June 2013 Archives


Criminal Contempt Overturned in Divorce Due to Lack of Proper Notice

In the case titled Sprague v. Sprague, No. E2012-01133-COA-R3-CV, 2013 WL 2382827 (Tenn. Ct. App. May 30, 2013) Knoxville divorce lawyers learn when criminal contempt may be applied in a civil matter, and what type of notice must be given for criminal contempt charges.

Facts: This case involves a post-divorce contempt petition. Husband and Wife divorced in June 2009. Wife was designated the primary residential parent ("PRP") for the two minor children. Husband was ordered to pay $836 per month in child support. According to the parenting plan, Husband and Wife were to make all decisions regarding the children jointly; however, if the couple could not agree Wife was given the tie-breaking vote. Husband was also required to maintain health insurance on the children and keep a $250,000 life insurance policy for the benefit of the minor children with Wife as the trustee. It was ordered that any out-of-pocket medical expenses were to be paid by both parents based on a pro rata basis resulting in Wife being responsible for 53% and Husband responsible for 47% of the medical bills.

In September 2009 Wife filed a petition for contempt alleging Husband non-payment of child support, non-payment of the out-of-pocket medical expenses, that Husband had a cat in his home (a violation of the parenting plan due to one of the children having severe asthma), and that Husband did not provide proof of a life insurance policy. Prior to the court hearing, Husband agreed to get rid of the cat. The court then ordered Husband to pay Wife four months of child support arrearages and advised the parties to mediate the remaining issues. After mediation, the court entered an order incorporating the mediated agreement which required the parties to provide proof to one another regarding out-of-pocket medical expenses, Husband to provide proof of medical and life insurance coverage, and granting Wife $3,387.50 for out-of-pocket medical expenses.

In September 2010 Wife filed another petition for contempt alleging Husband failed to provide proof of health insurance coverage, used generic prescriptions for the minor children when the pediatrician specifically advised him not to, failed to make timely child support payments, failed to provide proof of life insurance, and failed to reimburse Wife for the minor children's out-of-pocket medical expenses. The court held a hearing and ordered Husband to take the children to their current treating physician, that neither party was to switch the children's prescriptions unless their doctor advised to do so, and that the parties would notify one another of doctor's appointments and any changes to the children's prescriptions.

In a later hearing held in December 2011, the court found Husband to be in "willful contempt" of the court's orders; however, it reserved punishment to see if he would comply. At the hearing on the matter, Wife was granted a judgment against Husband in the amount of $5,604.65 for out-of-pocket medical expenses and ordered a wage assignment of $385.85 biweekly for child support.

Analysis and Conclusion: Husband filed an appeal averring the trial court erred in granting Wife $5,604.65 for out-of-pocket medical expenses and in holding him in contempt. The appellate court reviewed the poof of out-of-pocket medical expenses given to the trial court and found the proof to only substantiate a judgment of $2,124.32 against Husband. The trial court's decision was modified to reflect this amount.

On the contempt matter, Husband argued he was not given adequate notice that he was being charged with criminal contempt and, therefore, the decision should be reversed. The appellate court had to determine what type of contempt the trial court imposed on Husband. Civil contempt is remedial in nature and is usually employed by a court to compel a party to comply with its order(s). It can also be alleviated by compliance of the offending party. Criminal contempt is a punitive action by the court and cannot be lifted by compliance of the party. During its review, the appellate court found that the trial court did not specify whether the contempt Husband was charged with was civil or criminal in nature. However, it determined that the contempt was criminal as the trial court did not condition the contempt with Husband's compliance instead reserving its punishment for the contempt at a later time. The appellate court found this to be a suspended sentence by the trial court.

In this case, the trial court held Husband in contempt for actions that happened outside of the court; therefore, the appellate court reasoned the contempt to be indirect and therefore subject to Tenn. R. Crim. P. 42(b) which states:

(b) DISPOSITION ON NOTICE AND HEARING. A criminal contempt
shall be prosecuted on notice...
(1) CONTENT OF NOTICE. The criminal contempt notice shall:
(A) state the time and place of the hearing;
(B) allow the defendant a reasonable amount of time to prepare a defense; and
(C) state the essential facts constituting the criminal contempt charged and describe
it as such
(2) FORM OF NOTICE. The judge shall give the notice orally in open court
in the presence of the defendant or, on application of the district attorney general
or of an attorney appointed by the court for that purpose, by a show cause or arrest order.

