November 2011 Archives


Divorce Settlement May Not Dismiss Order of Protection Without Specific Language in Tennessee

November 24, 2011 by The McKellar Law Firm, PLLC


Wiser v. Wiser, No. M2010-02222-COA-R3-CV, demonstrates to Tennessee divorce attorneys that if you intend for a divorce settlement to modify or vacate an Order of Protection, then you must include specific language in the divorce decree or obtain a separate order regarding the OP, if two separate courts are involved (one for the divorce and one for the OP).

The trial court in this case first granted a wife's Order of Protection against her husband while they were separated after he came to her house and threatened to kill her. The wife subsequently filed for divorce. While the original Protection Order was extended for an additional year after a hearing, the husband and wife executed a Marriage Dissolution Agreement (MDA) that contained a mutual restraining order. A year after the divorce, a hearing was held to extend the original Order of Protection again. The trial court found that the husband violated the Order after testimony was given that he indirectly contacted his wife when he sent a letter to her attorney to give to her and had her granddaughter call her while he was in the same room. The trial court therefore extended the Order of Protection for 5 years due to the violation.

The husband appealed the trial court's decision, claiming that the mutual restraining order executed in the MDA vacated the original Order of Protection. Orders of Protection are governed by T.C.A. § 36-3-601 et seq. Under T.C.A. § 36-3-606, victims of domestic abuse can prohibit any contact between the abuser and the victim, direct or indirect. The statute also prohibits stalking, can set financial support, seize firearms, and direct the abuser to attend counseling. Most importantly, T.C.A. § 36-3-611 allows a violator of an Order of Protection to be arrested immediately. There does not have to be a warrant issued before the arrest. Once an Order of Protection has been entered, T.C.A. § 36-3-605 only allows a court to either dissolve the order or extend it. Lastly, T.C.A. § 36-3-603 provides that an Order of Protection remain in effect once a divorce is filed for the pendency of the divorce, or until it is either modified or dissolved by the divorce court.

Using the above statutes as guidance, the Tennessee Court of Appeals held that there was nothing in the evidence to show that the trial court intended or even had the power to vacate the prior Order of Protection when the mutual restraining order was issued as part of the MDA. Also, there was nothing in the Divorce Decree that even indicated that the Decree nullified the Order of Protection. Accordingly, the wife was also able to collect attorney fees from the husband. Under T.C.A. § 36-3-617(a)(1), no sexual abuse victim, stalking victim, or sexual assault victim is required to bear any court costs associated with filing, issuance, registration, service, dismissal or nonsuit, appeal or enforcement of an ex parte order of protection, order of protection, or even a petition for a new order of protection.


Tennessee Trial Courts Have Wide Discretion in Setting Parenting Schedules

November 22, 2011 by The McKellar Law Firm, PLLC

In Eldridge v. Hunley, No. W2011-00728-COA-R3-JV, the Tennessee Court of Appeals set out the standard used when determining whether a material change of circumstances is enough that modifying a parenting plan would be in the child's best interest, and shows Tennessee divorce and Tennessee child custody attorneys that trial courts have wide discretion when setting coparenting schedules.

The parties had a child in 2006. Shortly after the child was born, the father petitioned to establish paternity and have coparenting rights. While the father requested joint decision making and shared parenting time on an alternate week basis, the juvenile court designated the mother as the primary residential parent ("PRP") and allowed the father to have parenting time every first, third, and fifth weekend of each month. In 2008 the father petitioned the juvenile court to modify the plan, and in 2009 the court changed the plan so the father could have the child every first and third week of each month. The mother then requested a hearing in 2010 to modify the parenting plan a third time. After the hearing, a juvenile court special judge changed the parenting plan so the father would only have coparenting every other weekend. The father then filed an appeal to the Tennessee Court of Appeals.

According to T.C.A. § 36-6-101(a)(2)(A), a trial court has wide discretion to establish a parenting arrangement when done in the best interest of the child. But a parenting order may be modified if there is a material change of circumstance as defined in T.C.A. § 36-6-101(a)(2)(C). In order to determine whether a parenting plan modification is warranted when there is such a material change of circumstance, a court must first determine whether a material change of circumstance has occurred that affects the child's well being. If it does affect the child's well-being, then the court must determine whether a change is in the best interest of the child.

