Tennessee Divorce Attorney Blog

Each Violation of A Tennessee Order of Protection Equals A Separate Count of Contempt

Fri, 11 May 2012 14:51:53 -0500

The Tennessee Court of Appeals recently held that a husband had engaged in separate counts of contempt for every week that he violated his order of protection by not paying his weekly child support. This totaled 69 violations, leading the husband to be found in contempt. The only reason that he was not found to be in criminal contempt was because the trial court failed to give the husband proper notice. This case shows Tennessee Order of Protection Attorneys that each violation may subject their clients to additional jail time.

In Sosebee v. Sosebee, No. E2011-00682-COA-R3-CV (Tenn. Ct. App. May 4, 2012), the trial court entered an Agreed No Contact Order of Protection against the husband. The order of protection also required the husband pay the wife $25.00 a week in child support for their minor child. After failing to pay the weekly child support, the wife filed a petition against the husband for violating the order of protection. The trial court held that the husband had committed 69 violations of the order of protection for each week that he failed to pay and was therefore found to be in criminal contempt. Husband was then sentenced to 690 days in prison (10 days per violation).

On appeal, the husband first argued that he did not receive the proper notice required before he could be found in criminal contempt. Under Tenn. R. Crim. P. 42, a judge maygive notice of criminal contempt to a defendant orally in open court. The appellate court agreed with the husband that proper notice was not given here because the husband only received notice in a prior, separate, unrelated proceeding that violating the order of protection would subject him to criminal contempt. Wife's current petition did not pray for criminal contempt- only for civil contempt. Therefore, Husband was given no notice that this particular contempt proceeding could subject him to criminal contempt. Accordingly, husband should not have been found in criminal contempt and that ruling is modified to a finding of civil contempt.

Next, husband argued that his failure to pay child support should only be considered as one and not multiple violations. Because the husband was ordered to pay $25.00 per week in child support, each and every week that the husband failed to pay constituted its own separate violation of the order of protection. The appellate court noted that if it accepted the husband's argument, it "would be nothing short of absurd, forcing a payee parent to file a separate action for each missed payment or risk giving the violating payor parent a huge and unwarranted advantage with regard to potential punishment for contempt."

Imputation of Income to Determine Child Support in Tennessee Requires Specific Finding

Wed, 09 May 2012 09:48:46 -0500

Goodman v. Goodman, No. W2011-07971-COA-R3-CV (Tenn. Ct. App. May 7, 2012), shows Tennessee Divorce attorneys that without a specific finding of fact regarding willful under-or-un-employment, imputation of income to determine child support is not appropriate.

The parties had four children during their 15 year marriage. As part of the divorce process that began in 2008, the parties entered a consent order on temporary support based on Father's projected income. Later in 2008, Father was fired and returned to a previous employer at reduced pay, impairing his ability to pay child support. Mother filed three scire facieses between 2008 and 2010, resulting in an arrearage award and attorney's fees. Subsequently, Father was imprisoned for nonpayment and as a result was terminated by his employer. In order to maintain insurance on his children, Father took a position at a coffee shop resulting in a significant reduction in pay. Father asserted he was unable to make child support payments and in 2011 a trial was held to deal with the issue. Father testified about his income and submitted his 2008-2010 tax returns. The trial court found that Father's earning capacity was 50k and awarded arrearages based upon that figure as well as attorney's fees.

The appeal addressed three primary issues: whether trial court (1) erred in finding the Father's earning capacity at 50k; (2) erred in awarding Mother arrearages based on 50k; and (3) erred in awarding attorney's fees.

At the time of trial, Father was earning $19,000 per year and could potentially make $42,000 if he was promoted to manager. However, the trial court set his income at $50,000, an imputed amount. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i) provides that imputation of income is appropriate if a court has found specifically that the obligor is voluntarily unemployed or underemployed. In this case, the trial curt's final order made no finding that the Father was either unemployed or voluntarily underemployed. Although Mother argues this finding may be implied from the final order, the Appellate Court determined that the trial court made no finding that Father's choice to leave his former industry of real estate and work at Starbucks was voluntary or reasonable. Accordingly, without such a finding, no imputation of income may be made. Therefore, the issue was remanded to the trial court to calculate child support based on Father's actual earned income and not a projected amount.

