Reduced Earning Capacity Difficult to Prove in Alimony Cases

In the case titled Fields v. Fields, E2012-02406-COA-R3-CV, Slip Copy, 2013 WL 6858383 (Tenn. Ct. App. Dec. 27, 2013), Knoxville divorce attorneys learn whether it is appropriate for a downward departure in regards to alimony in futuro when a party alleges inability to maintain an earning capacity due to an injury.


Husband and Wife were granted a divorce in which the trial court ordered alimony in futuro (hereinafter "alimony") of $1,100.00 per month to Wife. Because husband was temporarily out of work due to a knee surgery, the court suggested the parties negotiate or return for a hearing once Husband returned to work to set a new alimony amount commiserate with his income.

After the divorce was final and the Final Order was entered, Husband returned to work for a period of one year and five months until he had to undergo another knee surgery. After the surgery, Husband never returned to work. Husband filed a motion asking for a reduction of the alimony. Wife countered with a motion to increase the alimony payments.

A bench trial was held in which Husband admitted he made a "conscious decision not to return to his previous line of work." He advised that in addition to the knee injury he also broke his wrist while working. He claimed $1,600.00 in monthly expenses and that his only income was disability payments. He also averred he was making the alimony payments to Wife via credit card advances. Wife averred she had been working since the divorce was final, and made $9.00 to $10.00 per hour working full-time hours. She stated she had to refinance the marital home that was awarded to her in the divorce and obtained an "interest only" loan in order the keep the house. She claimed $4,795.00 per month in expenses, excluding health insurance.

The trial court denied Husband's motion to reduce the alimony averring, "the decisions made by [Husband] relative to his employment are unreasonable and have not been made in good faith."
It further ruled Husband had not proven an inability to work. In its decision, the trial court granted Husband a six month deferral period at the end of which he was to pay alimony in futuro of $2,000.00 per month to Wife.

Husband filed a motion to alter or amend the judgment. He pointed out a VA "exam note" that stated Husband "could not possibly work a construction site" due to his knee surgeries. He also presented an affidavit certifying his disability rating of 100% from March 2011 to May 2012, with an automatic reduction to 40% after May 2012. Husband stated that this information and his recent surgeries constituted a material change of circumstances, because he could no longer work in his former profession and that this justified a reduction in his alimony obligation.

Based on Husband's information the trial court granted the motion to reconsider, and found Husband had established a level of impairment to his knee and hand which warranted a reduction of the alimony obligation during his period of unemployment. However, it further found Husband did not provide sufficient evidence to warrant a downward modification. It affirmed its judgment and ordered Husband to pay Wife $2,000.00 per month in alimony effective June of 2012. Husband appealed.

Analysis and Conclusion

On appeal the appellate court had to determine if Husband's disability rating and recent surgeries constituted a substantial and material change in circumstances to warrant a downward deviation on his alimony obligation, and whether the trial court abused its discretion when it increased Husband's alimony obligation when Wife's circumstances had not changed since the divorce was final.

According to Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 2000), a court may not modify or terminate a spousal support judgment unless it is found that a substantial and material change in circumstances has occurred subsequent to the entry of the original support decree. A change in circumstance is deemed to be material when: (1) "occurred since the entry of the divorce decree ordering payment of alimony," Watters v. Watters, 22 S.W.3d 817, 821, 821 (Tenn. Ct. App. 1999), and (2) was not "anticipated or [within] the contemplation of the parties at the time they entered into the property settlement agreement," Id. A change in circumstances is considered to be substantial when it significantly affects either the obligor's ability to pay or the obligee's need for support. Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).

After reviewing the trial court's record, which indicated Husband had more than enough income over and above his expenses (to the tune of $80,000 per year) to cover the alimony obligation imposed by the court, the appellate court found the trial court was accurate in its summation of the legal facts of the case. At the end of the marriage, Husband made over $100,000.00 per year and drew another $1,200.00 per month in military disability benefits. It further found Husband was not actively seeking employment, but was still employable and capable of earning a comparable income that he enjoyed during the marriage.

As far as Husband's argument against the increase the trial court awarded Wife in alimony payments, the appellate court found no evidence that preponderated against the trial court's decision. It was pointed out by the trial court at the time of the original award of $1,100.00 per month, that the court understood and knew that this amount was low due to Husband's unemployment and advised the parties when he became employed again to negotiate a new amount or return for the court to have a hearing on the matter. Husband did return to work until he required another knee surgery after which he never returned to work again. The trial court noted Husband did not give any factual reason for his lack of employment, and pointed out the note in Husband's VA file was from a physician's assistant, not his doctor. In fact, it was reasoned that Husband's decision not to return back to work actually constituted a material change in circumstance that would justify an upward modification as opposed to a downward modification to match his prior earning capacity. Therefore, the trial court's opinion was affirmed and costs for the appeal were taxed to Husband. The case was remanded back to the trial court for the enforcement of the judgment.

Lack of Original Signature Might Be Acceptable, But Always Check Local Rules!

In the case titled Lanier v. Dizol, No. M2013-00746-COA-R3-CV Slip Copy, 2013 W: 6672902 (Tenn. Ct. App. Dec. 13, 2013) Tennessee family law attorneys learn whether a photocopied signature on a pleading is acceptable to the court per Tenn. Civ. P. 11.01.

Facts: In a post-divorce action Mother and Father filed competing petitions to modify a parenting plan. At a hearing, the court adopted Father's parenting plan. Mother then filed a Tenn. R. Civ. P. 59.04 (Rule 59) Motion to Alter or Amend a Parenting Plan averring there were errors in the calculations of her child support obligation. Because Mother was an officer in the United States Army and stationed in Fort Lewis, Washington at the time her Motion was to be filed, she signed the petition, scanned it into her computer, and emailed it to her mother to print and file it with the court. A hearing date for the matter was set for December 5, 2012.

On November 8, 2012, Father sent a letter to Mother advising of his intention to seek sanctions under Tenn. R. Civ. P. 11 citing, among other things, that Mother's motion did not bear her original signature. Father then filed a Motion to Dismiss Mother's motion averring that the scanned signature violated Tenn. R. Civ. P. 11.01 because the rules of the 17th Judicial District did not allow electronic signing or verification. On November 28, 2012, Mother mailed the motion with her original signature to the court. On November 30, 2012, Father filed a motion requesting sanctions against Mother and her attorney for filing her two pleadings (including the Motion to Alter or Amend a Parenting Plan) that did not have Mother's original signature.

On December 15, 2012, the court entered an Order dismissing Mother's motion citing, "...because it was not timely filed with the original signature of counsel, nor was the matter corrected in a timely manner." In the same Order, the court denied Father's motion for sanctions stating, "...because opposing counsel, though late, eventually filed her original signature to the pleadings."

Mother appealed.

Analysis and Conclusion:

Tenn. R. Civ. P. 5B states the following in regards to electronic signatures:

Any court governed by these rules may, by local rule, allow papers to be filed, signed, or verified by electronic means that comply with technological standards promulgated by the Supreme Court. Pleadings and other papers filed electronically under such local rules shall be considered the same as written papers.

However, it was not disputed that the 17th Judicial District, where the case at bar was heard, did not have a rule allowing electronic filings at the time of this appeal.

Tenn. R. Civ. P. 11.01 states:

Every pleading, written motion, and other paper shall be signed by at least one attorney of record...or, if the party is not represented by an attorney, shall be signed by the party...An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

The comment goes on to state that the purpose of Rule 11.01 is to "make an absolute requirement that the attorney, if any, sign," and to make "the signature, in effect, the attorney's statement that the pleading is filed in good faith." Tenn. R. Civ. P. Rule 11.01, Advisory Commission Comment, effective May 17, 2005.