The appellate court further pointed out the case Long v. McAllister-Long, 221 S.W.3d 1, 13-14 (Tenn. Ct. App. 2006) which required parties charged with contempt to receive "adequate notice that is clear and unambiguous to the average citizen..." The case further mandated that the notice for contempt must "state succinctly for the accused the 'essential facts' constitution the charge." It also stipulated that the notice must be clear that the contempt charge is for punishment and not for compliance.

Wife argued that Husband waived the argument of insufficient notice when he did not bring it up to the trial court in the post-trial motion to alter or amend. The appellate court turned to Simerly v. Norris, No. 1071, 1987 WL 8315 at *9 (Tenn. Crim. App. Mar. 26, 1987) which addressed this same waiver argument. In the Simerly case it was found that because the notice itself was not executed properly and the absence of facts or circumstances that would excuse the deficiency did not exist, the issue could be raised to the appellate court even it had not been at the trial court level.

Applying Long, Simerly, and Tenn. R. Crim. P. 42(b) to the contempt allegations against Husband, the appellate court found that he was not given proper notice , and he did not waive his due process right to bring the issue of lack of notice before the appellate court. The appellate court ordered the contempt sentence against Husband to be vacated, and remanded it back to the trial court for the dismissal of the criminal contempt charge against him.


Rare Tennessee Case Where Primary Parent Designation is Split Between Siblings

In the case titled Maupin v. Maupin, No. E2011-01968-COA-R3-CV, 2013 WL 1803602 (Tenn. Ct. App. Apr. 29, 2013) Knoxville divorce attorneys learn in what instances the primary parent designation ("PRP") can be split between parents and siblings, whether foreclosure liability is appropriate for the spouse who was not awarded the property, and when retroactive child support is appropriate.

Facts:Husband and Wife were married in 1993 and had three (3) children who were minors at the time of the divorce. For the first five (5) years of the marriage, Husband was unemployed and helped his parents on their farm; Wife worked at a hospital and sold jewelry on the side for extra income. Wife admitted to an affair in2007 and agreed to end it to save the marriage. Husband gave up farming to spend more time with Wife, and both attended marriage counseling sessions. However, Wife continued her affair Wife filed for divorce in 2008.

After considering testimony of two psychological experts and a guardian ad litem regarding the breakdown of Father's relationship with the daughter and Mother's relationship with the couple's two sons, the trial court designated Mother the PRP for the daughter and Father the PRP for the two sons. However, the court did stipulate that there be a co-parenting schedule to facilitate shared time together for the siblings on "weekends, holidays, and other vacation periods." Mother was ordered to pay $594 per month in child support based on the court determined income of $4,902 per month for Wife and $2,360 per month for Father. Two permanent parenting plans ("PPP") (one for the daughter and one for the sons) were entered with the court that were almost identical. Both allowed the PRP 247 parenting days with the other parent receiving 118 parenting days. Both plans included a supplemental provision requiring the family to enroll in counseling.

When determining assets, trial court's typically review a schedule of assets and liabilities submitted by both parties; however, Husband never submitted this information to the court in this case. Despite lacking this information, the court awarded Husband 20% of Mother's retirement fund and made the parties equally responsible for any joint credit card balances and a timeshare that was foreclosed on. Husband was awarded the marital residence valued at $175,000 with a mortgage balance of $223,834. The court ordered Husband "solely responsible for paying the indebtedness owed with regard to the [marital residence], holding [Wife] harmless from any liability in connection therewith"; however, in its ruling the court stipulated "the parties shall be equally responsible for paying any deficiency balance due" in the event of a foreclosure.