Regarding the appeal of the arrearage finding, the Court of Appeals held that because Father had failed to properly file the record of proceeding that occurred during the Referee's determination of such arrearage, the issue could not be addressed on appeal. When no record of the lower court's proceedings are present, the trial court's decision must be affirmed. Therefore, the arrearage determination of $32,225.00 stands. On the issue of Mother's award of attorneys fees, T.C.A. §36-5-103(c) allows a court to award fees in support and custody cases. Here, because the trial court's judgment of current support to by paid by Father was reversed, the award of fees to Mother is vacated and remanded to be re-determined along with the new support amount by the trial court.

Child Support Stops Accruing in Tennessee When Parties Resume Living Together

Tue, 08 May 2012 08:50:03 -0500

The Tennessee Court of Appeals recently held that retroactive child would not be granted during periods when former spouses resumed living together after a divorce. Tennessee divorce attorneys may use this case to argue that child support stops accruing when parties are physically living together even if legally separated or divorced.

In Estes v. Estes, No. M2010-01243-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2012), the parties were married for six years with two children. Wife was given custody of the children and the Husband was ordered to make child support payments. The Wife and children eventually moved back in with Husband. During the four years that they lived together, Husband and Wife opened a joint checking account together. Even though the Wife eventually opened her own account while they were still living together, she still had full access to the joint account. During this time a third child was also born.

In 2006 the parties permanently separated. Wife sought to have Husband pay retroactive child support for all three children and have him pay for the children's medical expenses during the four years they resumed living together post-divorce. The Husband objected to these claims, arguing that during the time that they lived together Wife had full access to their joint checking account. The trial court disagreed, holding that Husband had to pay $32,886 in retroactive child support for the two original children. But because the court refused to have Husband pay for Wife's attorneys fees as well retroactive child support for their third child, Wife appealed to the Tennessee Court of Appeals.

The Tennessee Court of Appeals held that Husband had satisfied the child support order during the period of physical reconciliation, June 2002 through August 2006, and to award Mother child support during those months was in error. This was because during the years that they lived together, Wife had full access to the joint bank account where Husband deposited all of his earnings. Looking to T.C.A. § 36-5-101(f)(1)(2010), the Appellate Court concluded that the purpose of child support is to fulfill the non-custodial parent's obligation to contribute to the child's support. Because the Wife had full access to that account, the Husband met his child support obligation from 2002 through 2006. And while the Wife paid for the children's insurance while they lived together, the Court concluded that she could have easily written herself a check from the joint account to pay for the insurance premiums that were taken out of her paycheck.

In reversing the trial court's order to have the Husband pay retroactive child support for the third child, the court looked to T.C.A. § 36-2-311(a)(11)(A). Because there was no evidence showing that the Husband did not provide for the third child while they were living together, the Appellate Court affirmed the trial court's decision in this matter. As the Appellate Court stated, "The statute and child support guidelines addressing retroactive child support apply in situations where the Father has not provided support for the child, which [was] not the case" here.

Tennessee Preference for Rehabilitative Alimony Highlighted in Recent Appellate Case

Thu, 03 May 2012 10:56:00 -0500

The amount and extent to which alimony will be granted in a divorce will depend upon a variety of factors. For example, in Mays v. Mays, No. M2010-02479-COA-R3-CV (Tenn. Ct. App. April 23, 2012), the Tennessee Court of Appeals explained for Tennessee Divorce Attorneys what factors might be relevant in determining whether a spouse should receive alimony in futuro rather than rehabilitative or transitional alimony.
Husband and Wife were married for twelve years with one minor child before they divorced. During the divorce proceedings, the trial court ruled that the Husband had to pay $225 per week in child support, $17,727.30 as alimony in solido (in whole) and $225 per week as alimony in futuro (in the future). The husband appealed the trial court's decision, claiming that the trial court erred when it held that needed to pay alimony in futuro to his ex-wife.

Under T.C.A. § 36-5-121(f)(1), alimony in futuro is granted when there is a "relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve ... an earning capacity that will permit the spouse's standard of living after the divorce to be reasonably comparable ... to the post divorce standard of living expected to be available to the other spouse." While trial courts have broad discretion to determine the nature, amount, and duration of spousal support, under T.C.A. § 36-5-121(i), that determination requires a balancing of factors based on the facts and circumstances of each case. Two of the most important factors are the obligor's ability to pay and the disadvantaged spouse's need.

In this particular case, the Appellate Court held that alimony in futuro was improper. During the divorce proceedings, the Wife testified on the stand that she desired to go back to school to pursue a career as a dental hygienist. Wife's education history, prior employment, age and desire to further her education showed that the trial court's ruling that she could not be rehabilitated was in error. In light of the statutory preference in Tennessee for rehabilitative alimony, the Appellate Court vacated the award of in futuro support. However, because Wife's need and Husband's ability to pay were clearly present, the issue was remanded to the trial court or reconsideration of the type, amount and duration of the alimony award. Additional direction was given by the Appellate Court to the trial court to consider the Wife's educational objectives and to award alimony accordingly. The appellate decision also gave the trial court the option of concurrently awarding some alimony in futuro only if the trial court finds Wife can only be partially rehabilitated.

