Tennessee Divorce Attorney Blog

Relief from Default Judgment Difficult, Not Impossible

Wed, 22 May 2013 08:18:37 -0500

In the case of Butler v. Vinsant, No. M2012-01553-COA-R3-JV (Tenn. Ct. App. April 15, 2013), Knoxville divorce lawyers learn that obtaining relief from a default judgment requires proof of mistake, inadvertence, surprise or excusable neglect.

Facts: In 2010, Mother filed a Petition to Set Child Support against Mr. Vinsant, the alleged biological father in Juvenile Court. Father filed a Response admitting paternity but denying that he owed support due to the fact that the children resided with him the majority of the time. Simultaneously but under a different docket number, Father also filed a Petition to Legitimate and for Custody, requesting that he be named the primary parent. The two actions were consolidated and Mother was allowed to amend her petition to include custody. Mother then filed an Amended Petition asking to be the primary parent. Meanwhile, Father's attorney withdrew. Father never filed an Answer to Mother's Amended Petition, so Mother filed a Motion for Default Judgment and set a hearing. Father failed to appear at that hearing. The trial court found the following: Mother was entitled to a default based upon Father' s failure to answer or appear; that Father's paternity was established; that Mother was primary residential parent with Father having every-other-weekend visitation; that child support was set and Mother was awarded an arrearage.

Father then filed a Rule 60.02 Motion to Vacate Default Judgment. In said Motion, Father provided affidavits stating that his failure to answer or appear was excusable because his prior attorney failed to forward his file to the new counsel. The Rule 60.02 motion was denied by the trial court and Father appealed.

Analysis: Rule 60.02 of the Tennessee Rules of Civil Procedure states that a court may relieve a party from a final judgment or order based upon mistake, inadvertence, surprise or excusable neglect. A trial court's ruling shall only be overturned upon a finding of abuse of discretion (meaning application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence or reasoning causing injustice to the complaining party).

Further, three factors are used to determine if the default should be vacated: whether the default was willful; whether there was a meritorious defense; and whether the other party would be prejudiced.

Here, the Appeals Court found that Father only had a meritorious defense regarding the custody issue. The evidence in the record submitted by Father - an affidavit and his original petition (which is not evidence by itself) - only contains allegations regarding child custody factors and failed to include facts about his income, child support obligation or arrearage. Further, his Rule 60 Motion fails to dispute or point out any error in the trial court's calculation of child support or the arrearage. However, his Petition avers that he has a loving relationship with the child, and had been the primary caretaker.

Next, the Appeals Court looked to see whether Father's failure to appear and answer was willful. "Willful" means intentional and voluntary rather than accidental and not due to coercion. Father argues he did not have actual notice of the hearing. Therefore, the question becomes whether Father's inaction in promptly obtaining a new attorney and failing to stay updated on the proceedings was willful, less than willful but not excusable, or excusable. Even though Father's first attorney failed to keep Father informed, Father failed to promptly obtain new counsel even after being advised to do so; Father further failed to inform opposing counsel or the court of his lack of representation for several months, until the filing of the Rule 60 Motion. The record also showed that Father ignored his prior attorney's repeated advice to quickly obtain substitute counsel. Therefore, although these actions were not calculated to avoid the court proceedings, the Appellate Court found his actions were not inexcusable, meaning Father is not entitled to any relief under Rule 60.02.

Primary Residential Parent Determination Depends On T.C.A. 36-6-106 Factors

Tue, 21 May 2013 13:58:08 -0500

In the case of Wood v. Wood, No. W2012-01250-COA-R3-CV (Tenn. Ct. App. May 16, 2013), Knoxville divorce attorneys learn that trial courts determine the primary residential parent based upon the factors found in T.C.A. 36-6-106.

Facts: The parties married in 2007 and separated in 2010 after having one child together. At the trial, both alleged that the other had an alcohol abuse problem, and Mother additionally alleged that Father was guilty of physical violence as well. Father admitted his DUI conviction, other alcohol related offenses and two arrests for domestic violence that occurred during the marriage. Father alleged that the Mother admitted she had several relationships with different men and had introduced them to the minor child. At the time of trial, Mother worked from 7am to 7pm three days a week, but had a 2 hour commute. Father worked for his parents, who were also proffered as alternate caregivers. However, testimony showed that Father would sometimes leave the child in the care of his parents due to his drinking and social life. Mother also argued that the grandparents interfered with her relationship with the children. The trial court named Father the primary residential parent due to his flexible work schedule and support system. The trial court refused to impute Father's income to account for the free housing provided by his parents as Mother requested. Mother appealed.

Analysis: The Court of Appeals first turns to T.C.A. §36-6-106(a), which outlines the factors a court is supposed to use to determine the primary parent and the co-parenting schedule. Based upon those factors, the Appeals Court made the following analysis: that both parents were devoted to the child and this factor favored neither (same as the trial court); both parents were capable of providing for the child's needs and favors neither party (same as the trial court); that the continuity and stability factor favors Father, due to Mother's many other romantic relationships, Mother have relocated the child twice due to her job changes and Father having lived and worked in the same location continuously (same as the trial court); that stability of the family until also favored Father due to Mother's commute and the closeness of the paternal grandparents (same as the trial court); that the evidence of physical and emotional abuse to the child favored neither party (same as the trial court); all other factors were found to be equal or not applicable. Accordingly, the Appeals Court upheld the trial court's decision to make the Father the primary residential parent.

Next, the Court looked at whether the trial court erred in failing to impute income to Father because he received free housing. The Court found that Mother presented no evidence regarding the reasonable rental value of his home. The Court noted that even if Mother had shown the housing was a fringe benefit of Father's employment, that the Court had no way of determining from the evidence presented how much income to actually impute. Therefore, the trial court was correct in refusing to impute income to Father based upon his free housing in that the record lacked sufficient data with which to do so.

Trial Courts Cannot Ignore Overpayment of Child Support

Mon, 06 May 2013 12:10:22 -0500

In the case of Huffman v. Huffman, No. M2012-01538-COA-R3-CV (Tenn. Ct. App. May 1, 2013), Knoxville divorce attorneys learn that although trial courts have broad discretion, they cannot simply refuse to allow a credit, judgment or repayment for overpayment of child support.

