January 2012 Archives


Courts Must Make Comprehensive Review in Best Interest Determinations

January 11, 2012 by The McKellar Law Firm, PLLC

Tennessee divorce and custody attorneys should take note of the recent Appellate case entitled Shultz v. Shultz, No. E2011-00874-COA-R3-CV, which emphasized the best interest review when modifying a custody order or parenting plan.

The parties married in 2000, had a child in 2003 and filed for divorce in July 2008. Mother filed in Knox County, requesting a temporary parenting plan (TPP) via Local Rule 28 with an affidavit alleging Father was unstable and had anger issues. The trial court entered the TPP, giving Father visitation every other weekend. The parties settled and filed a permanent parenting plan (PPP) which the Court approved, giving Father 120 coparenting days every year.

In 2009, Mother filed a petition to modify alleging a material change of circumstance. Father responded by requesting equal co-parenting time. The trial court ordered that the Father could not have overnight visitation with the child unless and until he stopped cohabitating with his paramour (whom he later married). In 2010 Mother made a filing alleging Father lived with seven other people, that a minor living there was facing criminal charges for alcohol use, that a domestic abuse police call occurred at the residence, and that the school had informed Mother that the child had written a "disturbing message with sexual content." DCS investigated this incident and found the child had been exposed to inappropriate amounts of information regarding sex. The trial court then entered a new TPP giving Father day-only visitation every other weekend.
After a hearing, the trial court found that Mother constantly instigated investigations (police, fire marshal, DCS) against Father which were all unfounded and that Father was hardworking and trustworthy. Therefore, the court ordered fifty-fifty coparenting and joint decision making.

Mother then switched counsel (resulting in the trial judge changing due to a conflict) and filed a TRCP Rule 59 Motion asking that the order be set aside and/or for a new trial. The new judge denied this and affirmed the trial court. The Mother appealed.

Modification of a parenting plan is a two-step process under T.C.A. §§36-6-101(a)(2)(B) and (C). First, the petitioner must show a material change of circumstance has occurred, a standard that is higher for a change of custody than a change of residential parenting schedule. If such a change is proven, the court must turn to a best interests determination which includes a variety of factors found in T.C.A. §36-6-101(a)(1)-(10). These factors include emotional ties between child and parent, ability of parents to provide, continuity, stability of family unit, parents' mental and physical health, the home/school/community record of child, reasonable preference of a child twelve years or older, evidence of physical or emotional abuse, character and behavior of third parties who interact with the child, and each parent's past and potential parenting.

Here, the Appeals Court concluded the trial court did not make a comprehensive best interest review in light of the following: lack of consideration of Mother's history as primary caregiver; lack of evidence showing Mother was unwilling or unable to provide; lack of evidence showing Father's ability since his remarriage had improved; Mother's proven stability; and the character and behavior of third parties living in Father's home. Accordingly, the Appellate Court found the Father failed to meet his best interests burden. Therefore, the case was reversed and remanded to the trial court for a new hearing on the best interests standard and revision of the schedule.


Appeals Court Modifies Temporary Alimony Retroactively in Tennessee Divorce

January 2, 2012 by The McKellar Law Firm, PLLC

The case of Wilkinson v. Wilkinson, No. M2010-01974-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2011) shows Tennessee divorce attorneys that filing to reduce temporary alimony payments while a divorce is pending may be granted on appeal.

When the parties' trial occurred, Wife was 59 and had been a stay at home mother for the majority of the marriage. Once the children enrolled in college, Wife attempted to go back to school but the Husband would not allow it. She subsequently worked as a substitute teacher earning $80 per day and worked 15 days per year. Husband had worked for a corporation in the 1990s and his last salary there was $275,000, and he received a severance package valued at $1 million in 1999. The corporation went bankrupt and these payments stopped two years later. Husband had entered into an internet venture, which collapsed. Husband testified he spoke with Wife about having to change their lifestyle due to financial constraints. They drained his 401k and moved into a smaller home in 2007. Husband then had multiple affairs. At the time of trial, Husband was earning $3,000 per month.

The trial court granted Wife the divorce and awarded her $800 per month in alimony in futuro under T.C. A. §36-5-121. The court ordered Husband to file an affidavit every 90 days stating his earnings in light of his earning capacity, which the trial court determined to be $5,400 per month. The marital residence was ordered sold, with proceeds split 67%/33% (as were all expenses, mortgage, etc.) The Court ordered Husband to repay $75,000 to Wife's as reimbursement for her loan from her brother, given after Husband moved out. Husband also had to pay debt totaling $33,000 and attorneys fees in the amount of $30,982.68 payable at $100 per month. Husband was also ordered to pay $66,000 in past due temporary support payments to Wife. Husband appealed.

The Appeals Court found the division to be "generally equitable" but found that Husbands payment of the $75,000 for the brother and the $66,000 of back support payments was a double payment for temporary alimony during the same time period. Accordingly, Wife was held liable for the debt to her brother, not the Husband. The Appeals Court also found the Wife attempted to keep the same pre-divorce lifestyle even after the finances were drained and the divorce was ongoing. The $800 in alimony was affirmed based upon the Wife's job prospects (negligible), health (problematic) and Husband's reduced ability to earn. However, the Appeals Court held the trial court erred in not granting Husband's Motion to Reduce Alimony filed in 2009, and ordered a modification effective from December 2009 until trial in 2010 (which was the basis for the $66,000 judgment of past due support) and therefore reduced that judgment to $35,400.


Fee Awards Not Limited to Spouses in Tennessee Custody Disputes

January 1, 2012 by The McKellar Law Firm, PLLC

In Jones v. Smith, et. al., No. W2010-01160-COA-R3-CV, (Tenn. Ct. App. Dec. 12, 2011), the paternal grandparents (hereinafter "GP") filed to intervene in their son's divorce action and requested custody of the two minor children. This case highlights for Tennessee custody attorneys when one may recover fees.

After a twelve-day custody trial, the court dismissed the GPs motion to intervene and named Mother primary residential parent (PRP). The court also held that the GPs had to pay some of Mother's attorney's fees, expert witness fees and discretionary costs under T.C.A. §36-5-103(c) for a total of $66,043.06. GPs appealed.

T.C.A. §36-5-103(c) states as follows:
"The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court."

The subsequent case law states that although such a fee award is not mandatory, it is commonplace.

In their appeal, GPs argued that the statute only allows attorneys fees to be awarded between spouses. However, prior Tennessee case law interpreted the statute to allow courts to award fees against third parties in Toms v. Toms, 98 S.W. 3d 140, 145 (Tenn. 2003). In that case, the Tennessee Supreme Court explained that the spouse obtaining custody may recover fees from a third party intervenor seeking custody.

Secondly, the GPs contended that the Toms decision was erroneous. However, because the Appeals Court is bound by any Supreme Court Rulings, then that issue is moot and the GPs' only relief is review by the Supreme Court. The GPs also argue that Toms only applies where fees for an appeal are awarded. The Court of Appeals found nothing in the Toms case or the statute that would lead to an interpretation that the fees authorized were for appeals only. Accordingly, the case was affirmed and appellate costs were taxed to the Grandparents.