August 2011 Archives


Tennessee Default Divorce Requires Notice, Proper Address

August 22, 2011 by The McKellar Law Firm, PLLC

Obi v. Obi, No. M2010-00485-COA-R3-CV, 2011 WL 2150733 (Tenn. Ct. App. June 1, 2011) shows that if a person never received notice to a default judgment made during a Tennessee divorce proceeding, they may be relieved from that judgment.

Husband and Wife were married and had two children. Wife filed a complaint for divorce, and Husband filed an Answer denying Wife's grounds for divorce. Husband did not respond to any of the discovery requests, but when Wife filed a Motion to Compel, Husband and Wife jointly filed an Agreed Order. After the Agreed Order was entered, Husband's attorney withdrew from representation. Wife then filed a motion to set trial and hold a hearing on her motion to compel. Since Husband never responded to the discovery request, the court dismissed Husband's Answer and granted Wife a Final Judgment of Divorce. The trial court also adopted the Parenting Plan that Wife submitted and ordered Husband to pay child support in the amount of $131.00 a week.
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Six months later, Husband, acting pro se, filed a Tenn. R. Civ. P. 60 motion for relief and to set aside the judgment. Husband explained that he did not live at the address listed on the certificates of service attached to Wife's court filings after his counsel withdrew representation, and was therefore never served with notice of the divorce proceedings. Husband also showed that he was a full-time student, unemployed, that his supposed income that Wife listed in the Child Support Worksheet was incorrect, and therefore he had no way of paying child support. He also objected to the Parenting Plan that Wife submitted. The trial court denied his motion and Husband appealed.

When filing a Tenn. R. Civ. P. 60 motion, the burden is on the movant to set forth facts explaining why the final judgment should be set aside. Also, the motion should be granted if there is reasonable doubt as to the justness of dismissing the case before it can be heard on the merits. To determine this a court considers (1) whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) whether the non-defaulting party would be prejudiced if relief were granted.

Regarding Husband, the appellate court found that since he never received notice to the motions due to them being sent to the wrong address, his failure to defend against Wife's complaint was not willful. The appellate court also found that Husband had a meritorious defense since he was a full-time student who was not working. This information would have been important for the trial court to consider regarding child support. Husband also should not have been denied the opportunity to present his arguments regarding the parenting plan. Lastly, Wife did not demonstrate that she would be prejudiced if Husband's Rule 60 motion was granted. Having Wife prove her case against Husband in a trial where both sides are provided the opportunity to present evidence in their favor did not constitute prejudice.

Most importantly, Husband was denied due process of law when he did not receive notice of actions in the divorce proceedings. For the above reasons, the appellate court held that the trial court erred when it denied Husband's Rule 60 motion regarding the parenting plan and the child support.


Tennessee Alimony Based on Spouse's Need

August 20, 2011 by The McKellar Law Firm, PLLC

In Brock v. Brock, No. E2009-01128-COA-R3-CV, 2011 WL 3557525, at *1 (Tenn. Ct. App. Aug. 12, 2011), the Court of Appeals ruled in a Tennessee divorce case that the husband's inability to pay spousal support and attorney's fees did not outweigh the wife's need for spousal support.

The parties married in August 1996. After nine years, Wife filed for divorce. Husband and Wife had two daughters together, as well as a third daughter that they took care of from Husband's previous marriage. The trial court held that Husband was to pay $1,112 in child support per month, $300 in spousal support per month for 60 months, and $8,500 as alimony in solido for Wife's attorney's fees and costs. Husband appealed, claiming that along with his other expenses at the time of the original hearing, he had a deficit each month and was therefore unable to pay the alimony. His monthly income was $5,600 per month with monthly expenses totaling $6,710. Wife, on the other hand, earned $1,612 per month with $795 in monthly child support at the time of the original hearing. Her total expenses per month were $3,055.
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As the Appellate Court explained, Tennessee law recognizes four types of alimony: rehabilitative alimony, alimony in futuro, alimony in solido, and transitional alimony. However, Tenn. Code Ann. § 36-5-121(d)(2) favors rehabilitative alimony over other types of alimony. Before alimony is even awarded, a court looks to the unique circumstances of the case, with the most significant consideration being the need of the recipient spouse, followed by the obligor spouse's ability to pay. If it is found that alimony should be awarded, Tenn. Code Ann. § 36-5-121(i) provides 12 factors for a court to determine the nature, amount, and period of time of the award.