Facts: The parties divorced in 2002. In 2006, Father filed for a recalculation of child support. The trial court found an upward deviation and Father appealed. On appeal, the decision was vacated because the trial court failed to support its deviation from the Child Support Guidelines with specific findings and the issue was remanded. Upon remand in 2011, a hearing was held and the Court found that Father paid a total of $79,224 in child support since 2006, when he should have only paid $35,259, a difference of $43,965. But the trial court found Mother was entitled to a credit of $4,950, reducing father's overpayment to $35,259. However, the trial court found that "it was not economically viable to order Mother to repay this overage to Father" and refused to grant Father a judgment for his overpayment, stating that "neither party is to blame for the overpayment...it is simply a function of the judicial process." Father appealed.

Analysis: The Tennessee Court of Appeals looked at several prior cases on this issue, including: Guthrie v. Guthrie, No. W2012-00056-COA-R3-CV 2012 WL 5200079 (Tenn. Ct. App. Oct. 23, 2009) which affirmed a Father's judgment for overpayment of $6,4452,82 of child support; Stockman v. Stockman, No. M2009-00552-COA-R3-CV, 2010 WL 623724 (Tenn. Ct. App. Feb. 22, 2010), remanded to the trial court to determine the award for Father's overpayment; and Kopp v. Kopp, No. M2008-01146-COA-R3-CV, 2009 WL 2951172 (Tenn. Ct. App. Sept. 14, 2009), where the trial court gave Father a monthly credit on his child support obligation until the amount he overpaid was credited.

Based on this prior case law, the Appellate Court stated that no authority allows a trial court to forgive one party from reimbursing another for overpayment of child support simply based on that trial court's discretion, and that in this case, that decision resulted in an "injustice" to Father. Therefore, the decision that Father is not entitled to a judgment is reversed and remanded to the trial court, with instruction to give Mother a repayment plan so that Father can be reimbursed for his overpayment.

The Importance of Preserving the Record for Appeal (and the Importance of Having a Divorce Attorney)

Sun, 28 Apr 2013 15:19:25 -0500

In Higgins v. Higgins, No. E2012-01376-COA-R3-CV (Tenn. Ct. App. April 16, 2013), Tennessee divorce attorneys learn the importance of preserving the record for appeal; if there is no record, the Court of Appeals must presume that the trial court's findings and conclusions are correct. Also, Tennessee family lawyers also learn that a party's decision to represent himself or herself pro se are not an excuse for failing to preserve the record.

The facts of the case are as follows: In 2010, Wife and Husband separated after twenty years of marriage; Wife subsequently filed for divorce. Husband was provided with an additional thirty (30) days before trial to acquire a new attorney after his former attorney withdrew from the case; however, he declined to do so, instead choosing to represent himself pro se. The parties then attended trial to address remaining issues of property division. At trial, it was clear to the trial court that the parties had similar health, financial resources, earning capacity, and ages. Also, the trial court noted that the marriage was long-term, and that the parties did not have any separate property. Accordingly, the trial court fairly equally divided the parties' property ($34,000 to Husband and $38,000 to Wife) and expressed its opinions in a memorandum opinion.

Testimony revealed that Wife's $50,000 gift and a prior sale of a residence that was in the name of both Husband and Wife was the source of funds by which the parties acquired their marital residence. The court granted this residence to Wife "subject to the first mortgage as well as two-thirds of the home equity line of credit (HELOC)," and determined that it was a marital asset. Husband was responsible for the remaining one-third of the HELOC. After trial, Wife filed a motion requesting that the court amend the memorandum opinion to elaborate on other matters; the court made amendments and entered a divorce decree and final judgment at a second hearing, which Husband declined to attend. Husband then filed a motion to amend, alleging that the court's initial memorandum opinion differed from the final decree. The trial court only made a few amendments to the final judgment. As such, Husband filed this appeal, claiming that the court improperly classified the marital residence as separate property and that the division of the marital property was inequitable because the trial court failed to account for his "substantial" debt. He also alleged that the trial court wrongfully awarded alimony to Wife.

On appeal, the Court of Appeals addressed the following issues: (1) "Did the trial court err in its classification of the parties' property and did the court err in failing to equitably divide the marital estate?" and (2) "Did the trial court err in amending the final order to include an award of alimony?"

Regarding the classification and division of property, the Court of Appeals found that the trial court properly classified the home as a marital asset and that the trial court averred that Husband did not provide evidence of his alleged debts; since Husband presented no record, the Court had no basis on which to challenge the trial court's position. Finally, the Court found that neither the trial court's memorandum opinion nor amendment reflect any alimony award; the amount was purely an attempt to allocate the mortgage debt between Husband and Wife.

The most important aspect of this case is that the Court of Appeals noted that Husband entirely failed to provide a record of trial, and that his self-representation was not an excuse for his failure to do so. The Court warned that appellants are responsible for "prepar[ing] a record which conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues which form the basis of the appeal." If they fail to do so, then the appellate court is required to "assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's findings."

Legal Father May Terminate Child Support Obligation Via Negative DNA Results

Wed, 24 Apr 2013 08:52:35 -0500

In the case Price v. Price, No. W2012-01501-COA-R3-CV, 2013 WL 1701814 (Tenn. Ct. App., Apr. 19, 2013) Tennessee family law attorneys learn that that a "legal father" (by virtue of being named on the birth of a child during a marriage), who are later proven not to be the father's biological child, has a right to terminate a child support obligation for that child.

