Tennessee Divorce Attorney Blog

In the case titled Holt v. Holt, No. W2012-00265-COA-R3-CV, 2013 WL 1577831 (Tenn. Ct. App. Apr. 15, 2013) Tennessee divorce attorneys learn the parameters for alimony in futuro and alimony in solido in Tennessee divorce matters.

Facts: Husband and Wife founded a large church in Memphis. The church grew throughout the marriage and at the time of the divorce was housed in a multi-million dollar facility. Both parties were well-educated. Husband filed for divorce in 2009; however, the case was dismissed for failure to establish grounds. In 2010, Husband re-filed. Wife requested temporary spousal support which the divorce referee awarded in the amount of $3,300 per month. The referee also ordered Husband to continue paying the marital bills. The trial court agreed and entered an order.

After litigation for over a year, Husband and Wife agreed that grounds for divorce existed pursuant to Tenn. Code Ann. § 36-4-129(b) upon stipulated grounds. After several bifurcated hearings, the trial court entered its final decree of divorce. The court decreed the following: Wife was awarded $274.82 per month of Husband's pension; Wife was awarded alimony in solido in the amount of $29,700 due to Husband's failure to make mortgage payments on the marital residence; Wife was awarded alimony in futuro in the amount of $2,500 per month; Husband was ordered to pay half of Wife's attorney's fees; and the court rejected Wife's request for Husband to pay for her COBRA insurance benefits. Both parties filed appeals.

Analysis and Conclusion: On appeal Husband argued that the trial court erred in awarding Wife alimony in solido in the amount of $29,700 and alimony in futuro in the amount of $2,500 per month. Conversely, Wife asked the court to review whether the trial court erred in not requiring Husband to pay for her COBRA benefits and only ordering Husband to pay half of her attorney's fees. She also argued that the trial court erred in not considering income generated through the church based on the theory that the church was an "alter ego" of Husband when determining the amount of alimony and the distribution of the marital estate.

In addressing Wife's "alter ego" argument, the trial court averred that Wife did not cite any applicable laws or make any legally based argument to support her position in her brief. The court cited Forbess v. Forbess, 370 S.W.3d 347 (Tenn. Ct. App. 2011) which determined that if a party does not cite to an authority or detail an argument in its brief then the issue is considered waived. Because there was no legal authority or argument contained in Wife's brief to the Court to support her position, the issue was waived.

Next, alimony in solido is a form of long-term support that can be paid in a lump sum so long as there is a definite term. Tenn. Code Ann. § 36-5-121(h)(1). This type of alimony is considered a final judgment and is only modifiable by agreement of the parties. Wife was awarded alimony in solido in the amount of $29,700 which equaled nine (9) months of mortgage payments that Husband did not pay resulting in the marital home's foreclosure. The trial court provided that Husband could pay this amount in installments of $500 per month with no interest until the balance was paid.

In determining if the alimony in solido awarded to Wife for the missed mortgage payments was a proper judgment, the Court of Appeals averred they could not find any support for the trial court's finding. During trial, Wife neither asked the court to award her monies for the missed mortgage payments, nor was there any indication in the trial court's record that the award was an attempt to adjust distribution of the marital estate. The appellate court determined there was no basis to award wife the $29,700 as alimony in solido. Therefore, the judgment was reversed and remanded. The other portion of alimony in solido awarded to Wife for her attorney's fees was determined to be within the trial court's discretion and, therefore, was affirmed.

According to Tenn. Code Ann. § 36-5-121(f)(1), alimony in futuro is appropriate in matters where a disadvantaged spouse with "reasonable effort" is unable to earn an income that would permit a standard of living commiserate with that of the standard of living during the marriage. Courts look at several factors in determining if a spouse is "disadvantaged" such as: education, financial resources and obligations, duration of marriage, minor children of the marriage, standard of living during the marriage, fault of the parties, physical condition of the parties, assets of the parties, etc.

