July 2012 Archives

Appellate Rules Must Be Followed Carefully To Win Divorce Appeal

In the case of Butcher v. Butcher, No. W2011-01808-COA-R3-CV, (Tenn. Ct. App. June 12, 2012), Tennessee divorce attorneys learn that arguments not made at the trial court level cannot be made on appeal; this case also highlights the reasoning behind the requirement for an asset and debt table to be filed in divorce appeals concerning property division.

Husband and Wife married in 1976 and Wife filed a complaint for legal separation in 2007. In 2009, Wife filed an amended complaint for separation and/or Complaint for Divorce alleging irreconcilable difference and inappropriate marital conduct. In 2011, the trial court heard the matter and entered a Final Decree. Husband and Wife were awarded their separate businesses and Wife awarded the real property where the businesses were housed. Wife was also awarded alimony in solido. The final division of property resulted in a 61% versus 39% split. Husband filed a motion for a new trial and to stay the judgment. The trial court denied Husband's motion. Husband appealed.

Husband raised one issue: whether the trial court failed to equitably divide marital property when it awarded Butcher Tax Services, which was owned jointly, without first determining a value for the partnership. Wife argued the appeal should be dismissed for two reasons: first, that Husband's failure to comply with Rule 7 of the Court of Appeals of Tennessee bars his claim and second that Husband's argument was not raised in the trial court and therefore cannot be argued for the first time on appeal.

Analysis: Rule 7 of the Court of Appeals provides: (a) in any domestic relations appeal in which either party takes issue with the classification of property or debt or with the manner in which the trial court divided or allocated the marital property or debt, the brief of the party raising the issue shall contain, in the statement of facts or in an appendix, a table in a form substantially similar to the form attached. This table shall list all property and debts considered by the trial court, including: (1) all separate property, (2) all marital property, and (3) all separate and marital debts; (b) each entry in the table must include a citation to the record where each party's evidence regarding the classification or valuation of the property or debt can be found and a citation to the record where the trial court's decision regarding the classification, valuation, division, or allocation of the property or debt can be found; (c) if counsel disagrees with any entry in the opposing counsel's table, counsel must include in their brief, or in a reply brief if the issue was raised by opposing counsel after counsel filed their initial brief, a similar table containing counsel's version of the facts.

Here, Husband's attorney failed to include a Rule 7 table and made no request to supplement the briefs submitted. Failure to comply with Rule 7 waives all issues relating to the requirements of the Rule (i.e. property division and valuation). Complying with Rule 7 aids the Appellate Court in reviewing the trial court's decision and allows the Court to easily and correctly determine the valuation and distribution of the marital estate. Husband failed to include a Rule 7 table and also failed to assert that the parties' business should be valued and divided as a partnership during the proceedings in the trial court. Husband's failure to raise the issue at the trial court level means he cannot argue the issue for first time on appeal; therefore, Husband has waived that issue on appeal. The Court of Appeals affirmed the judgment of the trial court and dismissed the appeal.

Worker's Comp Benefits Are Subject to Division Between Spouses in a Tennessee Divorce

In the case of Scarbrough v. Scarbrough, No. E2011-01854-COA-R3-CV (Tenn. Ct. App. June 4, 2012), Tennessee divorce attorneys learn that worker's compensation and attendant care benefits acquired during a marriage are marital property and therefore subject to equitable property division between the spouses upon divorce, even if spent during the interim.

Facts: Husband and Wife were police officers in Florida. Wife suffered injuries during employment and collected a pension and worker's compensation ($1,380.00 per month) along with attendant care benefits ("ACBs") ($3,640.00 per month). Husband retired to care for the Wife. The parties returned to Tennessee Wife filed for divorce in 2010. Husband sought spousal support based on the disparity between their incomes.

In 2011, the parties were granted a divorce. Both had comparable pensions and Social Security income but Wife received additional income from workers' comp and ACBs. Because the parties made the mutual decision for Husband to leave his position as a police officer to care for Wife, causing Husband to lose the potential of a greater pension and Social Security benefits, the trial court awarded Husband transitional alimony. The trial court also classified $60,180.00 of worker's comp benefits Wife received during the parties' separation as marital property, but awarded that amount to the Wife. Wife appealed claiming the trial court erred in classifying her $60,180.00 worker's compensation benefits as marital property. Wife argued that because the funds were paid by installment and not lump-sum, that only the unspent amount ($7,000) is marital property. She additional argues that part of the $7,000 can be attributed to ACBs, which she also claims is not marital property.

Analysis by the Court: The general rule is that assets acquired by either spouse during the marriage are presumed to be marital property. A party attempting to classify an asset acquired during marriage as separate property bears the burden of proving that by a preponderance of evidence. In T.C.A. § 36-4-121(b)(1)(A), marital property is defined as all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce. Further, T.C.A. § 36-4-121(b)(1)(C)'s definition of marital property "includes recovery in . . . worker's compensation. . . for . . . wages lost during the marriage."

Here, Wife conceded the ACBs are a type of worker's comp (meaning they would be marital property), but argued they do not represent lost income and instead are for her 24-hour care-giving. The Court here did not directly address this point, but disagreed with Wife nonetheless, stating that in this case, the ACBs were paid to compensate the Husband for quitting his job and providing the care-giving himself. Therefore, the ACBs were compensation for lost income and therefore properly classified as marital property.

