February 2013 Archives


Husband Denied Proceeds From Property Sold in Violation of Injunction

February 21, 2013 by The McKellar Law Firm, PLLC

In the recent case entitled Jolley v. Jolley, No. M2011-02550-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee Divorce Attorneys learn that due to the unclean hands doctrine, a spouse is not entitled to proceeds of property sold in a partition action in violation of the automatic statutory injunction. This injunction, found at T.C.A. §36-4-106, is put into place automatically upon the filing of a contested divorce in Tennessee, and prohibits both spouses from the selling, transferring, assigning, encumbering, concealing or in any way dissipating or disposing of marital property without prior court approval.

The facts: The parties married on November 21, 1981, and separated after twenty-eight years. The couple owned a piece of property in DeKalb County, Tennessee jointly with another person. In August 2010, Husband filed a quitclaim deed for his one-half interest in the property to his sister and brother-in-law. In November 2010, the joint owner filed a partition suit which named Husband and Wife as owners.
Wife filed a Petition in the divorce action requesting proceeds from the sale of the property. Wife alleged that Husband "sold and/or transferred approximately 33.91 acres located in DeKalb County Tennessee without Wife's approval which is a direct violation of Tennessee Code Annotated § 36-4-106." Wife also alleged criminal contempt.
Through a judicial settlement conference, the parties reached an agreement in the divorce proceeding and the trial court entered a hand-written Consent Decree resolving issues of their personal and real property, dismissing any Orders of Protections and all motions/petitions for contempt; there was no specific mention of the DeKalb County property or the proceeds from the sale.

A hearing was held on the partition action in April 2011, an the Order was entered in May 2011, dismissing Husband from the action due to his stating he had no interest in the property in his Answer. The property was sold by public auction within 120 days. After the sale, the parties were to have another hearing to "determine the parties respective shares and interest and how the proceeds will be distributed."
In May 2011, Wife's attorney filed a proposed final decree in the divorce case, but Husband objected, alleging "Wife appeared at a hearing conducted in the litigation and asserted a right in and to the real property or the sale's proceeds to be generated from the partition sale of the property." On May 27, 2011, the final decree of divorce proposed by the Wife was entered by the Chancellor.
house_for_sale.jpg
In September 2011, the divorce court held a hearing on the Husbands motion to set aside the final decree of divorce pursuant to Tennessee Rules of Civil Procedure 60.02. That was denied, the court having found that the Husband deliberately violated Tennessee Code Annotated § 36-4-106 and came before the court with unclean hands. Therefore, he was not entitled to relief from the original judgment. The proceeds from the partition property were found to be Wife's separate property, not marital. Husband committed a contemptible charge by transferring his interest in the property based upon statute and lost his right to claim an interest in the property. The Court found that he had not petitioned the Court with clean hands, and waived any interest he would have had.

In the Appeal, Husband then argued that the trial court erred when they entered the Wife's proposed divorce decree without holding a hearing on his objection. Following Local Rule of Chancery Practice 14.01(c), no hearing was required for the proposed decree, just allowance for an objection to be filed or the filing of a competing proposed final decree. Tennessee Court of Appeals found no error in the trial court's entry of the Wife's proposed divorce decree.

The Husband then challenged the trial court's decision to deny his motion to set aside the Wife's final divorce decree and awarding the DeKalb County property partition proceeds to the Wife in infringement of the consent decree and final divorce decree. The property was not mentioned overtly in the consent decree or the final divorce decree. The Husband believed that the property was marital property and should be transferred to him. "The trial court declined to award Husband any proceeds related to the DeKalb County property because Husband took a diametrically opposed position in the partition action and he had unclean hands by his misconduct and actions and should be estopped after the fact to obtain an interest in the property subject to the partition suit in DeKalb County." The Tennessee Court of Appeals agreed with the trial court.

The doctrine of unclean hands is based on the belief that "he who seeks equity must do equity and that he who has done inequity cannot have equity." In re Estate of Boote, 265 S.W.3d 402, 417 (Tenn. Ct. App. 2007). The doctrine "enables a court to prevent a party from profiting from her own misconduct." Emmit v. Emmit, 174 S.W.3d 248, 253 (Tenn. Ct. App. 2005). Because of Husband's actions in quit-claiming the property in violation of Tenn. Code Ann. § 36-4-106(d), the trial court did not err in using the unclean hands doctrine to deny the Husband any interest in the property and awarding any proceeds from the partition suit to the Wife.


