September 2011 Archives


Grandparents Previously Denied Visitation May Not Benefit from New Change in the Law

September 16, 2011 by The McKellar Law Firm, PLLC

In 2010, the Tennessee legislature added a provision to Tennessee's Grandparent Visitation statute presumably making it easier for grandparents, who are parents of a deceased parent, to obtain visitation. However, according to a recent Tennessee case, grandparents who have been denied visitation by the court prior to the amendment cannot benefit from the new provision under a res judicata theory.

Under Tennessee's Grandparent Visitation statute, Tenn. Code Ann. 36-6-306, grandparents seeking visitation must first show that one of six circumstances exists, found in Tenn. Code Ann. §36-6-306(a). Then the court must determine that 1) substantial harm will occur to the child without grandparent visitation; and 2) that a significant relationship exists between the child and grandparent. Finally the court must do a best interest analysis.
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Prior to the 2010 amendment, the grandparent of a deceased parent had to prove substantial harm. The 2010 amendment shifted the burden to the opposing party. The 2010 amendment reads: if the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship between the child and grandparent.

In Jackson v. Smith, W2011-00914-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2011), the Maternal Grandmother filed a petition for grandparent visitation after her daughter passed away. The trial court denied the Maternal Grandmother's petition because she did not prove substantial harm would occur due to the loss of the relationship between her and the child. After the 2010 amendment went into effect, the maternal grandmother filed a second petition for grandparent visitation. Father filed a motion to dismiss on the ground of res judicata. Res judicata bars parties from bringing a second suit on the same cause of action with respect to the issues that were or could have been litigated in the first suit. The trial court granted the motion to dismiss.

The Maternal Grandmother appealed arguing that res judicata did not apply due to the change in law. The Tennessee Court of Appeals affirmed the trial court decision. Tennessee follows the general rule that res judicata applies despite a change in the law after a final judgment. Therefore the Maternal Grandmother could not benefit from the rebuttable presumption.


Comparative Fitnesss Analysis Not Always Used in Adoption Proceedings in Tennessee

September 13, 2011 by The McKellar Law Firm, PLLC

The case of In Re: Don Juan J.H., et al. No. E2010-01799-COA-R3-JV, demonstrates when a comparative fitness analysis can be bypassed by the trial court in a Tennessee adoption proceeding.

The Petitioners filed to adopt the minor child ("Child") and the Department of Children's Services ("DHS") then filed a Waiver of Guardianship that gave the department's approval of the adoption. Partial guardianship was given to the Petitioners before the trial. The Appellants here filed a Petition to Intervene, which was granted, allowing them to be added as parties. However, the actual Petition was dismissed at the trial and the adoption was finalized. An appeal followed.

The Mother executed a voluntary surrender and a home study was done on Petitioners. The foster parents filed the Motion to Intervene. After hearing evidence, the trial court ruled that the proof for the intervening petition was not sufficient and entered a dismissal on the intervention. The Appellants then appealed, arguing that the trial court refused to do a comparative fitness analysis between the two families, which was in error.

The Tennessee Supreme Court has previously ruled that when a court faced two competing adoption petitions, a comparative fitness analysis was to be used. The Appeals Court had also held that when DCS was given guardianship over a child, T.C.A. §36-1-102 and 113 allows DCS to place the child for adoption and to consent to the same. Here, the foster parents tried to intervene in the Petitioner's adoption, but the foster parents did not attempt to terminate the guardianship of DCS or the Petitioners. Therefore, the trial court here was correct in dismissing the intervening petition because the evidence did not support a finding sufficient to justify termination of the guardianships.

Therefore, if a parent surrenders their rights to a child to the adoptive parents and if the court gave partial guardianship to the adoptive parents, then the former foster parents are not entitled to a comparative fitness analysis.



Appeals of Alimony Awards Face High Standard in Tennessee

September 9, 2011 by The McKellar Law Firm, PLLC

The recent case Brock v. Brock, No. E2009-01128-COA-R3-CV, (Tenn. Ct. Ap. Aug. 12, 2011) shows how high the standard is for a Tennessee divorce trial court to be overturned.

The parties married in 1996 and filed for divorce in 2005, after having two children. The trial court ordered Husband to pay $1,112 in child support per month, $300 in spousal support per month for 60 months and $8,5000 in alimony in solido for Wife's attorneys fees and court costs. Husband appealed, arguing he had an inability to pay.

Husband argued that after paying his obligations, he had a deficit of $1,104 every month and that the trial court failed to correctly apply the relevant statutory factors in T.C.A. §36-5-121(i).

Here, the Husband testified his net income was $5,600 per month and expenses of $6,710, while Wife stated she had $1,612 in monthly income and $795 in child support, with expenses of $3,055. The Appellate Court failed to find that the trial court erred in awarding the Wife $300 per month in alimony, stating that the amount and number of months was supported by the trial evidence. The Court noted that Husband's military career gave him training and education, but the Wife's only experience was in the service industry. Further, Wife had a lower earning capacity, proved a need for support and had few other financial resources.