The facts: Husband and Wife married in 1989. From 1992 to 2005 Husband was active duty in the Navy and was stationed away from his family with occasional visits home. From 1993 to 2003, while Husband was stationed away from Wife, she had a male roommate live in the marital home with her. During this period, Wife gave birth to two (2) children. In 2001 Husband had a DNA test performed on one of the children, who was shown not to be his biological child. Husband then filed a Complaint for Divorce, but did not follow through on it and remained married. In 2011, Husband again filed a Complaint for Divorce asserting that he was not the biological father of either child born of the marriage. Wife admitted that Husband was not the father, but argued that Husband executed a "voluntary acknowledgment of paternity" for each child shortly after their births. The court requested DNA testing which confirmed that Husband was not the father of either child. Wife's defense offered proof that Husband held the children out to be his own, listed the children as dependents in his military personnel file, and lived in the marital home with Wife and Children after being relieved of active duty status from the Navy in 2005. The trial court was not persuaded by Wife's arguments in relation to the DNA test results; therefore, it granted the divorce and stipulated that no children were born of the marriage. Wife appealed.

Analysis and Conclusions: On appeal, Wife asserted that "absent an adjudicative hearing naming another man as the biological father of the children, [Husband] is the children's legal father because he was married to the biological mother of the children, who were born during the marriage." Citing In re T.K.Y., 205 S.W.3d 343 (Tenn. 2006). Wife cited Tenn. Code Ann. § 36-1-102(28)(B) for the definition of "legal parent" to include "a man who is or has been married to the biological mother of the child if the child was born during the marriage," as well as Husband's "voluntary acknowledgment of paternity" ("VAP") for each child as reasons why he should be required to pay child support for the children.

The Court of Appeals found that here, no VAP was in the record provided by Wife. The only evidence that Wife provided included birth certificates for the children listing Husband as the father. Because there was no VAP, the Wife's argument was found meritless.

On the argument Wife raised using In re T.K.Y., the Court pointed out that the case was regarding two men seeking to establish parental rights to a child in regards to a termination of parental rights proceeding, and, therefore, was the opposite of the case at bar. The Supreme Court found this argument ineffective.

In regards to the definition of "legal parent" in Temm. Code Ann. §36-1-102(28)(B), the Appeals Court found that definition to be pertinent to adoptions and termination of parental rights proceedings only and therefore inappropriate to apply to the current case.

In its final opinion on the matter, the Court of Appeals stated that Wife's argument was "swimming against the tide." It further opined that Tennessee child support laws seek to obtain child support from biological fathers and seeks to relieve putative fathers from the burden of supporting children that are not biologically theirs. The Court affirmed the trial court's decision that Husband had no legal obligation to support the children in the matter since they were proven to not biologically be his.

Material Change in Circumstance Necessary to Change Custody Arrangement; Standard for Automatic and Permissive Intervention

Thu, 11 Apr 2013 12:06:43 -0500

In Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. April 12, 2013), Tennessee divorce attorneys learn that courts require a material change in circumstances before modifying a permanent parenting plan; however, the material change standard is higher when a party wishes to change the designation of primary residential parent. Further, Tennessee divorce attorneys learn the terms under which a party can intervene in a pending action.

The facts: At the conclusion of a divorce action in Cumberland County, Mother was designated primary residential parent; however, Mother and Father were to share time with the children on a 50/50 basis. Mother then decided that the children should attend a different school nearer to her home. At Father's request, the trial court entered an ex parte order requiring the children to continue attending their original school. However, the local Board of Education averred that pursuant to its policy, the primary residential parent's residence determines which school a child must attend; therefore, the Board filed both a motion to intervene and motion to set aside the order. Mother felt that Father did not comply with the permanent parenting plan requirement that they make decisions jointly and therefore filed a motion to clarify the divorce decree. Father then requested to be named primary residential parent since Mother had disregarded the parenting plan by switching the children's school. After a hearing, the trial court found: (1) Mother violated the permanent parenting plan by switching the children's school; (2) legally, the Board was entitled to intervene; (3) that the children required stability; and (4) Father was designated primary residential parent as it was in the children's best interest.

The Appellate Court asserted that the issue of the Board's intervention, while not raised on appeal, was important. Essentially, if an individual wishes to automatically intervene in an action, he or she is required to establish: (1) that he or she requested to intervene in a timely fashion; (2) that a substantial legal interest in the subject matter of the pending litigation exists; (3) that [the] ability to protect that interest is impaired; and (4) that the parties to the underlying suit cannot adequately represent [that] interest. Tenn. R. Civ. P. 24.01. Further, the Court elaborated that the intervening party must "either gain or lose by direct operation of the judgment," and that the presence of a "mere contingent, remote, or conjectural possibility" that the intervening party will suffer consequences is not sufficient. In applying the above factors to the Board's intervention here, the Court averred that the Board's motion should not have been granted since the Board did not have a "substantial" interest in the case since the standard is "best interest of the child, regardless of any [opposing] policies that may be implicated."
However, there is another standard if a party wishes to permissively intervene, and it can be based on either a statutory conditional right or if "an applicant's claim or defense and the main action have a question of law or fact in common"; courts must assess any "undue[] delay or prejudice" to the original parties that could occur as a result of the intervention. Tenn. R. Civ. P. 24.02. Ultimately, the Court determined that the Board's intervention was not permissive since the trial court considered "the need for stability" while ignoring other factors and also incorrectly afforded more weight to the Board's policy than it did to the best interests of the children or the parents' rights.

Secondly, Mother challenged the fact that the trial court declined to hold an evidentiary hearing and neglected to determine if an unanticipated material change in circumstance occurred before changing the primary residential parent designation. However, Father said that Mother was at fault for not requesting an evidentiary hearing, that Mother's deciding to switch the children's school without consulting him constituted the requisite material change in circumstance, and that the court did not need to list and elaborate on every factor having provided adequate information in support of its findings; therefore, he asserted that Mother's issues should be waived at the appellate court level.

In response to these positions, the Court of Appeals explained that "material change in circumstances" is a standard for any change in custody, with the burden being with the parent who wants to modify; in determining whether such a change has occurred, courts must provide findings "as to the reason and facts" in favor of a decision to modify custody. Tenn. Code Ann. § 36-6-101(a)(2)(B). Also, the "threshold" to modify a primary residential parent designation is higher than that necessary to modify a residential parenting schedule.

The Court expressed that a situation no longer being in a child's best interest or a parent neglecting to follow the parenting plan would both serve as examples of "material change of circumstance." Included among factors that Tennessee courts are required to evaluate are 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."

