July 2011 Archives

Parental Rights Termination Case Raises Res Judicata Issue in Tennessee

In Re: Shyronne D.H, No. W2011-00328-COA-R3-PT, 2011 WL 2651097 (Tenn.Ct.App. July 7, 2011) has further established the limits of res judicata in Tennessee courts.
On October 14, 2008, the Criminal Court of Shelby County indicted Mother on one count of aggravated child neglect or endangerment and one count of aggravated child abuse of a child under eight years of age. The Department of Children's Services (DCS) placed Mother's children in foster care while Mother was incarcerated. DCS subsequently petitioned to the juvenile court, who ruled that the children were not only dependent and neglected but were also victims of severe child abuse. Consequently, the juvenile court ordered the children to remain in DCS's custody and that Mother could have no contact with them. Mother appealed the juvenile court's decision to the Shelby County Circuit Court.

The circuit court judge upheld the juvenile court's decision, basing the ruling on permanent mental and physical damage that mother inflicted on one of her children. The day after the circuit court's ruling, DCS also petitioned to terminate Mother's parental rights in a different circuit court, introducing the ruling made the previous day that Mother's children were dependent, neglected, and severely abused. By introducing this ruling, DCS sought to keep the issue of whether Mother committed severe child abuse from being relitigated under res judicata. Since the dependency and neglect order was actually signed on the same day that the parental termination proceeding began, Mother argued that res judicata did not apply because it could still be appealed or revised within thirty days of the order's entry. The court disagreed, deciding that res judicata did, in fact, apply. The court then ruled that Mother's parental rights should be terminated.

Mother appealed to the Tennessee Court of Appeals, who reversed the circuit court's decision. According to the appellate court, res judicata should not have applied to the instant case. While a minority view, in Tennessee res judicata cannot be applied until all appellate remedies have been used. In other words, a judgment is not final if an appeal is still pending. This is different from most other jurisdictions who rule that even if an appeal is taken up or pending it does not affect the finality of a judgment for res judicata purposes. If Mother had either denied her permission to appeal or failed to appeal the court would have come to a different outcome; but such was not the case here.

Because of the trial court's misapplication of res judicata, the appellate court reversed the trial court's decision to terminate since Mother did not have an opportunity to assert a defense. Since Tennessee courts "place decrees forever terminating parental rights in the category of cases in which the state may not bolt the door to equal justice," it was necessary for the trial court to allow Mother to fully litigate whether she committed severe child abuse sufficient to provide grounds to terminate her parental rights.

Alimony Arrearage Repayment Must Be Supported By Finding of Fact

The case of Colston v. Colston, 2011 WL 2601447 (Tenn.Ct.App., June 30, 2011) reminds us that a trial court must make specific findings of fact when determining monthly payments of alimony arrearages in Tennessee.

The couple divorced in September 2007 under a Final Decree that required Husband to pay $3,000 of alimony per month to the Wife. Husband appealed the alimony award, which was upheld. Husband then filed a Petition to Terminate Alimony, alleging he had become unable to work because of his medical problems, which rose to the level of a substantial and material change of circumstances. Wife responded, denying he was entitled to a termination and alleging his failure to pay alimony under the court order.
The trial court heard testimony regarding Husband's physical ailments. Wife stated that she did not object to his alimony being terminated after the date of the filing of his petition in December 2009, but asked that he still be required to pay all amounts that accrued from the date of the Final Decree (September 2007) until he filed his Petition. The trial court terminated his alimony but ordered that he pay the $86,000 arrearage that had accrued between 2007 and 2009 at a rate of $1,500 per month plus ten percent interest. Husband appealed, alleging the court erred in assessing him an arrearage and asking for a reduction in the monthly payment to $500 per month.

The Appeals Court held that T.C.A. §36-5-121(f)(2)(A) does not "expressly authorize" a trial court to change an alimony award prior to the date that a petition to modify is filed. However, the Court goes on to imply that the trial court can order a retroactive modification dating back before the petition was filed, but that in this case the trial court did not abuse its discretion by not doing so.

The Court then turned to the monthly arrearage payment amount ordered by the trial court. The trial court had failed to make a finding regarding the Husband's ability to earn or actual earnings. Therefore, the Appeals Court could find no basis for order of a monthly payment. Accordingly, the case was remanded to the trial court for reconsideration of his ability to pay and to determine an appropriate payment amount, if any, based upon his income and expenses.

Tax Exemption Part and Parcel of Child Support Determination in Tennessee

Child support in Tennessee is determined pursuant to the Tennessee Child Support Guidelines.The recent Appeals Court case entitled Crews v. Staggs, 2011 WL 2848745 (Tenn.Ct.App., May 31, 2011) calls into question the relationship between the amount of support and the tax exemption award. This case involved a Primary Residential Parent (hereinafter "PRP") who appeals the trial court's decision to alternate the federal tax exemption for the minor child each year. This decision was made prior to a determination regarding the amount of child support owed each month.

