March 2012 Archives

Jurisdiction is Lost When Parties Relocate

March 29, 2012 by The McKellar Law Firm, PLLC

The Tennessee Court of Appeals has defined for Tennessee divorce attorneys when a trial court has jurisdiction to modify child support under the Uniform Interstate Family Support Act (UIFSA) when neither the parents nor the children still reside in Tennessee.

In Earls v. Mendoza, No. W2010-01878-COA-R3-CV, the parties filed for divorce in Jackson, TN. They had two children together. During the divorce proceedings, the father accepted a promotion in Buffalo, NY. He, the mother, and the two children all moved there. Once the divorce was finalized in Jackson, the mother accepted a job offer in Denver, CO. The mother subsequently filed a motion with the Jackson trial court to relocate with the children to Denver. She also filed contempt against the father for not paying child support. The trial court granted the mother's motion to relocate with the children to Denver and also found the father to be in contempt. The trial court then modified the father's child support obligation.

The Tennessee Court of Appeals reversed the trial court's decision, finding that the trial court lacked jurisdiction due to none of the parties living in Tennessee at the time the motions were made. While this issue was not raised by either party, Tennessee appellate courts are able to decide jurisdictional issues on their own under Tenn. R. App. P. 13(b).

Regarding whether the court had jurisdiction to modify the father's child support obligation, the court looked to UIFSA (T.C.A. § 36-5-2201 et seq.). This Act governs interstate jurisdiction questions involving child support. Under T.C.A. § 36-5-2101, in order for a Tennessee trial court to have jurisdiction, the parties and the children have to live in Tennessee for at least six consecutive months immediately preceding the time of filing a petition. A trial court can also only have continuing, exclusive jurisdiction under certain situations. According to T.C.A. § 36-5-2205, a Tennessee Court has continuing, exclusive jurisdiction over a child support order: "(1)As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or (2) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction." Looking to courts of other states as well as previous appellate cases in Tennessee, the court noted that "virtually all have concluded that, once the parents and their minor children have left the issuing state, that state no longer has jurisdiction to modify its order."

Even though the mother argued that the parties consented to have the Tennessee trial court hear their case, the Appellate Court disagreed. No indication existed in the record showing that the parties "consent[ed] in a record or open court" to the Tennessee trial court below exercising jurisdiction to modify its order. In essence, silent acquiescence is not enough to show consent.

Tennessee Courts Authorized to Order Child Support Prior to Final Divorce

March 26, 2012 by The McKellar Law Firm, PLLC

The State of Tennessee Attorney General recently issued Opinion No. 12-42 entitled "Authority to Award Child Support in the Absence of a Divorce or Separation Decree" on March 21, 2012.

The opinion states that Tennessee courts do have the authority to obligate parents to pay child support prior to the finality of a divorce or separation, and several statutory references are cited. This is an issue that many Tennessee divorce attorneys should be aware of, because many times child support is litigated prior to a trial and can affect the amount of alimony awarded, if any.

The Opinion explains that the reasoning behind the ability to order support prior to parties becoming divorced is supported numerous times in the Tennessee statute. First, T.C.A. 36-5-101(a)(2) does allow courts with subject matter jurisdiction over domestic relations matters to order a future child support obligation. Further, T.C.A. §37-1-104(d)(2) also allows issuance of child support orders upon request of one or both of the parties. That means that all circuit, chancery and juvenile courts may grant a child support order, whether the parties are still married or not. Further, such courts may grant such an order prior to either party having field a divorce or legal separation complaint, so long as they are physically separated.

Juvenile courts in Tennessee also have the authority to order ongoing child support when a finding has been made of dependence, neglect, unruliness or delinquency under T.C.A. §37-1-151(a). Also, juvenile courts and general sessions courts that are authorized to hear paternity actions may also order child support, but only when a genetic testing has been completed or paternity has been confirmed via consent order. Further, under T.C.A. 36-2-311(a)(11)(A), entitled "Order of Parentage", requires the court entering such an order to calculate both current support and an arrearage. Accordingly, there is seemingly no objection that can be lodged against such an order. However, parents may always dispute the amount of child support or asking for a modification if either parties' income changes after the initial hearing.