The Appellate Court affirmed the trial court's ruling, holding that it did not abuse its discretion because the trial court had wide latitude when it determined whether to award alimony. While looking at each spouse's situation, the trial court did not err when finding that Wife clearly demonstrated a need for spousal support. As for attorney's fees, they constitute an award of alimony in solido. A critical factor in determining whether attorney's fees should be awarded is the need of the spouse for whom the alimony is being requested. Unless the trial court applied an incorrect legal standard, an appellate court cannot substitute its judgment for that of the trial court. Since there was no evidence that the trial court misapplied any legal standard, the awarding of attorney's fees was also upheld.


Appeals Court Rules on Order of Protection Dismissals and Costs

August 18, 2011 by The McKellar Law Firm, PLLC

The Court of Appeals case Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, (Tenn. Ct. App. August 12, 2011) addresses two distinct issues - Tennessee Orders of Protection and judicial interchange.

Petitioner filed for an Order of Protection ("OP") in June of 2010, and included her children under her request, alleging threats via text message. The Chancery Court of Sumner County entered an ex parte OP. The Respondent filed a motion to dismiss based on jurisdiction. At the hearing, no proof was taken but the Court refused to dismiss the petition and the OP stayed in place. The Court then put down an order that the Sumner County Juvenile Court (where the parties had a trial set) would hear the OP, specifically Judge Gwin, who was actually a Wilson County General Sessions Judge who was sitting by interchange in the parties' Sumner County Juvenile Court matter.

At that hearing, proof was taken and the OP was dismissed. Petitioner filed a T.R.C.P. 60.02 motion to reconsider in Sumner County Chancery Court, asking for the OP to be put back into place and alleged fraud on Respondent's behalf. That motion was denied. An appeal followed.

The first issue raised was whether the Court erred in failing to hold a hearing within fifteen (15) days of service of the ex-parte order under T.C.A. 36-3-605(b). The Court of Appeals held that the statutory language limiting the duration of an ex parte order to 15 days does not bar a court from holding a hearing past the 15 day period, because both parties were present when the court reset the matter and expended the OP past the fifteen days.

Second, the Court of Appeals ruled that the General Sessions Judge did not have jurisdiction to hear the OP by interchange with a Chancellor. But, because no objection was made at the initial court date or at the subsequent hearing, his acting as judge de facto was waived.

Next, Petitioner argues the judge failed to make specific factual findings required under T.R.C.P. 41.02(2) and 52.01, which requires a court, when sitting without a jury, to find and state it facts and conclusions of law when ruling on an involuntary dismissal. The trial court here stated the relevant considerations under the law and then went to say that the proof failed and no OP was warranted, which is neither a finding of fact or a conclusion of law (just an "outline of legal principles"). Therefore, the judgment of the court was vacated and remanded to allow the trial court enter those necessary findings of fact and conclusions of law, to be done by a trial court judge (not a General Sessions Court judge).

Finally, the Appeals Court held that the statutory language found in T.C.A. 36-3-617 which states that "no victim" shall pay costs associated with the dismissal or nonsuit of an OP, allows the Petitioner to have cost assessed to them if they are found to not have been a victim of domestic abuse.



Recent Case Highlights Factors for Name Change in Tennessee Custody Cases

August 16, 2011 by The McKellar Law Firm, PLLC

The Court of Appeals case In Re: A.M.K. , No. E2011-00292-COA-R3-JV explains what steps must be taken for a child's name to be changed when the parents are at odds over the decision in a Tennessee child custody case.
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In this case, Father and Mother never married, and Father eventually filed a Petition to Establish Paternity and Co-Parenting time. The Juvenile Court Magistrate established paternity, set support and reserved the issue of the child's surname. Later, the Magistrate denied Father's request to change the child's name and denied Mother's attorney's fees. Mother appealed to the Juvenile Court Judge. That Judge entered an order hyphenating Mother and Father's surnames and denied Mother's attorneys fees. Mother appealed.

The standard for changing a child's surname is as follows: first, the change must be in the child's best interest. That determination involves several factors, including the child's preference, the potential effect on the relationship with either parent, length of time the child has had the current surname, community respect for both potential names, difficulty, harassment or embarrassment that may follow from a change. Further, the parent wanting the change bears the burden of proving best interests. However, when a Father requests the change, the court should consider the father and child's relationship (such as the bond, level of contact and length of contact).