Here, the parties were ages 64 and 57 respectively at the time of the divorce. Both had some minor ailments, but were in good physical condition. The couple was married for 24 years with Wife working alongside Husband to grow the church they started in 1989. While both parties were similarly educated, Husband had an income of $9,000 per month; however, Wife was fired from her position in the church in January 2010 and had not gained other employment. During the marriage the couple enjoyed an income as high as $13,000 per month which the court deemed Wife would not be able to replicate. The appellate court found that the trial court correctly determined Wife had a need for support and affirmed its ruling on the award of alimony in futuro in the amount of $2,500 per month.

In regards to the COBRA insurance, Tenn. Code Ann. § 36-5-121(k) allows a court to order a party to pay health insurance premiums, "in whole or in part," for as long as the court deems necessary and the award is deemed a formed of alimony. Based on this statute the appellate court found that the trial court did not abuse its discretion in its refusal to order Husband to pay Wife's COBRA premiums and affirmed the ruling.

In the case titled Haggard v. Haggard, No. W2012-003600-COA-R3-CV, 2013 WL 2304186 (Tenn. Ct. App. May 28, 2013) Knoxville divorce attorneys learn what constitutes an equitable division of property in a divorce and when a Motion to Alter or Amend is appropriate post-judgment.

Facts: Husband and Wife were married for nine (9) years with no children. Wife filed for divorce in 2010; Husband responded with a counter-complaint. Wife entered a proposed division of marital property as an exhibit with the trial court requesting it award her a lump sum (or in monthly payments) for her marital share of the assets that she proposed be given to Husband.

The trial court took Wife's proposal under advisement. However, in its Final Decree it awarded marital assets valued at $119,847.49 (including three parcels of property) to Husband while only awarding assets valued at $16,598.01 to Wife with no mention of a monetary award for her marital share of the assets given to Husband.

Wife filed a Motion to Alter the Final Decree arguing that although she had not specifically asked for any of the property awarded to Husband she did not intend to forfeit her claim in said property. She also pointed out the proposed division of the marital property she entered with the court as an exhibit. As a remedy, Wife asked the court to award her unencumbered marital assets. Husband filed a response arguing that the division of property was equitable and no "mistake" was made in the final decree. He averred that under the Rules of Civil Procedure there were no grounds to alter or amend the final decree. The trial court stated that it misunderstood Wife's intention at trial regarding the marital assets and found the division to be inequitable. Therefore, it awarded wife a parcel of property valued at $47,000 with no debt. Husband appealed.

Analysis: On appeal the appellate court had to determine whether the trial court abused its discretion when awarding Wife additional real property, without additional proof presented, based on the trial court's misunderstanding of Wife's intention at trial in regards to marital assets.

Husband argued that the division of the marital property was equitable when factoring in the award of alimony ($450 for 24 months) and attorney's fees (approximately $5,000) awarded to Wife. Husband also pointed out that Wife had no debt. The appellate court did the math which showed Wife's total share of the marital assets as $36,297.51 once the alimony and attorney's fees were added. The court conceded that an "equitable" division of marital property does not have to balance mathematically; however, it stated that the division of assets in this case was "plainly inequitable."

Husband also argued that the trial court abused its discretion in allowing Wife's Motion to Alter or Amend. He averred that in the motion Wife spoke of her "intention" regarding the marital property which was new evidence after the final order was entered in the case. The appellate court pointed out that Husband never asked for an evidentiary hearing from the trial court on the matter.

The appellate court quoted Tennessee case law stating a Motion to Alter or Amend allows a trial court to amend a judgment to correct an error or prevent injustice to a party. Its purpose is to allow trial courts, when it has overlooked or failed to consider important matters, to fix its errors to prevent unnecessary appeals.

Conclusion: The appellate court found that the initial division of marital property was inequitable and the trial court did not abuse its discretion in allowing Wife's motion to amend. The trial court's opinion was affirmed with costs of the appeal taxed to Husband.