The Court explained that determining "the best interest of the child" is also crucial when courts are faced with requests to modify custody arrangements. In this case, the Court of Appeals concluded that the trial court neglected to make specific findings of fact regarding an unanticipated material change in circumstances, and that the possibility that the parents would reside outside the same school zone was foreseeable. As such, the Court held that Mother should remain the primary residential parent.

Recent Case Shows How Negative Behaviors Can Impact Your Divorce

Fri, 05 Apr 2013 10:09:01 -0500

In this case titled Thomas v. Thomas, No. M2011-00906-COA-R3-CV (Tenn. Ct. App. March 6, 2013), the Court of Appeals found that the trial court did not err in their findings on the income used to set Wife's alimony and child support. Tennessee divorce attorneys learn that a spouse who is inconsistent about stating their income, fails to account for a dissipation of a child' college fund, and takes revengeful actions such as shutting off power and water to the marital home runs the risk of the divorce court deciding many aspects of the case in the other spouse's favor.

The facts of the case are as follows: Husband and Wife were married in April 1994 and had two children during the marriage. Wife filed for legal separation from Husband in June 2009; the couple attempted an unsuccessful reconciliation in October 2009; Wife moved to reinstate her legal separation petition in March 2010. Husband and Wife had several hearings regarding occupation of the marital home, payment of household bills, child support/alimony obligations, and visitation with the children. An order was entered by the court stating specific findings about Husband's truthfulness, the amounts he had paid or failed to pay (specifically regarding the mortgage), and ordered that Wife could remain in the marital home pending further court orders.

The final order for divorce entered by the trial court named Wife as primary residential parent and adopted Wife's Proposed Parenting Plan. "In part, the court based its custody decision on the limiting factors of neglect or substantial nonperformance of parenting responsibilities (Tenn. Code Ann. § 36-6-406(d)(5)). The court found Husband and Wife to be underemployed with Husband's income at $60,000 per year and Wife's at $24,000 per year. Husband was ordered to pay $862 per month in child support, $350 per month in alimony with this amount to increase to $550 per month to begin on April 1, 2012. Wife was also awarded alimony in solido by way of Husband's retirement account. Husband appealed the trial court's findings.

Analysis & Findings: Under Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i), it is appropriate to impute income for the purpose of setting child support payments when "(1) a parent has been determined to be willfully and/or voluntarily underemployed or unemployed..." The determination of whether a party is willfully and voluntarily underemployed is a question of fact, and the trial court has considerable discretion in its determination. Taking into consideration the obliging parents educational level and/or previous work experience, determining whether he/she is willfully and voluntarily underemployed, the trial court must make a finding on their potential earnings. However, it is not presumed that the parent is willfully and voluntarily underemployed or unemployed, the burden lies on the party accusing such. Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007 WL 3005346 at *8 (Tenn. Ct. App. 2007).

Wife entered income tax returns of Husband's with an income as low as $74,500 in 2005 to $131,097 in 2003. Husband did not submit any tax returns but testified that his income for 2010 was approximately $2,000 per month. To contest Husband's testimony, Wife produced a credit card application in which Husband reported he made $85,000 per year. After reviewing the record, the appellate court affirmed the trial court's finding of Husband's imputed income of $60,000 for purpose of setting child support and the amount awarded and alimony obligation.

Husband contended using his past behavior to determine the residential schedule and adopting Wife's proposed parenting plan was error by the trial court. The Wife's proposed parenting plan allowed him 85 days per year with his children. The factors in Tenn. Code Ann. § 36-6-404(b) must be considered when figuring the child's residential schedule and determining the primary residential parent. Tenn. Code Ann. 36-6-406(a) gives the court power to limit the child's time with the nonresidential parent "based upon a prior order or other reliable evidence that certain circumstances ... exist to justify imposing a limitation on parenting time." Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV, 2012 WL 1357558, at *4 (Tenn. Ct. App. Apr. 16, 2012).

The trial court cited Husband's "abusive use of conflict" as a reason for limiting his parenting time. Examples of this behavior includes his posting intimate photos of Wife on the internet, his shutting off the electricity and power to the marital residence, and his liquidation of the children's college funds while the litigation was ongoing. The trial court also took into consideration a beer commercial he sent to his daughter and his continued self-absorbed acts. The appellate court reviewed the trial court's record and found no reason for the trial court not to adopt Wife's parenting plan. The decision was affirmed.

Husband argued that awarding Wife his retirement account was not an equitable distribution of marital property. The trial court awarded the account to Wife as alimony in solido. "A reviewing court will find an abuse of discretion only if the trial court 'applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an injustice to the complaining party.'" Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

In its determination of alimony in solido, the trial court considered Husband's inability to account for the children's college funds as its basis. The trial court also stated the alimony in solido was used as an alternative to awarding Wife accrued alimony and medical expenses owed by Husband. In reviewing the evidence, the appellate court found that the trial court did not abuse its discretion in awarding Wife alimony in solido by way of the retirement account and affirmed the decision.

Alimony in Futuro Not Appropriate Where Spouse Has Some Education and Work Skills

Wed, 27 Mar 2013 11:08:31 -0500

In this case titled Hatfield v. Hatfield, No. M2012-00358-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2013), Tennessee divorce attorneys learn that the trial court erred in awarding alimony in futuro due to Wife's education level and ability to work, and that the award of almost all the value of the marital property to Wife was not equitable.

The facts of the case are as follows: Wife filed a complaint for divorce in March 2011 alleging adultery by Husband after twenty-four (24) years of marriage, for most of which Wife was a stay-at-home mother. The couple had three children born of the marriage. At the time of filing the initial complaint, the oldest child had reached the age of majority.
In April 2011, the trial court ordered Husband to pay temporary child support in the amount of $1,422.00 per month and temporary spousal support in the amount of $1,422.00 per month. He was also ordered to continue paying the parties' main household bills such as utilities and a home equity line of credit. The trial court allowed him to use his 401k account, but only "for the purpose of paying child support and temporary alimony." The following month the trial court allowed Husband to withdraw $5,000.00 for his attorney fees and expenses and $5,000.00 for Wife's attorney's fees and expenses from the 401k account.