When to Use Civil Versus Criminal Contempt

Fri, 27 Apr 2012 16:40:08 -0500

In Jarrell v. Jarrell, No. W2011-00578-COA-R3-CV (Tenn. App. Ct., March 28, 2012), the Tennessee Court of Appeals ("CoA") reversed the decision holding the Mother in civil contempt and awarding attorney's fees. Also, the CoA reversed the dismissal of the criminal contempt charge against Mother. This case highlights for Tennessee divorce attorneys how to utilize civil versus criminal contempt.

The parties married in 2003 and had two children. In 2009, Mother filed for divorce and in 2010 a Final Decree, Marital Dissolution Agreement and PPP (Permanent Parenting Plan) were entered. In the PPP, the major decisions concerning religious upbringing were to be made jointly and if a disagreement arose, the parties agreed to have the dispute settled by a mediator. Father and Mother attended a Methodist church and Mother felt the children should be baptized at an early age while Father did not. Following the divorce, Mother began attending a new church which required infant baptism. In 2010, Mother had the children baptized without Father's knowledge or consent. Father filed a Petition for Contempt and the trial court held the Mother in civil contempt but dismissed the criminal contempt charge. The trial court further awarded attorney's fees to Father.

Father argued on appeal that the trial court erred in dismissing the criminal contempt petition against Mother. Mother argued that the trial court erred in finding her in civil contempt and in awarding attorney's fees to Father.
Mother argued the trial court lacked authority to hold her in civil contempt because her actions did not substantially harm the children. The CoA dismissed this argument and stated the trial court was only asked to determine whether Mother's conduct violated the terms of the PPP.

T.C.A. §29-9-102(3) authorizes a court to exercise its contempt powers for willful disobedience of a court order and it may be civil or criminal. Criminal contempt is intended to punish the wrongdoer and the contempt cannot be purged by compliance with the court order. Civil contempt is used when a person fails to comply with a court order and is designed to bring the party into compliance. Mother, on appeal, claims the trial court's finding of civil contempt against her is erroneous because her single act cannot be cured and the PPP did not specifically forbid her action. The CoA disagreed that the PPP was ambiguous charge but found the trial court was attempting to punish her for her actions rather than compel her compliance. Therefore, the CoA found the trial court's civil contempt holding in error and reversed (also reversing the award of attorney's fees).

Regarding the dismissal of the criminal contempt charges, the guidelines for contempt proceedings must comply with Tenn. R. Crim. P. 42(b). A defendant must be given notice that they are charged with criminal contempt, notice of time and place of hearing, notice of essential facts, and allowed a reasonable time to prepare. Father's petition to the Mother and its accompanying fiat meets the criteria laid out Tenn. R. Crim. P. 42(b). The CoA found that the trial court erred and should not have dismissed the criminal contempt petition for lack of notice and remanded the case so the trial court may hear the petition.

Recent Case Disallowed Parent from Relocating Children to Maryland

Wed, 25 Apr 2012 14:44:44 -0500

The Tennessee Court of Appeals has recently laid out in Brown v. Brown, No. E2011-00421-COA-R3-CV (Tn. Ct. App. April 13, 2012) what it means when there has been a "material change of circumstances" to justify not only a change in custody, but also whether it is in a child's best interest to relocate with a primary residential parent. This case shows Tennessee divorce attorneys when a relocating parent may not be able to move with the minor children.

The husband and wife were married for sixteen years with three children before the husband filed for divorce. The parties entered into a Marriage Dissolution Agreement ("MDA") and a parenting plan, making the wife the primary residential parent. Three months after the divorce, the wife requested that the court modify their parenting plan so that the children could move with her to Maryland where her fiancé lived. The court denied the wife's request to take the children with her to Maryland, finding that it was in the best interest of the children to stay with the father in Tennessee. Because the move was considered a material change in circumstances, the court also modified the original parenting plan by making the father the primary residential parent. The wife then appealed to the Tennessee Court of Appeals in Knoxville.