Many people that call my law firm or are searching for information online have the same question - what is the difference between an Agreed and a Contested divorce action?

As a starting point, a typical "Agreed" divorce is one in which both spouses either want or are willing to agree to the divorce itself, have discussed and agreed upon a division of all assets and debts and if children are involved, they agree upon a co-parenting schedule. On the other hand, a "Contested" divorce action arises under many different scenarios. A Contested action simply means that one spouse is seeking a divorce from the Court but no predetermined agreement has been reached. Unless the spouses can agree on every single issue, a Contested divorce may be necessary. For example, a Contested divorce may arise under the following circumstances:
• One spouse cannot be located
• The parties may agree on how to divide assets and debts but not on co-parenting, or vice versa
• One spouse does not want a divorce
• The spouses cannot come to a resolution on any one single issue, such as how to divide retirement or what to do with the marital home
• One spouse is nonresponsive and refuses to discuss settlement or refuses to sign the required paperwork for an Agreed divorce

A Contested divorce is initiated by the filing of a Complaint and possibly a Proposed Parenting Plan. The Defendant then has thirty days to file an Answer and/or hire a lawyer. Once the Answer is filed, the attorneys may engage in negotiation or exchange of discovery. In a Contested action, if no settlement can be reached outside of Court, mediation is required. Mediation is an informal settlement conference where a neutral party (the mediator) facilitates settlement between the parties. If no agreement is reached, the parties will proceed with a trial. At trial, the Judge will decide upon any and all issues that the parties cannot agree upon, from the co-parenting schedule, to which party gets what furniture, to how debts will be paid.

A typical Agreed divorce only involves one lawyer, but that lawyer only represents one spouse, not both. If the other spouse desires legal advice, they must seek out their own representation. Once both spouses have signed the necessary paperwork, a Final Hearing is held where the Court declares the parties divorced.

If you have further questions, feel free to give us a call for a free phone consultation at (865) 566-0125.

In the case of Cantrell v. Cantrell, No. M2012-01847-COA-R3-CV (Tenn. Ct. App. May 23, 2013), Knoxville divorce lawyers learn that one party's failure to timely pay a property settlement does not relieve the other party's child support obligation.

Facts: The parties divorced in 2008. In 2012, Wife filed a Petition for Contempt based upon Husband's failure to comply with the terms of the divorce. Husband also had a pending Petition to Set Child Support, and the two issues were heard on the same day. The trial court ordered the following: Husband would pay to Wife $20,000 in sixty (60) days; Wife would retrieve all property within sixty (60) days and child support would be paid by Wife of $281 per month from 2008-2011. Wife appealed, arguing that she should not have been ordered to pay child support and that the trial court should have imposed further punishment on the Husband for his failure to pay.

Analysis: Wife's appeal regarding the child support rests on her assertion that she should not have had to pay support based upon fairness and the history of the case. Wife did not argue that the amount was wrongly calculated or inappropriate numbers were used in the calculation itself. Wife argued that she should not pay support because Husband failed to pay the $20,000 property settlement to her in a timely manner. The Appeals Court here finds Wife's argument lacking. The Court held that is was proper for the trial court to hear the contempt and the child support petition simultaneously, and that Husband's failure to pay the property settlement should not affect Wife's duty of support.

Regarding the issue of Husband's contempt, Wife argues additional punishment should have been handed down by the trial court in addition to requiring Husband to pay the outstanding amount in sixty (60) days. However, Wife's Petition only requested civil contempt, not criminal contempt. Civil contempt is intended to bring a party into compliance with a court order; criminal contempt is intended to punish a party for wrongdoing. Because Wife asked for civil contempt and received an order directing Husband to comply, no other action would have been proper. Therefore the trial court is affirmed.

In the case titled Harkleroad v. Harkleroad, No. E2012-01804-COA-R3-CV, 2013 Tenn. App., WL 1933024 (Tenn. Ct. App. May 10, 2013) Knoxville divorce attorneys learn that not all income changes qualifies as a "material change in circumstance" in order to modify alimony.