The appellate court noted that trial court did not make any specific findings of fact to support its determination as required by Tenn. R. Civ. Pro. 52.01. While in some cases this would have been a reversible error, the appellate court did not believe so in this case because the record independently supported the trial court's judgment. While a psychologist testified that the child was thriving under the alternate week visitation schedule, the testimony also showed that the equal parenting time was not successful when the parents could not cooperate with each other. The trial court noted that the parties' relationship was highly contentious in that they were not able to get along with each other or work together. The record also failed to contain any evidence that the child experienced any increased anxiety after the latest modification to the parenting plan. Based on this as well as other evidence in the record, the appellate court affirmed the trial court's decision, noting that the trial court did not abuse its discretion or make a decision that was not in the child's best interest.


Post-Divorce Parenting: Two Primary Parents? Not in Tennessee.

November 20, 2011 by The McKellar Law Firm, PLLC

In Estes v. Estes, No. M2010-02554-COA-R3-CV, the father and mother had twin boys and a girl when they divorced. Mother was designated primary residential parent ("PRP"). Later, father filed a Petition to Modify the Parenting Plan citing mother's move to another county, alleging this required the twins to change schools.

Under Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003), a petitioner must prove that (1) a material change of circumstances occurred; and (2) a change of custody or residential schedule is in the child's best interest. The Tennessee Supreme Court also set out 3 considerations: (1) a change has occurred after the entry of the order to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether the change affects the child's well-being in a meaningful way.

The trial court here modified the parenting plan, giving the parties equal time with the twins and making both parents PRP. The daughter's plan was unaltered. The trial court held the mother's move constituted a material change in circumstances due to the complications it created regarding the children having to change schools. The mother appealed.

The mother argued that under both T.C.A. § 36-6-101(a)(2)(B) and (C), no material change of circumstances existed. T.C.A. §36-6-101(a)(2)(B) pertains to modification of the court's prior decree declaring the PRP. T.C.A. §36-6-101(a)(2)(C) pertains to a modification of the court's prior decree pertaining to a residential parenting schedule. For a court to change the PRP under subsection (B), there must be a more substantial change of circumstances than to change the schedule but keep the PRP the same under subsection (C).

The appellate court held the evidence supported a material change of circumstances under both sections, because the equalization of parenting time lessened certain difficulties arising with the mother's move. Further, the twin boys reached an age where they could benefit from additional time with their father hunting and playing sports. Also, mother's move jeopardized the children's ability to stay in their school. This was enough to constitute a material change of circumstances justifying a change in the parenting plan and PRP for the twins. Yet the court noted that a change to or from an equal parenting schedule will not always have an effect on the PRP designation.

Therefore, the appellate court affirmed the trial court's decision to modify, but overruled the decision to designate both parents primary residential parent. T.C.A. § 36-4-402(5), requires one designated primary residential parent. T.C.A. § 36-6-402(4) defines a primary residential parent as the parent who spends over 50% of the time with a child. In cases where parents share equal time, a primary residential parent is still required because T.C.A. § 36-6-410 mandates that a child have a primary residential parent for all state and federal statutes that require a custody determination, even if no primary residential parent exists in reality. Since the trial court's ruling designating both parents as a primary residential parent did not comply with this statutory requirement, the appellate court designated the father as the primary residential parent of the twin boys for school zone purposes. Tennessee divorce attorneys should note that having two PRPs is not proper.


Tennessee Parental Termination Requires Children's Best Interests Be Served

November 16, 2011 by The McKellar Law Firm, PLLC

In In Re: Taylor BW, and Ashley NW, No. E2011-00352-COA-R3-PT (Tenn. Ct. App. Oct. 28, 2011), the Tennessee Court of Appeals reiterated that Tennessee adoption attorneys must show trial courts that to terminate parental rights, the best interests of the children rather than the best interests of the parents are served.

