May 2011 Archives


Divorce Mediator Sued Over Lack of Impartiality

The Tennessean newspaper recently reported on a case in which a divorce mediator was sued for failing to maintain impartiality. The mediator allegedly instructed the Husband involved in the divorce case to file a restraining order against the Wife as well as how to retain copies of all email correspondence between the two parties and then to disseminate them to Wife's family in an attempt to shame and/or embarrass Wife into ceasing contact with Husband.

The Husband did indeed seek a restraining order in Knox County, where he resided, which was ordered by the Court but Wife claims she was never served with that Order. Husband also took out a criminal warrant against Wife in Nashville. Wife was then arrested in January of 2011, but has filed a complaint against the police department related to that arrest. The Order of Protection, originally issued in Knox County, was dismissed by a Judge in Davidson County.
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Due to the alleged malpractice chain of events, Wife claims in her civil suit against the mediator that the malpractice set off a "domino effect" that resulted in the events described above, including her arrest. The suit asks for five million dollars in damages for each individual act of malpractice , emotional distress and breach of contract. The mediator was officially sanctioned earlier this year but can continue mediating divorces in Tennessee.

Every contested divorce in Tennessee that does not reach a settlement within six months of the initial filing must go to mediation per state statute. Although the parties are not required to reach an agreement, they are required to participate in good faith. When a mediator is not impartial, the outcome of some very important issues can be affected, from distribution of the marital estate to co-parenting plans. Therefore, also ensure that your divorce attorney is familiar with your mediator.

Click here for the full article from The Tennessean.


Tennessee Divorce Courts Will Uphold Valid Contracts Between Spouses

Tennessee courts will enforce agreements between spouses, but only if they are found to be valid contracts. The case of Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004) adopted the standard that spouses may enter into a contract to divide the marital estate and/or set out support provisions, and that they do not violate public policy even if not contemplated in light of an impending divorce or separation.These "post-nuptial agreements" are looked at as any other contract, and must have adequate consideration from both parties to be upheld as valid. Additionally, these agreements must be free from fraud, duress coercion or undue influence. However, courts can and will decide that the division of the estate is inequitable, even if there is a valid, enforceable contract, resulting in a redistribution of property.
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A trial court will find that consideration exists when a party agrees to take action or to refrain from some action even though they have a legal reason for doing that action. Mutual promises meet this threshold. Spouses who waive their rights given under statute also are normally deemed to have given sufficient consideration. However, the court will look closely at promises to ensure they are not too vague or illusory. In the Bratton case, the Court found that the Wife's promise to refrain from entering a career in the dental industry was not adequate consideration. This occurred in part because the Wife never applied to school, or took admission exams but rather had decided to become a stay-at-home mom prior to entering the agreement. Therefore, the court determined she had either given insufficient consideration or prior consideration, which would result in invalidity of the contract. Trial courts will also want to ensure that neither party had a superior bargaining position.

The Court in Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006) found that a Marital Dissolution Agreement signed by the parties was enforceable in light of Husband's arguments to the contrary. First, he argued that he was under duress when the document was signed because Wife stated she would leave the state with the children. The court found that her threat was not "credible" due to her job and family ties. The Husband then argued that Wife's adultery, committed after the agreement was signed, was grounds for invalidation. The court found Wife's behavior irrelevant to the enforceability issue. Next, Husband argued that Wife's mediation request should result in estoppel, which the court held was not a ground for repudiation nor could used against her based on the rules of evidence.


Retroactive Child Support Dating Back to Birth Not Automatic in Tennessee

Whether you are going through a divorce or a custody matter in Tennessee, child support is sure to be a confusing issue for those unfamiliar with the process. For parents of children who were never married, the issues can be even more intricate, especially when dealing with retroactive child support.


The first step is for the court to establish parentage and then set a current child support amount for the obligor to pay going forward. Next, the court must determine the amount of child support arrearages dating back to the birth of the child using the Child Support Guidelines. T.C.A. §36-5-101(e); Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(e).

In T.C.A. §36-2-311(a), the legislature has carved out four instances where it would be unfair or unjust to require the arrearages to reach back to the child's birth. The first is when the father was unaware and could not have known of any of the following: the birth of the child, his potential parentage and/or the child's location; second, if the mother intentionally and with no good cause kept the child's birth from the father, his parentage or the child's location; and thirdly if the mother failed to make any attempts to notify the father of the pregnancy or birth. If these events occur, the court has the discretion to decide that the presumption of arrearages dating back to the birth is overcome. The statute also allows the court to look at the equity between the parties as a fourth safety valve, allowing reasons other than those spelled out in T.C.A. §36-2-311 to be considered in allowing a deviation from the Guidelines. This fourth factor could apply when a parent unilaterally cuts the other parent out of the child's life for no legitimate reason. However, a Mother's failure to legitimate the child, on its own, or the fact that a child was supported by other relatives will not be considered by the court as grounds to overcome the presumption.