While Rule 11.01 requires motions and pleadings to be signed, it does not specifically mandate the documents to have an original signature. The motion in the case at bar was prepared and signed by Mother's attorney attesting that it was a pleading "filed in good faith."

For the foregoing reason, the Appellate court reversed the trial court's dismissal of Mother's Motion to Alter or Amend a Parenting Plan and remanded it back to the trial court for proceedings consistent with its opinion.

Misrepresentation May Lead to New Trial in Tennessee Divorces

In the case titled Stamps v. Stamps, Jr., No. M2012-02512-COA-R3-CV Slip Copy, 2013 WL 6795411 (Tenn. Ct. App. Dec. 19, 2013) Tennessee divorce attorneys learn whether the application of Local Rule of Practice 6.02 for the Twenty-First Judicial District gives a trial court discretion to deny a Motion to Alter or Amend and/or for a New Trial in relation to a mediated agreement where facts may have been distorted by a party without a hearing on the matter, without discussing the evidence filed to support said motion in its denial, and without discussing its basis for the denial of said motion.


Husband and Wife were married for 26 years and had two minor children at the time of filing for Divorce. Wife filed a Complaint for Divorce and the parties attended mediation which resulted in the parties entering into a Marital Dissolution Agreement ("MDA").

The parties amassed several pieces of commercial and residential properties during the marriage, one of which was the subject of this appeal. This was a rental property that was awarded to Wife in the MDA.

After the MDA and Final Decree were entered with the court, Wife filed a Motion to Alter or Amend and/or for a New Trial. In her motion Wife averred that Husband had misrepresented the condition and status of the rental property in question. She alleged that Husband did not disclose that the property was in "significant disrepair" and "not rentable or inhabitable." Further, she stated that Husband represented in his deposition that the property was worth $215,000.00 which was supported by an appraisal, and was bringing in $1,600.00 per month in rent. She stated that the tenant had vacated the property due to its poor condition. She supported her motion with her own affidavit, an affidavit of the former tenant, Husband's deposition, letters between counsel, the property appraisal, the MDA and Final Decree. The record did not show that an Answer was filed by Husband.

The trial court did not set the matter for hearing. Instead it denied Wife's motion citing Rule 6.02 of the Local Rules of Practice for the Twenty-First Judicial District and entered an order denying Wife's motion. Rule 6.02 states as follows:

Motions for new trial, motions for judgment n.o.v. and motions to alter or amend will not be set for hearing exception upon direction of the Judge. Such motions should be accompanied by any citation of authorities and written argument which the moving party wishes the Judge to consider. No such motion will be sustained by he Judge without affording the adverse parties an opportunity either to file responsive briefs and written argument or to be heard in oral argument.

Wife appealed the court's decision averring the court erred in denying her motion without a hearing, in not giving the court's basis for the denial, and in not applying contract principles in its consideration of her motion.

Analysis and Conclusion

Tenn. R. Civ. P. 59.04 allows a motion to alter or amend a judgment in order for a trial court to fix errors as to the law or facts that it failed to consider in certain matters. Chadwell v. Knox Cnty., 980 S.W.2d 378, 383 (Tenn. Ct. App. 1998). According to Vaccarella v. Vaccarella, 49 S.W.3d 307, 312 (Tenn. Ct. App. 2001), these motions "may be granted (1) when the controlling law changes before a judgment becomes final, (2) when previously unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment should be amended to correct a clear error of law or to prevent injustice." Decisions based on Tenn. R. Civ. P. 59.04 are reviewed under an abuse of discretion standard. Ferguson v. Brown, 291 S.W.3d 381, 386 (quoting McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997)). A trial court is deemed to have abused its discretion when it "causes an injustice by applying an incorrect legal standard, reaching an illogical decision, or by resolving the case 'on a clearly erroneous assessment of the evidence.'" Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). When reviewing these cases the appellate court "should begin with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision." Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010) (quoting Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)). The appellate court may not substitute its own judgment for the trial court's under the standard. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003).

Until approved by a court, a mediated agreement is contractual in nature. Ledbetter v. Ledbetter, 163 S.W.3d 681, 685 (Tenn. 2005). Whether a mediated agreement is enforceable is a question of law. Id. At 683. Proof of misrepresentation of facts that were used for the basis of entering into a mediated agreement can be grounds for vacating or amending the agreement. Coleman v. Coleman, E2011-00974-COA-R30CV, 2012 WL 1622240. at *5 (Tenn. Ct. App. May 8, 2012).

In the appellate court's review of the trial court's record it found the trial court to cite its basis for denying Wife's motion as follows:

"The Court now having carefully considered the Plaintiff's motion, respectfully denies the motion pursuant to Rule 6.02 of the Local Rules of Civil court for the 21st Judicial District. IT IS SO ORDERED."

It also reviewed the documents that Wife filed in support of her Motion and found that if the facts asserted by Wife were true, that a misrepresentation of the rental property may have occurred. It further averred that this could justify a new trial or amendment to the MDA and/or Final Decree.

According to Eldrige v. Eldrige, 42 S.W.3d 82,88 (Tenn. 2001) "[a]n abuse of discretion can be found only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." In the case at bar, the trial court did not discuss the grounds for Wife's motion or the evidence she provided to support it in its denial. Therefore, the appellate court could not review the trial court's discretion in denying the motion.

For these reasons, the appellate court vacated the order that denied Wife's Motion to Alter or Amend and/or New Trial and remanded the case back to the trial court to enter an order that discussed the evidence that Wife filed in support thereof and ordered the trial court to discuss its basis for its denial.

When Can Reports of Abuse to DCS Be Disclosed in Tennessee?

December 20, 2013 by The McKellar Law Firm, PLLC

In an opinion (No. 13-93) handed down by the State of Tennessee Office of the Attorney General on November 27, 2013, Tennessee family law attorneys learn when and under what circumstances Department of Children's Services files can be disclosed to third parties in regards to a confidential complaint of child abuse and what these records can and/or cannot contain when being disclosed.

T.C.A. §§ 37-1-409, 37-1-612, and 37-5-107 cover access to confidential records. These records may be subpoenaed or subject to discovery mechanisms in a state civil court proceeding pursuant to exceptions in Tenn. Code Ann. § 37-1-612. Most of these exceptions involve divulging information to parties that need to provide services to the abused child. These would include, but are not limited to, a court, administrative board, and/or hearing officer. There is no provision that allows for disclosure of confidential information when the Department finds the allegations of abuse to be unfounded. However, per Tenn. Code Ann. § 37-1-413, making a false report is a Class E felony.

T.C.A. §37-5-107(b) sets forth the circumstances in which the Department has discretion to release confidential information while T.C.A. § 37-5-107(c)(7) provides that the Department may release records upon written request "to any person who is the subject of a report made to the department, or to the person's parent or legal guardian if the person is a minor and the parent or legal guardian is not the alleged perpetrator..." However, this provision does not permit the department to disclose the person making the report of abuse. T.C.A. § 37-1-409(a)(2) states specifically that a person making a report of abuse "shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by any order of the court."

T.C.A. §§ 37-1-409(a)(2) and 37-1-612(g) provide that the name of a person reporting sexual abuse of a child may only be released "to employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriated district attorney general upon subpoena of the Tennessee bureau of investigation without written consent of the person reporting." Applying these statutes, the District Attorney General for Tennessee concluded that the office could obtain the name of a person reporting child abuse so long as they do so via a subpoena issued by the Tennessee Bureau of Investigation for the purposes of conducting a criminal investigation. Id. It further found that the District Attorney may also disclose the reporter's name to a grand jury for investigation and/or an indictment. Id. This disclosure is also permitted when there is an investigation and/or prosecution of a false report of child abuse in accordance with T.C.A. §§37-1-413, 37-1-409(b), and 37-1-612(b).

