July 2013 Archives


Recent Opinion Shows That Not Every Bias, Partiality or Prejudice Warrants Judicial Recusal in Tennessee Divorces

In the case titled Phillips v. Phillips, No. E2013-01433-COA-10B-CV 2013 WL 3462731 (Tenn. Ct. App. July 8, 2013) Knoxville divorce attorneys learn when it is appropriate for a judge to be recused or disqualified from a matter.

Facts: Husband and Wife divorced in May 2010. In a petition for contempt in July 2009, the court stated on record, "I must say I've rarely heard from a witness who has less credibility than the husband in this case, and there's no doubt in my mind that he's in contempt of Court." Husband was held in contempt on this matter, but it was later overturned upon Husband's filing a motion to amend or alter the contempt order.

In August 2011, Wife filed a new petition for contempt. Husband followed with a motion to recuse the trial court judge. Husband averred he found an email on or about April 10, 2013 (written in September 2010) from his ex-Wife to him stating her father "is friends with every judge in Chattanooga" and that the trial court judge presiding over their divorce "hates you and the judge will gladly throw the book at you." Husband included the email in its entirety with his motion along with an affidavit.

In his affidavit, Husband stated that Wife's father (Mr. Walker) had been an attorney for 46 years in Chattanooga and was very well connected with judges and attorneys. He averred that he felt Mr. Walker's presence at the contempt hearing in 2009 influenced the trial court judge's decision which was later overturned. Husband explained that he did not find the email until he was deleting his email account. He further averred that when he found the email it jogged his memory of a threat Wife made to him toward the close of mediation during the litigation of his divorce. He stated that Wife advised him he "had best take the offer" and if he did not or became a problem "she, along with her father, her attorney, and the judge would come together and have [him] thrown in jail." Based on the email, Husband's recalled conversation with Wife, and prior experience in the courtroom, Husband stated he was "very fearful of a biased and unjust outcome" if the trial court judge remained on the matter for the new petition for contempt.

In response to Husband's motion to recuse, Wife asserted that she did not send the email attached to Husband's motion. Wife attached a printout of all the emails she sent from the email account in question from August 2010 through October 2010 with an affidavit attesting to its accuracy. In the affidavit Wife averred she neither sent the email nor authorized anyone else to send the email, and even if she did send it, the email was inadmissible as hearsay.

At the hearing for the motion to recuse, Wife's attorney stated she never made the comments attributed to her in the email, and the trial judge averred she did not know Wife's father. The judge further stated that she did not even remember the case except for "some pictures on the wall," and there was no reason to recuse herself. The judge entered an order denying the motion on June 3, 2013. Husband appealed the decision.

On appeal Husband argued that given the "totality of circumstances" the trial court judge "harbor[ed] some sort of bias against [Husband] such that she would not be able to rule impartially in this matter." He further stated that even if the judge had no actual bias against him "a person of ordinary prudence in the judge's position could find a reasonable basis for questioning the judge's impartiality."
Analysis: After reviewing the initial petition and supportive documentation, the appellate court determined that no further briefs or oral arguments were necessary for it to determine the matter pursuant to Tenn. Sup. Ct. R. 10B § 2.03. This rule allows the appellate court to act summarily on an appeal without answer from the other parties if it deems the initial filing to be sufficient. It also cited Tenn. Sup. Ct. R. 10B § 2.01 which allows for "an accelerated interlocutory appeal as of right."

To determine if the judge in this matter should be recused, the appellate court looked to the Tennessee Supreme Court Rules, case precedent, the Tennessee Constitution, and Tennessee statutes. The Tennessee Constitution states in relevant part:

No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior Court, except by consent of all the parties.

Further, Tenn. Code Ann. §17-2-101 provides the parameters in which a judge should recuse himself or herself from a matter unless there is an agreement by the all the parties. It states if a judge has an interest in the outcome of the case, if a judge is connected via "affinity or consanguinity, within the sixth degree," if the judge has ever been counsel on the matter, if the judge ever presided over the case in a lower court proceeding, or if the judge is presiding over a felony criminal matter and is related to the victim of the crime "by affinity or consanguinity within the sixth degree" then they should be recused from presiding over the matter.

Actual impartiality is not the only consideration in regards to a judge's recusal. Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998) states, "preservation of the public's confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." Tenn. Sup. Ct. R. 10 § 2.11(A) also requires a judge to recuse himself or herself "in any proceeding in which the judge's impartiality might reasonably be questioned." Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011) further expounded on this rule by stating, "the judge's impartiality might be reasonably questioned because the appearance of bias is as injurious to the integrity of the judicial system as actual bias."

However, Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994) stated "not every bias, partiality, or prejudice merits recusal." It further defined prejudice as:

[P]rejudice must be of a personal character, directed at the litigant [and] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from...participation in the case. [However,] if actual bias is based upon actual observance of witnesses and evidence given during the trial, the judge's prejudice does not disqualify the judge.

It is also important to note that an unfavorable ruling by a judge, even if erroneous, does not amount to disqualification or recusal without more evidence to suggest otherwise. Alley, 882 S.W.2d at 821.

The only evidence Husband produced to prove the judge's bias was an email that Husband averred Wife sent, a recalled conversation by Husband, and the contempt charge the trial court judge ordered against him. Wife swore in an affidavit that she did not send the email and submitted proof of her sent emails from the email account in question. Wife's attorney also stated in open court that she did not say the things attributed to her in the email Husband produced. The appellate court averred that the email, even if it were sent by Wife, were simply idle threats in which the judge's name was invoked without her knowledge, and, therefore did not amount to bias either actual or inferred as outlined in Tennessee case precedent, court rules, and statutes.

Conclusion: The appellate court found that Husband's appeal did not demonstrate error and affirmed the trial court's decision to deny the motion to recuse. Husband was taxed for the costs of the appeal.



Father's Obligation to Pay For Private School Reversed; Award of Attorney's Fees Denied to Mother Due to Allocation of Assets

In the case titled Kraus v. Thomas, No. M2012-00877-COA-R3-CV, 2013 WL 2612458 (Tenn. Ct. App. June 7, 2013) Knoxville family lawyers learn when an upward deviation of child support is appropriate regarding educational expenses as well as what test should be applied when ordering a party to pay attorney's fees.

Facts: Husband and Wife were married for fifteen years and had four minor children ages 12, 10, 8, and 7 at the time of their divorce. In its Final Order, the trial court decided the following:

• Wife was designated the primary residential parent ("PRP") and awarded Wife 280 days of parenting time per year and Husband 85 days;
• Wife was awarded sole decision-making regarding the children's non-emergency health care and extracurricular activities and the children's education including whether they would continue to be enrolled in private school, and the parties were awarded joint decision-making regarding religious upbringing;
• Husband was ordered to pay $625 per month in child support until the youngest child finished pre-school at which time it would increase to $1,252 per month; Husband was also ordered to make an application for financial aid for the children's private schooling;
• Husband and Wife were ordered to seek financial assistance to cover further expenses for private schooling from an irrevocable trust for which Husband and the children were beneficiaries. (If the Trustee did not cover the full balance for the private schooling it was ordered that Husband pay 75% of any remaining cost or $16,875, whichever was less, per school year for the three oldest children); Wife was required to pay any additional expenses associated with private schooling over and above the court's ruling on the matter;
• Wife was awarded 60% of the marital property and Husband was ordered to pay Wife's attorney's fees of $50,000.00.

Husband appealed the trial court's ruling in regarding the expenses for private school and the award of attorney's fees to Wife.

Analysis & Conclusion: On appeal, Husband argued the trial court erred in ordering him to pay an upward deviation in child support to accommodate private school expenses and did not apply and/or consider Tennessee Child Support Guidelines in its decision on same. Father argued that the trial court's decision regarding these expenses represented more than one-fourth of his gross income.

A court may order a deviation on the amount of child support so long as the deviation complies with Child Support Guidelines and the amount of the deviation is within the scope of the court. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). However, the court must stipulate in its order the reason for the deviation and the amount the child support would have been without the deviation. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). The court must also explain how the application of the presumptive amount of child support was not appropriate in the matter, and how the deviation supports the best interests of the child(ren). Tenn. Comp. R. & Regs. 1240-2-4.07(1)(a)-(c).
When a trial court deems a deviation from the presumptive amount of child support to be appropriate, it must consider all income of the parents. It must also make a written finding that the deviation is reasonably necessary to provide for the needs of the children. Tenn. Comp. R. & Regs. 1240-2-*4-.07(2(a) (2008).

The Tennessee Child Support Guidelines specifically address extraordinary educational expenses, and allow these expenses to be added to a child support order as a deviation. However, to determine the amount of the deviation, the Guidelines provide that any "scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child shall be considered." Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d).

The appellate court here noted that the trial court never referenced the Tennessee Child Support Guidelines in its order, only mentioning that private school was in the best interest of the children. It also found no analysis for the deviation by the trial court as is required by the Guidelines. Because of this, the appellate court had to determine if the facts supported a deviation for the extraordinary educational expense should the Trust not cover all of the private school expenses for the children.