Husband filed a motion requesting retroactive child support to the date of separation which the court granted. Wife filed a motion for contempt alleging she had received no parenting time with her sons. The court scheduled an evidentiary hearing to determine if Husband was in contempt for failure to follow the "PPP." After hearing testimony from Husband and Wife, the court determined Husband had encouraged the two sons to go with Wife for visitation, but the children did not want to go. Therefore, it was reasoned that Husband was not in contempt of the court ordered PPP. Wife appealed the trial court's decision.

Analysis and Conclusion: On appeal the court had to determine the following:

• Whether the trial court erred in ordering Wife the PRP for one minor child and ordering Husband PRP of the other two children
• Whether the trial court erred in awarding Husband the marital home with the condition he assume the mortgage while stipulating Wife would be held responsible for on-half of the debt should the home be foreclosed
• Whether the court erred in awarding Husband retroactive child support to April 2009

On the issue of PRP, Wife argued that Husband refused to encourage the two sons for which he was PRP to have a relationship with her. She averred that Husband was turning the children against her. Husband argued that Wife brought the situation on herself by having an affair. In looking at the best interests of the children and applying that standard, the appellate court determined the trial court did not err in its discretion appointing Husband the PRP of the boys considering their animosity toward Wife. However, it did modify the parenting plan to require "appropriate, professional counseling" and remanded the case back to the trial court to have a hearing to appoint a therapist to develop a counseling program and therapy sessions with the parents. Both parents and all three children were ordered to attend the counseling.

On the issue of retroactive child support, Wife averred that she contributed to providing for the children during the separation period and trial for the divorce; yet, she was not seeing her sons. Husband pointed out that the guidelines for child support state a child support award is effective as of the date of separation unless there is a reason to deviate. The appellate court agreed with Husband's argument and found no reason to deviate from the guidelines. The trial court's decision was affirmed on this issue.

In determining Wife's final argument that the trial court erred in holding her responsible for one-half of the mortgage of the martial home in the event of foreclosure while awarding Husband said home, the appellate court found the trial court's opinion to be ambiguous. Father argued the divorce left him in financial ruin; Mother argued the trial court's opinion was inconsistent as it awarded Husband the home and the mortgage, but allowed that debt to come back on her in the event of a foreclosure. From the record the appellate court found that Husband had hidden assets during the divorce trial, finding he had approximately $200,000 in martial assets of which some were gambled away. The appellate court reversed the trial court's decision, stating Wife should be held harmless from any foreclosure debt on the marital home.


Recent Case Highlights Differences Between Alimony In Futuro vs. Alimony In Solido in Tennessee

In the case titled Holt v. Holt, No. W2012-00265-COA-R3-CV, 2013 WL 1577831 (Tenn. Ct. App. Apr. 15, 2013) Tennessee divorce attorneys learn the parameters for alimony in futuro and alimony in solido in Tennessee divorce matters.

Facts: Husband and Wife founded a large church in Memphis. The church grew throughout the marriage and at the time of the divorce was housed in a multi-million dollar facility. Both parties were well-educated. Husband filed for divorce in 2009; however, the case was dismissed for failure to establish grounds. In 2010, Husband re-filed. Wife requested temporary spousal support which the divorce referee awarded in the amount of $3,300 per month. The referee also ordered Husband to continue paying the marital bills. The trial court agreed and entered an order.

After litigation for over a year, Husband and Wife agreed that grounds for divorce existed pursuant to Tenn. Code Ann. § 36-4-129(b) upon stipulated grounds. After several bifurcated hearings, the trial court entered its final decree of divorce. The court decreed the following: Wife was awarded $274.82 per month of Husband's pension; Wife was awarded alimony in solido in the amount of $29,700 due to Husband's failure to make mortgage payments on the marital residence; Wife was awarded alimony in futuro in the amount of $2,500 per month; Husband was ordered to pay half of Wife's attorney's fees; and the court rejected Wife's request for Husband to pay for her COBRA insurance benefits. Both parties filed appeals.

Analysis and Conclusion: On appeal Husband argued that the trial court erred in awarding Wife alimony in solido in the amount of $29,700 and alimony in futuro in the amount of $2,500 per month. Conversely, Wife asked the court to review whether the trial court erred in not requiring Husband to pay for her COBRA benefits and only ordering Husband to pay half of her attorney's fees. She also argued that the trial court erred in not considering income generated through the church based on the theory that the church was an "alter ego" of Husband when determining the amount of alimony and the distribution of the marital estate.