In November of 2011, the divorce hearing was held over a two day period. After the hearing, the court entered a memorandum opinion regarding the permanent parenting plan and the division of marital property. In this opinion, the court proposed that Wife remain the primary residential parent and found her income to be zero. Husband subsequently filed a motion objecting to the court's proposed final order. In the court's ruling on this motion, it stated that it was not the court's intent to award alimony in solido to Wife. Instead, received a larger portion of the marital property in lieu of said alimony in solido. Wife had a need of $2,300.00 per month; however, Husband only had the ability to pay $1,500.00 per month. The court reasoned that there were no assets that could justify an award of alimony in solido.

The final decree for divorce was entered in January of 2012. Wife was granted the divorce on grounds of adultery and awarded alimony in futuro in the amount of $1,500.00 per month. Wife was also awarded the equity in the marital home totaling $242,227.00 and the remaining 401k balance of $40,872.12. The court again stated that it was awarding wife a larger portion of the marital property because Husband could not afford to pay Wife's need. Husband appealed the decision arguing that the trial court erred in its division of the marital property and in awarding Wife alimony in futuro instead of transitional alimony or no alimony at all.

Analysis: In considering Husband's appeal, the appellate court stated that an equitable division is not necessarily an equal division. According to Husband's calculations, the trial court awarded Wife 99% of the marital property; Wife's calculations showed 96.5%. Wife asserted that Husband dissipated marital assets by withdrawing money from the 401k account which bumped his share of the marital property to 21%. The appellate court rejected this argument due to the ruling of the trial court that allowed him to make withdrawals to pay his and Wife's attorney fees.

In regards to the marital property, the appellate court agreed with the trial court's strategy in treating wife as a disadvantaged spouse. However, it disagreed with the "extreme disproportion in the percentages awarded to the two spouses." The appellate court modified the property division awarding Husband the 401k balance and allowing Wife to retain the equity in the marital home.

In considering Husband's argument regarding alimony, the appellate court stated that the trial court erred in its calculations of Husband's ability to pay $1,500.00 per month in alimony. It reasoned that Husband's statement of income showed monthly expenses of $4,892.00 and his monthly income as $4,982.46. Subtracting the child support obligation of $1,357.00 and the alimony at the trial court's ruling of $1,500.00 left Husband with only $2,125.00 toward his monthly expenses. The appellate court averred that the evidence preponderated against the trial court's finding that Husband had the ability to pay the $1,500.00 in alimony in futuro. It modified Husband's obligation to $1,200.00. It also found that the trial court erred in awarding the alimony as in futuro. It stated that Wife had completed some college and had a real estate license which she could eventually use to support herself in the workforce. Therefore, the appellate court modified the alimony in futuro to transitional alimony for a period of five (5) years.

Recent Case Explains Juvenile Court Custody Appeals Go To Appeals Court, Dependency and Neglect Cases are First Appealed to Circuit Court

Wed, 20 Mar 2013 12:27:02 -0500

In the case of Clark v. Clark, No. E2012-00684-COA-R3-CV (Tenn. Ct. App. March 18, 2013), Tennessee family law attorneys learn that appeals of custody matters are heard by the Court of Appeals, but appeals of a dependency and neglect action must be first appealed to the Circuit Court.

Summary: Father voluntarily gave custody of the minor child to the Grandparents. Mother then filed seeking custody, but her requests were denied. The Juvenile Court had described the case as both a custody case and as a dependency and neglect matter at different points throughout the litigation. Mother appealed from Juvenile Court to Circuit Court, but her request was denied based on the holding that the case was a custody matter which should have therefore been appealed to the Court of Appeals instead of Circuit Court. Mother then appealed that ruling. The Court of Appeals held that the trial court was correct in concluding that the case was a custody matter and that the Circuit Court therefore had no jurisdiction to hear Mother's appeal, but her appeal should have been transferred to the Court of Appeals instead of being dismissed.

Facts: After establishing paternity, the parties entered an agreed order giving custody to the grandparents. Mother then filed a motion requesting a hearing, which was denied. At that hearing, the Juvenile Court stated that the action was a visitation and/or custody case, not dependency and neglect. Mother then filed several subsequent requests for custody and visitation, which were denied. However, in denying these subsequent motions, the Juvenile Court classified the action as a dependency and neglect case when the grandparents received custody, thus contradicting the earlier ruling. Mother then appealed to Circuit Court. The Circuit Court found the matter to be a custody case and therefore dismissed the appeal.

Analysis: The issue is whether the Circuit Court erred in denying Mother's appeal because the action sounded in custody rather than dependence and neglect. A case of dependency and neglect is directly appealable to Circuit Court, whereas a custody action is only appealable to the Court of Appeals. Here, the Juvenile Court first labeled this case custody and later labeled it dependence and neglect. The Appeals Court noted that "the nature and substance of a proceeding cannot be transformed simply by the filing of a petition with a different caption." Therefore, the Court looked to the nature of the action. From the record, there was no evidence that this was ever a dependency and neglect action. Instead, the only issue that ever came before the court was a custody arrangement. Therefore, the Circuit Court correctly held that the case sounded in custody. However, the Mother's appeal should not have been dismissed. The appeal should have been transferred to the Court of Appeals. Anytime a court is lacking jurisdiction to hear an appeal, the proper step is a transfer, not a dismissal. Therefore, the Circuit Court is directed to do so upon remand.

Two Lessons from Recent Case Law: Appeals of Criminal Contempt Acquittals Are Barred in Tennessee; Take Care to Make Orders Specific

Fri, 15 Mar 2013 09:10:44 -0500

In the case of Adkisson v. Adkisson, No. E2012-00174-COA-R3-CV (Tenn. Ct. App. March 11, 2013), Tennessee divorce attorneys learn the following about criminal contempt: 1) that for a party to be found in criminal contempt, they must violate a court order that is neither vague nor unambiguous; and 2) that an acquittal of criminal contempt cannot be appealed.

