April 2011 Archives


Recent Tennessee Attorney General Opinion Sheds Light on Termination Based on Incarceration

April 22, 2011 by The McKellar Law Firm, PLLC

jail.jpgIn order to terminate a parent's parental rights, a court must find that grounds to terminate exist and that termination is in the best interest of the child. A recent Tennessee Attorney General opinion addressed the issue of whether Tennessee Code Annotated ยง36-1-113(g)(6) can be used as grounds to terminate parental rights when the parent has already served his sentence and been released. The statute provides grounds to terminate parental rights when the parent has been confined in a correctional or detention facility under a sentence of ten or more years, and the child is under eight years of age when the sentence is entered by the court.

The opinion shows that the statute can be used to terminate even if the parent has already served his sentence and been released. The opinion relied on a Tennessee Court of Appeals case where the Court held that the statute applies regardless of whether the parent is incarcerated or has already been released. In the Matter of D.M., 2009 WL 2461199 (Tenn. Ct. App. 2009). The Court noted that the "clear language of this statute does not contain limiting language requiring the parent actually to be incarcerated when the termination petition is filed."

Parental rights may be terminated even if the parent is no longer incarcerated or served less than ten years in confinement. So, if you have been sentenced to serve ten or more years in a correctional or detention facility, the court can find grounds to terminate your parental rights. The court would then conduct a best interest analysis to determine whether terminating your parental rights would be in the best interest of the child.


Tennessee Family Law Legislative Update

April 15, 2011 by The McKellar Law Firm, PLLC

The Tennessee Legislature has been busy lately trying to remodel certain statutory provisions in the realm of divorce and other family law issues. I have summarized two for you here.
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First, Senate Bill 0721 (by Woodson, B.) and companion House Bill 1106 (by Johnson, C.), was signed by the Governor on April 14, 2011. This change mandates that a court can hold an expedited hearing on the temporary modification of a parenting plan if there is a "mobilized parent" (armed forces service member who is active duty or obtains orders for duty outside the state or country). This change would also allow the court to take testimony from that parent via telephone if they are not in the state at the time. Also changing is that a court can permanently modify a parenting plan if there is a parent who volunteers for duties that require the parent to be outside the state frequently.

Second, Senate Bill 1172 (by Berke) and companion bill House Bill 0714 (by Brooks, H. and Hardaway), was transmitted to the Governor for action on April 13, 2011. This bill clarifies that "dissipation of assets," a relevant factor that trial courts must consider in making a equitable division of marital property in a divorce case, means "wasteful expenditures made either before or after the marriage is determined to be irretrievably broken that are not consistent with spending patterns during the marriage or that are made for purposes unrelated to the marriage, unless the other spouse condones or fails to object to the expenditures that were known or reasonably could have been known." This places a new burden on the non-spending spouse to object during the course of litigation to known expenditures by the other spouse. This bill would also direct a trial court, when considering a spouse's right to alimony or child support, to not consider as income any distributions received from retirement accounts under the court's property division order.


Classification of Property is Key in Tennessee Prenuptial Agreements

April 14, 2011 by The McKellar Law Firm, PLLC

When entering into a prenuptial agreement in Tennessee, it is very important to focus on the classification of property within the agreement. Divorce courts in Tennessee will enforce the provisions of the agreement so long as they are unambiguous and express the intent of the parties. This is highlighted by a recent Court of Appeals case entitled Weingart v. Forester, 2011 WL 1361583 (Tenn.Ct.App., April 11, 2011).

In that case, the parties entered into a Prenuptial Agreement where they decided that each spouse would keep their separate property and retirement. After seven years, the Wife filed for divorce. At the hearing, the Husband argued that Wife's income and retirement contributions were marital property subject to division due to an ambiguity in the Prenuptial Agreement. The trial court found that all retirement was separate property under the wording of the Agreement even though an ambiguity did exist regarding Wife's income.
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Subsequently the Husband appealed, alleging that the trial court erred in classifying Wife's retirement as separate property when large sums of income, determined to be marital property, contributed to that retirement. The Wife also argued against the trial court's finding that the Agreement was ambiguous and that the Husband's appeal was frivolous. The appellate standard automatically gives a presumption of correctness to the trial court's findings of fact, unless shown otherwise by a preponderance of the evidence. However, when reviewing a matter of law (here, the interpretation of a written agreement), the Appeals Court reviews de novo with no presumption of correctness.

The Appeals Court found the language in this Agreement to be clear and unambiguous as it explained that the parties' intent was to keep their property separate during the marriage except if they agreed in writing that certain property was martial. No mention of any written designation of marital property was found in the Court's opinion. Further, an Exhibit attached to the Agreement specifically listed Wife's income as her separate property. The Court also did not find that the Husband's appeal was frivolous, as it was not wholly without merit.