In addressing Wife's "alter ego" argument, the trial court averred that Wife did not cite any applicable laws or make any legally based argument to support her position in her brief. The court cited Forbess v. Forbess, 370 S.W.3d 347 (Tenn. Ct. App. 2011) which determined that if a party does not cite to an authority or detail an argument in its brief then the issue is considered waived. Because there was no legal authority or argument contained in Wife's brief to the Court to support her position, the issue was waived.

Next, alimony in solido is a form of long-term support that can be paid in a lump sum so long as there is a definite term. Tenn. Code Ann. § 36-5-121(h)(1). This type of alimony is considered a final judgment and is only modifiable by agreement of the parties. Wife was awarded alimony in solido in the amount of $29,700 which equaled nine (9) months of mortgage payments that Husband did not pay resulting in the marital home's foreclosure. The trial court provided that Husband could pay this amount in installments of $500 per month with no interest until the balance was paid.

In determining if the alimony in solido awarded to Wife for the missed mortgage payments was a proper judgment, the Court of Appeals averred they could not find any support for the trial court's finding. During trial, Wife neither asked the court to award her monies for the missed mortgage payments, nor was there any indication in the trial court's record that the award was an attempt to adjust distribution of the marital estate. The appellate court determined there was no basis to award wife the $29,700 as alimony in solido. Therefore, the judgment was reversed and remanded. The other portion of alimony in solido awarded to Wife for her attorney's fees was determined to be within the trial court's discretion and, therefore, was affirmed.

According to Tenn. Code Ann. § 36-5-121(f)(1), alimony in futuro is appropriate in matters where a disadvantaged spouse with "reasonable effort" is unable to earn an income that would permit a standard of living commiserate with that of the standard of living during the marriage. Courts look at several factors in determining if a spouse is "disadvantaged" such as: education, financial resources and obligations, duration of marriage, minor children of the marriage, standard of living during the marriage, fault of the parties, physical condition of the parties, assets of the parties, etc.

Here, the parties were ages 64 and 57 respectively at the time of the divorce. Both had some minor ailments, but were in good physical condition. The couple was married for 24 years with Wife working alongside Husband to grow the church they started in 1989. While both parties were similarly educated, Husband had an income of $9,000 per month; however, Wife was fired from her position in the church in January 2010 and had not gained other employment. During the marriage the couple enjoyed an income as high as $13,000 per month which the court deemed Wife would not be able to replicate. The appellate court found that the trial court correctly determined Wife had a need for support and affirmed its ruling on the award of alimony in futuro in the amount of $2,500 per month.

In regards to the COBRA insurance, Tenn. Code Ann. § 36-5-121(k) allows a court to order a party to pay health insurance premiums, "in whole or in part," for as long as the court deems necessary and the award is deemed a formed of alimony. Based on this statute the appellate court found that the trial court did not abuse its discretion in its refusal to order Husband to pay Wife's COBRA premiums and affirmed the ruling.



Inequitable Property Division in Divorce Remedied by Motion to Alter/Amend

In the case titled Haggard v. Haggard, No. W2012-003600-COA-R3-CV, 2013 WL 2304186 (Tenn. Ct. App. May 28, 2013) Knoxville divorce attorneys learn what constitutes an equitable division of property in a divorce and when a Motion to Alter or Amend is appropriate post-judgment.

Facts: Husband and Wife were married for nine (9) years with no children. Wife filed for divorce in 2010; Husband responded with a counter-complaint. Wife entered a proposed division of marital property as an exhibit with the trial court requesting it award her a lump sum (or in monthly payments) for her marital share of the assets that she proposed be given to Husband.

The trial court took Wife's proposal under advisement. However, in its Final Decree it awarded marital assets valued at $119,847.49 (including three parcels of property) to Husband while only awarding assets valued at $16,598.01 to Wife with no mention of a monetary award for her marital share of the assets given to Husband.