In order for a court to modify a parenting plan, a court must go through a two-step process under T.C.A. § 36-6-101(a)(2)(B)-(C). First, the parent wanting to modify the plan must prove a material change in circumstances has occurred. To determine whether there is a change in circumstance, the court then determines whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way. It is important to note that a court uses a lower standard when determining whether there has been a "material change of circumstances" to modify custody than if it is determining the primary residential parent. In this case relocation to Maryland was enough to be considered a material change in circumstances.

If the court concludes that there has been a material change in circumstances, the court then determines whether the change in custody or visitation is in the child's best interest by using a list of factors found in T.C.A. § 36-6-106(a). When a primary residential parent wishes to relocate with their children, a court looks to T.C.A. 36-6-108(c) to determine whether the relocation is in the child's best interest. Because the children had already lived their entire lives in Tennessee, had a stable support system of relatives in Tennessee, no ties in Maryland, and even expressed a desire to stay in Tennessee, the appellate court found that the trial court did not err in holding that staying in Tennessee was in the children's best interest and therefore changed the primary parent to Father, the party remaining in Tennessee.

Trial Courts Must Hold Hearing Before Denying Petition for Visitation

Mon, 23 Apr 2012 10:04:20 -0500

In Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV (Tenn. Ct. App. , the issue before the Court of Appeals ("CoA") was whether the trial court erred in dismissing Father's petition to restore his right to exercise visitation with his children without an evidentiary hearing. The CoA vacated the trial court's ruling and remanded for a evidentiary hearing.

Mother and Father had two children during the marriage. In 2005, Mother filed a legal separation, which later was amended to a divorce. Both parties sought restraining orders against each other and visitation schedules. A hearing was held, which resulted in an order for child support and a temporary visitation schedule; basic rules for communications between Mother and Father were also set up. In February 2006, the final hearing for divorce was conducted.

Between February and March 2006, Mother filed a petition against Father for contempt, for a restraining order and a show cause order. Mother alleged Father had intimidated the children and threatened to punish them if they told anyone. Also, Mother felt it was in the best interest of the children to suspend visitation from Father. The trial court enjoined Father from taking the children from the Mother's custody. In February 2006, the parties entered into an Agreed Order suspending Father's visitation and communications with the children; Father stipulated his visitation would resume only upon the children's counselor's recommendation. This order entered by the court did not include a Permanent Parenting Plan ("PPP") which is mandated by T.C.A. §36-6-404. In the follow-up hearing in May of 2006, the PPP adopted gave Father standard visitation--every other weekend--but was subject to the therapist's recommendation.

In September 2006, Mother filed to terminate Father's visitation. In April 2007, Mother filed a petition for criminal contempt against Father who had fallen behind on child support. In 2009, Father filed a petition for contempt and sought to modify custody and support. In June 2010, the court appointed a GAL who filed a report with the court. The GAL recommended the Father undergo psychological evaluation. The Father's March 2009 petition was heard in court the same day the GAL filed her report. The court dismissed the part of Father's petition relating to visitation without hearing any testimony.

According to T.C.A §36-6-404(a), any final decree in an action for absolute divorce involving a minor child must incorporate a PPP. According to T.C.A §36-6-406(a), a court can limit parenting time based on a prior order or reliable evidence the parent engaged in certain conduct. T.C.A §36-6-406(d), lists factors that can limit visitation. Accordingly, under T.C.A §36-4-406(d), a court may stop visitation only after a hearing is held to establish those factors. Here, no evidentiary hearing was held prior to suspending Father's visitation. Therefore, the Agreed Order of February 2006 cannot be used by the trial court to deny Father's petition for visitation.

This case shows Tennessee divorce attorneys that although a court is granted wide latitude in dealing with visitation, the factors listed in the statute must be considered and an evidentiary hearing held absent an agreement of the parties.

Paternity Judgment from Texas Upheld in Tennessee

Thu, 19 Apr 2012 10:20:51 -0500

The case of In Re: Ayden K.M., No. E2010-01884- COA-R9-JV (Tenn. Ct. App. April 17, 2012), shows Tennessee custody and paternity attorneys that enforcement of foreign judgments may be difficult to contest.

Child was born to Petitioner in Texas in 2006, where Respondent signed a Acknowledgment of Paternity ("AOP"). Shortly after the birth, Child moved with Respondent to Tennessee, where they remained. In 2007, Petitioner filed in Tennessee to contest paternity and to obtain custody. The Juvenile Court ruled Petitioner did not have standing to dispute paternity due to the AOP having been signed under oath. Petitioner then filed in Texas where the AOP originated, and the Texas Court set aside the AOP and declared that the Respondent was not the Father. Respondent filed a writ of mandamus with the Court of Appeals in Texas arguing lack of subject matter jurisdiction. This failed and the Texas Court ruled jurisdiction was found in Texas.
Petitioner then attempted to enforce the Texas judgment declaring Respondent not to be the Father in Juvenile Court in Tennessee, but that court declined to give the Texas judgment full faith and credit because Texas lacked personal jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJEA) needed to rule on Respondent's paternity. Petitioner was allowed to file an interlocutory appeal.

