June 2012 Archives


Wife's Appeal of Alimony During Legal Separation Not Proper Until Divorce Requested

In the case of Hooberry v. Hooberry, No. M2011-1482-COA-R3-CV (Tenn. Ct. App. June 20, 2012), the Appellate Court reminds Tennessee divorce attorneys that legal separation may not permanently resolve all issues in case of subsequent divorce.
Facts: The trial court awarded Wife a two year legal separation and $1,500 per month alimony as well as dividing property. Wife's attorney fee request was denied. Wife appealed, claiming she should have been awarded alimony in futuro, more of the marital estate and her attorney fees.

Alimony: The trial court here declared the parties legally separated and not divorced. Under T.C.A. 36-4-102, after two years, either party may file for a divorce (but it may only be awarded to the party who the separation was awarded to). Here, the original alimony award was just for the parties' separation and did not address alimony in a potential later divorce. At that point, the court will hear additional evidence and re-determine any support issues. Therefore, Wife's claim that she should have been awarded in futuro alimony is premature in light of the fact that a legal separation was awarded instead of an absolute divorce.

Property Division: Wife argues she should have been given a larger portion of the marital estate. The trial court is supposed to divide property equitably (which does not mean equally). This is determined according to the factors listed in T.C.A. §36-4-121. Wife's appeal fails to explain why the distribution is inconsistent with the statutory factors. Accordingly, the trial court's decision is upheld.

Attorneys Fees: Wife here failed to put on evidence at trial or inform the appellate court the amount of fees she sought. Normally, an award of attorney's fees is treated as alimony and depends upon whether each party has an ability to pay and the parties' respective assets. If a party has adequate income or assets, then no award of fees is appropriate. Wife here argues she is incapable of paying the fees and that the trial court made such a finding at the hearing but refused to award them to her regardless. The Appellate Court here can only overturn the trial court in light of an abuse of discretion, meaning application of an incorrect legal standard or a decision against logic and reason. Wife was required to make a clear showing of such an abuse of discretion, which she failed to do. The Appellate Court also noted that Wife's own actions had caused her high attorneys fees, such as Husband having to file Contempts and Motions to Compel. Accordingly, the trial court's refusal to award her fees is upheld.


Despite Large Marital Asset Award, Alimony Upheld; Interesting Dicta on Modification of Parenting

The recent Tennessee Court of Appeals case Duke v. Duke, No. M2009-02401-COA-R3-CV (June 1, 2012) upholds an award for 8 years of rehabilitative alimony in spite of the payee spouse receiving substantial martial assets. Also, Tennessee divorce attorneys should note the dicta in this case stating that although Father's potential drug and alcohol recovery and therefore future ability to have more co-parenting time is contemplated contemporaneously with the decision, that should not bar his ability to modify his parenting time in the future. This is contrary to commonly-held thoughts about what constitutes and substantial and material change post-divorce.

The parties married in 1991, had three children and filed for separation in 2007, which was later amended to a Complaint for Divorce. Wife had not worked outside the home since 1995 and alleged that Husband had substance abuse issues. After a trial, Wife was named primary parent and was awarded the divorce on grounds of inappropriate marital conduct. Wife was awarded $8,000 in rehabilitative spousal support for 8 years and over $300,000 in attorneys fees. Both parties appealed.

Parenting Time: Husband was originally given 80 days per year but argues he should have been awarded fifty-fifty time based on the statutory factors in T.C.A. §36-6-404.The trial court made the following findings: that Husband had a history of substance abuse and had not at the time of trial started recovery; Husband exercised poor judgment such as driving with the children while under the influence; and that Wife offered a stable home environment that Husband' s home did not. Therefore, the Appellate Court affirmed the 80 days of co-parenting for Husband. Interestingly, the Court noted that should he seek treatment and recover, even though that may be reasonably anticipated, that should not alone serve to bar his claim of a material change of circumstances and therefore block him from seeking additional parenting time.

Alimony: Here, the Court first notes the state preference for short-term, rehabilitative support via T.C.A. §36-5-121(d)(2). In this case, the Wife was 41 years old, had a nursing degree, worked for seven years before becoming a stay at home mom and was in good physical and mental health. The children were all of school age and Wife was given "substantial" assets from the marriage - approximately $4.5 million. Husband argued that Wife did not have a need for alimony. The Appellate Court held that these assets did not negate her need for rehabilitation and the premise of this kind of award is based on her earning capacity and ability to increase the same. Therefore, the award was upheld and unchanged. Wife argued for a modification to in futuro (long-term) support. However, in futuro alimony should only be awarded when rehabilitation is not possible and long term support is necessary which was not the case here.