Here in this case, Father demonstrated that he always kept a positive and close relationship with the child and was an active participant in the child's life. The evidence also showed concern from both sides over a potential change, such as awkward questions regarding the child's other sibling's names being different. However, the most important fact to the Appeals Court in this case was Father's strong bond with the child. Therefore, the Court of Appeals upheld the order hyphenating the child's name. The Court then denied Mother's request for attorney's fees because the Juvenile Court applied the correct legal standard and it's decision was not against logic or reason.


Tennessee Statute Favors Primary Parent's Ability to Relocate

August 14, 2011 by The McKellar Law Firm, PLLC

The case of In Re Iyana R.W., E2010-00114-COA-R3-JV, demonstrates the alternate residential parent's burden in fighting a relocation by the primary parent in custody cases in Tennessee.

The parents never married. Mother became primary residential parent, "PRP", with Father visiting on weekends. In 2006, the Juvenile Court put down a Permanent Parenting Plan ("Plan"). Subsequently, the Father made several filings with the court alleging various infractions of the Plan. Then, in 2009, Mother notified Father of her intention of moving to Colorado and then filed a Petition to Modify Visitation. Father filed a Petition to Change Custody and opposed the relocation. Mother moved to Colorado with the child before a hearing was held. At the hearing, the case was moved to Bradley County (a more convenient forum), a trial was scheduled and continued visitation was ordered for Father.
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Mother then filed a Motion for Extended Co-parenting Time but failed to appear at the hearing, so the court gave Father visitation for the summer. A second hearing was then held two weeks later (Mother failed to appear again) and Mother was ordered to send the child back to Tennessee with Father for the summer. Father's child support was put on hold as well. Mother then failed to appear at the hearing on Father's change of custody petition, and Father was given immediate physical custody pending a November 2009 hearing. There, both parties and several witnesses testified, and the Court ruled that Father's Petition was granted, naming him the PRP. Mother appealed.

T.C.A. 36-6-108 provides for parental relocation of the PRP and states that the party fighting against the move has the burden of proof to establish one of the following: relocating has no reasonable purpose; relocating would pose a threat of serious harm which outweighs the harm caused by a change of custody or the motive is vindictive. Without one of these grounds, the move will be allowed. If a ground is proven, the court must then decide whether the relocation is in the child's best interest.

Here, Mother assets this statute was not followed. The Appeals Court noted that because Mother was PRP, the statute favored her relocation. Further, the record did not have any findings regarding the factors listed above. Therefore, the trial court erred in granting Father's Petition because Father failed to prove the move either lacked purpose, posed a threat or was vindictive. The trial court said it "understood" why Mother wished to move and therefore a reasonable purpose was present. No evidence was presented regarding a threat or a vindictive motive. Therefore, the Court of Appeals granted Mother's Petition to Relocate, denied father's request for a change of custody, remanded to determine visitation and taxed costs fifty-fifty.


Required Use of Child Support Guidelines In Tennessee

August 12, 2011 by The McKellar Law Firm, PLLC

The recent Court of Appeals case entitled Pennington v. Hennessee, No. M2010-01873-COA-R3-CV, highlights the law involved in modifying child support in Tennessee.

Parents (never married) entered into a custody agreement setting Father's child support at $128 per week, requiring him to pay for college expenses and maintain health and dental insurance. This was modified in 2005 when co-parenting time became fifty-fifty and Father was to pay school expenses. Each party would be responsible for daycare for the child while in their care and they waived child support. Father remained liable for payment of college expenses. The court order did not state what amount would be owed according to the Child Support Guidelines had the support not been waived. The order also failed to explain why the Guidelines were not used.
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In 2010, Mother filed a Petition to Modify Child Support alleging a decrease in her income, higher costs of raising the child, increase in Father's income and Father's failure to buy the child's clothing. Father filed to dismiss the Petition due to the 15% discrepancy in payment not having been met. The trial court denied Mother's Petition because the variance did not exceed 7.5% (after finding Mother qualified for the low-income variance rate instead of the normal 15%). Mother appealed.

Mother alleged the 2005 order was void because it relieved Father of his child support responsibility. Although in general any agreement to waive child support is void and against public policy, in this case the order still required Father to pay school expenses, daycare costs, health insurance and if available dental, vision and orthodontic insurance, 50% of all uninsured costs and costs of college. Further, the agreement did not touch upon either party's ability to seek support in the future. Therefore, the Parenting Plan and Order were found to not be void.