Normally, foreign judgments are entitled to enforcement in Tennessee courts. However, T.C.A. §26-6-104(c) says that foreign judgments may be vacated or reopened under Tenn. R. Civ. P. 60.02. Under that rule, judgments may be set aside if they are void, which can be caused by a lack of personal or subject matter jurisdiction or when the judgment is contrary to Tennessee's public policy.
Here, Respondent argues that Texas lacked jurisdiction over Petitioner's AOP challenge and that enforcing the Texas judgment would violate Tennessee's public policy favoring children having two parents. Petitioner argues the Tennessee Juvenile Court erred in declining to enforce the Texas judgment revoking Respondent's paternity. Respondent carries the burden here, as does any party seeking to stop the enforcement of a foreign judgment.

The Tennessee Appellate Court here agreed with the Texas Appellate Court, who explained that the UCCJEA is not applicable here (which would have given Tennessee jurisdiction). Instead, the action was brought solely on the issue of paternity, which falls under the Uniform Parentage Act and Texas Family Code Ch. 160. This is because the UCCJEA applies to paternity actions only when they are part of a proceeding concerning custody or visitation. Here, the Texas action by Petitioner only requested to set aside the paternity and did not therefore address custody or visitation. Further, when Tennessee entered a temporary order, it specifically noted that Tennessee refused to exercise jurisdiction over the paternity part of the matter, deferring that to Texas, and stating Tennessee would only hear the custody issues. Both Texas courts and Tennessee courts agreed that the AOP could only be set aside by a Texas Court. Therefore, that set aside could not be ignored by the Tennessee court and the Tennessee Juvenile Court Order declining enforcement of that set aside was reversed.

Child Custody Attorneys Must Raise All Issues at Trial to Preserve Appeal

Mon, 16 Apr 2012 14:22:33 -0500

Dillard v. Blanks, No. M2010-00901-COA-R3-JV (Tenn. Ct. App. September 20, 2011), reminds Tennessee child custody attorneys to raise all arguments at the trial court level so that they are not barred from making those arguments on appeal. Here, Child was born to unmarried Mother and Father in 2008. In 2009, the State filed a Petition to Set Support on behalf of the Mother. Father filed a motion seeking temporary custody of the Child and asked to be named primary residential parent "PRP."

In August 2009, parents reached an agreement on some but not all issues, so a Temporary Agreed Order was entered. Father was named biological father and Mother named PRP.

The court held an evidentiary hearing where Father stated he had been at his current job for over ten years and owned his own home; Mother stated she lived in five different locations since their 2008 breakup and currently lived with her family. Also, Mother stated she was enrolling in nursing school. Mother denied keeping Father from having visitation but admitted removing the paternal grandmother from the pickup list. In March 2010, Father was named PRP and Mother granted visitation. Mother appealed.
Mother contended the following: (1) the court erred in not finding that Father's PRP claim barred under res judicata; (2) the court erred in finding a material change in the minor child's circumstances justifying a change of PRP; (3) the court erred in changing the PRP without conducting a comparative fitness analysis of the child's best interests; and (4) requested attorneys fees.

The Court of Appeals affirmed the trial court's decisions. First, Mother contended Father's claims were barred under the res judicata principle of issue preclusion. The Court of Appeals stated the Temporary Agreed Order was not a final order upon which res judicata would apply. The trial court's order did not constitute a final appealable order because a final order must leave nothing for the trial court to determine. Therefore, the Temporary Agreed Order was interlocutory. Further, Mother failed to argue this issue at the August 22, 2010 hearing and therefore waived the issue on appeal.

Second, Mother lost PRP status and argued that a material change had not occurred. The Court of Appeals found this issue without merit because a final determination had not been made regarding the designation of the PRP; therefore, Father did not have to establish a material change of circumstance to modify the Temporary Agreed Order. A material change of circumstances need only be proved when modifying a final judgment.

Finally, both parties believed they should be awarded their attorney's fees. There is no absolute right to fees and the trial court is allotted broad discretion. The Court of Appeals stated it must uphold the trial court's ruling on trial fees because "as long as reasonable minds could disagree", the Court cannot overturn the trial court's decision about fee awards. Regarding attorney's fees on appeal, the Court of Appeals awards Father his attorney's fee because of his good faith and the Mother's claims having lacked in merit.