Once a person has legally gained access to these types of records, T.C.A. §§37-1-612(a) & (b) state that the records must be kept confidential and the person may only use the records for the specific purposes as outlined in the statute. Also, any indentifying information must be redacted from the records before they are disclosed.

While these laws are followed in Tennessee state courts, they do not necessarily protect confidentiality in federal courts in regards to civil rights actions. In the case of Farley v. Farley, 952 F. Supp. 1232 (M.D. Tenn. 1997) a plaintiff filed a complaint against the state averring she had been deprived of her civil rights as outlined in 42 U.S.C. § 1983. The plaintiff alleged the state took her children from her care without a hearing or legal authority. As part of the case, the plaintiff requested access to the Department's files and requested the ability to publish said files to third parties in order to conduct fact-witness interviews. Id. at 1234. In order to determine what weight the state statutes had on a federal civil rights action, the federal district court had to apply Fed. R. Evid. 501 to Tennessee's state laws that govern the confidentiality of the Department's records in order to determine if the files could be disclosed. Id. at 1235.

According to Farley in regards to Fed. R. Evid. 501 " civil actions arising under federal law, the presiding federal judge has greater liberty to fashion evidentiary privileges based upon 'reason and experience,' even when the pendent state law claims are incorporated in a cause of action." Id. at 1236. Over the years, most states have interpreted this to mean that in the interest of full disclosure most state laws must yield to federal interests in a matter. Id. at 1235-36. However, state laws may not be completely ignored when applying Fed. R. Evid. 501 to discovery issues in a federal matter. Id. at 1236. The court further found that Tennessee laws were clear in the assertion that the state takes the prevention of child abuse very seriously, and the scope of the state's laws were purposely broad, "prohibiting disclosure or use of any information for unauthorized purposes where directly or indirectly derived from DCS sources." 952 F. Supp. at 1238.

In Farley, the federal district court ultimately found that the state laws limiting disclosure of these types of files are secondary to federal interests in a civil rights matter. Therefore, disclosure of these files can be ordered produced and used in a federal civil rights action. However, the district court further opined that it had "no authority under state law to order production of DCS records and their dissemination in the discovery and trial phases of federal civil rights litigation. Rather, this authority comes from the broad discovery and admissibility mandates of federal laws and the prioritization of federal privileges doctrine in federal questions matters under Rule 501." Id. at 1242.

Therefore, per Tennessee statute, it is possible to for a person to gain access to DCS files in regards to a report of child abuse under the following circumstances:

• Upon written request by the abused or his or her parent or legal guardian if they are a minor, a person may gain access to DCS files so long as they are not the abuser. However, the files will have the name of the reporter redacted.
• Many offices, courts, and/or persons may have access to the files in order to provide services to the child pursuant to Tennessee statute.
• In a federal civil rights action, federal law trumps state law and can order disclosure of DCS files pursuant to Fed. R. Evid. 501.
• The District Attorney General for Tennessee may gain access to DCS files and the name of a reporter in furtherance of a criminal investigation for child abuse or a false report of child abuse upon a subpoena issued by the Tennessee Bureau of Investigation. Once obtained, the District Attorney General may also disclose this information to a grand jury in furtherance of an investigation and/or indictment.

Juvenile Court Does Have Jurisdiction to Enter Orders of Protection in Tennessee in Limited Circumstances

December 16, 2013 by The McKellar Law Firm, PLLC

Because jurisdiction of courts often overlap with Circuit and Chancery Courts, the Tennessee Attorney General's office issued Opinion No. 13-98 on December 6, 2013, to determine if juvenile courts have the authority to enter orders of protection in regards to children born out of wedlock.

First, it had to be determined if juvenile court meets the statutory requirements to enter these type of orders. According to Tenn. Code Ann. §§ 36-3-605 and 36-3-601(3), orders of protection can only be entered by courts of record that have jurisdiction over domestic-relation matters.

Juvenile courts are created by statute, and its jurisdiction is limited by same. Tenn. Code Ann. § 37-1-207 stipulates that juvenile courts are courts of record. The code defines the court to have jurisdiction over many domestic relation matters to include, but not limited to, domestic abuse and sexual assault (Tenn. Code Ann. § 36-3-601(3)) which are often the subject of an order of protection. Tenn. Code Ann. § 31-1-104(f) further defines this jurisdiction as follows:

Notwithstanding any provision of law to the contrary, the juvenile court has concurrent jurisdiction with the circuit and chancery court of proceedings to establish the paternity of children born out of lawful wedlock and to determine any custody, visitation, support, education or other issues regarding the care and control of children born out of wedlock.

This statute limits juvenile court's jurisdiction to: (1) establish paternity of children born out of wedlock, and (2) determine matters of "custody, visitation, support, education or other issues regarding the care and control of children born out of wedlock." A petition for an order of protection can fall under either of these parameters; therefore, it was determined that a juvenile court would have jurisdiction to enter an order of protection involving a child born out of wedlock.

Award of Lien Against Spouse Incurred to Preserve Marital Estate Upheld in Tennessee Divorce

December 4, 2013 by The McKellar Law Firm, PLLC

In the case titled Jackson v. Cash, No. M2012-01338-COA-R3-CV Slip Copy, 2013 WL 5762354 (Tenn. Ct. App. Oct. 22, 2013) Knoxville family law attorneys learn when it is appropriate for liens to be granted in regards to a party's interest in a marital estate and what constitutes an equitable division in regards to debt accrued in maintaining a marital estate during the course of a divorce spanning over two years.

Husband and Wife married in 1998. Wife rarely worked outside of the home and Husband worked as an engineer until he changed careers and became a general contractor. The couple bought a home in Williamson County with the intention of improving the property and marketing it as a wedding venue. However, this never came to fruition, and Wife filed for divorce in October 2009. During most of the divorce process, Husband and Wife continued living together.

In May 2010 an agreed order was entered allowing Wife to borrow money to pay the mortgage, insurance, and make repairs to preserve the marital home. The order required Husband to make some of the repairs since he was a contractor. However, Husband never made them. Wife petitioned the court to allow her to hire others to do the work. The court acquiesced, and in its order advised that they would make "an equitable adjustment to compensate Wife" at a later time.

Again in September 2010, the court allowed Wife to borrow money to keep the marital home out of foreclosure. The court noted in its order that Wife would be credited for this amount in regards to her interest in the marital estate at the final hearing.

The trial for the divorce began in April 2011 and spanned ten days. During trial, Husband was ordered by the court to leave the marital residence, and Wife was granted the ability to lease the home. Prior to the final hearing, a Mr. Tucker that had done work on the estate and loaned Wife money for maintenance of the estate filed a motion to intervene alleging he was owed $240,000 for services provided and monies loaned. In his petition, he requested a lien on the marital home that would be subordinate to the existing mortgages. The court granted his petition.

The trial court found that Mr. Tucker loaned Wife $240,128 in cash, services, supplies, and payments. It awarded him a judgment against Wife for the full amount, and granted a lien on Wife's interest in the marital estate. Further, it was found that Husband never agreed to pay Mr. Tucker, and, in fact, Husband had specifically stated that he would not agree to be liable for the work Mr. Tucker did. However, because the work was done to improve/preserve the marital home for which Husband had a financial interest, the trial court found Husband to be liable to Mr. Tucker for $75,889.59 and granted a lien on Husband's interest in the marital estate. In addition to Mr. Tucker's liens, Wife was awarded a lien against Husband's interest in the marital home for her expenses maintaining it during the divorce in the amount of $100,714.69.

