Tennessee Divorce Attorney Blog

The case of Stancil v. Stancil, No. E2011-00099-COA-R3-CV, held that an antenuptial agreement without adequate disclosure and a spouse who was misled into signing was not valid and unenforceable. Tennessee divorce attorneys should note the disclosure requirements reviewed in this case.

The testimony showed that before the parties married, Husband stated Wife needed to sign a document allowing her to "not be on his property" due to her bad credit and his need to obtain future loans. Wife testified that Husband stated that although the document was similar to a prenuptial agreement, its only purpose was for him to secure a loan. Wife also testified that Husband stated he would omit a parcel of property, which would serve the purpose of invalidating the agreement. The property Husband claimed to be omitting he referred to as "St. Elmo", which Wife believed to be a street name. However, in the agreement she signed, a property at Twelfth Avenue was listed. That property was located in the St. Elmo district in Chattanooga, although those words never appeared in the document. Wife had a witness testify who corroborated Husband's explanation of the credit score and St. Elmo theories. The attorney who prepared the agreement testified, stating Wife had opportunity to ask him questions and he had received a letter from Husband's attorney that he would be liable to Husband if the agreement was invalidated. The trial court held the antenuptial agreement was valid. Wife appealed.

T.C.A. § 36-3-501 covers antenuptial agreements, and the Tennessee Supreme Court has stated that the spouse seeking enforcement must show by a preponderance of evidence that a full and fair disclosure of the nature, extent, and value of his or her holdings was provided to the spouse seeking to avoid the agreement or that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full extent of the value of the holdings.

Here, the Husband failed to meet that burden. Statements by the Wife and witnesses contradicted the Husband's version of events in leaving out a piece of property to invalidate the agreement on purpose. Also, Wife did not know she was signing away her rights to alimony under the agreement. Wife believed she was signing an agreement which only assisted Husband in securing loans. The Husband's bad faith undermines the foundation of the agreement. Along with misleading Wife and the bad faith, the Court found there was not full disclosure by Husband.

The necessity of full disclosure and good faith depends on the exercising of candor and good faith, which leads to a leveling of the playing field in bargaining power. The parties entering the agreement should do so with full knowledge of the other person's holdings. The factors considered for full and fair disclosure are: "the relative sophistication of the parties; the apparent fairness or unfairness of the substantive terms of the agreement; and finally, any other circumstances unique to the parties and their specific situation." Here, Wife was clearly at a disadvantage and was misled by Husband. Therefore, the trial court erred in upholding the antenuptial agreement and the Appeals court reversed, finding the agreement invalid.

The case of Gray v. Jeans, No. E2011-00692-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2012) shows Tennessee divorce and custody attorneys that when filing to modify a Permanent Parenting Plan if no material change in circumstances has been proven, the court is not required to make a best interests determination and must deny the change of custody.
In 2005, the parties (never been married), entered into a Permanent Parenting Plan ("PPP") allowing shared custody. The Father was designated primary residential parent coparenting rotating every two weeks and no child support.

In 2010, Mother filed a Petition for Contempt and to Modify Permanent Parenting Plan allowing her to be the primary residential parent and to relocate to Rutherford County. Mother alleged Father failed to provide appropriate medical care and was abusive to her and the children. Mother also alleged Father exhibited inappropriate behavior towards her in the presence of the children. The trial court denied Mother's requests. Mother appealed.

The Trial was held in February 2011. On cross-examination, Mother acknowledged that, in the two year period in which she lived with Father, she did not call the police over Father's alleged instances of abuse. Mother also acknowledged that in 2010 - 2011 both Children did well in school. Mother also acknowledged spending time with Father in 2010, including shopping and meals. Mother stated her current Fiancé was the fourth man she had planned to marry, but stated he was the only one she was "serious" about.
Father denied any abuse towards Children and acknowledged he hit Mother once after she had hit him in the nose. Father stated the Children did very well in Hamblen County schools and that any relocation would be detrimental. Father confirmed he used corporal punishment but denied any threats toward Mother.

