April 2012 Archives


When to Use Civil Versus Criminal Contempt

April 27, 2012 by The McKellar Law Firm, PLLC

In Jarrell v. Jarrell, No. W2011-00578-COA-R3-CV (Tenn. App. Ct., March 28, 2012), the Tennessee Court of Appeals ("CoA") reversed the decision holding the Mother in civil contempt and awarding attorney's fees. Also, the CoA reversed the dismissal of the criminal contempt charge against Mother. This case highlights for Tennessee divorce attorneys how to utilize civil versus criminal contempt.

The parties married in 2003 and had two children. In 2009, Mother filed for divorce and in 2010 a Final Decree, Marital Dissolution Agreement and PPP (Permanent Parenting Plan) were entered. In the PPP, the major decisions concerning religious upbringing were to be made jointly and if a disagreement arose, the parties agreed to have the dispute settled by a mediator. Father and Mother attended a Methodist church and Mother felt the children should be baptized at an early age while Father did not. Following the divorce, Mother began attending a new church which required infant baptism. In 2010, Mother had the children baptized without Father's knowledge or consent. Father filed a Petition for Contempt and the trial court held the Mother in civil contempt but dismissed the criminal contempt charge. The trial court further awarded attorney's fees to Father.

Father argued on appeal that the trial court erred in dismissing the criminal contempt petition against Mother. Mother argued that the trial court erred in finding her in civil contempt and in awarding attorney's fees to Father.
Mother argued the trial court lacked authority to hold her in civil contempt because her actions did not substantially harm the children. The CoA dismissed this argument and stated the trial court was only asked to determine whether Mother's conduct violated the terms of the PPP.

T.C.A. §29-9-102(3) authorizes a court to exercise its contempt powers for willful disobedience of a court order and it may be civil or criminal. Criminal contempt is intended to punish the wrongdoer and the contempt cannot be purged by compliance with the court order. Civil contempt is used when a person fails to comply with a court order and is designed to bring the party into compliance. Mother, on appeal, claims the trial court's finding of civil contempt against her is erroneous because her single act cannot be cured and the PPP did not specifically forbid her action. The CoA disagreed that the PPP was ambiguous charge but found the trial court was attempting to punish her for her actions rather than compel her compliance. Therefore, the CoA found the trial court's civil contempt holding in error and reversed (also reversing the award of attorney's fees).

Regarding the dismissal of the criminal contempt charges, the guidelines for contempt proceedings must comply with Tenn. R. Crim. P. 42(b). A defendant must be given notice that they are charged with criminal contempt, notice of time and place of hearing, notice of essential facts, and allowed a reasonable time to prepare. Father's petition to the Mother and its accompanying fiat meets the criteria laid out Tenn. R. Crim. P. 42(b). The CoA found that the trial court erred and should not have dismissed the criminal contempt petition for lack of notice and remanded the case so the trial court may hear the petition.


Recent Case Disallowed Parent from Relocating Children to Maryland

April 25, 2012 by The McKellar Law Firm, PLLC

The Tennessee Court of Appeals has recently laid out in Brown v. Brown, No. E2011-00421-COA-R3-CV (Tn. Ct. App. April 13, 2012) what it means when there has been a "material change of circumstances" to justify not only a change in custody, but also whether it is in a child's best interest to relocate with a primary residential parent. This case shows Tennessee divorce attorneys when a relocating parent may not be able to move with the minor children.

The husband and wife were married for sixteen years with three children before the husband filed for divorce. The parties entered into a Marriage Dissolution Agreement ("MDA") and a parenting plan, making the wife the primary residential parent. Three months after the divorce, the wife requested that the court modify their parenting plan so that the children could move with her to Maryland where her fiancé lived. The court denied the wife's request to take the children with her to Maryland, finding that it was in the best interest of the children to stay with the father in Tennessee. Because the move was considered a material change in circumstances, the court also modified the original parenting plan by making the father the primary residential parent. The wife then appealed to the Tennessee Court of Appeals in Knoxville.

In order for a court to modify a parenting plan, a court must go through a two-step process under T.C.A. § 36-6-101(a)(2)(B)-(C). First, the parent wanting to modify the plan must prove a material change in circumstances has occurred. To determine whether there is a change in circumstance, the court then determines whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way. It is important to note that a court uses a lower standard when determining whether there has been a "material change of circumstances" to modify custody than if it is determining the primary residential parent. In this case relocation to Maryland was enough to be considered a material change in circumstances.