The appellate court determined that Husband had a monthly gross income of $4,138.55 plus $1,083 in monthly IRA distributions. This made his monthly gross income $5,221.55 or $62,658.60 annually. It also factored his child support obligation of $1,252 per month ($15,024 annually), his obligation to pay life insurance premiums ($4,400 annually), his obligation to pay one-half of summer camp expenses for the children ($2,465 annually), and his obligation to pay one-half of any out-of-pocket medical expenses for the children ($600 annually). When adding these expenses together, Husband's annual obligations totaled $22,500. The court determined that Husband's potential obligation for private schooling would be $16,875 for the older three children. This would make Husband's total annual obligation $39,000 if the cost of private schooling was added. The appellate court determined this to be 74% of Husband's net income ($52,220). The Court of Appeals determined that this percentage was not appropriate and reversed the upward deviation for private schooling.

On the issue of attorney's fees, Husband argued that the trial court erred in ordering him to pay Wife's attorney's fees of $50,000 from his share of the marital property.

An award of attorney's fees is appropriate when a disadvantaged spouse's income is not sufficient to cover the costs. This type of award is treated as alimony in solido, and trial courts are given wide discretion when awarding it. When alimony issues are on appeal it must be proven that the trial court abused its discretion in its award. To prove abuse of discretion it must be shown that an incorrect legal standard was used, an illogical result was reached, there was an erroneous assessment of the evidence, or the trial court relied on reasoning that caused an injustice to a party.

During trial, it was determined that Wife did not have the income to pay for her attorney's fees; however, she was awarded 60% of the marital property including 60% of the cash proceeds from the sale of the marital home valued at $207,033.95. The appellate court also noted that Wife's income was more than Husband's. For these reasons, the appellate court found that the trial court made an erroneous assessment of the evidence and reversed the award of Wife's attorney's fees.


Dismissal of Petition May Lead to Payment of Attorneys Fees

In the case titled Sparkman v. Sparkman, No. W2012-00405-COA-R3-CV (Tenn. Ct. App. June 27, 2013) Knoxville divorce attorneys learn when it is appropriate for a party to pay another party's attorney's fees relative to parenting plan modifications and what constitutes "reasonably necessary" in regards to out-of-pocket medical expenses for children as provided for in a parenting plan.

Facts: Mother and Father married in 1997 and had two children. The couple divorced in 2009 when the children were ages four and two. Wife was named the primary residential parent with Husband receiving parenting once or twice per week as well as every other weekend.

Three months after the divorce, Mother filed a petition for an emergency suspension of Father's parenting time and an ex parte order of protection (OP) alleging that Father had sexually abused their daughter and potentially their son. The Department of Children's Services (DCS) did an investigation and found Mother's allegations to be unfounded. After a hearing on the matter, the trial court threw out the ex parte OP and dismissed Mother's complaint.

Mother then filed a petition in general sessions court seeking an OP alleging sexual abuse on behalf of her daughter. An ex parte OP was entered; however, later in the proceedings Father was permitted supervised visitation with the children. Mother filed a motion to cease visitation with Father, but the general sessions court found that the allegations of sexual abuse against Father had not been proven. Accordingly, it dismissed Mother's petition. Mother appealed the decision, but later dismissed it.

In October 2009, Mother filed a petition for contempt against Father alleging he had not paid expenses required by their parenting plan. She also sought an award for her attorney's fees. Father filed an answer and counter-petition for contempt against Mother. He alleged Mother was denying him visitation with his children and had made false accusations of sexual abuse against him demonstrating a "severe lack of parental judgment." He averred that Mother's actions constituted a material change in circumstances and asked the court to name him primary residential parent (PRP) of the children. At the time of depositions for the contempt petition, Father abandoned his request to be designated PRP for the children. However, he continued to seek a modification of the parenting plan regarding the requirement for him to pay for extracurricular activities, out-of-pocket medical expenses, and private school expenses. Mother amended her petition for contempt to include additional expenses that she alleged Father had not paid that was covered by the parenting plan. In July 2010 Wife filed a petition to modify the parenting plan seeking to reduce Father's parenting time with the children and increase his child support obligation.

In November 2011 the trial court entered its ruling on the matter finding that Father was in willful civil contempt for his failure to pay $8,218 in private school expenses, $600 in extracurricular activity expenses, $99 in out-of-pocket prescription costs, and $3,462 in uncovered counseling sessions for the children regarding the alleged sexual abuse by Father. Father's request to modify the parenting plan regarding these expenses was denied. Mother was not found in contempt for her alleged withholding of parenting time from Father as the court stated there was no proof "that she did not act in good faith based on the information she had before her." The court modified the parenting plan taking Father's weeknight visitation with the children away from him. The child support payment was recalculated and increased according to both Mother's and Father's increased incomes. Father was relieved of the duty to pay for Mother's Day Out expenses as the children were then in school. Father was also ordered to pay $14,000 of Mother's attorney's fees. Father appealed the trial court's decision.

