Rare Tennessee Case Where Primary Parent Designation is Split Between Siblings

June 14, 2013
By The McKellar Law Firm, PLLC on June 14, 2013 7:53 AM |

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.