The Juvenile Court of Maury County entered an Order putting the Father's child support obligation at $100.00 every week and giving him the obligation to carry health insurance. A hearing was then held to set the visitation schedule in the parenting plan. At that hearing, the court reserved determination of child support due to the State having filed a paternity action on Mother's behalf. The Parenting Plan did declare that Mother would be the parent receiving support and gave her the tax exemption every year.

Subsequently, and Agreed Parenting Plan was entered with child support and the tax exemption issues reserved. However, the Plan also stated that Father could claim the exemption if payments are current when the return is due. Mother filed an appeal, which was dismissed due to lack of a bond. A third Plan was entered in late 2009 with the same support and tax provisions as the earlier plan.

Father then filed a Motion to change the child's name, remove some of his visitation requirements (overnights at the Mother's home, not his) and to rotate the tax exemption. A hearing was held and the Court refused to change the child's name, allowed the visitation change, and allowed the exemption to be shared. Mother appealed the tax exemption ruling.
Trial courts hold the discretion to set child support and therefore that decision is reviewed with an abuse of discretion standard, as are tax exemption rulings. The Appellate Court held that Tenn. Comp. R. & Regs. 1240-02-04-.03(6)(b)(ii), which describes that the formula used to determine the parties' net incomes assumes that the primary parent will receive the tax exemption, is not a rule, but rather a "mathematical assumption regarding an unrelated matter" (the internal formula used by the child support worksheet). Therefore, trial courts are not required to allow the PRP the tax exemption every year. However, because of the formula, the PRP being allowed the exemption is already calculated into the Worksheet, and therefore its actual allocation should be a factor in the trial court's decision.

The Appellate Court noted that the amount of support paid by Father was set to be recalculated by the State, and therefore until that is completed, the alternating exemption cannot be deemed an abuse of discretion, nor can it be deemed equitable in light of the scarce testimony regarding income at the Juvenile Court hearing. Therefore, the Appeals Court reversed the order awarding the exemption and remanded for reconsideration of that exemption as part and parcel of the as-yet-undetermined child support obligation to be determined by the State.

Tennessee Paternity Action Raises Rare Issues

A recent Tennessee Court of Appeals case entitled Danelz v. Gayden, 2011 WL 2567742 (Tenn. Ct. App. June 29, 2011) addresses the issue of paternity in Tennessee in a rare context.

The Appellant filed a Petition to Establish Parentage in Juvenile Court after his 18th birthday alleging that Dr. Gayden (hereinafter "Doctor"), not married to his Mother at his birth, was his biological Father and sought retroactive child support. At the time of his birth, his Mother was married to her now Ex-Husband, not the Doctor. The Juvenile Court granted the Doctor's motions to strike affidavits filed by Appellant (stating his date of birth) and of his Mother (stating the timing of her sexual relationship with the Doctor), and denied Appellant's motion for paternity testing and for discovery. Appellant appealed.
The Appeal Court first decided that the Appellant was not stopped from bringing the petition because as a minor, he was not a party to his Mother's divorce proceeding. The Court also held that the Mother was not a party to the new petition and therefore her affidavit could be considered. At that point, the case was sent back to Juvenile Court for genetic testing to be done.

The testing showed the Doctor was indeed Appellant's Father. The Juvenile Court then found the Mother's Ex-Husband to be an indispensible party under T.R.C.P. 19.01, ruled the Doctor was Appellant's biological Father, and held that no cause of action existed that would allow an adult child to seek retroactive child support where no existing child support order had been in place and therefore dismissed the action.

The Appellate Court noted that although the Juvenile Court declared Mother's Ex-Husband to be an indispensible party, he was erroneously never made a party prior to the Juvenile Court's final ruling. The Court noted that parentage determination is a two-step process: determine the biological father under T.C.A. §§36-2-301 and 322 and then determine whether that person is the legal father under T.C.A. §§36-1-101 and 142.

Here, the Doctor was the biological Father, passing the first hurdle. Regarding the second, a "legal father" is defined as the man who is married to the biological Mother when the child is born or within 300 days after the marriage was terminated, or if separation was entered by a court; any man who was adjudicated to be the legal father by a court; or a man who has signed an unrevoked and sworn, voluntary acknowledgment of paternity. A legal parent is not a man who is a biological parent without an adjudication or acknowledgment of paternity.

Here, the Juvenile Court made no finding as to whether the Doctor was the legal father. The Appellate Court held that the Juvenile Court must first decide who is the legal father, Mother's Ex-Husband or the Doctor, prior to deciding whether any retroactive child support was owed. Further, because the Juvenile Court entered an order that the Ex-Husband was an indispensable party, Rule 19 prevents the court form making a final order in his absence unless the court had made a separate finding that he was not indispensable after all.

