Father’s petition to modify the permanent parenting plan and remand this case to the trial court so that Mother may present her evidence.

Thus, the trial court’s judgment was reversed, and the case remanded for the trial to continue.

K.O.’s Comment: When I read about the “grits wrestling match” quoted above, I thought we may finally have our next World’s Most Awesome Judge. Alas, it was not to be. There were no other references to grits. Justice Kirby remains firmly entrenched as the holder of that crown for over four years running.

In re Jonathan S. Jr. (Tennessee Court of Appeals, Middle Section, July 24, 2017).

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

Facts: Husband and Wife divorced in 2006 after 13 years of marriage. At the time of divorce, Husband had served 14 years in the United States Army and held the rank of Captain. Their marital dissolution agreement provided:

The parties mutually acknowledge that they have been married during 13 years (156 months) of Husband’s active military service and that he now holds the rank of Captain. In the event Husband should retire from the military at a higher rank and thereby becomes eligible for retired military pay, the parties agree that Wife shall have 33% of Husband’s disposable retirement pay at the grade of Captain and that said amount shall be payable for a period of 13 years (156 months) regardless of whether Husband attains a higher rank than Captain.

In May 2015, Husband retired from the military at the rank of Major after 23 years of service.

In January 2016, Wife petitioned to hold Husband in civil contempt for his failure to pay her a portion of his retirement pay.

After hearing, the trial court found that, at the time of divorce, Husband’s right to receive military retirement pay was unvested and subject to forfeiture if he failed to reach the required 20 years of service. Using the retained jurisdiction method to calculate Wife’s award as 33% of Husband’s actual retirement pay at the rate of Captain and citing the 2015 military pay chart, the trial court found that Captains with 23 years of service were eligible to receive $3844 per month in disposable retirement pay at the time of Husband’s retirement. The trial court held that Wife was entitled to receive 33% of that amount, or $1281.33 per month, for a period of 156 months beginning in May 2015.

Husband appealed.

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

Husband argued the trial court erred in using the retained jurisdiction method to calculate the amount of Wife’s award. Thus, he argued that Wife should receive 33% of the benefit that he had accrued as a Captain with 14 years of service in 2006 instead of 33% of the benefit a Captain retiring with 23 years of service in 2015 would receive.

The primary goal in interpreting a marital dissolution agreement, as with any other contract, is to ascertain and give effect to the intent of the parties at the time the agreement was executed. To determine the intent of the parties, courts begin with the language of the agreement itself. If the language is clear and unambiguous, the agreement must be interpreted as written according to its plain terms. Courts must avoid rewriting the agreement under the guise of construing it because the parties are not entitled to a marital dissolution agreement that is different from the one they negotiated.

An employee spouse’s right to receive retirement benefits, both military and nonmilitary, may be “vested” or “unvested” at the time of the divorce. The employee has a vested right to retirement benefits when he or she has completed the requisite term of employment necessary to become entitled to receive retirement benefits when he or she elects to retire. That vested right matures when the employee has an unconventional right to immediate payment because he or she has reached retirement age and elected to retire. The employee’s right to retirement benefits is unvested when he or she has not yet completed the requisite term of service.

Tennessee courts use one of two methods in valuing and distributing retirement benefits: the present value method or the retained jurisdiction method.

The present value method requires the court to place a present cash value on the retirement benefit as of the date of divorce. The present cash value method is preferable when the amount of the employee spouse’s retirement benefits can be ascertained accurately at the time of divorce.

The retained jurisdiction method requires the court to retain jurisdiction over the matter and deferred distribution of the retirement benefits until they become payable. Rather than determine the value of the retirement benefits at the time of divorce, the trial court may express the marital property interests of each spouse as a fraction or percentage of the employee spouse’s future monthly benefit.

The retained jurisdiction method is usually appropriate when the employees right to the retirement benefits is unvested at the time of the divorce. That is the case because the value of an unvested retirement right may never be realized. Retaining jurisdiction over the matter and deferring distribution of retirement benefits until they become payable allows the trial court to equalize the risk of forfeiture between the parties and avoid requiring present payment for a benefit that may potentially never be obtained.

The Court found it appropriate to use the retained jurisdiction method to value the benefits. It also found the marital dissolution agreement to be unambiguous:

At the time of the parties’ divorce, Husband had completed 14 years of Army service. Enlisted members of the Army must complete at least 20 years of service before they may request to be retired with benefits. As such, at the time of the divorce, it was not yet clear that Husband would serve the number of years required to achieve retirement and receive retirement benefits. Because Husband could have forfeited his benefits prior to serving the requisite number of years, his interest in the retirement benefits could have potentially had zero actual value at the time of the divorce. As such, the trial court’s use of the retained jurisdiction method to value the benefits was appropriate in this case.