Analysis: In Father's appeal he asserted the trial court erred in requiring him to pay for counseling for the children regarding Mother's unfounded allegations of sexual abuse and in ordering him to pay $14,000 of Mother's attorney's fees when he withdrew his petition for custody.

Regarding the children's counseling fees, Father argued he should not have to pay for the sexual abuse counseling when the allegations were found to be unfounded. The appellate court reviewed the couple's parenting plan which stipulated that Father would pay for "[u]ncovered reasonable and necessary medical, dental, orthodontic, and optical expenses, which may include but is not limited to, deductibles or co-payments ... and counseling..." Mother argued that the Department of Children's Services (DCS) recommended the counseling for the children and she was following its directive in placing the children in counseling.

Father asserted that Mother fabricated the sexual abuse allegations following a dispute over an income tax refund. The trial court stated, "The Court does not believe that the tax refund and the [s]exual [a]buse allegations are connected ... I believe that the mother told the truth when she said what she said that the child may have said to her." The appellate court found Mother to have followed the proper procedure in regards to sexual abuse allegations; therefore, the counseling for the children recommended by DCS was both reasonable and necessary, as required by the parenting plan.
An award of attorney's fees is within the discretion of the trial court. The trial court's decision on this type of award is upheld in appellate proceedings so long as there is no abuse of the trial court's discretion. In the case at bar, Mother requested attorney's fees in regards to her petition for contempt and petition to modify the parenting plan and late-filed an exhibit containing her attorney's affidavit and itemized billing statement. The attorney showed 79.6 in billable hours and fees and expenses over $21,000.

The trial court's record showed that it awarded Mother her attorney's fees because she was successful in the court proceedings. The trial court stated in a letter attached to its final order that while Father withdrew his petition for custody, done right before trial resulting in Mother's attorney fees. Father argued that the court did not award attorney's fees because Mother was successful in the petition. Instead, he averred the award was because he withdrew his petition. He further explained that Mother left him with no choice but to file the petition for custody due to her allegations of sexual abuse, and he dropped the petition when Mother stopped making her accusations. Mother argued that the award was proper pursuant to Tenn. Code Ann. 36-5-103(c) because she was forced to defend Father's petition for custody and was attempting to enforce the parenting plan already in place.

The appellate court found the trial court to have awarded Mother her attorney's fees, because she was required to initiate the proceedings to enforce the support order of the court and to defend Father's custody petition. It stated that Tenn. Code Ann. § 36-5-103(c) has been interpreted to allow "attorney's fees to a party defending an action to change a prior order on the theory that the defending party is enforcing the prior order." Hansen v. Hansen, No. M2008-02378-COA-R3-CV, 2009 WL 3230984, at *3 (Tenn. Ct. App. Oct. 7, 2009) citing Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 2007). It further stated that an award of attorney's fees is appropriate when a party voluntarily dismisses an action prior to a hearing.

Conclusion: The appellate court found the counseling sessions for the children to be reasonably necessary, and found that the trial court did not abuse its discretion in its award of attorney's fees to Mother. The trial court's rulings were affirmed and remanded back to the trial court.


New Change in Tennessee Statute Tightens Requirements for Notice of Parental Relocation

Knoxville family lawyers and clients need to know about a recent change to an important state statute.

T.C.A. §36-6-108 governs the processes and procedures for co-parents who want or need to relocate outside of Tennessee or more than 100 miles from the other parent. The statute requires the parent desiring to relocate to send the other parent notice sixty (60) days prior to the move. That notice must contain the following information: (1) statement of intent to move; (2) location of proposed new residence; (3) reasons for proposed relocation; and (4) a statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice. Then, if there is no agreed upon schedule or consent to the move, litigation ensues. Either the relocating parent must file a Petition to Modify the Parenting Plan or the parent opposing the move must file a Petition in Opposition to the Relocation.

However, as of July 1, 2013, this statute will begin be applicable to all relocations that are 50 miles from the other parent, instead of 100 miles. This could mean that more parents will have to either agree upon or litigate new parenting plans. See the new statute change here.

If no agreement is reached, the statute tells trial courts to "consider all relevant factors, including the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation."

Those factors can include: (1) the history of visitation; (2) If the primary residential parent, is likely to abide by a new schedule; (3) The love, affection and emotional ties; (4) Ability of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (5) Continuity; (6) Stability of the family unit; (7) The mental and physical health of the parents; (8) The home, school and community record of the child; (9) (A) The reasonable preference of the child if twelve (12) years of age or older; (B) The court may hear the preference of a younger child upon request. (10) Physical or emotional abuse to the child, to the other parent or to any other person; and (11) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child.

Of course, mediation will still be required by the Courts before a trial unless exigent circumstances exist.