Alimony Can Be Terminated in Tennessee Based Upon Obligee's Increased Post-Divorce Income

March 23, 2012 by The McKellar Law Firm, PLLC

The case of Williams v. Williams from the Tennessee Court of Appeals, No. E2011-00768-COA-R3-CV, filed on March 2, 20120 demonstrates for Tennessee divorce attorneys when an alimony obligation is ripe for termination. The parties divorced in 2004, and on appeal Wife was awarded $750 of alimony in futuro per month. Both parties were employed at the time but Husband earned approximately $40,000 more per year than Wife. In 2010, Husband petitioned to modify the alimony due to Wife's promotion. At the hearing, Wife stated her income increased from $31,000 in 2004 to $46,000 in 2009 and then to $64,000 in 2010. She also had earned a master's degree since the divorce. Wife also testified that she had additional legal bills, a second mortgage and student loan expenses. Husband testified his income had also increased, from $75,000 to $101,000. The trial court modified the alimony from $750 per month to $500 per month and both parties appealed.

Modification of spousal support depends upon whether there was a substantial and material change since the initial order of support occurred. Here, the change is Wife's increased income. The Appellate Court found this to be substantial because it affected her need for the alimony. Even though it may have been foreseeable that Wife would get standard of living wage increases, here Wife went back to school and thereby raised her income by over $30,000 per year. This was deemed not foreseeable because the trial court originally did not award rehabilitative alimony. Having found there was a substantial and material change, the next question becomes how the alimony should me modified under T.C.A. 36-5-121(i), with the two most important factors being Husband's ability to pay and Wife's need in light of the changed circumstances.

Here, the trial court found that Husband had a continued ability to pay but Wife's need had been lowered and modified the alimony from $750 per month to $500 per month. However, the Appellate Court, in light of the Tennessee Supreme Court decision Gonsewski v. Gonsewski 350 S.W.3d 99 (Tenn. 2011), decided that in this case the alimony should have been terminated completely because alimony in futuro was not proper. Accordingly, the Appellate Court terminated the Husband's alimony obligation retroactively dating back to March 1, 2012.

Long-Term Alimony Not Favored in Tennessee

March 19, 2012 by The McKellar Law Firm, PLLC

The case of Osesek v. Osesek, No. M2011-00984-COA-R3-CV (March 6, 2012) shows Tennessee divorce attorneys how the principals in the recent Tennessee Supreme Court case of Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011) will likely affect future litigation concerning alimony.

In Osesek, Husband was obligated to pay to the Wife the amount of $5,500 alimony in futuro. Husband then filed to terminate or modify his alimony based upon his job having been eliminated and his inability to find other employment. He also alleged that the Wife had obtained part-time employment. He argued that his job loss was a material change of circumstances. The trial court held that he was not entitled to a reduction or termination, and Husband appealed.

Alimony in futuro is given to provide a spouse with long-term support until their death or remarriage under T.C.A. 36-5-121(f)(1). However, alimony in futuro is modifiable if there is a substantial and material change of circumstances shown. The change must have occurred since entry of the final divorce decree. The modification must also be warranted.

A change is "substantial" if it significantly affects one of the parties - either the obligor's ability to pay or the obligee's need for support. The change becomes "material" when it occurs after entry of the decree and wasn't foreseeable or contemplated at that time.
Here, the Trial Court determined that the Husband had indeed lost his job, an event that was not forseeable and that occurred after entry of the decree, but that because he had substantial other assets, he could continue making the alimony payments and was not entitled to any modification or termination. That meant he did not meet the burden of a "substantial " change.

The Appellate Court here in this case actually remanded to the trial court to have the trial court do a new analysis of whether this change that the Husband argued was "substantial" in light of the recent Tennessee Supreme Court holding in Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011). The Gonsewski case stated that the Tennessee legislature favors short-term support over long-term support, with the goal, when possible, to rehabilitate the economically disadvantaged spouse. The Gonsewski court went on to state that alimony in futuro (awarded in this case) should only be given when economic rehabilitation is not an option and long-term support is really necessary. The Appellate Court here also gave some additional instruction to the trial court - to take into account the likely duration of the Husband's separate assets in light of his unemployment when considering a change in the alimony.