Post-Divorce Interest Can Be Tricky in Tennessee

In a recent Court of Appeals case entitled Moss v. Moss, 2011 WL 1459170
(Tenn.Ct.App., Apr. 15, 2011), post-judgment interest in a Tennessee divorce is explored.

The divorce finalized at end of 2008 and Husband was awarded marital residence and farm worth $580,000 plus equipment worth $200,000. Wife was awarded a chalet in Gatlinburg and a cash award of $250,000 to be paid upon Husband's receipt of his expected inheritance, to be paid within 30 days of the estate closing. If this did not happen within 12 months, Wife was given the option to petition the Court for relief, which she did, asking for immediate payment. The trial court denied her request and denied awarding her interest but ordered Husband to pay $417.00 per month until the estate closed, credited toward the $250,000. Wife appealed.

The Court of Appeals held that by denying the Wife any benefit of the martial estate along with denying post-judgment interest was not fair to the Wife, because of her financial circumstances and the Husband's farm produced income for him. Therefore, the Court remanded the case to the trial court with instructions to lift the stay regarding payment of the $250,000 and allow her to execute upon that judgment. The Court also held that interest should be awarded to the Wife as of December 2009 when she petitioned for relief. The Court reversed the $417.00 payment in light of the fact that the Wife can now execute on the judgment.

The Court noted that cash awarded in divorces are money judgments, meaning that post-judgment interest is allowed to accrue under T.C.A. §47-14-121, a mandatory statute requiring that interest in the amount of 10% per year shall accrue unless specified otherwise by statute or contract. Here, Wife is only entitled to interest beginning after the 12-month stay, because the rule in Tennessee is that interest doesn't accrue until the party is actually entitled to the funds.


Timing of Post-Divorce Relief Filings Key In Tennessee


The recent Tennessee Court of Appeals Case Warren v. Warren, No. M2009-02255-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2011) highlights the importance of quickly filing for relief once a judgment has entered by the court.

Wife filed for divorce in Tennessee in May 2007 alleging irreconcilable differences. In April 2008, Husband filed an Answer but no Counter-Claim. Husband then filed a summons, served on Wife, stating failure to respond would result in a default judgment, even though no counterclaim or other document was filed. Husband then filed a Notice of Hearing for Default Divorce. The trial court entered a Final Decree of Divorce against Wife at the noticed hearing based on inappropriate marital conduct. That day the court also awarded each party the property in their separate possession and entered a parenting plan waiving child support.

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One year later, Wife filed a Petition to Modify Child Custody and Support, Motion to Set Aside Default judgment and Motion to Compel Mediation under T.R.C.P. 60, arguing that the default was void since a counter-claim was never filed. The trial court denied Wife's request for the following reasons: the Notice of Hearing had a certificate of service indicating that Wife was served with a copy of the Notice of Entry of Default and the court took testimony from witnesses at a prior default hearing before granting the judgment.

The Appeals Court noted that "void" under Rule 60 means the court lacked jurisdiction or violated due process, regardless of whether procedural flaws exist. Here, the judgment was found not to be void even though the default failed to comply with the rules of procedure (T.R.C.P. 55), because this was an appeal from a Rule 60 denial and not a direct appeal from the entry of the default (an argument that would have been meritorious if made immediately).
The Wife next argued that the default judgment should have been set aside based upon two additional grounds. The first is based upon mistake, inadvertence, surprise or excusable neglect, determined by looking at all relevant circumstances including prejudice, good or bad faith, impact on proceedings and principles of equity. Here, the Appellate Court determined the default judgment to be equitable and refused to set it aside. Second, Wife argued that default judgment did not comply with the requisite laws and rules. The Appellate Court looked at whether the failure to respond was willful, whether the default had a meritorious defense, and the extent of prejudice caused. Because Wife failed to produce proof at the Rule 60 hearing that she could have established a defense or that the court erred in the Final Decree, and instead only addressed argument to parenting and support provisions, her argument fails. Moreover, Wife waited eleven months to file her Rule 60 Motion.

The Court noted that had Wife filed to have the default set aside immediately, the procedural errors would have resulted in the judgment being set aside, but because of her delay and due to the T.R.C.P. 60 standards, the Final Decree stands.