The parties divorced in 2006 and in 2009 Mother filed to modify the parenting plan and for a finding of contempt against Father for failing to follow the plan's provisions for medical costs and spring break visitation. Father counter-filed, requesting that he be named primary residential parent ("PRP") and for contempt against Mother for also failing to follow the plan's medical provisions and violating the parental bill of rights. The trial court found: a material change of circumstances existed but the child's best interests required the Mother to remain PRP; that Father was in contempt for not reimbursing Mother for medical expenses and not following the spring break schedule; that Mother was in contempt for failing to reimburse Father for medical expenses, for failing to return his property and for violating the parental bill of rights; and Mother was awarded attorneys fees and costs in the amount of $17,500. Father appealed.

Modification of Parenting Plan: The Father here appealed the court's best interest finding that a change of custody was not proper under the factors in T.C.A. §36-6-106. Here, the thirteen year old son testified that his Mother interfered with his telephone calls to his Father and that his preference was to spend equal time with both parents. He also stated his Mother told him to say "bad stuff" about Father to his therapist. The therapist testified that both children stated their unhappiness with Father's treatment of them. The therapist gave an opinion that the Father was emotionally abusing the children by taping conversations, grilling them about therapy and making them "a rope in a tug of war." Her opinion was that the children's testimony of wanting more time with Father was due to his coercion of them. The therapist stated she had "never seen such bad conduct on the part of a parent." The trial court found that Father had narcissistic and controlling behavior traits such that he addressed most issues relating to the children without regard for the children's welfare..." Based on the record, the Appellate Court here could not find that the trial court abused its discretion in maintaining Mother as the PRP.

Father's Contempt over Spring Break: The parties' parenting plan provided the following: "The parties shall alternate Spring Vacation with Mother having the children in odd years and the father having the children in even years." The term 'Spring Break' is not defined in the Plan. In 2010, Father took the children on the day school let out (Thursday or Friday) and returned them to Mother nine days later. The trial court found that the Father lied to Mother, stating that the weekend before school resumed would be made up by Mother if she allowed him the extra days of Spring Break and then refused to do so, thereby depriving Mother of those days. The Appellate Court here found that the trial court's conclusions were not supported by the evidence. First, the testimony showed that Mother did not agree to a make-up weekend, but that she would instead get nine days during next year's Spring Break, which she did. Secondly, "Spring Break" is not well defined enough by the plan to uphold a finding of criminal contempt. Criminal contempt requires a court order that is not vague or ambiguous, and when they are, the person facing contempt is given the benefit of the doubt. Therefore, the finding of Father's contempt was reversed.

Mother's Contempt Over Medical Expense Reimbursement and Parental Bill of Rights: In this case, the trial court refused to find Mother in criminal contempt based upon either allegation. Due to the double jeopardy provisions found in the Tennessee State Constitution, "an appeal from an acquittal of criminal contempt is barred." Therefore, Father's appeal of the trial court's findings were dismissed by the Appellate Court.

Rehabilitative Alimony Is Modifiable By Definition in Tennessee

Mon, 11 Mar 2013 15:31:52 -0500

In the case of Finchum v. Finchum, No. M2012-00975-COA-R3-CV, WL 17155CV (Tenn. Ct. App. Feb. 13, 2013), Tennessee divorce attorneys learn that rehabilitative alimony is modifiable when a substantial and material changes of circumstances can be shown.

Facts: In May of 2009 Husband and Wife divorced after a ten year marriage, during which they had two (2) children. The Marital Dissolution Agreement ("MDA") awarded Wife rehabilitative alimony of $1,000 per month for thirty (30) months to terminate in June 2012 or upon Wife's death. In September 2009 an Amended MDA was entered and approved by the court. In the pleading, Husband agreed to extend his alimony payments by six months.

In September 2010 Husband filed a Petition to Modify seeking to terminate his alimony and modify his child support payments based on Wife's remarriage and her increased income. Wife filed an Answer and Counter-Petition alleging Husband was in contempt for unilaterally terminating his alimony payments in April 2010. Wife then filed a Motion for Partial Summary Judgment asking the court to deny Husband's request to terminate his alimony obligation. Wife asked the court to award her the outstanding alimony payments, her attorney's fees, and to find Husband in Contempt. The trial court granted Wife's Motion for Partial Summary Judgment and found that the alimony was contractual in nature and, therefore, un-modifiable. In the Final Order issued in April 2012, the trial court found Husband in contempt for unilaterally stopping the alimony payments prior to filing his Petition and awarded Wife $5,200 in attorney's fees. Husband appealed the trial court's decision.

Analysis and Conclusion: The Appellate Court referred to Tenn. Code Ann. § 36-5-121(e)(1) which provides that rehabilitative alimony is modifiable at any time by the court. It surmised that the trial court must have determined the alimony awarded to Wife to be in solido alimony, which is not modifiable, instead of rehabilitative alimony. Because both the MDA and Amended MDA in the case at bar referred to the alimony as rehabilitative, the Appellate Court concluded that the alimony was modifiable. It remanded the case back to the trial court to determine if Husband could prove a substantial and material change in Wife's circumstances to warrant a termination or modification of the rehabilitative alimony as of the date of the Petition (September 1, 2010).

Attempted Compliance Can Thwart Contempt Allegations

Wed, 06 Mar 2013 14:53:28 -0500

In the case of Gaddes v. Gaddes, No. M2011-02656-COA-R3-CV, 2013 WL 26842 (Tenn. Ct. App. Feb. 1, 2013) Tennessee divorce attorneys learn (1) criminal contempt is not warranted when attempted compliance is proven; and (2) parties cannot claim inconsistent positions about the intent of contractual language in order to avoid obligations.

Facts: The parties divorced in January 2001. In the Final Decree Mother was named the custodian from September through May, for which time period Father was to pay $1,622.00 per month in child support. From June through August, Father was named the children's custodian for which time period Mother was ordered to pay $290.00 per month in child support. After the Final Decree, Mother and Father verbally agreed to subtract Mother's child support obligation from Father's leaving Father to pay $1,174.00 per month in support over a twelve month period. The Final decree also stipulated that Father maintain health insurance for the two minor children and "the parties shall each pay one-half of any expenses not covered by insurance."