The Trial Court found the evidence did not show a material change of circumstances justifying a change of the PPP. The Appellate Court held, "Existing custody arrangements are favored because children thrive in stable environments." Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once made and implemented, is considered res judicata upon the facts in existence or those which were reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001). However, our Supreme Court has held a trial court may modify an award of child custody 'when both a material change of circumstances has occurred and a change of custody is in the child's best interests." Kendrick v. Shoemake, 90 S.W.3d 566, 568 (Tenn. 2002). Further the Trial Court's implicit finding was a clear rejection of Mother's abuse contentions. The Appellate Court quoted, "It necessarily follows that if no material change in circumstances has been proven, the trial court 'is not required to make a best interests determination and must deny the request for a change of custody." Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999). Appellate Court affirms the Trial Court's finding and decision that no material change in circumstances has occurred.

Tennessee divorce and custody attorneys should take note of the recent Appellate case entitled Shultz v. Shultz, No. E2011-00874-COA-R3-CV, which emphasized the best interest review when modifying a custody order or parenting plan.

The parties married in 2000, had a child in 2003 and filed for divorce in July 2008. Mother filed in Knox County, requesting a temporary parenting plan (TPP) via Local Rule 28 with an affidavit alleging Father was unstable and had anger issues. The trial court entered the TPP, giving Father visitation every other weekend. The parties settled and filed a permanent parenting plan (PPP) which the Court approved, giving Father 120 coparenting days every year.

In 2009, Mother filed a petition to modify alleging a material change of circumstance. Father responded by requesting equal co-parenting time. The trial court ordered that the Father could not have overnight visitation with the child unless and until he stopped cohabitating with his paramour (whom he later married). In 2010 Mother made a filing alleging Father lived with seven other people, that a minor living there was facing criminal charges for alcohol use, that a domestic abuse police call occurred at the residence, and that the school had informed Mother that the child had written a "disturbing message with sexual content." DCS investigated this incident and found the child had been exposed to inappropriate amounts of information regarding sex. The trial court then entered a new TPP giving Father day-only visitation every other weekend.
After a hearing, the trial court found that Mother constantly instigated investigations (police, fire marshal, DCS) against Father which were all unfounded and that Father was hardworking and trustworthy. Therefore, the court ordered fifty-fifty coparenting and joint decision making.

Mother then switched counsel (resulting in the trial judge changing due to a conflict) and filed a TRCP Rule 59 Motion asking that the order be set aside and/or for a new trial. The new judge denied this and affirmed the trial court. The Mother appealed.

Modification of a parenting plan is a two-step process under T.C.A. §§36-6-101(a)(2)(B) and (C). First, the petitioner must show a material change of circumstance has occurred, a standard that is higher for a change of custody than a change of residential parenting schedule. If such a change is proven, the court must turn to a best interests determination which includes a variety of factors found in T.C.A. §36-6-101(a)(1)-(10). These factors include emotional ties between child and parent, ability of parents to provide, continuity, stability of family unit, parents' mental and physical health, the home/school/community record of child, reasonable preference of a child twelve years or older, evidence of physical or emotional abuse, character and behavior of third parties who interact with the child, and each parent's past and potential parenting.

Here, the Appeals Court concluded the trial court did not make a comprehensive best interest review in light of the following: lack of consideration of Mother's history as primary caregiver; lack of evidence showing Mother was unwilling or unable to provide; lack of evidence showing Father's ability since his remarriage had improved; Mother's proven stability; and the character and behavior of third parties living in Father's home. Accordingly, the Appellate Court found the Father failed to meet his best interests burden. Therefore, the case was reversed and remanded to the trial court for a new hearing on the best interests standard and revision of the schedule.

The case of Wilkinson v. Wilkinson, No. M2010-01974-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2011) shows Tennessee divorce attorneys that filing to reduce temporary alimony payments while a divorce is pending may be granted on appeal.

When the parties' trial occurred, Wife was 59 and had been a stay at home mother for the majority of the marriage. Once the children enrolled in college, Wife attempted to go back to school but the Husband would not allow it. She subsequently worked as a substitute teacher earning $80 per day and worked 15 days per year. Husband had worked for a corporation in the 1990s and his last salary there was $275,000, and he received a severance package valued at $1 million in 1999. The corporation went bankrupt and these payments stopped two years later. Husband had entered into an internet venture, which collapsed. Husband testified he spoke with Wife about having to change their lifestyle due to financial constraints. They drained his 401k and moved into a smaller home in 2007. Husband then had multiple affairs. At the time of trial, Husband was earning $3,000 per month.