Mother next argued that the order is void because the court did not make finding of fact as required by Tenn. Comp. R. Regs. 1240-2-4-07(1)(c). However, the Appeals Court points out that a court's lack of written finding for a deviation from the Guidelines does not substantiate setting aside the order after the direct appeal period has expired. Finally, the Appeals Court found the trial court correctly ruled in its 2010 order that no significant variance existed and no modification was required.

However, the Court of Appeals reversed the judgment of the 2005 order and remanded the case to make a new determination of the child support obligation pursuant to the Child Support Guidelines to include retroactive support, if necessary, dating back to the time of the filing of Mother' Petition to Modify. The Court based this ruling on the fact that the "materially deficient" 2005 order could not "be used as a shield to oppose Mother's petition to modify."


Recovering Attorney's Fees in Domestic Relations Contempt Actions in Tennessee

August 10, 2011 by The McKellar Law Firm, PLLC

When a couple with children divorce, typically the most important consideration is how to provide for and support their children. The responsibilities of each parent for child support are included in the all Tennessee divorce agreements. This agreement is essentially a contract between the parties that becomes a court order when signed by a judge. Because a divorce agreement becomes a court order, if one of the parents fails to perform all of their obligations for child support, the court may hold that parent in contempt.

Contempt is simply a means for a court to coerce a party to comply with an order by imposing penalties on the non-performing party. The court may impose fines or even imprisonment on the party that willfully fails to comply with the order. The non-performing party can purge himself or herself of the contempt by following the order.

In Brumit v. Brumit, No. E2010-01999-COA-R3-CV, the Tennessee Court of Appeals had to decide which parent should be responsible for the attorney's fees incurred in enforcing a child support order through contempt proceedings. In this case, the Father was ordered to pay Mother $1,500 per month in child support following their divorce. From that amount, Mother was ordered to put $300 in an educational trust account for the benefit of their child. In 2008, Father filed a Motion for Contempt, alleging that he had fulfilled all his obligations to pay child support, but Mother was $6,600 behind in payments into the trust account. Mother brought all the payments up-to-date prior to the hearing on the contempt. The trial court found Mother in contempt for failing to obey the court order, and ordered that Mother pay half of Father's attorney's costs. Father appealed, arguing Mother is obligated to pay all his attorney's fees.
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The Court of Appeals noted that even though Mother fully repaid the amount she owed to the trust account before the contempt citation was entered, Father could still be entitled to additional relief. The appeals court affirmed the trial court's finding of contempt against Mother since Father had to initiate contempt proceedings before she fully paid into the account. Additionally, the appeals court noted the Marital Dissolution Agreement itself stated that if one of the parties had to institute a legal action to force the other party to fully perform, "the party commencing such action shall be entitled not only to performance, but the costs of the proceeding, reasonable interest on all sums recovered, and reasonable attorneys' fees."

The Court of Appeals found that because of this provision, there was no doubt that Father was entitled to an award of attorney's fees. Yet the appeals court also affirmed the trial court's decision to order Mother to pay only half the fees Father incurred because "determining the reasonableness of the amount of an attorney's fee is a discretionary inquiry by the trial court . . . to which appellate courts will defer, absent an abuse of discretion." Therefore, even though the parties agreed that attorney's fees would have to be paid by the party breaching the Marital Dissolution Agreement, the Agreement did not specify what was "reasonable." This case illustrates the importance of being specific when drafting a Marital Dissolution Agreement (or any contract). If the parties intended for attorney's fees to be paid in full by the parent who failed to fulfill his or her obligations under the Agreement, they should have written it exactly that way. As it was, that decision was left to the trial court which may exercise considerable discretion in determining what is "reasonable."


Military Deployment and Parenting Plans in Tennessee

August 8, 2011 by The McKellar Law Firm, PLLC

The Tennessee Legislature enacted a statute in 2008 to protect military parents, which prohibits a court from permanently modifying child custody or visitation decree solely because one parent is a member of the military and has been mobilized. Tenn. Code Ann. § 36-6-113. This was intended to prevent one parent from using the other parent's deployment as a means to permanently modify child custody arrangements. In Miller v. Miller, 2011 WL 3274158 (Tenn. Ct. App. July 29, 2011), the Tennessee Court of Appeals decided the limits of this statute when both parents are active duty military.