Moreover, the language used in . . . [the] marital dissolution agreement is clear and unambiguous. In pertinent part, it provides, “Wife shall have 33% of Husband’s disposable retirement pay at the grade of Captain . . . regardless of whether Husband attains a higher rank than Capt.” Thus, the only language that qualifies Wife’s right to receive 33% of Husband’s actual disposable retirement pay provides that her award should be based on Husband’s rank at the time of the divorce. There is nothing in the agreement to suggest that the amount of Wife’s award should be based in any way on Husband’s pay at the time of the divorce.

Thus, the trial court’s judgment was affirmed.

Foster v. Foster (Tennessee Court of Appeals, Middle Section, July 14, 2017).

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

Posted by: koherston | July 28, 2017

Photo of the Week: Smoky Mountain Buck

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

Posted by: koherston | July 26, 2017

Tips for Living Together Without Going Nuts

This article by Anna Goldfarb in The New York Times may be of interest.

Tips for Living Together Without Going Nuts

Moving in with your partner before getting married is a big step legally, financially, and emotionally. Here are some compelling cohabitation tips from the experts.

Legal and Financial Steps

Don’t combine finances in a permanent way.

Don’t co-sign for a credit card or a loan together. By law, you are not both liable just because you live together.

Be vulnerable and honest when talking about money. Agree to a financial plan. Enlist the help of a financial planner if necessary.

Reveal your student loan debt, credit card balances and other obligations. Create a plan to reduce these debts over time.

If you open a joint account, also maintain individual accounts. Rent or mortgage, property taxes, food, pets, utilities and emergency savings may be joint expenses. Boys’ or girls’ nights out or student loan debt may be separate. Joint expenses can be divided equally, or in proportion to income.

Informal agreements can backfire. Legal documentation is best.

If buying a house, consider how you will divide mortgage, property tax, maintenance, homeowner association fees and insurance payments. Decide how, and under what conditions, the house would be sold, and if one party would have the right to buy out the other. Come up with a backup plan should one partner be unable to keep up with payments.

Dividing Chores

Don’t assume you’re on the same page about what chores need to be done, how and how often, and who’s going to do them.

Consider whether you and your partner share the same standard of cleanliness.

Do chores together and put on music or a podcast. Tie something positive to a chore you might not be looking forward to.

Interior Design Tips

Scour sites like Chairish and the marketplace section of Apartment Therapy for local, gently used pieces, and browse flea markets for inexpensive finds.

Don’t underestimate the power of textiles, accessories and window treatments; they can bring a space to life.

Use smart storage solutions to help transform a home.

Pare down possessions. Try to make sure you’re not holding onto a ton of stuff that isn’t meaningful to you anymore.

The Emotional Side of Things

Look at the bigger picture: Do you think this person will be a good roommate?

Figure out who’s going to shop, cook, clean and pay the bills, while striving to keep it as fair and balanced as possible.

Talk respectfully, take responsibility for yourself and try not to raise your voice. Bring grievances up in a way that’s respectful. Do not blame or shame. When conflict arises, use “I” statements to address the disagreement.

Always try to put your best foot forward. If you’re going to be walking around in pajamas, at least try to make them cute pajamas.

Technology Tips

Make a series of agreements about how and when screen time is allowed.

Mealtimes and the bedroom should remain technology-free to give you and your partner an opportunity to connect.

Minimize “double screen” time. If you’re doing something with your partner, even if it’s something as mindless as watching TV, focus on that alone.

K.O.’s Comment: If you liked this, then you may want to read a related article also written by Ms. Goldfarb, “What I Wish I’d Known Before Moving in Together.”

Source: Tips for Living Together Without Going Nuts (New York Times, April 28, 2017).

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

Facts: Husband and Wife divorced after 20 years of marriage. Husband owned three small businesses.

In May 2015, husband and Wife filed with the trial court a written stipulation that they would hire Mr. Orndorff to value two of the businesses. They agreed to stipulate that whatever values Mr. Orndorff placed on the businesses would be accepted by them without objection. The stipulation also provided that Mr. Orndorff would be “allowed to retain the services of other experts if he finds it necessary to do so.”

A few weeks later, Mr. Orndorff sent an engagement letter to the parties that stated, “If it becomes necessary to engage other professionals (such as a forensic accountant), [I] will engage qualified professionals of [my] choice to provide such services.” Wife signed the engagement letter, but Husband did not.

Upon the request of Husband’s counsel, Mr. Orndorff prepared a second engagement letter that said Mr. Orndorff would only hire a forensic accountant if the parties agreed that it was necessary to do so. Husband signed the revised engagement letter, but Wife did not.

In early September 2015, the trial court resolved the dispute by ordering Wife to sign Mr. Orndorff’s revised engagement letter, i.e., the one that said he can only hire a forensic accountant if the parties agreed.