If the court concludes that there has been a material change in circumstances, the court then determines whether the change in custody or visitation is in the child's best interest by using a list of factors found in T.C.A. § 36-6-106(a). When a primary residential parent wishes to relocate with their children, a court looks to T.C.A. 36-6-108(c) to determine whether the relocation is in the child's best interest. Because the children had already lived their entire lives in Tennessee, had a stable support system of relatives in Tennessee, no ties in Maryland, and even expressed a desire to stay in Tennessee, the appellate court found that the trial court did not err in holding that staying in Tennessee was in the children's best interest and therefore changed the primary parent to Father, the party remaining in Tennessee.


Trial Courts Must Hold Hearing Before Denying Petition for Visitation

April 23, 2012 by The McKellar Law Firm, PLLC

In Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV (Tenn. Ct. App. , the issue before the Court of Appeals ("CoA") was whether the trial court erred in dismissing Father's petition to restore his right to exercise visitation with his children without an evidentiary hearing. The CoA vacated the trial court's ruling and remanded for a evidentiary hearing.

Mother and Father had two children during the marriage. In 2005, Mother filed a legal separation, which later was amended to a divorce. Both parties sought restraining orders against each other and visitation schedules. A hearing was held, which resulted in an order for child support and a temporary visitation schedule; basic rules for communications between Mother and Father were also set up. In February 2006, the final hearing for divorce was conducted.

Between February and March 2006, Mother filed a petition against Father for contempt, for a restraining order and a show cause order. Mother alleged Father had intimidated the children and threatened to punish them if they told anyone. Also, Mother felt it was in the best interest of the children to suspend visitation from Father. The trial court enjoined Father from taking the children from the Mother's custody. In February 2006, the parties entered into an Agreed Order suspending Father's visitation and communications with the children; Father stipulated his visitation would resume only upon the children's counselor's recommendation. This order entered by the court did not include a Permanent Parenting Plan ("PPP") which is mandated by T.C.A. §36-6-404. In the follow-up hearing in May of 2006, the PPP adopted gave Father standard visitation--every other weekend--but was subject to the therapist's recommendation.

In September 2006, Mother filed to terminate Father's visitation. In April 2007, Mother filed a petition for criminal contempt against Father who had fallen behind on child support. In 2009, Father filed a petition for contempt and sought to modify custody and support. In June 2010, the court appointed a GAL who filed a report with the court. The GAL recommended the Father undergo psychological evaluation. The Father's March 2009 petition was heard in court the same day the GAL filed her report. The court dismissed the part of Father's petition relating to visitation without hearing any testimony.

According to T.C.A §36-6-404(a), any final decree in an action for absolute divorce involving a minor child must incorporate a PPP. According to T.C.A §36-6-406(a), a court can limit parenting time based on a prior order or reliable evidence the parent engaged in certain conduct. T.C.A §36-6-406(d), lists factors that can limit visitation. Accordingly, under T.C.A §36-4-406(d), a court may stop visitation only after a hearing is held to establish those factors. Here, no evidentiary hearing was held prior to suspending Father's visitation. Therefore, the Agreed Order of February 2006 cannot be used by the trial court to deny Father's petition for visitation.

This case shows Tennessee divorce attorneys that although a court is granted wide latitude in dealing with visitation, the factors listed in the statute must be considered and an evidentiary hearing held absent an agreement of the parties.


Paternity Judgment from Texas Upheld in Tennessee

April 19, 2012 by The McKellar Law Firm, PLLC

The case of In Re: Ayden K.M., No. E2010-01884- COA-R9-JV (Tenn. Ct. App. April 17, 2012), shows Tennessee custody and paternity attorneys that enforcement of foreign judgments may be difficult to contest.

Child was born to Petitioner in Texas in 2006, where Respondent signed a Acknowledgment of Paternity ("AOP"). Shortly after the birth, Child moved with Respondent to Tennessee, where they remained. In 2007, Petitioner filed in Tennessee to contest paternity and to obtain custody. The Juvenile Court ruled Petitioner did not have standing to dispute paternity due to the AOP having been signed under oath. Petitioner then filed in Texas where the AOP originated, and the Texas Court set aside the AOP and declared that the Respondent was not the Father. Respondent filed a writ of mandamus with the Court of Appeals in Texas arguing lack of subject matter jurisdiction. This failed and the Texas Court ruled jurisdiction was found in Texas.
Petitioner then attempted to enforce the Texas judgment declaring Respondent not to be the Father in Juvenile Court in Tennessee, but that court declined to give the Texas judgment full faith and credit because Texas lacked personal jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJEA) needed to rule on Respondent's paternity. Petitioner was allowed to file an interlocutory appeal.