Father and Mother served in the Army and had two children prior to divorce in 2004. They were stationed in Colorado and divorced there. Importantly for this case, the Plan stated that if the parties were stationed in different states or countries, the scheduling would be flexible so as to accommodate their respective military obligations.

Both parents were deployed for most of 2005. When Mother returned, she was transferred to Hawaii. Meanwhile, Father was stationed in Germany, and his new wife cared for the children. The children moved to Hawaii with Mother for one year, but Mother was scheduled to deploy again. By this time, the Father was stationed in Tennessee, so the children began living with him. The children lived in Tennessee with their father for two years, until Mother returned to Hawaii in March 2009.
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In February 2009, Father petitioned to modify the Parenting Plan. Father claimed there was a material change in circumstances supporting his request to be Primary Residential Parent. Father argued that of his rank and unit allowed him to choose deployment times and would only be gone for two months at a time rather than the typical 12-15 months. Father had offered to help Mother transfer to Tennessee so she could be with the children more, but she chose to stay in Hawaii even though her deployments would be longer as a result.

Mother cited the provision of the statute that states "a court shall not permanently modify a decree for child custody or visitation solely on the basis that one (1) of the parents is a mobilized parent." Tenn. Code Ann. § 36-6-113(b). The court rejected Mother's argument that the statute applies to her situation. The Court of Appeals distinguished between parents who are currently mobilized or deployed and those that had been deployed in the past. The court held the statute only applied to prevent one parent from permanently modifying a plan when the other parent is currently mobilized.

Under this decision, the courts may consider past deployments and their effect on the children when deciding a petition for modification. The court also noted the statute does specifically allow a court to permanently modify a child custody decree if "a parent volunteers for successive or frequent duties that remove the parent from the state and that make the parent unavailable to effectively supervise and care for a child." Tenn. Code Ann. § 36-6-113(e). The court found this section applied here because Mother voluntarily re-enlisted and chose to be stationed in Hawaii - a post that would require her to deploy more frequently and for longer periods - even though Father had offered to help her transfer to a base in Tennessee closer to the children and would requiring shorter, less frequent deployments. Thus, the Court of Appeals affirmed the trial court's permanent modification of the child custody decree.

The statute in this case provides important protection for military parents. It is intended to prevent one parent from using the other's absence due to military service to permanently change child custody agreements. There are, however, certain important exceptions and circumstances under which the court may still make modifications if the court determines it would be in the children's best interest to do so.


Truthfulness in Child Custody Cases Is Vitally Important

August 6, 2011 by The McKellar Law Firm, PLLC

In Re Abigail G.D.H., No. E2011-00118-COA-R3-JV, 2011 WL 3209180 (Tenn. Ct. App. July 28, 2011) is a reminder of the consequences stemming from a witness providing contradictory testimony during a Tennessee child custody case.

Mother and Father were never married and their relationship ended when the Child was born. Because the Child suffered effects from Mother's drug use during her pregnancy, the Department of Child Services filed a dependency and neglect petition that was granted by the juvenile court. The Child's grandmother was then given temporary custody. Two months later, the grandmother filed a petition to seek absolute custody. Mother then informed Father that he was the Child's biological father; he in turn filed a counterclaim for custody.

During trial, it was revealed that Father at once had a cocaine problem. While Father claimed he only used cocaine at eighteen years old (he was thirty-five during trial), Father's ex-wife, sister, and mother all testified that he used cocaine when he lived in Arizona in 1996. Since Father's testimony was contradictory, the trial court altogether rejected his testimony, claiming he "flat-out lied under oath." The trial court then denied Father custody, ruling that he would pose a substantial risk of harm to the Child due to his drug use.

The Tennessee Court of Appeals affirmed this decision. Using the decision from Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002), the appellate court noted that between a parent and a non-parent, if the parent was not afforded an opportunity to assert superior parental rights in the initial custody proceeding, or if a court order only grants temporary custody to the non-parents, the court should not apply the standard typically applied in a parent vs. parent modification rights. Therefore, the appellate court placed the burden on the grandmother to prove, by clear and convincing evidence, that there would be a risk of substantial harm to the Child if Father were granted custody.
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But even with this heightened standard, the grandmother still prevailed. Father admitted that while his testimony regarding his cocaine use was contradictory, he argued that it was still well in the past. But the appellate court still affirmed the trial court's ruling. If a witness has shown to have sworn willfully, falsely, and corruptly in even one respect, that witness's testimony may be rejected altogether, which the trial court did here. But this was not an abuse of the trial court's discretion because the trial court was in a much better position than the appellate court to observe the truthfulness of Father's testimony. So even though the grandmother had a higher burden to prove that placing the Child in Father's custody would expose the Child to a risk of substantial harm, Father helped the grandmother meet that burden of proof by providing contradicting testimony.