The order reflecting this ruling was entered on October 14, 2015, and Wife signed the revised engagement letter that day. Mr. Orndorff did not complete valuations of the businesses, however, before trial began five days later.

When the trial began, Wife requested a continuance to allow Mr. Orndorff more time to complete his valuations. The trial court denied Wife’s request, and the trial began.

In the pretrial filings required by the local rules, Husband listed the value of the two businesses while Wife did not.

After a trial, Husband was awarded the two businesses.

Wife appealed.

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

Stipulation. A stipulation is an agreement between attorneys regarding an issue before the court that is entered into mutually and voluntarily by the parties. A valid stipulation is binding on the parties and will be rigidly enforced by the courts like any other agreement. In determining whether a stipulation is valid, courts should consider

  • whether the parties had competent representation of counsel,
  • whether extensive and detailed negotiations occurred,
  • whether the parties agreed to the stipulation in open court, and
  • whether the parties acknowledge their understanding of the terms and that the terms are fair and equitable when questioned by the judge.

The Court of Appeals ruled the trial court erred by modifying the parties’ stipulation:

Here, the foregoing factors weigh in favor of the stipulation agreement’s enforcement as written. Both parties were represented by counsel when they entered into the agreement. The parties entered into the agreement at mediation. The terms of the agreement are detailed and carefully constructed. The agreement was reduced to writing and signed by the attorneys for both parties. Finally, the agreement was filed with the trial court and appears in the record in the case. While the record on appeal does not reflect that the trial judge posed questions to the litigants about the terms of the agreement, neither party has argued that they did not understand its terms or that its terms are unfair. As such, we conclude that the stipulation agreement was valid and enforceable, and the trial court erred in modifying it.

Continuance. Trial courts have broad discretion over whether to grant or deny a request for a continuance. The party seeking the continuance has the burden of demonstrating that the circumstances justify it. To meet that burden, the moving party must supply some strong excuse for postponing the trial date. Factors relevant to the trial court’s decision include

  • the length of time the case has been pending,
  • the reason for the continuance,
  • the diligence of the party seeking the continuance, and
  • the prejudice to the requesting party at the continuance is not granted.

The Court found that all of these factors weighed in favor of a continuance such that the trial court’s decision was unreasonable and caused an injustice to Wife. The Court concluded the trial court abused its discretion when it denied Wife’s request for a continuance.

Thus, the trial court’s rulings as to property division and valuation were vacated and the case remanded for further proceedings.

Watts v. Watts (Tennessee Court of Appeals, Western Section, July 11, 2017).

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

Posted by: koherston | July 21, 2017

Photo of the Week: Smoky Mountain Cub

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

Facts: Mother gave birth to Child in 1996. No father was listed on the birth certificate.

When Child was 17 years old, the State petitioned to establish paternity and require the father to provide health insurance for Child. DNA testing confirmed Father’s paternity a few months before Child’s 18th birthday. An order was entered, but it reserved the issue of child support.

Several months later, a hearing was held on Mother’s request to establish child support. The trial court determined that if the child-support award were made retroactive to Child’s birth, it would total over $132,000 without interest.

The trial court determined that the evidence supported a deviation from the child-support guidelines such that the award should not be made retroactive to Child’s birth, explaining:

Father had no knowledge of his parentage until [the] proceedings began and Mother, for reasons of her own, made a conscious effort to keep the child to herself. Ultimately, Mother chose not to take any steps to establish a legal relationship between the child and the father and specifically went out of her way to avoid establishing parentage. She testified that she had never indicated on any documents, including the child’s original birth certificate, that [Father] was the child’s father. She testified that she essentially maintained silence about [Father’s] parentage because she did not want to “rock the boat” in that she did not want Father to have contact or visitation with the child and that she did not want [Child] at Father’s home or involved in Father’s lifestyle. She testified that she did these things because she feared Father and what he might do to her and the child but she finally needed support enough to “list his name.” Because of Mother’s conduct[,] Father did not have the opportunity to bond with the child or establish a relationship with him. Additionally, the child’s own testimony indicates his own unwillingness to have contact or [a] relationship with his father because Father is perceived as being “the Bad Guy.” Mother has purposefully acted in a manner to prevent the formation of a father-son relationship. It would, therefore, be inequitable for the Court to reward her for such conduct.

Instead of making child support retroactive to Child’s birth in 18 years earlier, the trial court deviated from the child-support guidelines and only made the award retroactive to the date the petition to establish paternity was filed. Because of this, Father’s retroactive child-support obligation is a little over $7000 instead of over $132,000.

Mother appealed.