In this case, the Father and his new wife filed a Petition to Terminate Parental Rights and a Petition for Adoption by a Step-Parent. Mother had been incarcerated for attempting to kill Father. After a hearing, the court found that Father proved grounds for termination based on Mother's incarceration and that termination was in the best interest of the children. The court noted that the youngest child did not have a meaningful relationship with Mother and the children feared Mother may hurt them.

Mother filed a Motion to Alter and Amend. Upon reconsideration, the trial court altered the original order finding Father did not carry his burden. The court looked at the fact that Father continued to keep Mother involved and that Mother did everything she could while she was incarcerated.

The Tennessee Court of Appeals found the trial court erred by looking at Mother's rights. In a termination case, the court must first find grounds for termination exist under Tenn. Code Ann. 36-1-113(g). Then the court must assess whether the best interest of the children is served by terminating parental rights. In doing so the court must look at what effect termination of parental rights would have on the children.

After assessing the facts against the best interest factors found in Tenn. Code Ann. 36-1-113(i), the Court of Appeals found the trial court's first ruling was supported by clear and convincing evidence. The Court of Appeals focused on the fact the children feared Mother, had not had a meaningful relationship with her, and did not wish to visit her. Thus, the Court of Appeals reinstated the trial court's original order.


Jackman Case Highlights When Alimony in Futuro is Appropriate in Tennessee Divorce

November 13, 2011 by The McKellar Law Firm, PLLC

A recent Court of Appeals case shows Tennessee divorce attorneys when alimony in futuro is appropriate. In the Jackman v. Jackman case, No. W2010-01435-COA-R3-CV, the husband and wife married in 1996 but separated in 2002 after the wife discovered husband was having an affair. During the divorce proceedings, wife argued that not only was she economically disadvantaged but she was also unable to ever work again due to, among other physical ailments, depression and anxiety disorder. This was confirmed during depositions of her treating psychiatrist and court-appointed psychologist.

The court ordered the husband to pay the wife $2,400 a month in rehabilitative alimony. But before a final decision was made the court ordered the wife to undergo a vocational rehabilitation evaluation to make sure that she really was unemployable. The vocational rehabilitation program confirmed that she was not. The wife then argued that the court order should be amended to change the alimony to be in futuro instead of rehabilitative. The trial court permitted the change and increased the husband's alimony from $2,400 a month to $2,900 a month. The trial court also ordered the husband to maintain an additional $150,000 in life insurance coverage to secure his alimony obligation to his wife. The husband then appealed the trial court's decision.

Husband argued that even if the trial court could amend an alimony award (which the appellate court held it could), granting the wife alimony in futuro was not proper. Under T.C.A. § 36-5-121(f)(1), a party is granted alimony in futuro when the disadvantaged spouse is unable to achieve an earning capacity that will permit the spouse to have a living standard comparable to the living standard that they enjoyed while married. While T.C.A. § 36-5-121(i) uses twelve factors in determining alimony, the appellate court ruled that the two most important factors relating to an alimony award are the need of the economically disadvantaged spouse and obligor spouse's ability to pay. Since it was determined that the wife could never work again, the court ruled that granting alimony in futuro was appropriate. Also, even though alimony in futuro is usually not granted in situations where the marriage was of short duration, the court held that in such was not the case here. Even though they were separated in 2002, they did not divorce until 2006. Therefore the marriage legally lasted ten years.

The Appellate Court also held that although the husband had to support his current spouse and their three children, this was not a factor to take into account when determining alimony. As the court stated, the rule in Tennessee is that obligations voluntarily assumed by a party are not proper considerations for changed circumstances to reduce payments otherwise owed. Lastly, the appellate court held that requiring the husband to maintain a life insurance policy on the wife was proper. Under T.C.A. § 36-5-121(l), a trial court is allowed to require a spouse to maintain a life insurance policy to secure their alimony obligation.


Unforseen Changes Required for Alimony Reduction in Tennessee

November 9, 2011 by The McKellar Law Firm, PLLC

In Jekot v. Jekot, No. M2010-02467-COA-R3-CV, the Wife appealed a trial court's reduction of her alimony after a contested divorce trial in Tennessee. Husband applied for this modification citing a lack of income. The Appeals Court reversed the trial court, finding that there was no substantial and material change.