Normally, foreign judgments are entitled to enforcement in Tennessee courts. However, T.C.A. §26-6-104(c) says that foreign judgments may be vacated or reopened under Tenn. R. Civ. P. 60.02. Under that rule, judgments may be set aside if they are void, which can be caused by a lack of personal or subject matter jurisdiction or when the judgment is contrary to Tennessee's public policy.
Here, Respondent argues that Texas lacked jurisdiction over Petitioner's AOP challenge and that enforcing the Texas judgment would violate Tennessee's public policy favoring children having two parents. Petitioner argues the Tennessee Juvenile Court erred in declining to enforce the Texas judgment revoking Respondent's paternity. Respondent carries the burden here, as does any party seeking to stop the enforcement of a foreign judgment.

The Tennessee Appellate Court here agreed with the Texas Appellate Court, who explained that the UCCJEA is not applicable here (which would have given Tennessee jurisdiction). Instead, the action was brought solely on the issue of paternity, which falls under the Uniform Parentage Act and Texas Family Code Ch. 160. This is because the UCCJEA applies to paternity actions only when they are part of a proceeding concerning custody or visitation. Here, the Texas action by Petitioner only requested to set aside the paternity and did not therefore address custody or visitation. Further, when Tennessee entered a temporary order, it specifically noted that Tennessee refused to exercise jurisdiction over the paternity part of the matter, deferring that to Texas, and stating Tennessee would only hear the custody issues. Both Texas courts and Tennessee courts agreed that the AOP could only be set aside by a Texas Court. Therefore, that set aside could not be ignored by the Tennessee court and the Tennessee Juvenile Court Order declining enforcement of that set aside was reversed.


Child Custody Attorneys Must Raise All Issues at Trial to Preserve Appeal

April 16, 2012 by The McKellar Law Firm, PLLC

Dillard v. Blanks, No. M2010-00901-COA-R3-JV (Tenn. Ct. App. September 20, 2011), reminds Tennessee child custody attorneys to raise all arguments at the trial court level so that they are not barred from making those arguments on appeal. Here, Child was born to unmarried Mother and Father in 2008. In 2009, the State filed a Petition to Set Support on behalf of the Mother. Father filed a motion seeking temporary custody of the Child and asked to be named primary residential parent "PRP."

In August 2009, parents reached an agreement on some but not all issues, so a Temporary Agreed Order was entered. Father was named biological father and Mother named PRP.

The court held an evidentiary hearing where Father stated he had been at his current job for over ten years and owned his own home; Mother stated she lived in five different locations since their 2008 breakup and currently lived with her family. Also, Mother stated she was enrolling in nursing school. Mother denied keeping Father from having visitation but admitted removing the paternal grandmother from the pickup list. In March 2010, Father was named PRP and Mother granted visitation. Mother appealed.
Mother contended the following: (1) the court erred in not finding that Father's PRP claim barred under res judicata; (2) the court erred in finding a material change in the minor child's circumstances justifying a change of PRP; (3) the court erred in changing the PRP without conducting a comparative fitness analysis of the child's best interests; and (4) requested attorneys fees.

The Court of Appeals affirmed the trial court's decisions. First, Mother contended Father's claims were barred under the res judicata principle of issue preclusion. The Court of Appeals stated the Temporary Agreed Order was not a final order upon which res judicata would apply. The trial court's order did not constitute a final appealable order because a final order must leave nothing for the trial court to determine. Therefore, the Temporary Agreed Order was interlocutory. Further, Mother failed to argue this issue at the August 22, 2010 hearing and therefore waived the issue on appeal.

Second, Mother lost PRP status and argued that a material change had not occurred. The Court of Appeals found this issue without merit because a final determination had not been made regarding the designation of the PRP; therefore, Father did not have to establish a material change of circumstance to modify the Temporary Agreed Order. A material change of circumstances need only be proved when modifying a final judgment.

Finally, both parties believed they should be awarded their attorney's fees. There is no absolute right to fees and the trial court is allotted broad discretion. The Court of Appeals stated it must uphold the trial court's ruling on trial fees because "as long as reasonable minds could disagree", the Court cannot overturn the trial court's decision about fee awards. Regarding attorney's fees on appeal, the Court of Appeals awards Father his attorney's fee because of his good faith and the Mother's claims having lacked in merit.


Violation of Parenting Plan May Lead to Change of Custody in Tennessee

April 10, 2012 by The McKellar Law Firm, PLLC

The case of Reed v. Reed, No. M2011-00980-COA-R3-CV (Tenn. March 30, 2012) shows Tennessee divorce and custody attorneys how to use one parent's failure to adhere to a parenting plan or court order to win a modification petition.