Denial of All Visitation in Divorce Rare But Possible

August 4, 2011 by The McKellar Law Firm, PLLC

The relationship between parents and their children is among the most basic and significant in our society. Therefore, all visitation rights of a non-custodial parent are rarely denied in Tennessee divorce courts. In Melvin v. Melvin, 2011 WL 3122252 (Tenn. Ct. App. July 26, 2011) the Tennessee Court of Appeals reversed a trial court's decision to deny a father any visitation. This case illustrates how courts determine whether visitation should be allowed.

Wife filed for divorce in 2007,after a 12 year marriage that produced two children. The court awarded Wife the divorce, finding Husband engaged in inappropriate marital conduct. The court found this conduct sufficiently egregious that to warrant denying Husband visitation and allowed no contact at all with his children.

Husband appealed, claiming the trial court erred by awarding Wife custody and denying him any visitation. The Court of Appeals determined the trial court was correct in awarding custody to Wife, but held the denial of all visitation error. The Court of Appeals cited T.C.A. 36-6-406, which allows such limitation if residential time with the parent would adversely affect a child's best interests.

The statute also provides a list of factors the court may consider in denying visitation: (1) the neglect/ non-performance of parenting responsibilities; (2) emotional or physical impairment such that parenting responsibilities cannot be fulfilled; (3) inability to perform parenting responsibilities because of drug/ alcohol abuse; (4) no emotional ties between parent and child, or ties that are substantially impaired; (5) abusive use of conflict that poses a threat to the child's healthy psychological development; (6) denial of the other parent's contact with the child without good cause; (7) criminal convictions if they affect either the parent's ability to fulfill her parenting responsibilities or welfare of the child; or (8) other behavior or factors the court specifically finds adverse to the best interests of the child. Tenn. Code Ann. § 36-6-406(d)(1)-(8) (2010).

In the this case, the Court of Appeals acknowledged serious issues with Husband's behavior. He said extremely negative things about his wife to their children. The trial court found because of Mr. Melvin's actions, his attitude toward women generally, and toward his wife specifically, the children did not want to see their father. Despite his behavior, the Court of Appeals found the trial court's decision to completely deny Husband any contact with his children improper. The Court of Appeals noted that "the termination of all visitation has the practical effect of terminating the parent-child relationship, and accordingly must be supported by specific findings that visitation by the non-custodial parent will result in physical, emotional, or moral harm to the child." Therefore, at a minimum, supervised visitation was appropriate.

This case illustrates the continuing commitment of the courts to preserving family connections whenever possible. The courts are extremely hesitant to sever all connections between parents and their children. Rather, there must be evidence that allowing any contact between parent and child - even with supervision - would be a danger to the child's well-being or the parent is not capable of actually parenting the child.


Marital vs. Separate Property in Tennessee Divorce Context

August 2, 2011 by The McKellar Law Firm, PLLC

Malone v. Malone, No. E2010-01455-COA-R3-CV, 2011 WL 3066384 (Tenn. Ct. App. July 26, 2011) has further defined what constitutes marital and separate property in Tennessee divorce cases.

James Malone ("Husband") and Susan Malone ("Wife") married in 1990. In 2005, Husband filed for divorce. At the time of the marriage, wife received $13,975 in disability income and $11,712 in Social Security disability benefits. She also had a 401(K) worth $96,914. Husband received $5,130/month in pension benefits, had $847,106 in deferred compensation, a stock deferral plan of $390,000, a 401(k) plan of $232,000, and a flexible compensation plan of $205,000, all accumulated during the marriage. Husband also had over 20,000 shares of stock. During the entire marriage Husband and Wife lived separately due to Husband's profession.