Violation of Parenting Plan May Lead to Change of Custody in Tennessee

Tue, 10 Apr 2012 15:14:27 -0500

The case of Reed v. Reed, No. M2011-00980-COA-R3-CV (Tenn. March 30, 2012) shows Tennessee divorce and custody attorneys how to use one parent's failure to adhere to a parenting plan or court order to win a modification petition.

Mother and Father divorced in 2010, with Mother named as primary residential parent "PRP." However, Mother was enjoined from allowing her paramour to have contact with the children, and both parties could not allow unrelated, overnights guests in the home when the children were present. Later in 2010, Father filed a contempt action and requested that the parenting plan be changed, based upon Mother having allowed the paramour to live with her and the children. Father then filed an emergency motion for custody, granted by the court based upon Mother's dishonesty and failure to abide by the order pertaining to the paramour. A hearing was held and the court found a material change of circumstances existed and it was in the best interest of the children for Father to be named PRP based upon: flagrant violation of the order by Mother, and her "spending a lot of energy hiding [the paramour]."

Here, Father's burden was to show a substantial and material change of circumstances to get the PRP changed. T.C.A. §36-6-101(a)(2)(B) declares the following:
"A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child."

Here, the evidence established that Mother clearly violated the order, based on the court's finding that Mother's denial of the same was not credible. A private investigator testified that she witnessed the paramour at Mother's residence, saw his car parked outside late at night and early in the morning and saw him with one of the children in his car outside of Mother's presence. The investigator also submitted photographic evidence of this as well as a certified copy of the paramour's license plate matching the photographs. The paramour also apparently listed Mother's address as his home address on his driver's license.

The Appellate Court noted that Father did not have to prove that this change was a substantial risk of harm to the children under T.C.A. §36-6-101(a)(2)(B) to meet the material change standard, and affirmed the trial court's decision.
Next, the Appellate Court reviewed the best interests determination that follows all material change findings. Mother argued that the court failed to make the required finding. The Appellate Court found that the trial court "made little more than a generic best interest conclusory finding; it did not articulate any findings regarding the statutory factors other than to generally address Mother's violations..." The Appellate Court, under the best interests factors, found the following: Mother failed to take the children to scheduled dental visits; Mother made the children late for school on two occasions; Father had been the primary caregiver since named PRP; and Mother's refusal to allow the trial court to meet or question in person the paramour (noting that T.C.A. §36-6-106(a)(9) allows the court to consider the character and behavior of any other person who resides in or frequents the home of the parent). Therefore, the Appellate Court found that the children's best interest affirm the trial court's designation of the Father as PRP.

Trial Courts Given Broad Discretion in Tennessee Divorces

Mon, 02 Apr 2012 09:55:04 -0500

In Chavez v. Chavez, No. M2010-02123-COA-R3-CV, the Husband and Wife filed for divorce in 2008 in Montgomery County. Each alleged irreconcilable differences and inappropriate marital conduct; later, both complaints were amended to include adultery. A divorce was granted in 2010 based on Husband's "developing and fostering a relationship with another woman" and Wife's "engaging in alcohol and drug abuse." Wife was designated primary residential parent. The home was ordered sold with profits going to the Wife, each party was awarded their separate retirement accounts and marital property and debt was divided. The Husband was ordered to pay transitional alimony in the amount of $1,800.00 for four years and alimony in solido of $90,000.00 over six years. Also, Husband was ordered to pay child support in the amount of $1653.00 monthly. Husband appealed.

The Tennessee Court of Appeals affirmed the lower court's ruling concerning the primary parent designation and the alimony. This decision shows Tennessee Divorce attorneys that trial courts have a broad discretion in matters concerning child custody, visitation, and alimony.

The Tennessee Court of Appeals found that the lower court here did not abuse its discretion. In its review, the Court of Appeals applied the abuse of discretion standard, stated as "An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice."

In reviewing the primary residential parent designation, the trial court considered many factors. Those factors are located in T.C.A. § 36-6-106. After the court's analysis of these factors, the parents were found to fairly equal; however, the trial court awarded Wife primary parent status due to the Husband's job and Wife's testimony. Husband's travel is excessive in regards to providing a stable home for their children, especially the daughter. The trial court's decision is supported by a preponderance of evidence and was not an abuse of discretion. In the end, it was in the best interest of the children to reside with the Wife.