The trial court granted Wife the divorce and awarded her $800 per month in alimony in futuro under T.C. A. §36-5-121. The court ordered Husband to file an affidavit every 90 days stating his earnings in light of his earning capacity, which the trial court determined to be $5,400 per month. The marital residence was ordered sold, with proceeds split 67%/33% (as were all expenses, mortgage, etc.) The Court ordered Husband to repay $75,000 to Wife's as reimbursement for her loan from her brother, given after Husband moved out. Husband also had to pay debt totaling $33,000 and attorneys fees in the amount of $30,982.68 payable at $100 per month. Husband was also ordered to pay $66,000 in past due temporary support payments to Wife. Husband appealed.

The Appeals Court found the division to be "generally equitable" but found that Husbands payment of the $75,000 for the brother and the $66,000 of back support payments was a double payment for temporary alimony during the same time period. Accordingly, Wife was held liable for the debt to her brother, not the Husband. The Appeals Court also found the Wife attempted to keep the same pre-divorce lifestyle even after the finances were drained and the divorce was ongoing. The $800 in alimony was affirmed based upon the Wife's job prospects (negligible), health (problematic) and Husband's reduced ability to earn. However, the Appeals Court held the trial court erred in not granting Husband's Motion to Reduce Alimony filed in 2009, and ordered a modification effective from December 2009 until trial in 2010 (which was the basis for the $66,000 judgment of past due support) and therefore reduced that judgment to $35,400.

In Jones v. Smith, et. al., No. W2010-01160-COA-R3-CV, (Tenn. Ct. App. Dec. 12, 2011), the paternal grandparents (hereinafter "GP") filed to intervene in their son's divorce action and requested custody of the two minor children. This case highlights for Tennessee custody attorneys when one may recover fees.

After a twelve-day custody trial, the court dismissed the GPs motion to intervene and named Mother primary residential parent (PRP). The court also held that the GPs had to pay some of Mother's attorney's fees, expert witness fees and discretionary costs under T.C.A. §36-5-103(c) for a total of $66,043.06. GPs appealed.

T.C.A. §36-5-103(c) states as follows:
"The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court."

The subsequent case law states that although such a fee award is not mandatory, it is commonplace.

In their appeal, GPs argued that the statute only allows attorneys fees to be awarded between spouses. However, prior Tennessee case law interpreted the statute to allow courts to award fees against third parties in Toms v. Toms, 98 S.W. 3d 140, 145 (Tenn. 2003). In that case, the Tennessee Supreme Court explained that the spouse obtaining custody may recover fees from a third party intervenor seeking custody.

Secondly, the GPs contended that the Toms decision was erroneous. However, because the Appeals Court is bound by any Supreme Court Rulings, then that issue is moot and the GPs' only relief is review by the Supreme Court. The GPs also argue that Toms only applies where fees for an appeal are awarded. The Court of Appeals found nothing in the Toms case or the statute that would lead to an interpretation that the fees authorized were for appeals only. Accordingly, the case was affirmed and appellate costs were taxed to the Grandparents.

In the case of In Re: Hannah M.N., No. E2010-00342-COA-R3-JV (Tenn. Ct. App. Dec. 2, 2011), the Magistrate for the Juvenile Court of Blount County, Tennessee, held that the child's father was willfully and voluntarily unemployed. Accordingly, the court imputed income to him in order to calculate his child support obligation. The Appellate Court vacated this decision and remanded for further adjudication, showing Tennessee family lawyers how the new standard for this determination works.

This case began by the State filing a petition to set child support on behalf of the Mother in 2008. At a hearing, Father stated he was unemployed but received money from his mother and sister. He also stated in 2007, he made $7.00 per hour and worked forty hours per week and in that in November of 2008 he earned $300 per week at a lawn care service. His testimony regarding employment in previous years included the following: he owned and sold a restaurant in 2005, earning between $8,000 and $10,000 in proceeds; and he worked as a casino manager earning $30.00 per hour. Father had no proof of income for the magistrate at the hearing, even though instructed to do so via the summons served upon him. However, Father did testify that he currently owned a private club where people played cards.