In June 2012, the trial court amended its memorandum and order to state that the judgment in favor of Mr. Tucker against Husband was against both Husband and Wife, jointly and severally. It also noted that the judgment against wife in favor of Mr. Tucker in the amount of $240,128.19 included the judgment against Husband. Husband appealed the decision.

Analysis and Conclusion

Husband raised the following issues on appeal: the trial court erred in awarding a judgment against him in favor or Mr. Tucker; and the trial court erred in awarding a judgment against him in favor of Wife in regard to expenses she spent on the marital estate. As there was no transcript or statement of evidence in the record for the appellate review, the facts of the case were extracted entirely from the trial court's Memorandum and Order.

In regards to the lien awarded to Mr. Tucker, the appellate court looked to Tenn. Code Ann. § 36-4-121(c) to ensure the trial court applied the correct legal standards, weighed the correct legal factors, applied the correct logic and reason, and whether the division of the marital estate, assets, and debt was equitable. Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007).

When determining if marital debt has been equitably divided, the court must consider the following factors:
• The debt's purpose
• Which party incurred the debt
• Which party(ies) benefitted from the incurred debt
• Which party is best able to repay the debt

Alford v. Alford, 120 S.W.3d 810,814 (Tenn. 2003) (citing Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). Per case law, marital debt is defined as "all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing." Id. at 813.

Here, the trial court found Wife incurred a debt of $240,128.19 to maintain and preserve the marital estate. Despite Husband's objections, these expenditures were approved by the trial court prior to the debt being incurred. Of the total amount of debt incurred, the trial court specifically found that $75,889.55 was used to keep the marital estate out of foreclosure, maintain homeowner's insurance, and to do maintenance. For this reason, it was found that this portion of the debt was for Husband's benefit as well. The appellate court found no evidence to dispute the trial court's findings; therefore, the trial court's ruling on Mr. Tucker's lien against Husband's interest in the marital property was affirmed for $75,889.55.

In regards to the trial court's judgment in favor of Wife for a lien against Husband's interest in the marital estate in the amount of $100,714.69, Husband argued that it was inequitable to make him liable to Wife for the full amount. He further averred that if he was liable at all, it should only be for one-half of the total debt.

Because there was no transcript or statement of evidence provided, the appellate court was unable to reweigh the equities in the matter. Manufacturers Consolidation Serv., Inc. v Rodell, 42 S.W.3d at 865. The appellate court was left with no other choice but to assume the trial court's findings were supported by the evidence and affirmed its ruling.

Recent Case Highlights Importance of Transcripts, Explains When Awards of Attorney Fees are Appropriate

November 26, 2013 by The McKellar Law Firm, PLLC

The recent case of Hunn v. Hunn, No. M2013-00860-COA-R3-CV (Nov, 25, 2013 Tenn. Ct. App.) shows Knoxville divorce attorneys when it is appropriate to award attorneys fees in a divorce action.


The parties married in 2011 and had two children. The parties attended mediation and reached an agreement. In June 2012, Father filed a Motion to Enforce the Mediated Agreement alleging Mother had refused to follow the terms and would not sign a Marital Dissolution Agreement. Mother responded alleging the mediated agreement was not in the children's best interest and requested a trial. Father then filed a motion asking to lift the restriction against his paramour which was denied and Father was ordered to immediately disclose his phone number and address to Mother. Mother then filed another motion to obtain his address, to compel his compliance and for sanctions and attorneys fees for failing to follow court orders. After a hearing, the court ordered both parties to provide complete contact information about the whereabouts of the minor children at all times and that a violation of that could result in jail time for the parties. Father then filed a Petition for Contempt. A hearing was held on Mother's Complaint for Divorce, Father's Counter-Complaint and the Contempt. The trial court made three findings: 1) the Father did not act in good faith when he entered the mediated agreement 2) Father perjured himself in court regarding where he and the children had been living and his credibility is non-existent 3) that co-parenting will be determined by the court based on statutory factors and not the mediated agreement. The divorce was granted to Mother, who was also granted primary residential parent. The contempt motion was denied. Based upon the "additional attorneys necessary to determine the whereabouts of the children" and otherwise pursue the case, the court awarded Mother her attorneys fees and court reporter fees in addition to mediation costs which totaled $11,000. Father appealed.


Until it is signed by a judge, a mediated agreement is a contract. Under contract law, a party may be relieved of the contract if the agreement was "not the result of a good faith negotiation." In the absence of a transcript or statement of the evidence, it is unclear as to the nature of Father's misconduct. However, the Appeals Court presumed there was sufficient evidence to support the finding that Father acted in bad faith. Therefore the trial court's determination is upheld.

Regarding attorneys fees, the trial court has the power to award fees in custody or support proceedings under T.C.A. 36-5-103(c). The award of fees will not be modified unless an abuse of discretion is proven. A abuse of discretion is where a trial court applied an incorrect legal standard, reaches a decision that contravenes logic or uses reasoning that cause s injustice, or the evidence does not support the decision. Here, there is nothing in the record to indicate that the fee might be unreasonable or whether counsel for Father questioned or objected to the fees. Accordingly, there is no way to determine that an abuse of discretion occurred and the trial court is affirmed.

Additionally, because Father failed to file a transcript or statement of the evidence to support his appeal, the appellate attorneys fees are also awarded to Mother with the amount to be determined by the trial court.

Parenting Plan Provision Requiring Payment of College Tuition Upheld in Tennessee Appeal

October 21, 2013 by The McKellar Law Firm, PLLC

In the case titled Hill (Bowron) v. Hill, No. M2012-02699-COA-R3-CV Slip Copy, 2013 WL 5604359 (Tenn. Ct. App. Oct. 11, 2013) Knoxville family law attorneys learn how parenting plans containing provisions for children's college expenses are handled in regards to contract law, and when prejudgment interest awards are appropriate when a party has lost the use of funds.


Mother and Father divorced in 2003. In anticipation of their three children attending college, the couple's parenting plan addressed future out-of-pocket college expenses, stating that any college expenses not covered by grants, scholarships, or other funds were to be divided equally among the parties, and that both parents could participate in their children's choice of college. The parenting plan was incorporated into the parties' MDA.

When the youngest daughter chose the University of Alabama, Father claimed that he was not consulted and believed it to be too expensive. Therefore, he chose to pay only $2,500 per semester toward his half of the child's out-of-pocket college expenses. Mother filed a petition to enforce the parenting plan in Chancery Court. The Chancellor found that "the Father should not be relieved of his contractual obligation simply because the obligation proved to be more burdensome than anticipated." Mother was awarded $23,750.60 for Father's unpaid portion of the daughter's college expenses, and she was also awarded attorney fees. Father appealed.


According to Pylant v. Pylant, 174 S.W.3d 143, 151 (Tenn. Ct. App. 2003), an MDA is a contract and is treated as such on appellate review. The interpretation of a contract is a question of law with no presumption of correctness of the trial court's interpretation when on appeal. Id. at 150. However, the trial court's factual findings are reviewed de novo with a presumption of correctness unless the record indicates otherwise. Id. at 151; Tenn. R. App. P. 13(d).

Penland v. Penland, 521 S.W.2d 222,224-25 (Tenn. 1975) set a precedent that a parental agreement providing for a child's college expenses after the age of majority is a valid contractual obligation. According to Pylant, "where the parties have unambiguously set out the terms of their agreement, courts will enforce those terms as written, regardless of any inequity arising from that enforcement."