In regards to transitional alimony, the trial court considered the guidelines set out in T.C.A. § 36-5-121(g)(1). T.C.A. § 36-5-121(i) "instructs the court to consider all relevant factors in determining whether spousal support is appropriate and in determining the nature, amount, length of term, and manner of payment..." The single most important factor is the "need of the disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay support." Here, husband made four times the income of Wife. Husband's basic argument on appeal was the alimony is excessive and unnecessary. The trial court's findings, relative to the Wife's economic disadvantage and the statutory factors and requirements, were not an abuse of discretion standard. The trial court found the Wife did not need rehabilitative alimony because she already had the necessary skills to achieve and maintain an appropriate standard of living. Transitional alimony was awarded to the Wife in order to assist and adjust to the economic consequences of the divorce.

Jurisdiction is Lost When Parties Relocate

Thu, 29 Mar 2012 16:27:17 -0500

The Tennessee Court of Appeals has defined for Tennessee divorce attorneys when a trial court has jurisdiction to modify child support under the Uniform Interstate Family Support Act (UIFSA) when neither the parents nor the children still reside in Tennessee.

In Earls v. Mendoza, No. W2010-01878-COA-R3-CV, the parties filed for divorce in Jackson, TN. They had two children together. During the divorce proceedings, the father accepted a promotion in Buffalo, NY. He, the mother, and the two children all moved there. Once the divorce was finalized in Jackson, the mother accepted a job offer in Denver, CO. The mother subsequently filed a motion with the Jackson trial court to relocate with the children to Denver. She also filed contempt against the father for not paying child support. The trial court granted the mother's motion to relocate with the children to Denver and also found the father to be in contempt. The trial court then modified the father's child support obligation.

The Tennessee Court of Appeals reversed the trial court's decision, finding that the trial court lacked jurisdiction due to none of the parties living in Tennessee at the time the motions were made. While this issue was not raised by either party, Tennessee appellate courts are able to decide jurisdictional issues on their own under Tenn. R. App. P. 13(b).

Regarding whether the court had jurisdiction to modify the father's child support obligation, the court looked to UIFSA (T.C.A. § 36-5-2201 et seq.). This Act governs interstate jurisdiction questions involving child support. Under T.C.A. § 36-5-2101, in order for a Tennessee trial court to have jurisdiction, the parties and the children have to live in Tennessee for at least six consecutive months immediately preceding the time of filing a petition. A trial court can also only have continuing, exclusive jurisdiction under certain situations. According to T.C.A. § 36-5-2205, a Tennessee Court has continuing, exclusive jurisdiction over a child support order: "(1)As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or (2) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction." Looking to courts of other states as well as previous appellate cases in Tennessee, the court noted that "virtually all have concluded that, once the parents and their minor children have left the issuing state, that state no longer has jurisdiction to modify its order."

Even though the mother argued that the parties consented to have the Tennessee trial court hear their case, the Appellate Court disagreed. No indication existed in the record showing that the parties "consent[ed] in a record or open court" to the Tennessee trial court below exercising jurisdiction to modify its order. In essence, silent acquiescence is not enough to show consent.

Tennessee Courts Authorized to Order Child Support Prior to Final Divorce

Mon, 26 Mar 2012 11:02:45 -0500

The State of Tennessee Attorney General recently issued Opinion No. 12-42 entitled "Authority to Award Child Support in the Absence of a Divorce or Separation Decree" on March 21, 2012.

The opinion states that Tennessee courts do have the authority to obligate parents to pay child support prior to the finality of a divorce or separation, and several statutory references are cited. This is an issue that many Tennessee divorce attorneys should be aware of, because many times child support is litigated prior to a trial and can affect the amount of alimony awarded, if any.

The Opinion explains that the reasoning behind the ability to order support prior to parties becoming divorced is supported numerous times in the Tennessee statute. First, T.C.A. 36-5-101(a)(2) does allow courts with subject matter jurisdiction over domestic relations matters to order a future child support obligation. Further, T.C.A. §37-1-104(d)(2) also allows issuance of child support orders upon request of one or both of the parties. That means that all circuit, chancery and juvenile courts may grant a child support order, whether the parties are still married or not. Further, such courts may grant such an order prior to either party having field a divorce or legal separation complaint, so long as they are physically separated.