The magistrate imputed income to him of $50,000 per year and to Mother approximately $12,000 per year. Father hired counsel and filed a Tennessee Rules of Juvenile Procedure Rule 34(b) motion asking the court to vacate or modify his obligation, set at $627 per month. The magistrate refused to hear this, stating Father lacked credibility on the issue of how much income he earned from his private club. However, the magistrate did hear Mother's contempt petition against Father, and in his defense he testified that he made $320 per week at the club and his 2008 tax return showed $8,327 in gross income. He was found in contempt and ordered to pay a purge amount of $2,772. Father appealed to the Juvenile Court Judge, who found he had waived his right to a de novo hearing by previously filing his motion to modify or vacate and his appeal was dismissed. Father then appealed to the Court of Appeals.

The Appeals Court pointed out that willful unemployment is a question of fact and the court must consider education, training, ability to work, past and present employment, reasonableness of present job choice and good faith. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2.(iii). The Court stated that Father's lack of proof of income at the first hearing did not give magistrate grounds to impute income. Instead, the party alleging that the other parent is willfully or voluntarily underemployed or unemployed bears the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4.04(3)(a)(2)(ii). Accordingly, the State (acting on behalf of the Mother) had to demonstrate the Father's willful under-or-un-employment. Therefore, the Appeals Court held that the record did not support such a finding against Father for imputed income of $50,000 per year. Therefore, the case is remanded to the Juvenile Court to determine his actual income. The judgment was vacated and the appeal costs were taxed to the State (ex rel. the Mother).

The Tennessee Court of Appeals recently set out guidelines that Tennessee family law attorneys should note for when a person is to be held in criminal contempt for violating an Order of Protection ("OP") in Furlong v. Furlong, No. E2010-02456-COA-R3-CV.

In 2010, wife's amended OP against her husband allowed texting and email in addition to having husband fix the wife's car between 12:00p.m. and 7:00 p.m. on a specific day. On that day, husband did not arrive until 7:10 p.m. Husband saw wife and some friends in the driveway. He drove away without making physical or verbal contact except for a text asking if the car was already fixed.

Afterward, wife petitioned to hold husband in criminal contempt for violating the OP by driving by after 7:00 p.m. The trial court held husband did violate the Order, sentenced him to 10 days in jail, and extended the OP for 5 years pursuant to T.C.A. § 36-3-605(d). Husband appealed.

A court has power to punish parties for civil or criminal contempt under T.C.A. § 16-1-103. While T.C.A. §§ 29-9-101 to -108 provides specific punishments, in this case the Appeals Court looked to T.C.A. § 36-3-610(a) which allows courts to punish anyone who violates an OP. To determine whether a party is in contempt, a court looks to 4 elements: (1) order violated was "lawful"; (2) order was clear, specific, and unambiguous; (3) the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and (4) the person's violation must be "willful." The elements can also be found in T.C.A. § 29-9-102(3). Lastly, an appellate court will only reverse an order of criminal contempt when, under Tenn. R. App. P. 13(e), the evidence is insufficient to support the trier-of-fact's finding of contempt beyond a reasonable doubt.

The appellate court looked only to the last 2 elements here, namely whether the order was ambiguous and whether the husband's violation was willful. Both elements failed. While the wife argued the husband was supposed to complete the car repair between the times stipulated, the appellate court believed the order could also have been interpreted to mean that husband only had to start the repair between those times. Further, the appellate court concluded no reasonable person in husband's position would have expected to be thrown in jail for simply driving on a public road ten minutes after he had been ordered to be in the driveway. The court also concluded that there was no evidence to prove the husband violated the order willfully. That would have involved proving the husband acted with bad purpose. There was no evidence to show that husband drove by the house to harass or irritate the wife instead of repairing the vehicle. The appellate court consequently reversed the trial court's ruling in its entirety.

Even though wife lost the appeal, husband was not entitled to attorney fees. Under T.C.A. § 36-3-617(a), an abuser, sexual offender, stalker, etc. are only entitled to fees when the petitioner (the wife) knew the allegations were false at the time the petition was filed. Since no evidence to support that existed here, husband was denied attorney fees.

Wiser v. Wiser, No. M2010-02222-COA-R3-CV, demonstrates to Tennessee divorce attorneys that if you intend for a divorce settlement to modify or vacate an Order of Protection, then you must include specific language in the divorce decree or obtain a separate order regarding the OP, if two separate courts are involved (one for the divorce and one for the OP).