Parental Relocation Request Denied Due to Threat of Emotional Harm, Not in Best Interests

February 18, 2013 by The McKellar Law Firm, PLLC

In the case titled Johnson v. Johnson, No. M2012-00900-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee divorce attorneys are shown an example of when a parental relocation request should be denied by a trial court.

Facts: The parties were married for 16 years and had three children before an agreed divorce was finalized in January 2010. Mother was named primary residential parent ("PRP") and Father had 122 days of coparenting. In April 2011, Mother sent Father written notice of her proposed relocation to California, due to her desire to go to school to study marine biology. Father filed a Petition in Opposition to Relocation and to Modify the Parenting Plan, asking to be named PRP. At the trial, the court learned the older child was in his final semester of high school and that he wanted live with his Father during college. Mother agreed he should be allowed to stay. Father called an expert who testified that he believed the daughter would suffer substantial emotional harm should she be forced to relocate. The expert also stated that the impact of dealing with her Mother moving to California would be considerably less than if the daughter was also forced to relocate. The trial court held that the daughter would not be allowed to relocate to California, noting the following: Mother's remarriage does support a reasonable purpose for relocation; that Mother's plan of returning to school was not supported by the record; that there was no vindictive purpose by Mother; that the expert opined the daughter would suffer serious harm; and that should Mother still want to relocate with either child, the parties should return to mediation to draft a new parenting plan.

Mother appealed, arguing that the trial court incorrectly held that the threat of harm of relocation outweighed the threat of harm of changing the PRP.

Analysis: The Court must look to T.C.A. §36-6-108(a) & (d), which states that unless the court finds one of the following, the parent shall be allowed to relocate with the child: that the relocation does not have a reasonable purpose; the relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody; or if the motive is vindictive. If any of these are found, the Court will move on to a best interests review under T.C.A. §36-6-108(e).

Here, the trial court found that Mother's remarriage was a reasonable purpose for relocation but also determined that the relocation posed a specific threat of harm that outweighed the harm of changing the PRP, mandating a best interests review. The trial court then determined that the daughter's best interests weighed in favor of not allowing the relocation. Mother argues that the expert testimony did not support a finding of harm. However, said expert stated that the daughter found it difficult to discuss the possibility of moving and would withdraw and shut down. Father testified the child "broke down" upon learning of Mother's intention, and continued to do so for several days afterward. The Appeals Court found that the expert testimony did support a finding of harm that outweighed the harm of changing PRP, and that the trial court also correctly determined that the daughter's best interests weighed in favor of not allowing her to relocate with the Mother.


Retroactive Child Support Denied Due to Vehicle Payment by Spouse

February 14, 2013 by The McKellar Law Firm, PLLC

The case of Carroll v. Carroll No. M2012-00111-COA-R3-CV (Tenn. Ct. App. January 30, 2013), helps Tennessee Divorce Attorneys learn that retroactive child support may not be appropriate when a party has already overpaid support of a spouse in some other way.

The facts of the case are as follows: The parties married and had a child together before they separated in 2006. Husband filed for divorce in April 2007, and Wife did not answer the complaint until June 2010. She then filed an Answer and a Counter-complaint for divorce. A few months later she filed a motion seeking temporary support; Husband entered an agreed order to pay child support in the amount of $628 per month as per the Temporary Parenting Plan. From the time the parties separated in 2006 until August 2010, Husband was making payments of $667 per month for a Chrysler Pacific automobile that Wife drove. However, both were equally responsible for the payment. At an evidentiary hearing in October 2011, Husband alleged that Wife agreed to these payments on the vehicle in lieu of child support. Wife denied agreeing to these terms, but confessed that she did not stop him from paying. In addition, she stated she would have made the car payments herself with any child support given to her by Husband. In the Final Decree of Divorce the court did not find a reason to grant Wife retroactive child support, because it was not appropriate when Husband had been paying for a vehicle she was driving.

Analysis: Wife appealed the trial court's decision denying her request for retroactive child support. Under Tenn. Comp. R. & Reg. 1240-2-4-.06(1)(b)(1), "unless the rebuttable presumption provisions of section T.C.A. 36-5-101(e) have been established by clear and convincing evidence, a judgment for initial support must include an amount of monthly support dating back to when the parties separated." The evidence in this case shows that the Husband satisfied his obligations by paying the loan on the vehicle that the Wife drove. If the child support payments had been made to the Wife, they would have gone towards the same car payment. The payment for the vehicle was $667 per month. Husband was then obligated to pay $628 a month in child support. The payment on the vehicle exceeded the amount he was obligated to pay by $39; therefore, he ended up paying $2,106 more than he was required. The appellate court affirmed the trial court's decision in denying retroactive child support due to these circumstances.