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

Once paternity is established, Tennessee law requires the court to establish child support. The child-support guidelines presume that child support should be awarded retroactively to the date of the child’s birth. Courts may, however, consider the following factors as a basis for deviating from the guidelines:

  • the extent to which the father did not know, and could not have known, the existence of the child, the birth of the child, his possible parentage of the child, or the location of the child;
  • the extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father’s possible parentage of the child, or the location of the child; and
  • the attempts, if any, by the child’s mother or caretaker to notify the father of the mother’s pregnancy, or the existence of the child, the father’s possible parentage, or the location of the child.

When the presumption of a retroactive child-support award back to the date of the child’s birth is rebutted by clear and convincing evidence, the court must deviate from the child-support guidelines to reduce, in whole or in part, retroactive child support.

Tennessee law does not permit this deviation where there is clear and convincing evidence that:

  • the father has a demonstrated history of violence or domestic violence toward the mother, the child’s caretaker, or the child;
  • the child is the product of rape or incest of the mother by the father of the child;
  • the mother or caretaker of the child, or the child has a reasonable apprehension of harm from the father or those acting on his behalf toward the mother, the child’s caretaker, or the child; or
  • the father, or those acting on his behalf, have abused or neglected the child.

The Court agreed this is an appropriate case for a deviation from the child-support guidelines:

Mother does not cite evidence and, in our review of the record, we discern no proof that preponderates against the finding that Father did not know of his son prior to the paternity test in 2013.

*     *     *     *     *

[Regarding domestic violence,] Mother states in her brief that Father “had been convicted of domestic assault against [her]”; the record, however, does not contain evidence of a conviction.

*     *     *     *     *

The court examined the evidence and concluded that there was not clear and convincing evidence of domestic violence so as to preclude the deviation in child support. We have reviewed the record, including the statement of evidence, and have found no proof that clearly and convincingly establishes a demonstrated history of violence or domestic abuse of Father toward Mother or the child or that Mother or the child has a reasonable apprehension of harm from Father. The holding that deviation from the guidelines was appropriate is supported by the evidence and not contrary to law.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: As of July 1, 2017, Tennessee now imposes an five-year limit on retroactive child-support awards unless the trial court finds “good cause” to exceed the limit. This five-year limit only applies to lawsuits filed after July 1, so it wouldn’t have affected this case.

Carr v. Sutton (Tennessee Court of Appeals, Middle Section, June 26, 2017).

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

Facts: Shortly after the parties’ divorce, Father was designated the primary residential parent of Child and Mother received 125 days of parenting time.

Two years later, Father petitioned to modify the schedule to reduce Mother’s parenting time to 80 days. He alleged that Mother was failing to exercise her parenting time as ordered.

Mother admitted she did not exercise all of her parenting time in the past, but complained that Father scheduled activities during her parenting time. She also chose not to enforce her parenting time on occasions when Child did not want to visit with her.

After three years of what the Court describes as “extensive and acrimonious litigation,” the case was finally tried.

Father testified that Mother had been exercising 125 days of parenting time for a little over a year, and he believed 125 days was appropriate.

Child, who was 17 years old at the time of the hearing, expressed a preference for minimal parenting time with Mother.

The trial court modified the parenting schedule to give Mother 90 days of parenting time. The trial court also awarded Father his attorney’s fees in the amount of $32,000.

Mother appealed.

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

Mother argued the trial court abused its discretion in reducing her parenting time to 90 days when even Father agreed she should receive 125 days.

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the arrangement must prove that a material change in circumstances has occurred. If a material change in circumstances has occurred, the trial court must then determine whether a modification is in the child’s best interest.

The determination of whether a material change in circumstance occurred requires a different standard depending on whether a parent is seeking to modify custody, i.e., change the primary residential parent designation, or modify the parenting schedule. A lower threshold is required for modification of a parenting schedule.

First, the Court affirmed the trial court’s finding that a material change of circumstances sufficient to change the parenting schedule had occurred. Specifically, the record confirms that Mother’s attempts to exercise her parenting time were thwarted by either Father’s scheduling of activities or Child’s desire not to visit with Mother.

The Court affirmed the reduction of Mother’s parenting time from 125 days to 90 days:

The order in this case contains sufficient findings as to the reason and the fact that constitute the basis for the custody determination. The order also reflects the court’s performance of the appropriate two-step analysis. Here, the court crafted a plan that adequately represented the Child’s best interest, while also ensuring that Mother was given specific inconsistent co-parenting time before [] Child reached the age of majority. With these consideration in mind and recognizing the court’s broad discretion, we hold that the record supports the court’s modifications.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) The entirety of the Court’s analysis of the change in parenting time is contained in the block quote above. It would be more helpful to lawyers and litigants if the Court had explained its reasoning instead of providing only conclusory statements.

(2) Here, the trial court awarded Mother less parenting time than what even Father requested. Compare this with McDaniel v. McDaniel, where the trial court abused its discretion by awarding the mother 39 days less than what even the father proposed.

Kennedy v. Kennedy (Tennessee Court of Appeals, Middle Section, June 23, 2017).

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

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