The trial court in this case first granted a wife's Order of Protection against her husband while they were separated after he came to her house and threatened to kill her. The wife subsequently filed for divorce. While the original Protection Order was extended for an additional year after a hearing, the husband and wife executed a Marriage Dissolution Agreement (MDA) that contained a mutual restraining order. A year after the divorce, a hearing was held to extend the original Order of Protection again. The trial court found that the husband violated the Order after testimony was given that he indirectly contacted his wife when he sent a letter to her attorney to give to her and had her granddaughter call her while he was in the same room. The trial court therefore extended the Order of Protection for 5 years due to the violation.

The husband appealed the trial court's decision, claiming that the mutual restraining order executed in the MDA vacated the original Order of Protection. Orders of Protection are governed by T.C.A. § 36-3-601 et seq. Under T.C.A. § 36-3-606, victims of domestic abuse can prohibit any contact between the abuser and the victim, direct or indirect. The statute also prohibits stalking, can set financial support, seize firearms, and direct the abuser to attend counseling. Most importantly, T.C.A. § 36-3-611 allows a violator of an Order of Protection to be arrested immediately. There does not have to be a warrant issued before the arrest. Once an Order of Protection has been entered, T.C.A. § 36-3-605 only allows a court to either dissolve the order or extend it. Lastly, T.C.A. § 36-3-603 provides that an Order of Protection remain in effect once a divorce is filed for the pendency of the divorce, or until it is either modified or dissolved by the divorce court.

Using the above statutes as guidance, the Tennessee Court of Appeals held that there was nothing in the evidence to show that the trial court intended or even had the power to vacate the prior Order of Protection when the mutual restraining order was issued as part of the MDA. Also, there was nothing in the Divorce Decree that even indicated that the Decree nullified the Order of Protection. Accordingly, the wife was also able to collect attorney fees from the husband. Under T.C.A. § 36-3-617(a)(1), no sexual abuse victim, stalking victim, or sexual assault victim is required to bear any court costs associated with filing, issuance, registration, service, dismissal or nonsuit, appeal or enforcement of an ex parte order of protection, order of protection, or even a petition for a new order of protection.

In Eldridge v. Hunley, No. W2011-00728-COA-R3-JV, the Tennessee Court of Appeals set out the standard used when determining whether a material change of circumstances is enough that modifying a parenting plan would be in the child's best interest, and shows Tennessee divorce and Tennessee child custody attorneys that trial courts have wide discretion when setting coparenting schedules.

The parties had a child in 2006. Shortly after the child was born, the father petitioned to establish paternity and have coparenting rights. While the father requested joint decision making and shared parenting time on an alternate week basis, the juvenile court designated the mother as the primary residential parent ("PRP") and allowed the father to have parenting time every first, third, and fifth weekend of each month. In 2008 the father petitioned the juvenile court to modify the plan, and in 2009 the court changed the plan so the father could have the child every first and third week of each month. The mother then requested a hearing in 2010 to modify the parenting plan a third time. After the hearing, a juvenile court special judge changed the parenting plan so the father would only have coparenting every other weekend. The father then filed an appeal to the Tennessee Court of Appeals.

According to T.C.A. § 36-6-101(a)(2)(A), a trial court has wide discretion to establish a parenting arrangement when done in the best interest of the child. But a parenting order may be modified if there is a material change of circumstance as defined in T.C.A. § 36-6-101(a)(2)(C). In order to determine whether a parenting plan modification is warranted when there is such a material change of circumstance, a court must first determine whether a material change of circumstance has occurred that affects the child's well being. If it does affect the child's well-being, then the court must determine whether a change is in the best interest of the child.

The appellate court noted that trial court did not make any specific findings of fact to support its determination as required by Tenn. R. Civ. Pro. 52.01. While in some cases this would have been a reversible error, the appellate court did not believe so in this case because the record independently supported the trial court's judgment. While a psychologist testified that the child was thriving under the alternate week visitation schedule, the testimony also showed that the equal parenting time was not successful when the parents could not cooperate with each other. The trial court noted that the parties' relationship was highly contentious in that they were not able to get along with each other or work together. The record also failed to contain any evidence that the child experienced any increased anxiety after the latest modification to the parenting plan. Based on this as well as other evidence in the record, the appellate court affirmed the trial court's decision, noting that the trial court did not abuse its discretion or make a decision that was not in the child's best interest.