Regarding the portion of the funds attributed to Wife in the court's award that she had already spent, the Court noted that marital property is all property owned as of the date of filing of the complaint for divorce or acquired up to the date of the final divorce hearing. Here, Wife clearly acquired the right to receive worker's compensation benefits & ACBs prior to the final divorce hearing and received both types of benefits while the divorce was pending. Wife's argument that her spending of the funds converts them to separate property is not accurate and the trial court's decision is upheld.

Sarah C. Easter Named Top Attorney 2012 by Citiview Magazine for Divorce and Family Law

Cityview Magazine has just released their annual Top Attorneys edition. Based upon voting by Knoxville lawyers, the magazine selects the top attorneys in the city for each practice area. This year. Sarah C. Easter was named Top Attorney in the Divorce, Family Law and Child Support category! You can view the online article here.

Tennessee Custody and Divorce Cases Determined By T.C.A. 36-6-106 Factors

In the recent case titled Brewster v. Brewster, No. E2011-01455-COA-R3-CV (July 11, 2012), the Tennessee Appellate Court discusses how to use T.C.A. §36-6-106 to determine child custody and primary residential parent status. The Court also affirms that T.C.A §36-5-103 allows awards of attorneys fees in custody cases for married and unmarried parents alike.

Facts: Child was born to Mother, who was not married to Father at the time. Both parents later married other individuals, referred to here as Stepfather and Stepmother. In 2006, a paternity test confirmed Father as the biological dad. Four years later, the State of Tennessee filed a petition to establish his paternity and set child support under T.C.A. §71-3-124. The parents worked out a visitation schedule which they followed for 7 months until Father requested to be the primary parent (PRP) and alleged Mother had domestic violence and substance abuse issues as well as ignoring the child's medical and developmental needs. At the trial, the court kept Mother as the PRP and gave Father 80 days of co-parenting. This was based upon the following: that Mother raised the child almost alone and her emotional ties were stronger than Father's; that Father pursued surrender of his rights; that the testimony regarding neglect was not found convincing, and the record was devoid of medical proof of neglect; that continuity favored Mother; stability favored Father; mental and emotional health were equal, home, school and community favored Mother; and preference was not applicable and the stepparents posed no concern.

Issues: Whether the trial court erred in designated Mother as PRP and whether the trial court erred in awarding Mother her attorneys fees.

Appellate Review: Father argues that the court should not have designated Mother PRP because it was contrary to the preponderance of the evidence. T.C.A. §36-6-106(a) list all relevant factors a court should consider when making a custody decision. The appellate court found the following factors relevant here: the bond between Mother and child was shown by child's initial distress upon beginning visits with Father; Mother had been the primary caregiver; the evidence did not show Mother was neglectful or dangerous to the child; stability favored Mother in light of child's home, school and community records; Father is more stable due to his new Wife, business income and residence. All other factors were found to be equal. Accordingly, the trial court's determination was correct and the decision to keep Mother as PRP was upheld.
Regarding attorneys fees, Father argued that T.C.A. §36-5-103, which allows awards of attorney fees in spouse custody cases, is not applicable here because the parties were never married. Father failed to raise this issue with the trial court, and therefore this argument is not properly brought upon appeal. Further, the Appellate Court has upheld awards of attorney fees in similar cases of unmarried parents and therefore there was no abuse of discretion by the trial court.

The factors discussed in this case are always used in divorce and custody disputes. Be sure to contact a local Knoxville divorce attorney to see how these factors might affect your family.

New Tennessee Law Requires Courts to Look at Parents' History of Following Court Orders

T.C.A. 36-6-106 provides Tennessee courts with the framework for determining child custody and co-parenting schedules for married and unmarried parents.

Formerly, subsection 10 read as follows: "Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child."

A new bill that went into effect on July 1 of this year adds to that language, requiring courts to look at each parent's likelihood of following court orders and the history of either party denying co-parenting to the other in violation of any court order. You can read the new bill here.

Sarah C. Easter Awarded 2012 Client's Choice Badge by Avvo for Divorce

The McKellar Law Firm is happy to announce that Sarah C. Easter was chosen by Avvo to be recognized with a Client's Choice Badge for divorce. Click on the badge button below to view the full Avvo profile.

Tennessee Now Allows Parents to File Termination Petitions in Limited Circumstances

T.C.A. 36-1-113 governs termination of parental rights in Tennessee. Specifically, subsection (b) states who is able to file for termination. Previously, only prospective adoptive parents, including extended family members caring for a related child, licensed child-placing agencies with custody, the child's guardian ad litem, or DCS could file a petition pursuant to Title 36 or Title 37 to terminate parental or guardianship rights.

The new amendment to this subsection (b) now allows a parent to file for termination under certain circumstances, found in the new amended subsection (g)(11). T.C.A 36-1-113(g)(11) says that if a parent was found guilty in criminal court of aggravated rape, aggravated sexual battery, aggravated or especially aggravated sexual exploitation of a minor, incest, rape, or rape of a child, then the other parent may file to terminate the convicted parent's parental rights. In no other instances may one parent file to terminate another parent's rights. You can read the new bill here.