Juvenile courts in Tennessee also have the authority to order ongoing child support when a finding has been made of dependence, neglect, unruliness or delinquency under T.C.A. §37-1-151(a). Also, juvenile courts and general sessions courts that are authorized to hear paternity actions may also order child support, but only when a genetic testing has been completed or paternity has been confirmed via consent order. Further, under T.C.A. 36-2-311(a)(11)(A), entitled "Order of Parentage", requires the court entering such an order to calculate both current support and an arrearage. Accordingly, there is seemingly no objection that can be lodged against such an order. However, parents may always dispute the amount of child support or asking for a modification if either parties' income changes after the initial hearing.

Alimony Can Be Terminated in Tennessee Based Upon Obligee's Increased Post-Divorce Income

Fri, 23 Mar 2012 14:42:26 -0500

The case of Williams v. Williams from the Tennessee Court of Appeals, No. E2011-00768-COA-R3-CV, filed on March 2, 20120 demonstrates for Tennessee divorce attorneys when an alimony obligation is ripe for termination. The parties divorced in 2004, and on appeal Wife was awarded $750 of alimony in futuro per month. Both parties were employed at the time but Husband earned approximately $40,000 more per year than Wife. In 2010, Husband petitioned to modify the alimony due to Wife's promotion. At the hearing, Wife stated her income increased from $31,000 in 2004 to $46,000 in 2009 and then to $64,000 in 2010. She also had earned a master's degree since the divorce. Wife also testified that she had additional legal bills, a second mortgage and student loan expenses. Husband testified his income had also increased, from $75,000 to $101,000. The trial court modified the alimony from $750 per month to $500 per month and both parties appealed.

Modification of spousal support depends upon whether there was a substantial and material change since the initial order of support occurred. Here, the change is Wife's increased income. The Appellate Court found this to be substantial because it affected her need for the alimony. Even though it may have been foreseeable that Wife would get standard of living wage increases, here Wife went back to school and thereby raised her income by over $30,000 per year. This was deemed not foreseeable because the trial court originally did not award rehabilitative alimony. Having found there was a substantial and material change, the next question becomes how the alimony should me modified under T.C.A. 36-5-121(i), with the two most important factors being Husband's ability to pay and Wife's need in light of the changed circumstances.

Here, the trial court found that Husband had a continued ability to pay but Wife's need had been lowered and modified the alimony from $750 per month to $500 per month. However, the Appellate Court, in light of the Tennessee Supreme Court decision Gonsewski v. Gonsewski 350 S.W.3d 99 (Tenn. 2011), decided that in this case the alimony should have been terminated completely because alimony in futuro was not proper. Accordingly, the Appellate Court terminated the Husband's alimony obligation retroactively dating back to March 1, 2012.

Long-Term Alimony Not Favored in Tennessee

Mon, 19 Mar 2012 08:59:39 -0500

The case of Osesek v. Osesek, No. M2011-00984-COA-R3-CV (March 6, 2012) shows Tennessee divorce attorneys how the principals in the recent Tennessee Supreme Court case of Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011) will likely affect future litigation concerning alimony.

In Osesek, Husband was obligated to pay to the Wife the amount of $5,500 alimony in futuro. Husband then filed to terminate or modify his alimony based upon his job having been eliminated and his inability to find other employment. He also alleged that the Wife had obtained part-time employment. He argued that his job loss was a material change of circumstances. The trial court held that he was not entitled to a reduction or termination, and Husband appealed.

Alimony in futuro is given to provide a spouse with long-term support until their death or remarriage under T.C.A. 36-5-121(f)(1). However, alimony in futuro is modifiable if there is a substantial and material change of circumstances shown. The change must have occurred since entry of the final divorce decree. The modification must also be warranted.

A change is "substantial" if it significantly affects one of the parties - either the obligor's ability to pay or the obligee's need for support. The change becomes "material" when it occurs after entry of the decree and wasn't foreseeable or contemplated at that time.
Here, the Trial Court determined that the Husband had indeed lost his job, an event that was not forseeable and that occurred after entry of the decree, but that because he had substantial other assets, he could continue making the alimony payments and was not entitled to any modification or termination. That meant he did not meet the burden of a "substantial " change.

The Appellate Court here in this case actually remanded to the trial court to have the trial court do a new analysis of whether this change that the Husband argued was "substantial" in light of the recent Tennessee Supreme Court holding in Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011). The Gonsewski case stated that the Tennessee legislature favors short-term support over long-term support, with the goal, when possible, to rehabilitate the economically disadvantaged spouse. The Gonsewski court went on to state that alimony in futuro (awarded in this case) should only be given when economic rehabilitation is not an option and long-term support is really necessary. The Appellate Court here also gave some additional instruction to the trial court - to take into account the likely duration of the Husband's separate assets in light of his unemployment when considering a change in the alimony.