Possibility of Juvenile Sex Offender Registry in Tennessee

April 12, 2011 by The McKellar Law Firm, PLLC

playground.jpgHouse Bill 0687 would create a Juvenile Sex Offender Registry for juveniles 14-18 who have committed violent sexual crimes and are considered likely to repeat their crimes. Tennessee would lose more than $5 million in grant funding if it fails to pass this bill.

If the bill passes, the registry would be effective July 1, 2011. Any violent juvenile sex offenses committed thereafter would be subject to registration.

Violent juvenile sexual offenders would be subject to some, but not all, of the restrictions imposed upon sexual offenders. Like sexual offenders, violent juvenile sexual offenders would have to comply with the tracking and registration requirements for life if they have a prior conviction for a sexual offense or have been convicted of a violent sexual offense.

The current residence and employment restrictions for a sexual offender prohibiting a sexual offender whose victim was a minor from residing, attending treatment, or accepting employment within 1,000 feet of a school, day care center, playground, or public park would not apply to violent juvenile sexual offenders until the later of either turning eighteen or graduating from high school.

Violent juvenile sexual offenses are some of the most heinous crimes, and having a registry to track the offenders could go a long way to preventing future crimes. If nothing else, it would help law enforcement to keep tabs on those most likely to commit these terrible crimes.


Standing Requirement for Petitioners Seeking to Terminate Parental Rights

kid.jpgIn Tennessee, the parental rights of both parents must be terminated before an unrelated individual or non-stepparent may adopt. In a recent Tennessee Court of Appeals case, the Court upheld the trial court's ruling that the unrelated petitioner lacked standing to terminate the biological father's parental rights while the biological mother retained her parental rights. In re Shelby L.B., 2011 WL 1225567, (Tenn. Ct. App. March 31, 2011). In Shelby, the petitioner was a friend of the biological mother, but the two were not married, so legally he was considered a stranger to the child as he was not a stepparent. Because the petitioner was a legal stranger to the child, he lacked standing to petition for termination of the biological father's parental rights, and the trial court was correct in dismissing his petition.

The petitioner argued that he was a potential adoptive parent and therefore had standing to bring the petition to terminate. The Court disagreed. The Court determined that in order to be a potential adoptive parent, one must not only have the intention or desire to adopt, but must also have the legal capacity to do so. Because the petitioner lacked standing to terminate, he did not have the legal capacity to adopt and was not considered a potential adoptive parent.

A key consideration in the Court's determination was the fact that terminating the biological father's rights would deprive the child of another adult who had responsibilities to her. Once parental rights are terminated, the obligation of support is eliminated, so the father would no longer be required to support the child. The Court saw no reason to allow an unrelated individual to deny the child of the support of two parents.

The only situation where a biological parent can join in a petition in an adoption without automatically surrendering his or her own rights is where a stepparent is petitioning to terminate the parental rights of the other parent. So, if the petitioner and the biological mother in Shelby had been married, he would have had standing to file the petition, and she could have joined in the petition without surrendering her rights.


Allegations in Tennessee Divorce Case Led to Slander Suit

Country music star Sara Evans' former Husband Craig Schelske recently won a settlement in his slander case against Evans' former Tennessee divorce attorney. Although the divorce case was actually finalized years ago, the fallout from the scandalous allegations is still being litigated.

The actual divorce Complaint itself, although alleging adultery and other misconduct by Schelske, was not the reason for the slander suit. Evans' divorce attorney, John J. Hollins Sr., had made statements during an interview that included People magazine, internet entertainment news site TMZ, Inside Edition and The Tennessean newspaper alleging that he had photographs of Schelske in compromising positions. The evidence against Hollins had been rumored to include Evans' deposition testimony admitting the photographs were described incorrectly by the attorney. Schelske's suit also alleged that attorney Hollins was aware that the statements regarding the photographs in question were false when he made them. Hollins went as far as to state that the pictures in his possession showed adulterous behavior between Schelske and the parties' former nanny, as well as allegations that Schelske had placed other explicit photographs on the internet. The nanny in question also filed suit for slander, and has already settled for an undisclosed but rumored to be substantial amount.

In general, divorce attorneys in Tennessee and elsewhere are supposed to make a reasonable inquiry into allegations such as these that may be provocative. However, in order to prove a slander case, the plaintiff must show that the defendant knew the statements were false when stated to third parties.

The settlement was announced last week, immediately before the slander trial scheduled to begin on March 28, 2011.