Although the trial court found the words "jointly participate" in the parenting plan to be ambiguous, the appellate court did not agree, finding that according to Pitt v. Tyree Org., Ltd., 90 S.W.3d 244, 252 (Tenn. Ct. App. 2002), the words in a contract should be read with their natural meaning. The appellate court interpreted the meaning of "jointly participate" to mean that Mother and Father would jointly take part in their children's college choice process. Further, it found that the phrase did not grant veto power to either parent regarding the choice of the children's college.

Father argued that the phrase "jointly participate" gave him and Mother joint decision making in regards to their children's choice of college to find one that was within his or her budget and met the child's college interests. The appellate court found the phrase did not mandate joint decision making. Instead, it simply allowed each parent to be involved in the process of choosing a college if he or she chose to do so. It did not mandate that participation, nor did it grant veto power to either parent.

Father further argued that he was not consulted on his youngest child's choice of the University of Alabama. However, when reviewing the record the appellate court found that Father testified that he and his daughter had discussed the college, and Father never investigated the cost of the school until his daughter had made her decision.

Apparently, when Mother's and Father's first child was deciding on a college, both parents refused to pay for an online class at ITT. Father averred that this denial was evidence of Mother's and Father's intention regarding the "jointly participate" language in their parenting plan. The appellate court did not agree with him. It averred that the denial of payment for ITT course was both parent's decision acting in accord for the child's best interest and not one parent's unilateral decision to not pay their half. Therefore, the appellate court found this argument not to support Father's position. Father also maintained that Mother refused to pay for their oldest child to live near MTSU while taking classes there. The appellate court found that the "jointly participate" language only dealt with the choice of a college, not with mitigating expenses once a college was already chosen.

Tennessee courts have read an implied condition of reasonableness into agreements to pay for children's college. To determine this reasonableness, the courts must determine if the college meets the child's needs, and the parent's ability to pay for same. Father admitted in his brief to the court that he believed the University of Alabama was a good fit for his daughter. Therefore, the court determined that portion of the reasonableness standard was met.

However, Father questioned the reasonableness of the cost of the University of Alabama when compared to his income of $96,000 per year. Father calculated that to pay half of the college expenses would constitute 32% of his take home income. However, per the record, Father testified that he had $150,000 in equity in his home, and he had the ability to borrow money via a second mortgage or student loan to pay the college expenses. The court explained to determine a parent's ability to pay in regards to college expenses the court must look at available assets, income, and expenses. It was found that due to Father's ability to get a loan, he had the ability to pay one-half of the child's college expenses.

Finally, Mother requested the appellate court to reverse the trial court's denial of her request of prejudgment interest. According to Scholz v. S.B. Int'l, Inc., 40 S.W.3d 78, 81 (Tenn. Ct. App. 2000), an award of this type of interest is discretionary. The intent of prejudgment interest is "to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing." Myint v. Allstate Ins., 970 S.W.2d 920, 927 (Tenn. 1988).

The trial court based its denial of the prejudgment interest on the fact that the dispute was made on reasonable grounds and such an award would be inequitable. The appellate court reasoned that Mother had to make up Father's portion of the college expenses since he was only paying $2,500 per semester. Because Mother lost the use of her funds and was never compensated for same, the appellate court reversed the trial court's ruling on the matter and remanded it back to the trial court to calculate and award Mother prejudgment interest. Costs of the appeal were taxed to Father.


The appellate court found that Father must incur half of the out-of-pocket expenses for his daughter's college expenses due to the language in the parenting plan. Mother was awarded prejudgment interest for the loss of funds for the portion of expenses she had to pay to make up Father's difference of these expenses. Mother was awarded her attorney's fees for the appeal.

Contempt Reversed Due To Inadmissible Bank Statement in Tennessee Divorce

October 17, 2013 by The McKellar Law Firm, PLLC

In the case titled Patton v. Patton, No. M2012-02747-COA-R3-CV, Slip Copy, 2013 WL 5434668 (Tenn. Ct. App. Sept. 25, 2013) Tennessee family law attorneys learn how a bank document must be authenticated to qualify as a business record exemption in regards to hearsay rules; what is needed to prove criminal contempt in regards to non-payment of pendente lite support in a divorce matter; and when the court is required to set bond in regards to detaining an individual for criminal contempt.


Husband and Wife filed for divorce, and an agreed order was entered ordering Husband to pay $1,000 per month in pendente lite support. However, Husband never made these payments. Wife filed a Petition for Contempt and a hearing was set for the same day as the divorce.

At the hearing for the contempt, Wife was the only witness to testify. She stated that she never received any pendente lite support payments from Husband. Wife's attorney showed her documents garnered via discovery that included a tax return and photo copy of what was purported to be Husband's bank statement. Husband's attorney objected to the bank statement being entered into evidence; however, the court overruled the objection. Wife did not provide any information to authenticate the documents, and, while Husband was at the hearing, he did not testify.

The court found Husband to be in contempt for failure to remit five pendente lite support payments. Husband was sentenced to ten days for each count. However, the court stayed all but fifteen days of jail time. The court then ordered Husband detained during a lunch recess, and advised they would hold the divorce hearing after the break. During the lunch recess, Husband's attorney filed a notice of appeal from the findings of the court on the contempt hearing. Upon returning from the lunch break, Husband was brought back into court, and the hearing for the divorce was held. Wife was granted the divorce, the court acknowledged that Husband's counsel filed the notice of appeal for the contempt and granted a stay of the sentence pending the appeal.


On appeal, Husband raised three issues. He averred the trial court erred in allowing the bank statements into evidence without being properly authenticated, in finding Husband in criminal contempt, and in detaining Husband in a holding cell following the finding of the criminal contempt without immediately setting bond.

According to Tennessee Rules of Evidence 803(b) or 901, "[t]he determination of whether a hearsay statement is admissible through an exception to the hearsay rule is left to the sound discretion of the court." State v. Stout, 46 S.W.3d 689, 697 (2001) states that an appellate court "will not reverse the ruling of the trial court absent a showing that this discretion has been abused."

Tennessee Rules of Evidence 803(6) sets the standard regarding hearsay exceptions involving "records of regularly conducted activity. It mandates that business records may be submitted into evidence when properly authenticated and the document(s) otherwise satisfy the other rules of evidence. Tennessee courts have recognized five criteria that must be satisfied in order for documents to be admissible under the business records exception. They are as follows:

1. The document must be made at or near the time of the event recorded;
2. The person providing the information in the document must have firsthand knowledge of the recorded events or facts;
3. The person providing the information in the document must be under a business duty to record or transmit the information;
4. The business involved must have a regular practice of making such documents; and
5. The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.

Simpkins v. Simpkins, 374 S.W.3d 413, 419 (Tenn Ct. App. 2012) (quoting Neil P. Cohen, Sarah Y. Sheppard, Donald F. Paine, Tennessee Law of Evidence § 8.11(10) (6th ed.2011)). Further, "[a] business record may be authenticated by either providing the testimony of a qualified person or by using a certification process either in compliance with Tennessee Rule of Evidence 902(11) or a statue authorizing such certification." Id.

In the case at bar, the disputed bank document was a statement from Regions Bank for one month titled "Transactions," but it did not have the account holder's name on the document. The appellate court reviewed Wife's testimony at the contempt hearing and found that her testimony was insufficient to authenticate the document. This coupled with no identifying markers on the document to designate that it belonged to Husband led the appellate court to determine that the trial court erred in allowing the statement into evidence.