Wife filed a Motion to Alter the Final Decree arguing that although she had not specifically asked for any of the property awarded to Husband she did not intend to forfeit her claim in said property. She also pointed out the proposed division of the marital property she entered with the court as an exhibit. As a remedy, Wife asked the court to award her unencumbered marital assets. Husband filed a response arguing that the division of property was equitable and no "mistake" was made in the final decree. He averred that under the Rules of Civil Procedure there were no grounds to alter or amend the final decree. The trial court stated that it misunderstood Wife's intention at trial regarding the marital assets and found the division to be inequitable. Therefore, it awarded wife a parcel of property valued at $47,000 with no debt. Husband appealed.

Analysis: On appeal the appellate court had to determine whether the trial court abused its discretion when awarding Wife additional real property, without additional proof presented, based on the trial court's misunderstanding of Wife's intention at trial in regards to marital assets.

Husband argued that the division of the marital property was equitable when factoring in the award of alimony ($450 for 24 months) and attorney's fees (approximately $5,000) awarded to Wife. Husband also pointed out that Wife had no debt. The appellate court did the math which showed Wife's total share of the marital assets as $36,297.51 once the alimony and attorney's fees were added. The court conceded that an "equitable" division of marital property does not have to balance mathematically; however, it stated that the division of assets in this case was "plainly inequitable."

Husband also argued that the trial court abused its discretion in allowing Wife's Motion to Alter or Amend. He averred that in the motion Wife spoke of her "intention" regarding the marital property which was new evidence after the final order was entered in the case. The appellate court pointed out that Husband never asked for an evidentiary hearing from the trial court on the matter.

The appellate court quoted Tennessee case law stating a Motion to Alter or Amend allows a trial court to amend a judgment to correct an error or prevent injustice to a party. Its purpose is to allow trial courts, when it has overlooked or failed to consider important matters, to fix its errors to prevent unnecessary appeals.

Conclusion: The appellate court found that the initial division of marital property was inequitable and the trial court did not abuse its discretion in allowing Wife's motion to amend. The trial court's opinion was affirmed with costs of the appeal taxed to Husband.


What's the Difference Between an Agreed and Contested Divorce in Tennessee?

Many people that call my law firm or are searching for information online have the same question - what is the difference between an Agreed and a Contested divorce action?

As a starting point, a typical "Agreed" divorce is one in which both spouses either want or are willing to agree to the divorce itself, have discussed and agreed upon a division of all assets and debts and if children are involved, they agree upon a co-parenting schedule. On the other hand, a "Contested" divorce action arises under many different scenarios. A Contested action simply means that one spouse is seeking a divorce from the Court but no predetermined agreement has been reached. Unless the spouses can agree on every single issue, a Contested divorce may be necessary. For example, a Contested divorce may arise under the following circumstances:
• One spouse cannot be located
• The parties may agree on how to divide assets and debts but not on co-parenting, or vice versa
• One spouse does not want a divorce
• The spouses cannot come to a resolution on any one single issue, such as how to divide retirement or what to do with the marital home
• One spouse is nonresponsive and refuses to discuss settlement or refuses to sign the required paperwork for an Agreed divorce

A Contested divorce is initiated by the filing of a Complaint and possibly a Proposed Parenting Plan. The Defendant then has thirty days to file an Answer and/or hire a lawyer. Once the Answer is filed, the attorneys may engage in negotiation or exchange of discovery. In a Contested action, if no settlement can be reached outside of Court, mediation is required. Mediation is an informal settlement conference where a neutral party (the mediator) facilitates settlement between the parties. If no agreement is reached, the parties will proceed with a trial. At trial, the Judge will decide upon any and all issues that the parties cannot agree upon, from the co-parenting schedule, to which party gets what furniture, to how debts will be paid.

A typical Agreed divorce only involves one lawyer, but that lawyer only represents one spouse, not both. If the other spouse desires legal advice, they must seek out their own representation. Once both spouses have signed the necessary paperwork, a Final Hearing is held where the Court declares the parties divorced.

If you have further questions, feel free to give us a call for a free phone consultation at (865) 566-0125.