Trial Court May Issue Injunction Between Children and Third Parties in Tennessee Divorce Cases

The case of Stogner v. Stogner, No. M2011-00503-COA-R3-CV (Tenn. Ct. App. May 31, 2012) highlights two issues for Tennessee divorce attorneys - that trial courts may issue injunctions against third parties if in a child's best interest, and that parents are entitled to credit for every 12-hour period of co-parenting time for child support purposes.

Issues: Mother appealed the trial court's order keeping Mother's friend from having contact with the minor children. Father appeals the calculation of his co-parenting time.
Holding: The injunction against Mother's friend was affirmed. The calculation of Father's co-parenting time and consequently his child support obligation is vacated and remanded for a new determination by the trial court.

Issue 1: Injunction: The parties divorced and subsequently both parties filed for a modification of child support and parenting schedule. The trial court ended up modifying the parenting plan, including adding the injunction against Mother's friend. Under T.C.A. §36-6-101, et. seq., a trial court must look at all relevant factor and the child's best interest in determining custody. Here, the trial court found that Mother seemed vengeful and was interfering with the relationship between the children and Father. The court also found that Mother's friend had a very "volatile" relationship with Mother, assaulted Father's new girlfriend and sent derogatory correspondence to Father's former attorney and Father's Mother. The trial court held that the friend's "actions were so vile that it would be inappropriate to allow the minor child...to have contact with her." The appellate Court held that under T.C.A. §36-6-106(a)(9) and (10), the trial court here correctly considered the ramifications of the friend's actions on the child. Further, even though Father did not specifically plead for an injunction against the friend, the trial court is not bound by the pleadings on this issue, and therefore had the authority to issue the injunction.

Issue 2: Number of Days: The trial court also gave Father every other weekend from Friday at 6:00pm until 8:00am on Monday and every other Wednesday evening (overnight) during the school year. When not in school, Father would coparent the child every Wednesday night until Thursday morning in addition to every Fall and Spring Break, Father's Day and the first weeks of June, July and August. Under the Tennessee Child Support Guidelines, a "day" for child support purposes is defined as 12 consecutive hours in a 24 hour period. Tenn. Comp. R. & Regs. 1240-2-4-.02(10). Here, the trial court gave Father credit for 2 days for each weekend he exercised. Father argues he should have been given credit for 3days. The Appellate Court agreed with Father. The Court explained that from 6:00pm Friday until 6:00pm on Sunday counts as 2 days credit; then, Father spends another 12-hour period (Sunday at 6:00pm until Monday at 8:00am) with the child, entitling him to a 3rd day of credit. Therefore, Father should be given credit for 130 days and not the 107 that was originally used to calculate his child support.



Marital Dissolution Agreements Change From Contracts to Court Orders Upon Finalization of Divorce in Tennessee

The case of Beck v. Beck, No. W2011-01806-COA-R3-CV, (Tenn. Ct. App. May 11, 2012) outlines for Tennessee family law attorneys exactly why parties must return to court before modifying or even enforcing their divorce decrees and judgments.
The parties had entered into a Marital Dissolution Agreement "MDA" that required them to exchange tax returns each year. If they failed to do so, the MDA provided that the alimony obligation would be suspended until adequate documents were provided. When Wife provided tax returns with redacted info, Husband unilaterally suspended his alimony payments without first returning to court.

Holding: Because the MDA, a contract, was incorporated into the parties' Final Decree (a court order), the Husband did not have the authority to suspend his payments and should have gotten court approval before doing so.

Although Husband filed a Motion to Clarify, and obtained a court order stating that redacted tax returns were not appropriate, no court order was issued allowing suspension of payments. Wife filed a Motion to Set Aside this order under Tennessee Rules of Civil Procedure 60.02 alleging she had not been properly served and did not attend that hearing. The trial court found she had not been properly served and that Husband did not attempt to have a second summons issued nor send a copy via certified mail. He simply sent notice to her last-known address via regular mail, which was not sufficient in this case.

Although MDAs are viewed as contracts when a court must interpret the terms, they lose their contractual nature when incorporated into a court order. The decision as to whether the suspension of payments was appropriate fell to the trial court. Therefore, the Husband was charged with an arrearage of alimony payments throughout this time frame. Even had the trial court found Wife in contempt for not providing the correct documents, that does not allow suspension to follow without court authority.