The parties divorced in 2005, having been married thirty years. Wife was given rehabilitative alimony as follows: $15,000 in alimony for one year, $10,000 for the next two years and $5,000 for two years. Husband initially appealed this, and the alimony was modified to be in futuro because Wife had not worked in 25 years and could not realistically be expected to gain substantial employment while near the retirement age. The Appeals Court also changed the payment schedule to equal monthly payments of $9,000 for the same term of five years.

Then in 2008 Husband filed to modify his alimony because his income had decreased and Wife's need also had lessened. After a hearing, the trial court determined a substantial and material change existed, finding Husband's income decreased by 1/3rd and decreased his alimony to 5,000 per month. Wife appealed.

Modification of alimony depends on whether there is a substantial and material change of circumstances, which means the obligor cannot pay or the obligee has less of a need, and must have occurred since the entry of the divorce decree. The Appeals Court's review of Husband's tax records indicate his average taxable income in 2001-2003, used to first set alimony, was $404,000. His average income between 2006-2010 was $605,000. Accordingly, the trial court erred by not looking at Husband' income from all sources, but relying on just his private practice income and not including income received from working on call for emergency rooms.

Husband also argued that his expenses increased because he is paying $108,000 in alimony per year. This argument is meritless because this is not a material change - it did not occur after the entry of the final decree and was not unanticipated.
Finally, the trial court decided Wife had additional income and therefore less need. However, this income is from an income-producing asset awarded to Wife in the divorce. Although the original determination was for it to be sold and the proceeds divided, the parties entered an agreed order stating Wife would retain such an asset and keep the proceeds instead of selling it. Therefore, this is not unanticipated either. Absent Husband showing this income was unforeseen, income derived from a marital asset subject to distribution is not a factor in whether a substantial and material change exists.
Therefore, the trial court is reversed and remanded to have the divorce decree reinstated.


Can a Mother Terminate her Child's Father's Rights in Tennessee?

November 7, 2011 by The McKellar Law Firm, PLLC

One parent cannot terminate the parental rights of the other parent in Tennessee. Under Tennessee law, a biological parent does not have standing to pursue termination of the other parent's parental rights. See Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004); In the Matter of: Shelby L.B., No. M2010-00879-COA-R9-PT (Tenn. Ct. App. March 31, 2011).

In Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn. 2004), the Tennessee Supreme Court held that a parent did not have standing to file a petition for termination. Mother and Father were never married. Mother filed a petition to terminate the parental rights of Father based on his imprisonment. There was no pending adoption. The trial court granted the Petition. The Tennessee Court of Appeals reversed. The Supreme Court of Tennessee dismissed and vacated the judgments of the lower courts. The Supreme Court held that they lacked subject matter jurisdiction to hear the appeal because Mother lacked standing to file the Petition to Terminate Parental Rights. The Court stated, "Because the legislature specifically designated who may file a petition to terminate parental rights, a court does not have subject matter jurisdiction to hear such a petition unless the party filing the petition has standing. . . . Tennessee Code Annotated section 36-1-113(b) does not include the parent of a child as one of the persons or entities with standing to file a petition to terminate parental rights." Osborn, 172 S.W.39 at 740. Tennessee Code Annotated 36-1-113(b) states:

(b) The prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child's guardian ad litem, or the department shall have standing to file a petition pursuant to this part or title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child. The prospective adoptive parents, including extended family members caring for a related child, shall have standing to request termination of parental or guardianship rights in the adoption petition filed by them pursuant to this part.

Why can't a parent terminate the other parent's parental rights? The Court goes on to explain the public policy reason for the legislature's decision to omit a child's parent from those who have standing to terminate parental rights. "The termination of a parent's parental rights outside the context of a prospective adoption would deny the child the support of two parents." Osborn, 172 S.W.39 at 740.

While a parent cannot terminate the other parent's parental rights alone, the parent may terminate the rights by joining in a petition for a step-parent adoption. If you are a biological parent who wants to pursue your husband or wife adopting your child please contact our office for a free consultation.