In Estes v. Estes, No. M2010-02554-COA-R3-CV, the father and mother had twin boys and a girl when they divorced. Mother was designated primary residential parent ("PRP"). Later, father filed a Petition to Modify the Parenting Plan citing mother's move to another county, alleging this required the twins to change schools.

Under Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003), a petitioner must prove that (1) a material change of circumstances occurred; and (2) a change of custody or residential schedule is in the child's best interest. The Tennessee Supreme Court also set out 3 considerations: (1) a change has occurred after the entry of the order to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether the change affects the child's well-being in a meaningful way.

The trial court here modified the parenting plan, giving the parties equal time with the twins and making both parents PRP. The daughter's plan was unaltered. The trial court held the mother's move constituted a material change in circumstances due to the complications it created regarding the children having to change schools. The mother appealed.

The mother argued that under both T.C.A. § 36-6-101(a)(2)(B) and (C), no material change of circumstances existed. T.C.A. §36-6-101(a)(2)(B) pertains to modification of the court's prior decree declaring the PRP. T.C.A. §36-6-101(a)(2)(C) pertains to a modification of the court's prior decree pertaining to a residential parenting schedule. For a court to change the PRP under subsection (B), there must be a more substantial change of circumstances than to change the schedule but keep the PRP the same under subsection (C).

The appellate court held the evidence supported a material change of circumstances under both sections, because the equalization of parenting time lessened certain difficulties arising with the mother's move. Further, the twin boys reached an age where they could benefit from additional time with their father hunting and playing sports. Also, mother's move jeopardized the children's ability to stay in their school. This was enough to constitute a material change of circumstances justifying a change in the parenting plan and PRP for the twins. Yet the court noted that a change to or from an equal parenting schedule will not always have an effect on the PRP designation.

Therefore, the appellate court affirmed the trial court's decision to modify, but overruled the decision to designate both parents primary residential parent. T.C.A. § 36-4-402(5), requires one designated primary residential parent. T.C.A. § 36-6-402(4) defines a primary residential parent as the parent who spends over 50% of the time with a child. In cases where parents share equal time, a primary residential parent is still required because T.C.A. § 36-6-410 mandates that a child have a primary residential parent for all state and federal statutes that require a custody determination, even if no primary residential parent exists in reality. Since the trial court's ruling designating both parents as a primary residential parent did not comply with this statutory requirement, the appellate court designated the father as the primary residential parent of the twin boys for school zone purposes. Tennessee divorce attorneys should note that having two PRPs is not proper.

In In Re: Taylor BW, and Ashley NW, No. E2011-00352-COA-R3-PT (Tenn. Ct. App. Oct. 28, 2011), the Tennessee Court of Appeals reiterated that Tennessee adoption attorneys must show trial courts that to terminate parental rights, the best interests of the children rather than the best interests of the parents are served.

In this case, the Father and his new wife filed a Petition to Terminate Parental Rights and a Petition for Adoption by a Step-Parent. Mother had been incarcerated for attempting to kill Father. After a hearing, the court found that Father proved grounds for termination based on Mother's incarceration and that termination was in the best interest of the children. The court noted that the youngest child did not have a meaningful relationship with Mother and the children feared Mother may hurt them.

Mother filed a Motion to Alter and Amend. Upon reconsideration, the trial court altered the original order finding Father did not carry his burden. The court looked at the fact that Father continued to keep Mother involved and that Mother did everything she could while she was incarcerated.

The Tennessee Court of Appeals found the trial court erred by looking at Mother's rights. In a termination case, the court must first find grounds for termination exist under Tenn. Code Ann. 36-1-113(g). Then the court must assess whether the best interest of the children is served by terminating parental rights. In doing so the court must look at what effect termination of parental rights would have on the children.

After assessing the facts against the best interest factors found in Tenn. Code Ann. 36-1-113(i), the Court of Appeals found the trial court's first ruling was supported by clear and convincing evidence. The Court of Appeals focused on the fact the children feared Mother, had not had a meaningful relationship with her, and did not wish to visit her. Thus, the Court of Appeals reinstated the trial court's original order.