Husband also appealed the award of Wife's attorney's fees, arguing that the evidence did not support his ability to bear this financial burden. Attorney fees are always considered alimony in solido, and need is the most important factor to the trial court. An appellate court can only overturn an award of attorneys fees of there is a clear abuse of discretion proven. This means that the trial court's decision will not be overturned if "reasonable minds can disagree as to propriety of the decision made." Id. at 6. Here, there was no abuse of discretion. Wife also asked for her attorneys fees incurred as a result of the appeal, and therefore the case was remanded to the trial court for that determination.



Child Support Calculation Must Include Overtime Pay in Tennessee

September 4, 2011 by The McKellar Law Firm, PLLC

In Widener v. Widener, No. M2010-02435-COA-R3-CV, 2011 WL 3566991 (Tenn. Ct. App. June 28, 2011), the Tennessee Court of Appeals reversed a trial court's order when it did not include a spouse's overtime pay and assigned the wife a majority of a car debt when the car actually belonged to the aunt of the husband.

John Widener ("Husband") and Stephanie Widener ("Wife") divorced. During the divorce proceeding, the trial court named Husband as the primary residential parent, and did not include Husband's overtime pay as part of the child support calculation since Husband was not receiving it at the time of the hearing. The court also ruled that Husband only owed $1,000 of the amount owed for a car that Wife used during the marriage when she worked. Wife then appealed the trial court's decision.
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The Tennessee Court of Appeals affirmed on one issue, and reversed and remanded on the others. While Wife claimed that Husband was abusive to both her and the children, the appellate court noted that there was domestic abuse committed by both parties, and that Husband was a credible witness regarding his ability to care for his children. Therefore, the appellate court did not find that the evidence preponderated against the trial court's findings regarding custody.

The court came to a different conclusion, though, regarding the trial court leaving out Husband's income derived from overtime. A parent's income is a question of fact, and overtime pay is to be included in the calculations of a parent's income. The trial court did not include Husband's overtime pay because he was not paid for 2 weeks before the hearing. Yet, Husband testified that his overtime income would start back up since it always went "up and down." The appellate court vacated the trial court's ruling and remanded it back to the trial court to recalculate the child support.

Lastly, the appellate court found that making Husband only pay $1,000 towards the car was unsupported by the record during trial. Wife did not have possession of the vehicle after they separated, but it was actually purchased by Husband's aunt. Wife also never acted as surety for the debt when the vehicle was purchased.


Filing Frivolous Custody Actions in Tennessee Helps No One Involved

September 2, 2011 by The McKellar Law Firm, PLLC

In re Keely, No. M2010-01703-COA-R3-JV, 2011 WL 3566980, (Tenn. Ct. App. Aug. 12, 2011), the appellate court showed what can happen if a party files a frivolous appeal of custody issues in Tennessee.

Over the years, Mother accused Father of numerous acts against their child, none of which were credible. Mother also tried numerous times to deprive Father of his parenting time. She was successful only once, but Father's parenting time was restored once Father testified. In the current dispute, Mother filed an Emergency Motion to Suspend Visitation. The motion was not followed by filing a petition, did not include a certification of service, nor was it notarized. After fling a few similar motions, Mother filed an Amended Petition for Contempt and to modify Father's visitation since Father supposedly did not pay support and that a material change of circumstances occurred. Father sought change in the primary residential parent and to reduce his child support.

At trial, the parties announced as settlement except for attorney's fees. After review, the trial court ordered Mother to pay $10,000 towards Father's attorney's fees and expenses. Acting pro se, Mother filed numerous motions. These motions were denied, as they were full of improper, duplicitous, and useless allegations. Mother then filed "Mother's Emergency Ex Parte Petition for Writ of Habeas Corpus and Immediate Return of Daughter to Mother's Custody," also full of unsupported allegations. The trial court accordingly denied this motion, being unsworn and not supported by affidavits. After filing the motion again, the trial court found Mother's behavior obtrusive, redundant, and against the child's best interests. After filing a Motion to Recuse the judge (which was denied), Mother appealed, claiming the trial court erred by awarding $10,000 in attorney's fees and $1,880 in court costs against her, for dismissing her child support claim, allowing a reduction in Father's child support, for dismissing her motions to alter or amend the Agreed Order, and for altering the parenting time.

The Appellate court affirmed the trial court's decisions. Regarding the attorney's fees, Father requested $36,000 be awarded, so the trial court did not abuse their discretion in awarding $10,000. On top of that, Mother filed for bankruptcy and was therefore discharged of this financial obligation.

As for the child support, the appellate court noted the trial court did not dismiss her claim. She voluntarily withdrew it by entering into a settlement. The trial court even made sure Mother was aware of the consequences when she agreed to settle. The court came to the same conclusion regarding the reduction in child support. While Mother claims that the reduction was $118.15 a week, during trial a Child Support Worksheet showed that reduction would only be $24 a month, an appropriate figure.

While Mother argued the trial court abused its discretion by denying her motion to amend the Agreed Order, the appellate court held there was no abuse. Mother had no citations to the record as required by Tenn. R. App. P. 27(g), and after her original motions were denied, she just submitted those same motions again.

Lastly, regarding the issue of altering parenting time, the appellate court noted Mother agreed to the parenting plan. Her challenge of this modification showed that her focus was not on the best interest of the child, but to frustrate Father's parenting time. In the end, the appellate court ruled that Mother's appeal lacked justifiable issues, and therefore was frivolous.