In regards to the criminal contempt, once a person is held in criminal contempt the presumption of innocence is no longer in effect. Therefore, on appeal, the court had to determine, when considering the evidence in a light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In this case, the appellate court found Wife's testimony established that Husband failed to pay the pendente lite support obligation. However, Wife also had to establish that Husband had the ability to pay said support and that his failure to do so was willful. Due to the bank statement being deemed inadmissible and Husband's tax return showing an income of $8,138, the appellate court found that no trier of fact would find beyond a reasonable doubt that Husband had the ability to pay $1,000 per month in pendente lite support to Wife. The trial court's decision was reversed.

As far as no bond being set, the appellate court found that the issue was moot as the court could offer no meaningful relief. However, it pointed out that Husband's attorney did not request or bring up the issue of the bond with the trial court and, therefore, could not be heard on appeal.

Long-Term Alimony Award Upheld Despite Lack of Documentation at Trial

October 15, 2013 by The McKellar Law Firm, PLLC

In the case titled Parrish v. Parrish, No. W2013-00316-COA-R3-CV (Tenn. Ct. App. June 21, 2013), Knoxville divorce attorneys learn when 1) disadvantaged spouses are entitled to in futuro alimony and 2) awards are not solely determined by proper documentation or benefits obtained from the distribution of marital assets.

The parties of the case were married in December 1982. Husband filed for divorce in June 2010. Wife did not answer the complaint and Husband moved for a default judgment and was granted a divorce by the Chancery Court in September 2010. Wife filed a motion to set aside the divorce in October 2010 and filed a counterclaim for in futuro alimony. The court granted Wife's motion and set the original judgment aside. At that time the parties agreed on an equal division of most marital property and debt. However, a settlement could not be reached on the distribution of Husband's retirement account and alimony. The parties' pursuit of the case stalled until the court ruled that the case would be dismissed if an agreement was not reached in a timely manner. Wife filed a motion for non-dismissal and requested that alimony be granted. The Chancery Court granted the divorce and awarded Wife in futuro alimony in the amount of $850.00 per month based on the length of the marriage, physical and mental health of Wife, disparity of earning potential and education levels, and no means of feasible rehabilitation by Wife to sustain a standard of living above poverty. Husband appealed the trial court's decision on the grounds that the ruling was based on the lack of documentation substantiating Wife's inability for rehabilitation and did not consider the sizable monetary relief that was awarded to her by the distribution of marital assets.
Analysis and Conclusion
Husband averred the trial court was in error when it awarded Wife alimony in futuro. He argued that the court ruled without the proper documentation that supported the need for the specified amount and length of alimony. He also stated the lower court granted the in futuro alimony without regard to the sizable monetary relief that Wife obtained through the distribution of martial assets. The trial court based its decision on the following facts: that the parties had been married for 29 years; that the husband was gainfully employed as a skilled laborer; Wife had been a stay at home parent for the majority of the marriage; Wife, when employed outside the home, had earned a meager income; Wife suffered from physical and emotional ailments that prevented her from being employed; and by her own, undisputed testimony that she relied on the assistance of family members for housing, government food assistance and by "begging" for the basic needs of survival. Husband did not dispute any of Wife's circumstances. While important, it was not necessary for the evidence to be officially documented in order for in futuro alimony to be awarded. The undisputed testimony Wife outlined the need for the requested alimony. Husband had the ability to provide and the divorce action should not decrease Wife's standard of living. The trail court's decision was appropriate based on the individual needs and circumstances of the disadvantaged spouse under the required guidelines. The Court of Appeals held the opinion that the lower court did not err in its discretion by awarding the type or amount of alimony to Wife. Therefore, the Court of Appeals affirmed the trial court's decision.

Child's Preference Not A Deciding Factor in Tennessee Custody Decisions

October 11, 2013 by The McKellar Law Firm, PLLC

In the case titled Carter v. Carter, No. M2013-00193-COA-R3-CV Slip Copy, 2013 WL 5568360 (Tenn. Ct. App. Oct. 7, 2013) Knoxville divorce attorneys learn how much bearing a minor child's preference has on the court in regards to modification of a parenting plan and when it is appropriate to disqualify an attorney from representation in a matter.


The parties divorced in 2006. Mother was named the primary residential parent ("PRP"), with Father awarded 85 days of parenting time per year. In July 2009 Mother filed a petition to modify child support, and then filed a notice of appeal of the trial court's findings on the matter in February 2012. However, just prior to filing the notice of appeal, she filed a motion to modify parenting time alleging a material change in circumstances.

In her petition to modify the parenting plan, Mother alleged that the parenting schedule (which gave Father Tuesdays and every other weekend) "inappropriately interfere[d] with the school, extracurricular and social activities in which the minor child of the parties engage[d] and/or wishe[d] to engage in at [that] time."

The attorney that filed Mother's petition to modify was her new husband. Father filed a motion to disqualify him as counsel for "any matter related to the modification of the parties' permanent parenting plan." The trial court agreed with Father and, subsequently, entered an order ruling that, "[Mother's attorney] shall be disqualified from representing [Mother] in any pending or new matters in this case." After the trial court disqualified Mother's counsel, a hearing was held on her petition to modify the parenting plan. The trial court ruled that Father's Tuesday night parenting time be eliminated. Mother filed a motion to alter or amend the trial court's order, but it was denied. She immediately appealed.


On appeal, Mother averred that the trial court erred in refusing to allow the parties' 16-year-old daughter the ability to determine when and whether she would have parenting time with Father and in disqualifying her new husband as her counsel in the petition to modify and any new filings in the matter.

Trial courts have broad discretion in regards to parenting arrangements due to the unique circumstances in each case. See Eldridge v. Eldridge, 42 W.W.3d 82, 85 (Tenn. 2001); Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006). An abuse of discretion occurs "only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Id. at 88.

Tenn. Code Ann. § 36-6-101(a)(2)(C) states that with respect to a change in parenting time (but not the PRP), "[a] material change of circumstance does not require a showing of a substantial risk of harm to the child." Instead, it "may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent's living or working condition[s] that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child." Per Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980 at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006), the threshold to prove a material change of circumstances requires showing the court that the current plan is not working for the parties.

Whether this case had a material change of circumstances warranting a modification of the parenting plan was not an issue before the appellate court. However, Mother averred that the trial court erred in disallowing the minor child to determine when and how she will spend parenting time with Father as this was not in the best interest of the child. While Tenn. Code Ann. § 36-6-404(14) does allow a child that is age 12 or older to express their preference regarding parenting time to the court, there is no statute or precedent that gives a minor child discretion to determine when he or she will or will not see a parent. A child's preference is one of many factors the trial court may consider. Therefore the trial court's ruling is affirmed.

The next issue before the court was to determine if the trial court erred in disqualifying Mother's husband as her counsel in the petition to modify hearing and any subsequent filings in the matter. Per Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001), an abuse of discretion standard is used by the appellate court when reviewing a trial court's decision to disqualify an attorney.

In the trial court's order disqualifying Mother's husband as counsel, it cited Rule 3.7 of the Tennessee Rules of Professional Conduct. This rule provides that a "lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness..." Tenn. Sup. Ct. R. 8, RPC 3.7. Father's counsel notified the trial court that he did intend to call Mother's husband as a fact witness in the modification matter. In her appeal, Mother pointed out that her husband/counsel was never called or deposed as a witness. The appellate court found this argument to be invalid, as the rule does not require the attorney to be called as a witness; it simply requires it to be shown that he was likely to be a necessary witness.

The trial court did not simply disqualify Mother's new husband from representing her in the modification hearing. In its ruling it stated that he was also disqualified from representing her in any "new matters in the case." The appellate court found this to be an abuse of the trial court's discretion, because disqualification of counsel must be determined based on the specific matters being litigated in a case at that time, and not future matters.