A recent Court of Appeals case shows Tennessee divorce attorneys when alimony in futuro is appropriate. In the Jackman v. Jackman case, No. W2010-01435-COA-R3-CV, the husband and wife married in 1996 but separated in 2002 after the wife discovered husband was having an affair. During the divorce proceedings, wife argued that not only was she economically disadvantaged but she was also unable to ever work again due to, among other physical ailments, depression and anxiety disorder. This was confirmed during depositions of her treating psychiatrist and court-appointed psychologist.

The court ordered the husband to pay the wife $2,400 a month in rehabilitative alimony. But before a final decision was made the court ordered the wife to undergo a vocational rehabilitation evaluation to make sure that she really was unemployable. The vocational rehabilitation program confirmed that she was not. The wife then argued that the court order should be amended to change the alimony to be in futuro instead of rehabilitative. The trial court permitted the change and increased the husband's alimony from $2,400 a month to $2,900 a month. The trial court also ordered the husband to maintain an additional $150,000 in life insurance coverage to secure his alimony obligation to his wife. The husband then appealed the trial court's decision.

Husband argued that even if the trial court could amend an alimony award (which the appellate court held it could), granting the wife alimony in futuro was not proper. Under T.C.A. § 36-5-121(f)(1), a party is granted alimony in futuro when the disadvantaged spouse is unable to achieve an earning capacity that will permit the spouse to have a living standard comparable to the living standard that they enjoyed while married. While T.C.A. § 36-5-121(i) uses twelve factors in determining alimony, the appellate court ruled that the two most important factors relating to an alimony award are the need of the economically disadvantaged spouse and obligor spouse's ability to pay. Since it was determined that the wife could never work again, the court ruled that granting alimony in futuro was appropriate. Also, even though alimony in futuro is usually not granted in situations where the marriage was of short duration, the court held that in such was not the case here. Even though they were separated in 2002, they did not divorce until 2006. Therefore the marriage legally lasted ten years.

The Appellate Court also held that although the husband had to support his current spouse and their three children, this was not a factor to take into account when determining alimony. As the court stated, the rule in Tennessee is that obligations voluntarily assumed by a party are not proper considerations for changed circumstances to reduce payments otherwise owed. Lastly, the appellate court held that requiring the husband to maintain a life insurance policy on the wife was proper. Under T.C.A. § 36-5-121(l), a trial court is allowed to require a spouse to maintain a life insurance policy to secure their alimony obligation.

In Jekot v. Jekot, No. M2010-02467-COA-R3-CV, the Wife appealed a trial court's reduction of her alimony after a contested divorce trial in Tennessee. Husband applied for this modification citing a lack of income. The Appeals Court reversed the trial court, finding that there was no substantial and material change.

The parties divorced in 2005, having been married thirty years. Wife was given rehabilitative alimony as follows: $15,000 in alimony for one year, $10,000 for the next two years and $5,000 for two years. Husband initially appealed this, and the alimony was modified to be in futuro because Wife had not worked in 25 years and could not realistically be expected to gain substantial employment while near the retirement age. The Appeals Court also changed the payment schedule to equal monthly payments of $9,000 for the same term of five years.

Then in 2008 Husband filed to modify his alimony because his income had decreased and Wife's need also had lessened. After a hearing, the trial court determined a substantial and material change existed, finding Husband's income decreased by 1/3rd and decreased his alimony to 5,000 per month. Wife appealed.

Modification of alimony depends on whether there is a substantial and material change of circumstances, which means the obligor cannot pay or the obligee has less of a need, and must have occurred since the entry of the divorce decree. The Appeals Court's review of Husband's tax records indicate his average taxable income in 2001-2003, used to first set alimony, was $404,000. His average income between 2006-2010 was $605,000. Accordingly, the trial court erred by not looking at Husband' income from all sources, but relying on just his private practice income and not including income received from working on call for emergency rooms.

Husband also argued that his expenses increased because he is paying $108,000 in alimony per year. This argument is meritless because this is not a material change - it did not occur after the entry of the final decree and was not unanticipated.
Finally, the trial court decided Wife had additional income and therefore less need. However, this income is from an income-producing asset awarded to Wife in the divorce. Although the original determination was for it to be sold and the proceeds divided, the parties entered an agreed order stating Wife would retain such an asset and keep the proceeds instead of selling it. Therefore, this is not unanticipated either. Absent Husband showing this income was unforeseen, income derived from a marital asset subject to distribution is not a factor in whether a substantial and material change exists.
Therefore, the trial court is reversed and remanded to have the divorce decree reinstated.