Mother and Father divorced in 2010, with Mother named as primary residential parent "PRP." However, Mother was enjoined from allowing her paramour to have contact with the children, and both parties could not allow unrelated, overnights guests in the home when the children were present. Later in 2010, Father filed a contempt action and requested that the parenting plan be changed, based upon Mother having allowed the paramour to live with her and the children. Father then filed an emergency motion for custody, granted by the court based upon Mother's dishonesty and failure to abide by the order pertaining to the paramour. A hearing was held and the court found a material change of circumstances existed and it was in the best interest of the children for Father to be named PRP based upon: flagrant violation of the order by Mother, and her "spending a lot of energy hiding [the paramour]."

Here, Father's burden was to show a substantial and material change of circumstances to get the PRP changed. T.C.A. §36-6-101(a)(2)(B) declares the following:
"A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child."

Here, the evidence established that Mother clearly violated the order, based on the court's finding that Mother's denial of the same was not credible. A private investigator testified that she witnessed the paramour at Mother's residence, saw his car parked outside late at night and early in the morning and saw him with one of the children in his car outside of Mother's presence. The investigator also submitted photographic evidence of this as well as a certified copy of the paramour's license plate matching the photographs. The paramour also apparently listed Mother's address as his home address on his driver's license.

The Appellate Court noted that Father did not have to prove that this change was a substantial risk of harm to the children under T.C.A. §36-6-101(a)(2)(B) to meet the material change standard, and affirmed the trial court's decision.
Next, the Appellate Court reviewed the best interests determination that follows all material change findings. Mother argued that the court failed to make the required finding. The Appellate Court found that the trial court "made little more than a generic best interest conclusory finding; it did not articulate any findings regarding the statutory factors other than to generally address Mother's violations..." The Appellate Court, under the best interests factors, found the following: Mother failed to take the children to scheduled dental visits; Mother made the children late for school on two occasions; Father had been the primary caregiver since named PRP; and Mother's refusal to allow the trial court to meet or question in person the paramour (noting that T.C.A. §36-6-106(a)(9) allows the court to consider the character and behavior of any other person who resides in or frequents the home of the parent). Therefore, the Appellate Court found that the children's best interest affirm the trial court's designation of the Father as PRP.


Trial Courts Given Broad Discretion in Tennessee Divorces

In Chavez v. Chavez, No. M2010-02123-COA-R3-CV, the Husband and Wife filed for divorce in 2008 in Montgomery County. Each alleged irreconcilable differences and inappropriate marital conduct; later, both complaints were amended to include adultery. A divorce was granted in 2010 based on Husband's "developing and fostering a relationship with another woman" and Wife's "engaging in alcohol and drug abuse." Wife was designated primary residential parent. The home was ordered sold with profits going to the Wife, each party was awarded their separate retirement accounts and marital property and debt was divided. The Husband was ordered to pay transitional alimony in the amount of $1,800.00 for four years and alimony in solido of $90,000.00 over six years. Also, Husband was ordered to pay child support in the amount of $1653.00 monthly. Husband appealed.

The Tennessee Court of Appeals affirmed the lower court's ruling concerning the primary parent designation and the alimony. This decision shows Tennessee Divorce attorneys that trial courts have a broad discretion in matters concerning child custody, visitation, and alimony.

The Tennessee Court of Appeals found that the lower court here did not abuse its discretion. In its review, the Court of Appeals applied the abuse of discretion standard, stated as "An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice."

In reviewing the primary residential parent designation, the trial court considered many factors. Those factors are located in T.C.A. § 36-6-106. After the court's analysis of these factors, the parents were found to fairly equal; however, the trial court awarded Wife primary parent status due to the Husband's job and Wife's testimony. Husband's travel is excessive in regards to providing a stable home for their children, especially the daughter. The trial court's decision is supported by a preponderance of evidence and was not an abuse of discretion. In the end, it was in the best interest of the children to reside with the Wife.

In regards to transitional alimony, the trial court considered the guidelines set out in T.C.A. § 36-5-121(g)(1). T.C.A. § 36-5-121(i) "instructs the court to consider all relevant factors in determining whether spousal support is appropriate and in determining the nature, amount, length of term, and manner of payment..." The single most important factor is the "need of the disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay support." Here, husband made four times the income of Wife. Husband's basic argument on appeal was the alimony is excessive and unnecessary. The trial court's findings, relative to the Wife's economic disadvantage and the statutory factors and requirements, were not an abuse of discretion standard. The trial court found the Wife did not need rehabilitative alimony because she already had the necessary skills to achieve and maintain an appropriate standard of living. Transitional alimony was awarded to the Wife in order to assist and adjust to the economic consequences of the divorce.