The appellate court affirmed the trial court's ruling in regards to the modification of the parenting plan. It also affirmed the trial court's ruling disqualifying Mother's new husband from acting as her counsel in the modification proceeding. However, the appellate court reversed the trial court's ruling disqualifying Mother's husband as counsel in any "new matters in the case," as that will need to be determined as the issues arise.

Court's Refusal to Grant Continuance Due to Counsel's Conflict of Interest Found To Be Reversible Error

September 20, 2013 by The McKellar Law Firm, PLLC

In the case titled In re: M.J.H, Hart v. Lewis, NO. W2012-01281-COA-R3-JV Slip Copy, 2013 WL 3227044 (Tenn. Ct. App. June 25, 2013) Knoxville family law attorneys learn what constitutes a conflict of interest in a custody matter and when it is appropriate for a court to continue a matter when a conflict of interest for an attorney arises.

Facts When M.J.H. was conceived Mother was married; however, she was also having an extramarital affair. She did not believe her paramour to be the biological father of M.J.H. as he told her that he had a vasectomy. For the first two years of M.J.H.'s life, Mother and her husband raised the child together. After two years Mother and her husband commenced divorce proceedings. DNA testing was done, and the paramour was proven to be the biological father. Mother filed a parentage petition in juvenile court asking for DNA testing, to establish a biological father, designate Mother as the primary residential parent, grant Father supervised visitation, and set support. Prior to the hearing, the parties separated and Father hired his own attorney.

At the hearing, Mother's attorney explained that he had a conflict as he had met with both Mother and Father in the early stages of litigation when it was thought the petition was agreed upon. Opposing counsel advised the court that he would not object to a continuance to allow Mother to retain new counsel. Mother's counsel also advised the court that he was representing both Mother and her husband in their agreed divorce, and that while the divorce was almost complete, this created another conflict with the juvenile court litigation.

Despite this information, the trial court held a hearing, with no no sworn testimony, exhibits, or evidence. Instead the hearing was held as a conversation between the judge, attorneys, and clients. On several occasions, Mother's attorney requested the court to enter temporary orders of support and visitation, so the parties could have time to discuss the issues further. However, the court decided to proceed stating there was "no sense in us coming back if we can get it done right now." The court then created a parenting plan appointing Mother as the primary residential parent and granting father visitation; Father was established as M.J.H.'s biological father; M.J.H.'s surname was changed to Father's last name despite this not being part of the petition, and child support was set at $383 per month despite no evidence of Father's income being shown. A child support arrearage was determined by the court to begin when Mother left Father's home. The court then instructed the parties to let it know if they disagreed with any of the information as it was going to make these items an Order of the court. At that point, Mother's attorney again tried to get the court to recognize his conflict of interest in the matter; however, the trial court ignored it.

About a month later, Father filed a Motion for Contempt, averring Mother had not changed the child's last name per the court's order. On the same day, Mother's attorney filed a Motion to Withdraw. Mother hired new counsel who filed a Petition to Vacate the court's order pursuant to Rule 34 of the Tennessee Rules of Juvenile Procedure. Mother cited the following as reasons for the court's order to be vacated: the order was not final because she did not sign it; Attorney's signature on the order was not valid as he was not representing her at the hearing; Mother never received a copy of the order; Father did not submit proof that changing M.J.H.'s last name was in the child's best interest; the child support arrearage was not valid; the court failed to issue written findings as required in regards to its deviation from child support guidelines for the arrearage amount; the child support obligation was set based on incomplete and/or erroneous information and should be reconsidered.

At the beginning of the hearing on the matter, the trial judge let Mother know he was not receptive to her petition. He then recapped the prior hearing from which the order originated and advised Mother that the prior attorney did represent her interests at the hearing. He further pointed out that Mother did not object to her representation at that time, and the prior attorney did not withdraw from the case until two months after the hearing.

The Judge inaccurately stated that the burden of proof was on Mother to show that it was in the best interest of the child not to change the last name of M.J.H. Mother's new attorney respectfully disagreed and pointed out that the burden was actually on Father. Mother's attorney further averred that the order to change the name had to be vacated because it was not relief sought in the parentage petition, and Father did not submit any evidence to support his position.

Moving forward, the Court advised Mother, "[w]ell, it's your motion to modify the child support. You should have the proof with you to show that what he is entering is not right." Mother's attorney attempted to correct the court, advising that Mother's petition was to vacate, not modify. The judge then denied Mother's petition in its entirety, and changed M.J.H.'s surname to Lewis (Father's last name). Mother appealed the decision.

While the appeal was pending and more than one year after the appeal was filed, the trial court filed an eighteen page order titled "Amended Finding of Fact and Response to the Finding of Fact and Order of April 25, 2012." In this order the trial court averred that it had listened to recordings of the original hearing when Mother's attorney attempted to withdraw, and it realized the order entered from that hearing should have been an agreed order instead of just an order. It went on to explain its impressions and reasons from that trial in detail which were not explained during the hearing.

Mother then filed a motion with the appellate court asking it to supplement the appellate record with the new order and strike the order for lack of jurisdiction. The appellate court ordered Father to file a response to Mother's motion and gave additional time at oral arguments to address the issue.

On appeal the appellate court had several issues to decide with the most prudent being whether the trial court should have proceeded in a hearing regarding paternity when Mother's attorney attempted to withdraw due to a conflict of interest after having conferred with both Mother and Father when the parentage petition was agreed upon.

Mother based her motion to vacate on Rule 34 of the Tennessee Rules of Juvenile Procedure. This rule permits relief from judgment or orders when there are the following: if the order was obtained via fraud or mistake; clerical error; if the court did not have proper jurisdiction over the matter; or if there was a change in circumstances regarding the best interests of the child. Rule 60 of the Tennessee Rules of Civil Procedure also governs relief from judgments or orders. Rule 60.02 gives five grounds on which relief may be sought:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Fraud,...misrepresentation, or other misconduct of an adverse party;
3. The judgment is void;
4. The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or
5. Any other reason justifying relief from the operation of the judgment.

When reviewing a denial of a motion for relief from a judgment by a trial court, the appellate court follows Rule 34 of Tennessee Rules of Juvenile Procedure or Rule 60.02 of Tennessee Rules of Civil Procedure which dictates an abuse of discretion standard. This is defined as only being found when "...the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party."

The appellate court found that Mother's attorney had an obvious conflict and was correct to request to withdraw from the matter and that the trial court committed error in "steamrolling" through the hearing despite having this information.

Father's argument that Mother did not object to the hearing proceeding was rejected by the appellate court as Mother was not a pro se litigant, because the court did not permit her attorney to withdraw. Therefore, she could not have objected.


The appellate court found the trial court to have abused its discretion in refusing to continue the hearing to allow Mother's attorney to withdraw and Mother to retain new counsel. Therefore, the order from the hearing was vacated and the trial court's denial of Mother's motion to vacate was reversed.

Tennessee's "Law of the Case Doctrine" Prevents Issues From Being Appealed More Than Once

September 16, 2013 by The McKellar Law Firm, PLLC

In the case of Leeper v. Leeper, No. E2012-02544-COA-R3-CV (Tenn. Ct. App. Sept. 13, 2013), Knoxville divorce attorneys learn that 1) appellate issues may not be re-raised in subsequent appeals and 2) failure of a parent to obtain an agreement does not relieve the other parent from having to pay a child's medical expenses.