In December 2010 Mother filed a Petition for Criminal Contempt alleging Father was $2,059.00 in child support arrears, and that he had not yet paid the December payment. She also alleged that Father had not been paying in a timely manner and not paying his half of the out-of-pocket optical and/or dental expenses. Mother requested Father be incarcerated for ten days, become current on his child support, and that his visitation with the children be restricted pending mandatory counseling. Father filed a Counter Petition to Modify Final Decree and for Criminal Contempt requesting a reduction of his child support due to his decreased income and to hold Mother in contempt for interfering with his parenting time. The trial court held Father in contempt for his failure to pay the December 2010 child support payment before December 1st. However, the trial court declined Mother's request to incarcerate Father citing he was attempting to pay his child support obligation and prior to being served the Petition for Contempt he sent Mother a check for his December 2010 child support payment.

In August, 2011 a hearing was held on the competing motions. Mother was awarded $7,583.10 for unpaid child support through May 2011 to be paid at $500.00 per month and $1,200.00 for attorneys' fees. The trial court found Father was not obligated to pay half of any out-of-pocket optical and/or dental expenses for the children and reduced his child support obligation to $789.00 due by the 1st day of every month. Mother appealed.

Analysis: On appeal, the Appellate court decided two issues: (1) whether the trial court erred in declining to incarcerate Father for contempt; and (2) whether the trial court erred in not ordering Father to pay half of any out-of-pocket medical expenses.

On the contempt issue, Mother asserted a decade long issue with Father paying his child support obligation on time. The Appellate Court cited there was "scant evidence" to support Mother's allegations of decade-long non-compliance. The Court cited that Mother admitted to the trial court that her calculation of Father's arrearage was incorrect as she had failed to take into account two $600.00 payments made by Father. The Appellate Court pointed out that Father was $1,174.00 (one month) in arrears at the time Mother filed her Petition, and prior to being served Father paid the amount in full.

In regards to medical expenses, Mother argued that "medical expenses" referenced in the Final Decree should have been "reasonably interpreted" to include both optical and dental expenses. Mother contended that Father should be judicially estopped from claiming such expenses are not "medical expenses" due to Father's previous assertion in a contempt claim against Mother for her failure to pay a portion of non-covered medical and dental expenses. On appeal, Father asserted that "health insurance" did not cover optical and dental expenses. The Appellate Court cited Father's previous petition against Mother for dental expenses and ordered Father judicially estopped from claiming that the parties did not intend to split dental expenses, and found no reason to treat optical expenses differently from dental expenses. It also stated that both Mother and Father admitted that they had been splitting optical and dental expenses for "quite some time." The Appellate Court averred that when interpreting a contract, the parties' declarations and conduct are evidence to the interpretation of said contract.

Conclusion: The Appellate Court affirmed the trial court's ruling not to incarcerate Father. It reversed the trial court's ruling that Father did not have to pay half of optical and dental expenses and awarded Mother $2,889.70 for said expenses.

Husband Denied Proceeds From Property Sold in Violation of Injunction

Thu, 21 Feb 2013 11:07:03 -0500

In the recent case entitled Jolley v. Jolley, No. M2011-02550-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee Divorce Attorneys learn that due to the unclean hands doctrine, a spouse is not entitled to proceeds of property sold in a partition action in violation of the automatic statutory injunction. This injunction, found at T.C.A. §36-4-106, is put into place automatically upon the filing of a contested divorce in Tennessee, and prohibits both spouses from the selling, transferring, assigning, encumbering, concealing or in any way dissipating or disposing of marital property without prior court approval.

The facts: The parties married on November 21, 1981, and separated after twenty-eight years. The couple owned a piece of property in DeKalb County, Tennessee jointly with another person. In August 2010, Husband filed a quitclaim deed for his one-half interest in the property to his sister and brother-in-law. In November 2010, the joint owner filed a partition suit which named Husband and Wife as owners.
Wife filed a Petition in the divorce action requesting proceeds from the sale of the property. Wife alleged that Husband "sold and/or transferred approximately 33.91 acres located in DeKalb County Tennessee without Wife's approval which is a direct violation of Tennessee Code Annotated § 36-4-106." Wife also alleged criminal contempt.
Through a judicial settlement conference, the parties reached an agreement in the divorce proceeding and the trial court entered a hand-written Consent Decree resolving issues of their personal and real property, dismissing any Orders of Protections and all motions/petitions for contempt; there was no specific mention of the DeKalb County property or the proceeds from the sale.

A hearing was held on the partition action in April 2011, an the Order was entered in May 2011, dismissing Husband from the action due to his stating he had no interest in the property in his Answer. The property was sold by public auction within 120 days. After the sale, the parties were to have another hearing to "determine the parties respective shares and interest and how the proceeds will be distributed."
In May 2011, Wife's attorney filed a proposed final decree in the divorce case, but Husband objected, alleging "Wife appeared at a hearing conducted in the litigation and asserted a right in and to the real property or the sale's proceeds to be generated from the partition sale of the property." On May 27, 2011, the final decree of divorce proposed by the Wife was entered by the Chancellor.

In September 2011, the divorce court held a hearing on the Husbands motion to set aside the final decree of divorce pursuant to Tennessee Rules of Civil Procedure 60.02. That was denied, the court having found that the Husband deliberately violated Tennessee Code Annotated § 36-4-106 and came before the court with unclean hands. Therefore, he was not entitled to relief from the original judgment. The proceeds from the partition property were found to be Wife's separate property, not marital. Husband committed a contemptible charge by transferring his interest in the property based upon statute and lost his right to claim an interest in the property. The Court found that he had not petitioned the Court with clean hands, and waived any interest he would have had.

In the Appeal, Husband then argued that the trial court erred when they entered the Wife's proposed divorce decree without holding a hearing on his objection. Following Local Rule of Chancery Practice 14.01(c), no hearing was required for the proposed decree, just allowance for an objection to be filed or the filing of a competing proposed final decree. Tennessee Court of Appeals found no error in the trial court's entry of the Wife's proposed divorce decree.