Accordingly, the judgment of the Juvenile Court was vacated and upon remand, the court is to determine whether the Ex-Husband can be made a party or if the action should be dismissed. If he is made a party, the court is then to determine which man is the legal father. If the legal father is determined to be the Doctor, only then can the court turn to whether the action for retroactive child support is a valid one.

Judicial Recusal in the Context of a Tennessee Divorce

The case of Camp v. Camp, 2011 WL 2567542 (Tenn.Ct.App., June 29, 2011) brings up the rare but interesting issue of judicial recusal in the Tennessee divorce context.

The Wife filed for divorce in the Chancery Court for Crockett County, Tennessee in 2005. The Chancellor recused himself, citing two reasons: that he was personal friends with the parties and that the Husband worked for the AOC, which controls the administration for all judge's offices in the state. Therefore, the AOC scheduled a special judge to hear the divorce proceedings.

At the time of the trial, the Husband earned $120,000 while the Wife had not worked in fifteen years. The special judge ordered the Husband to pay $1,600.00 per month in alimony in futuro to the Wife and to pay her attorneys fees. Post- divorce, Husband declared a candidacy for the State Senate, thereby leaving his salaried job. Husband lost the election, became unemployed and finally found a position making $25,000 at a law firm. Meanwhile, Wife began earning $33,000 per year.

Husband filed a Petition to Modify, asking that his alimony be terminated or reduced. Wife denied his claims and asked the Court to increase his alimony because the youngest child reached 18, thereby stoping child support.

Even though the parties had litigated other post-divorce issues with the special judge, this Petition and Cross-Petition was set to be heard before the Chancellor who had recused himself in the initial divorce action. Wife filed a motion for disqualification of the Chancellor. Husband argued he was no longer employed with the AOC and therefore no reason existed for the recusal. The Chancellor denied Wife's Motion. After a hearing, the Chancellor found a material and substantial change of circumstances existed and terminated Husband's alimony obligation. Wife appealed.

The rule for recusal is found in the Tennessee Supreme Court Rule 10, Canon 3(E)(1) which states a judge shall recuse themselves in any proceeding where a judge's impartiality might reasonably be questioned, including if the judge has a personal bias or prejudice. Additionally, the standard that Tennessee Courts follow states that recusal is appropriate "when a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality." Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 564-65 (Tenn. 2008).

Here, the Appellate Court "reluctantly concluded" that the Chancellor erred in denying Wife's motion to disqualify, and reversed that holding. Therefore, the termination of alimony is vacated and the case was remanded to be heard by a special judge. The Court noted that the Chancellor's decision regarding the alimony would in all probability be the same finding upon remand, but with a different presiding judge.

Two Standards in Tennessee for Modifying Parenting Schedules

The recent Tennessee Appeals Court case entitled Schreur v. Garner, 2011 WL 2464180 (Tenn.Ct.App., June 20, 2011) showcases the two different standards that may apply in modification of parenting plan cases.

The Husband was named primary parent ("PRP") under a 2007 Williamson County, Tennessee divorce. In 2008, Mother filed a petition to modify the parenting schedule and asked to be named the PRP. Under the original plan, Mother was given co-parenting time from Friday until Tuesday morning every other week and Tuesday nights in the off-week. Further, Mother was required to attend counseling for twelve months and at that time, the parenting plan would be reviewed in mediation.
The parties entered mediation in 2009 but did not come to a resolution, so Mother filed a petition with the court, alleging that the current schedule caused the son to struggle in school and that the alternating residences caused the children confusion. Father alleged Mother did not complete her counseling.

The trial court held a hearing and found that no material change of circumstances existed, but determined that the children's best interest would be served by changing the schedule to alternating weeks with each parent due to the disruptive nature of the previous plan.

The Appellate Court reviewed de novo. The Court described the two separate standards that arise when dealing with parenting plan modifications under T.C.A. §36-6-101(a)(2)(C): when a party wishes change custody, a material change of circumstances must be shown; however, when a party wishes to change the residential schedule but not the PRP, the standard for showing that material change is lower, and includes demonstrating the current schedule simply is not workable. Therefore, the Appellate Court disagreed with the trial court's decision that it was not necessary for Mother to show a material change. However, the Court found the Mother met this burden of proving such a material change which is precipitated upon best interests of the children. Therefore, the trial court, in deciding a change was in the children's best interests, also impliedly decided a material change existed.

The evidence supporting this conclusion included the children becoming confused as to where they were going each night, resulting in transportation issues at school and downward academic performance which could be addressed with more stability during the school week.

Therefore, the evidence supported the trial court's decision that alternating weeks would be in the children's best interests and less unsettling, and provided the statutory ground of material change of circumstances necessary to modify the residential schedule.