The total marital estate was valued at $7,323,910 at the time of trial. Husband argued Wife should only receive 20% of the estate since wife did nothing to contribute to the appreciation of the majority of the property because of their separate living arrangements. Therefore, she should not receive an equal division of the property, but an equitable one. The trial court disagreed, ruling that it would be more equitable to split the estate 60-40, with Husband receiving $4,320,030 and Wife $2,968,989. Wife and Husband both appealed.
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Tenn. Code Ann. § 36-4-121(a)(1) controls distribution of marital property. Courts are required to look at all relevant factors, including the factors listed in subsection (c) to determine how to be distribute and divide marital property. Tenn. Code Ann. § 36-4-121(b) also classifies property as either separate or marital. Any property owned by a spouse before marriage is considered separate and is therefore not subject to division. Marital property, on the other hand, is property gained by either or both spouses during marriage and up to the time of divorce. If a piece of property is a pension, stock option, retirement, or other fringe benefit right related to employment, then the court determines the value of that benefit that accrued during the marriage even if it was originally separate property. Any other property that was originally separate will not be considered marital property even if there was any increase in income or appreciation during marriage.

While Husband argued that Wife's TVA disability pension should be marital property, the Tennessee Court of Appeals held it was separate property. Tenn. Code Ann. § 36-4-121 states that social security disability actions and other similar actions for wages lost during the marriage are marital property, but here Wife received the pension before she married, and there was no action for any wages lost while married. Therefore, her pension was still separate property.

The appellate court also allowed Husband's expenditures on his attorney and expert fees to be counted as part of the marital estate. Lastly, Wife was allowed 40% of the 20,000 stock. Even though the option price was lower than the market price, the appellate court held Wife had the right to share in any future gains from any employment benefit that accrued during the marriage.


Knowledge Key in Tennessee Child Support Arrearage Case

August 1, 2011 by The McKellar Law Firm, PLLC

In Burnine v. Dauterive, No. W2010-02611-COA-R3-JV, 2011, WL 3115967 (Tenn. Ct. App. July 27, 2011), the Tennessee Court of Appeals held that a father did not owe retroactive child support payments when he the mother falsely claimed that the child passed away a few weeks after birth.

In 1992, Victor Dauterive ("Father") and Teresa Burnine ("Mother") had a brief relationship, during which Mother became pregnant and had a child ("Daughter"). Father visited Daughter until Mother lied to Father, claiming Daughter died of Sudden Infant Death Syndrome. Father asked about the funeral, but Mother informed him that she had moved and had already taken care of it.
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Due to Mother's drug and alcohol problems, her grandmother gained custody of Daughter. In 2004, Daughter told her grandmother that she wanted to meet Father. Once Father was notified that Daughter was still alive, a Louisiana court held that Father was Daughter's biological father and ordered him to pay child support, which he did. Father then moved to Tennessee to be with Daughter and petitioned the Gibson County Juvenile Court for primary residential parent status. Daughter's grandmother then filed her own, seeking retroactive child support from Father preceding the Louisiana's court order from 2007. Father was awarded custody of Daughter, but was also required to pay the grandmother $40,950 in retroactive child support. Father appealed the juvenile court's decision.

According to Tenn. Code Ann. § 36-2-311(a)(11)(A), a court should consider extent of the father's knowledge that he had a child, the extent to which the mother intentionally failed or refused to notify the father of the child, and the attempts by the child's mother to notify the father of the existence of the child when making an award of retroactive child support. The Tennessee Supreme Court in In Re T.K.Y, 205 S.W.3d 343, 355 (Tenn. 2006) also added that a court may consider the "equity between the parties" when considering the issue of retroactive child support. Tenn. Code Ann. § 36-2-311(a)(11)(B) also adds that when the presumption of the application is rebutted by clear and convincing evidence, the court should deviate from the child support guidelines to reduce any retroactive support.

According to the appellate court, while Father originally knew of Daughter's existence, he was unaware of her existence in the years that followed. Therefore, the juvenile court erred when it concluded that it should only deviate from the guidelines when a father never knew of his child's existence. Regarding the equity between the parties, it was inequitable to require Father to pay retroactive child support when Mother prevented Father from knowing Daughter's existence. Lastly, the purpose of child support is to benefit the child, not to reward or punish a parent. Therefore, it would be inequitable to have Father pay retroactive child support when it would deprive Father's resources that could be used for Daughter. Accordingly, the Tennessee Court of Appeals reversed the juvenile court's decision to have Father pay retroactive child support.