Facts: Husband and Wife filed for divorce after forty (40) years of marriage. At the time of the divorce, the children of the marriage were over the age of eighteen (18) years. Wife alleged adultery while Husband alleged Wife was "verbally and mentally cruel to him." Wife requested spousal support. The court found her earning potential to be $14,000-$16,000 per year; Husband was assessed an earning potential of $60,000 per year. The court divided the martial estate and ordered Husband to pay wife alimony in futuro in the amount of $1,300 per month and to provide Wife's medical insurance. The court stated Wife needed the spousal support to make the mortgage payment on the marital home which she kept as part of the divorce.

In 2012 Husband petitioned to modify the alimony and medical insurance obligation arguing a "material change in circumstances." Husband alleged he had not received a paycheck from his insurance company (of which he was the sole stockholder) since 2009 and was solely living off his Social Security income. He averred that Wife never got a job as the lower court ordered, she refinanced the home prolonging the payments, and she now received Social Security income.

Income statements were submitted by both parties. The Husband's showed a loss of $1,574 per month; Wife's showed a net income of $149.19 per month. Husband testified that he received $1,660 per month in Social Security benefits and retirement income. He claimed he had not received income from his insurance business since 2009, however; he conceded that the business covered its expenses and provided him with personal loans over the years with the most recent loan being three (3) years after his divorce from Wife in the amount of $106,000. He averred that this loan was used to pay Wife's medical insurance premiums and alimony payments. Husband agreed that his business' appraisal value was $268,000, but he argued that he owed the company $260,000. Husband also admitted to obtaining personal loans from friends and family in the amount of $34,000.

Husband stated that the purpose of the alimony in futuro was to assist Wife in paying the mortgage on the marital home which was awarded to her in the divorce and that the mortgage should have been paid off in 2010, but Wife refinanced the home which extended the payment for another 30 year mortgage term. Wife rebutted that she was not working at the time she refinanced the home, and the alimony payments were not enough to cover the mortgage and her living expenses. She averred that the refinance of the home lowered her mortgage payment to $490 which allowed her to remain in the home.

Wife stated that she had been employed as a substitute teacher but had injured her back rendering her unable to work. In response to her costly medical insurance premiums, Wife explained that she had to have several operations on her back. Wife testified to the court that she was eligible and intended to apply for Medicare which would reduce the cost of her medical insurance premium to $98 per month.

In regards to Husband's income, the lower court found that the loans he received from his business were income as was his Social Security benefits. Therefore, it reasoned, Husband had the ability to pay the alimony in futuro in the amount of $1,300 per month and further ordered him to pay an additional $400 per month to pay his arrearage of same. It was also ordered that Husband pay Wife's Medicare premium in the amount of $98. Husband filed an appeal.

Analysis: On appeal Husband asserted that his entire estate was dissipated by the alimony in futuro and medical insurance premiums awarded to Wife in the divorce. He further asserted he had not received any income from his business since 2009. Wife argued that Husband did receive income from his business through loans instead of a traditional salary; therefore, the lower court's opinion should be affirmed.

The appellate court found that Husband reported an income of $20,000 from his company at the time of the divorce. That income would amount to approximately $1,666 per month. The court found that while Husband no longer received said income his Social Security benefits were almost exactly the same amount, therefore; his income had not drastically changed. It further averred Husband chose to take loans against his company instead of a salary, so, while he did not have a salary, he did have income from the business. In regards to Wife, the appellate court found her ability to work had drastically declined since the divorce was finalized and her Social Security benefits were "not commensurate with her imputed income at the time of the divorce."

Conclusion: The appellate court found the lower court did not abuse its discretion in finding that Husband did not prove a "material change in circumstance" in order to dictate a modification of the alimony in futuro obligation. The lower court's opinion was affirmed.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.