Importance of Transcript Highlighted in Tennessee Post Divorce Modification Appeal

November 4, 2011 by The McKellar Law Firm, PLLC

The Tennessee Court of Appeals has further emphasized the need for parties to bring forth evidence to support their claims when petitioning to modify a party's parenting rights following a divorce in Tennessee. In Hamilton v. Hamilton, No. M2010-02320-COA-R3-CV, the appellate court denied Mr. Hamilton's request to reverse the trial court's decision not to modify his parenting plan and telephone rights.

Mr. and Ms. Hamilton were married in 1996 and had one child before they divorced in 1999. When the divorce decree was entered, the court named Ms. Hamilton the primary residential parent. Yet Mr. Hamilton did not give up without a fight. The years between 2000 and 2010 were filled with legal disputes regarding modifications to the parenting plan and Mr. Hamilton's child support obligations. When the trial court in 2010 denied Mr. Hamilton's petition to restore his telephone privileges and modify custody, Mr. Hamilton finally appealed to the Tennessee Court of Appeals.

Upon appeal, Mr. Hamilton argued that his basic and fundamental parental rights were denied by the trial judge and requested that his case should be moved to another county. However, he failed to offer any facts to support his allegations. Mr. Hamilton failed to provide a transcript of the proceedings in the court below. The Appeals Court did note that the Husband could have included a Statement of the Evidence pursuant to Tennessee Rules of Appellate Procedure 24(c), which is a narrative record of what transpired in the lower courts when no transcript is provided. The documents that Mr. Hamilton filed were not proper under this rule and only included parts of the case. Since here no proper evidence was presented regarding the trial court's decision, the Tennessee Court of Appeals must presume that the trial court's judgment was correct. The Court of Appeals therefore denied Mr. Hamilton's appeal and affirmed the trial court's judgment.

This case highlights the decision many clients make to not have a court reporter present at their proceedings. Without a court reporter, the record that the Court of Appeals is bound to review may have gaps in evidence presented, objections made, testimony given and exhibits that were produced on the trial court level. Without such a record, the Appellate Court can only review the pleadings filed in the case - motions, orders, etc., and have no method of obtaining the actual substance of what occurred during evidence presentation. This is an issue that all clients and attorneys should discuss prior to attending any hearing or trial regarding child custody or divorce matters in Tennessee.


Numerous Omissions Render Petition to Terminate Parental Rights Defective in Tennessee

November 2, 2011 by The McKellar Law Firm, PLLC

The case of In Re: Natalie R. C., No. E2011-01185-COA-R3-PT (Tenn. Ct. App. Oct. 18, 2011), involved the Father's appeal of the trial court's termination of his parental rights. He argued that the petition to terminate his rights was defective. The Maternal Grandmother and custodian of the minor child filed a petition to terminate the parental rights of Father. The trial court terminated Father's parental rights. The Tennessee Court of Appeals vacated and remanded.

Grandmother petitioned and obtained custody of the minor child in 2010 after Mother passed away. Father had been in and out of prison and had not visited with the child. Later in 2010, Grandmother filed a petition to terminate Father's parental rights for failure to pay child support and failure to visit. She amended the petition to allege Father had not paid child support or engaged in meaningful visitation after his release from prison in September 2011.

Grandmother's petition did not include four (4) technical items required by law. First, the petition lacked the notice requirement of Tenn. R. Civ. P. 9A. Second, the petition did not state the putative father registry had been consulted. Third, the petition failed to list the child's statistical information including the child's present and past addresses. Fourth, the petition did not state that the termination of Father's parental rights would be forever severed as required by Tenn. Code Ann. § 36-1-113(d)(3)(C). After a hearing, the trial court terminated the Father's parental rights for non-payment of child support and not visiting the child.

Father appealed, in part, on the basis that Grandmother's petition was defective. Grandmother argued that the petition sufficiently complied with the law despite the omissions. The Tennessee Court of Appeals held that the omissions made the petition defective due to the number of omissions. Although these were technical omissions, the Court was not going to overlook them in the context of termination of parental rights. The Court pointed out that the termination of parental rights is a grave and serious matter involving one of the oldest fundamental liberties.

However, the Court did not dismiss the Petition. Instead, the Court remanded the case to allow Grandmother the chance to amend her petition. Interestingly, the court noted in dicta that if Grandmother had one omission alone, the court may have found harmless error.