One parent cannot terminate the parental rights of the other parent in Tennessee. Under Tennessee law, a biological parent does not have standing to pursue termination of the other parent's parental rights. See Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004); In the Matter of: Shelby L.B., No. M2010-00879-COA-R9-PT (Tenn. Ct. App. March 31, 2011).

In Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004), the Tennessee Supreme Court held that a parent did not have standing to file a petition for termination. Mother and Father were never married. Mother filed a petition to terminate the parental rights of Father based on his imprisonment. There was no pending adoption. The trial court granted the Petition. The Tennessee Court of Appeals reversed. The Supreme Court of Tennessee dismissed and vacated the judgments of the lower courts. The Supreme Court held that they lacked subject matter jurisdiction to hear the appeal because Mother lacked standing to file the Petition to Terminate Parental Rights. The Court stated, "Because the legislature specifically designated who may file a petition to terminate parental rights, a court does not have subject matter jurisdiction to hear such a petition unless the party filing the petition has standing. . . . Tennessee Code Annotated section 36-1-113(b) does not include the parent of a child as one of the persons or entities with standing to file a petition to terminate parental rights." Osborn, 172 S.W.39 at 740. Tennessee Code Annotated 36-1-113(b) states:

(b) The prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child's guardian ad litem, or the department shall have standing to file a petition pursuant to this part or title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child. The prospective adoptive parents, including extended family members caring for a related child, shall have standing to request termination of parental or guardianship rights in the adoption petition filed by them pursuant to this part.

Why can't a parent terminate the other parent's parental rights? The Court goes on to explain the public policy reason for the legislature's decision to omit a child's parent from those who have standing to terminate parental rights. "The termination of a parent's parental rights outside the context of a prospective adoption would deny the child the support of two parents." Osborn, 172 S.W.39 at 740.

While a parent cannot terminate the other parent's parental rights alone, the parent may terminate the rights by joining in a petition for a step-parent adoption. If you are a biological parent who wants to pursue your husband or wife adopting your child please contact our office for a free consultation.

The Tennessee Court of Appeals has further emphasized the need for parties to bring forth evidence to support their claims when petitioning to modify a party's parenting rights following a divorce in Tennessee. In Hamilton v. Hamilton, No. M2010-02320-COA-R3-CV, the appellate court denied Mr. Hamilton's request to reverse the trial court's decision not to modify his parenting plan and telephone rights.

Mr. and Ms. Hamilton were married in 1996 and had one child before they divorced in 1999. When the divorce decree was entered, the court named Ms. Hamilton the primary residential parent. Yet Mr. Hamilton did not give up without a fight. The years between 2000 and 2010 were filled with legal disputes regarding modifications to the parenting plan and Mr. Hamilton's child support obligations. When the trial court in 2010 denied Mr. Hamilton's petition to restore his telephone privileges and modify custody, Mr. Hamilton finally appealed to the Tennessee Court of Appeals.

Upon appeal, Mr. Hamilton argued that his basic and fundamental parental rights were denied by the trial judge and requested that his case should be moved to another county. However, he failed to offer any facts to support his allegations. Mr. Hamilton failed to provide a transcript of the proceedings in the court below. The Appeals Court did note that the Husband could have included a Statement of the Evidence pursuant to Tennessee Rules of Appellate Procedure 24(c), which is a narrative record of what transpired in the lower courts when no transcript is provided. The documents that Mr. Hamilton filed were not proper under this rule and only included parts of the case. Since here no proper evidence was presented regarding the trial court's decision, the Tennessee Court of Appeals must presume that the trial court's judgment was correct. The Court of Appeals therefore denied Mr. Hamilton's appeal and affirmed the trial court's judgment.

This case highlights the decision many clients make to not have a court reporter present at their proceedings. Without a court reporter, the record that the Court of Appeals is bound to review may have gaps in evidence presented, objections made, testimony given and exhibits that were produced on the trial court level. Without such a record, the Appellate Court can only review the pleadings filed in the case - motions, orders, etc., and have no method of obtaining the actual substance of what occurred during evidence presentation. This is an issue that all clients and attorneys should discuss prior to attending any hearing or trial regarding child custody or divorce matters in Tennessee.