The parties divorced in 2005, at time when the children of the marriage were minors. The trial court allowed Mother to relocate the children to Texas. Father subsequently filed several contempt petitions allegation parental alienation. In 2006, all parties were ordered to have psychological evaluations done, a cost of $14,400, with each party ordered to pay half. The trial court also stated that unless it "clearly appears" that one party was the "sole precipitating factor of the current state of events" the cost would be split equally as previously ordered. After completion of the evaluations, Father was named primary residential parent "PRP" and although the trial court described the psychologist's report as "not one sided," the court ordered Mother to pay the balance of the bill. Mother appealed. In 2008, the Court of Appeals vacated the trial court's designation of Father as PRP because Father had not requested to be PRP in the proceedings. On remand, special master was appointed to address the parties' financial issues. The special master determined that Father owed $13,000 in child support and unpaid medical expenses, even though Father objected to many of these expenses. The trial court partially modified the special master's finding regarding one bill (allocating it to Mother instead of Father) but otherwise accepted the special master's findings which resulted in judgment against Father of $11,000, $9,000 of child support and $2,000 of medical bills. Father appeals.

Analysis and Conclusion
Father argues that Mother should pay the whole fee for the psychological evaluation due to her interference with his co-parenting, which caused the evaluation to be necessary. Here, the final order directing how the fee would be paid was in a 2007 order, which was subject to a previous appeal to this court and which has not been raised in this second appeal. This second appeal only addresses a November 2012 order that only touches upon child support and medical bills. This November 2012 order never references the evaluation fee. Under the "law of the case doctrine," the Appeals Court may not reconsider an issue that has been decided in a prior appeal of the same case. This doctrine also "applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication." Here, the issue of the evaluation fee was first decided by the trial court by order entered in 2007; then that order was subject to an appeal and appellate decision handed down in 2008. Father's failure to raise the issue of allocation of the evaluation fee in the 2007/08 appeal bars him from doing so now.

Regarding the medical expenses, Father argues Mother failed to obtain his agreement prior to incurring the expenses and therefore he is not liable for them. After review of the record, the Appeals Court found that even if Mother failed to consult with Father before incurring the expenses, that action would not serve to relieve his responsibility to pay them, and that issue is without merit.

New Standard for Modifying or Terminating Grandparent Visitation in Tennessee

September 12, 2013 by The McKellar Law Firm, PLLC

Grandparent's rights have always been a gray area of family law in Tennessee. However, on September 6, 2013, the Tennessee Supreme Court made a unanimous ruling that may clear up some of the confusion.

It has always been the standard that parents have "superior parental rights" in initial proceedings to determine if grandparent's visitation rights are appropriate. In order to overcome this, a grandparent must prove to the court that if the parent(s) oppose the visitation, that the child will "suffer substantial harm" if visitation with the grandparent is denied, and the visitation is in the best interest of the child. The new ruling set a precedent that while parents enjoy these "superior parental rights" in the initial proceedings for grandparent visitation, they do not carry over to subsequent proceedings to modify or terminate grandparents' visitation rights.

In the case at bar, Neal Lovlace et al. v. Timothy Kevin Copley (Tenn. Sept. 6, 2013) the grandparents were given court-ordered visitation with their grandchild. Soon after the order was entered, tension between the parents and grandparents grew to the point that the grandparents petitioned the court for more time with the child. In response, the parents asked the trial court to terminate the grandparents' visitation altogether. The trial court refused to terminate the visitation, but also refused to extend any more time with the children to the grandparents. It was reasoned that the deterioration of the relationship between the parents and grandparents amounted to a "material change in circumstances." It was further found that the best interest of the child would be best served by minor changes to the visitation arrangement. This decision was appealed, and the Court of Appeals reversed the trial court's judgment citing the parents' "superior parental rights" were not properly weighed in the case. The decision was again appealed to the Supreme Court which ruled the trial court made the right assessment and reinstated its judgment.

The impact of this judgment will be known in the coming months, but it is safe to assume that parents can no longer rely solely on their role as a parent in regards to termination or modification of grandparents' visitation rights. Parents and grandparents will now be on equal footing when attempting these types of modifications or terminations.

Rehabilitative Alimony May Be Modified Post-Divorce if Economic Rehabilitation Not Feasible

September 4, 2013 by The McKellar Law Firm, PLLC

In the case titled Owens v. Owens, No. 2012-01186-COA-R3-CV 2013 Slip Copy, WL 3964793 (Tenn. Ct. App. July 30, 2013) Knoxville divorce attorneys learn when it is appropriate for a rehabilitative alimony award to be modified to alimony in futuro.

Facts: Husband and Wife were married 25 years and divorced in 2004. As part of the divorce, Wife was awarded rehabilitative alimony. An appeal of the trial court's decision resulted in a change to the original division of marital property and increased the amount and duration of the alimony through November 2012.

In 2009, Wife filed a petition requesting the court to increase her alimony or change the award to alimony in futuro. To support her argument, Wife asserted she was unable to support herself selling real estate or teaching yoga classes. She averred she had to increase her credit card debt and borrow money from family in order to pay her living expenses while Husband had fewer expenses and a more disposable income.

A trial was held on Wife's petition in 2011. At the time, Wife was 62 years old. Wife provided proof to the court of her attempts to support herself through selling real estate and teaching yoga. She provided evidence of real estate classes and renovation bills to turn her pool house into a yoga studio. When this did not work, Wife rented the pool house for $700 a month. However, her mother became ill and was unable to pay for in home care, so Wife let the tenant go to allow her mother to move in so she could care for her. As further proof of her financial dilemma, Wife introduced a statement of monthly income and expenses an increase from the statement included with her original petition of more than $3,000 per month. These expenses did not include a mortgage or car payment as both were already paid in full.

In 2012 the trial court issued its Memorandum and Order denying Wife the relief she sought citing that she did not meet the preponderance of evidence standard. It further stated that Wife did not exhaust all reasonable efforts to support herself. However, the trial court did find Wife to have a need for continued alimony and kept her current award in effect. Wife appealed this decision.

Analysis & Conclusion: In the case a bar, Wife sought to extend her rehabilitative alimony or convert it to alimony in futuro. Tenn. Code Ann. § 36-5-121(c)(2) states that the court has discretion to control the duration, increase, decrease, termination, modification, or extension of rehabilitative alimony. It further states that the burden of proving reasonable efforts lies on the receiving party in order to show the court a need for an extension or increase of same.

The Tennessee Supreme Court has added that once an award of alimony has been made, it can be modified if it is shown to the court that the receiving party's prospects for rehabilitation have materially changed. If it is deemed by the court that the party cannot feasibly rehabilitate, the trial court can convert the alimony award to alimony in futuro. The standard for rehabilitation, as provided by Tennessee statute, requires the disadvantaged party, through reasonable efforts, to reach an earning capacity that permits the party to enjoy a reasonably comparable standard of living to that which was enjoyed when married. The Tennessee Supreme Court has also explained that a material change in circumstances occurs when an unanticipated change happens after the initial award has been granted by the court.
In this case, the trial court found that Wife had a continuing need for alimony and limited job skills. The appellate court agreed with these findings. At trial, it was learned that Husband earned a significant income and had the likelihood of continuing to earn same. Wife had not worked outside the home since 1980.

In considering these factors, the appellate court found Wife to have made reasonable efforts to rehabilitate by selling real estate, but, due to the market, she was unable to do so. It also considered her age and skill set and found that she did not have the capacity to earn a living comparable to that which she enjoyed when married. Therefore, it was determined that the modification from rehabilitative alimony to alimony in futuro was appropriate and within the court's discretion.

However, when looking at Wife's assets, the appellate court saw that Wife was awarded a partial interest in a real estate company that had the potential to produce rental income. It was also found that when Wife's mother moved in with her, Wife could then rent her mother's home for additional income.

For these reasons the appellate court modified the alimony award to alimony in futuro, and modified the amount from $3,000 per month to $2,000 per month.