The Husband then challenged the trial court's decision to deny his motion to set aside the Wife's final divorce decree and awarding the DeKalb County property partition proceeds to the Wife in infringement of the consent decree and final divorce decree. The property was not mentioned overtly in the consent decree or the final divorce decree. The Husband believed that the property was marital property and should be transferred to him. "The trial court declined to award Husband any proceeds related to the DeKalb County property because Husband took a diametrically opposed position in the partition action and he had unclean hands by his misconduct and actions and should be estopped after the fact to obtain an interest in the property subject to the partition suit in DeKalb County." The Tennessee Court of Appeals agreed with the trial court.

The doctrine of unclean hands is based on the belief that "he who seeks equity must do equity and that he who has done inequity cannot have equity." In re Estate of Boote, 265 S.W.3d 402, 417 (Tenn. Ct. App. 2007). The doctrine "enables a court to prevent a party from profiting from her own misconduct." Emmit v. Emmit, 174 S.W.3d 248, 253 (Tenn. Ct. App. 2005). Because of Husband's actions in quit-claiming the property in violation of Tenn. Code Ann. § 36-4-106(d), the trial court did not err in using the unclean hands doctrine to deny the Husband any interest in the property and awarding any proceeds from the partition suit to the Wife.

Parental Relocation Request Denied Due to Threat of Emotional Harm, Not in Best Interests

Mon, 18 Feb 2013 09:45:09 -0500

In the case titled Johnson v. Johnson, No. M2012-00900-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee divorce attorneys are shown an example of when a parental relocation request should be denied by a trial court.

Facts: The parties were married for 16 years and had three children before an agreed divorce was finalized in January 2010. Mother was named primary residential parent ("PRP") and Father had 122 days of coparenting. In April 2011, Mother sent Father written notice of her proposed relocation to California, due to her desire to go to school to study marine biology. Father filed a Petition in Opposition to Relocation and to Modify the Parenting Plan, asking to be named PRP. At the trial, the court learned the older child was in his final semester of high school and that he wanted live with his Father during college. Mother agreed he should be allowed to stay. Father called an expert who testified that he believed the daughter would suffer substantial emotional harm should she be forced to relocate. The expert also stated that the impact of dealing with her Mother moving to California would be considerably less than if the daughter was also forced to relocate. The trial court held that the daughter would not be allowed to relocate to California, noting the following: Mother's remarriage does support a reasonable purpose for relocation; that Mother's plan of returning to school was not supported by the record; that there was no vindictive purpose by Mother; that the expert opined the daughter would suffer serious harm; and that should Mother still want to relocate with either child, the parties should return to mediation to draft a new parenting plan.

Mother appealed, arguing that the trial court incorrectly held that the threat of harm of relocation outweighed the threat of harm of changing the PRP.

Analysis: The Court must look to T.C.A. §36-6-108(a) & (d), which states that unless the court finds one of the following, the parent shall be allowed to relocate with the child: that the relocation does not have a reasonable purpose; the relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody; or if the motive is vindictive. If any of these are found, the Court will move on to a best interests review under T.C.A. §36-6-108(e).

Here, the trial court found that Mother's remarriage was a reasonable purpose for relocation but also determined that the relocation posed a specific threat of harm that outweighed the harm of changing the PRP, mandating a best interests review. The trial court then determined that the daughter's best interests weighed in favor of not allowing the relocation. Mother argues that the expert testimony did not support a finding of harm. However, said expert stated that the daughter found it difficult to discuss the possibility of moving and would withdraw and shut down. Father testified the child "broke down" upon learning of Mother's intention, and continued to do so for several days afterward. The Appeals Court found that the expert testimony did support a finding of harm that outweighed the harm of changing PRP, and that the trial court also correctly determined that the daughter's best interests weighed in favor of not allowing her to relocate with the Mother.

Retroactive Child Support Denied Due to Vehicle Payment by Spouse

Thu, 14 Feb 2013 15:56:59 -0500

The case of Carroll v. Carroll No. M2012-00111-COA-R3-CV (Tenn. Ct. App. January 30, 2013), helps Tennessee Divorce Attorneys learn that retroactive child support may not be appropriate when a party has already overpaid support of a spouse in some other way.

The facts of the case are as follows: The parties married and had a child together before they separated in 2006. Husband filed for divorce in April 2007, and Wife did not answer the complaint until June 2010. She then filed an Answer and a Counter-complaint for divorce. A few months later she filed a motion seeking temporary support; Husband entered an agreed order to pay child support in the amount of $628 per month as per the Temporary Parenting Plan. From the time the parties separated in 2006 until August 2010, Husband was making payments of $667 per month for a Chrysler Pacific automobile that Wife drove. However, both were equally responsible for the payment. At an evidentiary hearing in October 2011, Husband alleged that Wife agreed to these payments on the vehicle in lieu of child support. Wife denied agreeing to these terms, but confessed that she did not stop him from paying. In addition, she stated she would have made the car payments herself with any child support given to her by Husband. In the Final Decree of Divorce the court did not find a reason to grant Wife retroactive child support, because it was not appropriate when Husband had been paying for a vehicle she was driving.

Analysis: Wife appealed the trial court's decision denying her request for retroactive child support. Under Tenn. Comp. R. & Reg. 1240-2-4-.06(1)(b)(1), "unless the rebuttable presumption provisions of section T.C.A. 36-5-101(e) have been established by clear and convincing evidence, a judgment for initial support must include an amount of monthly support dating back to when the parties separated." The evidence in this case shows that the Husband satisfied his obligations by paying the loan on the vehicle that the Wife drove. If the child support payments had been made to the Wife, they would have gone towards the same car payment. The payment for the vehicle was $667 per month. Husband was then obligated to pay $628 a month in child support. The payment on the vehicle exceeded the amount he was obligated to pay by $39; therefore, he ended up paying $2,106 more than he was required. The appellate court affirmed the trial court's decision in denying retroactive child support due to these circumstances.