September 2013 Archives

Court's Refusal to Grant Continuance Due to Counsel's Conflict of Interest Found To Be Reversible Error

September 20, 2013 by The McKellar Law Firm, PLLC

In the case titled In re: M.J.H, Hart v. Lewis, NO. W2012-01281-COA-R3-JV Slip Copy, 2013 WL 3227044 (Tenn. Ct. App. June 25, 2013) Knoxville family law attorneys learn what constitutes a conflict of interest in a custody matter and when it is appropriate for a court to continue a matter when a conflict of interest for an attorney arises.

Facts When M.J.H. was conceived Mother was married; however, she was also having an extramarital affair. She did not believe her paramour to be the biological father of M.J.H. as he told her that he had a vasectomy. For the first two years of M.J.H.'s life, Mother and her husband raised the child together. After two years Mother and her husband commenced divorce proceedings. DNA testing was done, and the paramour was proven to be the biological father. Mother filed a parentage petition in juvenile court asking for DNA testing, to establish a biological father, designate Mother as the primary residential parent, grant Father supervised visitation, and set support. Prior to the hearing, the parties separated and Father hired his own attorney.

At the hearing, Mother's attorney explained that he had a conflict as he had met with both Mother and Father in the early stages of litigation when it was thought the petition was agreed upon. Opposing counsel advised the court that he would not object to a continuance to allow Mother to retain new counsel. Mother's counsel also advised the court that he was representing both Mother and her husband in their agreed divorce, and that while the divorce was almost complete, this created another conflict with the juvenile court litigation.

Despite this information, the trial court held a hearing, with no no sworn testimony, exhibits, or evidence. Instead the hearing was held as a conversation between the judge, attorneys, and clients. On several occasions, Mother's attorney requested the court to enter temporary orders of support and visitation, so the parties could have time to discuss the issues further. However, the court decided to proceed stating there was "no sense in us coming back if we can get it done right now." The court then created a parenting plan appointing Mother as the primary residential parent and granting father visitation; Father was established as M.J.H.'s biological father; M.J.H.'s surname was changed to Father's last name despite this not being part of the petition, and child support was set at $383 per month despite no evidence of Father's income being shown. A child support arrearage was determined by the court to begin when Mother left Father's home. The court then instructed the parties to let it know if they disagreed with any of the information as it was going to make these items an Order of the court. At that point, Mother's attorney again tried to get the court to recognize his conflict of interest in the matter; however, the trial court ignored it.

About a month later, Father filed a Motion for Contempt, averring Mother had not changed the child's last name per the court's order. On the same day, Mother's attorney filed a Motion to Withdraw. Mother hired new counsel who filed a Petition to Vacate the court's order pursuant to Rule 34 of the Tennessee Rules of Juvenile Procedure. Mother cited the following as reasons for the court's order to be vacated: the order was not final because she did not sign it; Attorney's signature on the order was not valid as he was not representing her at the hearing; Mother never received a copy of the order; Father did not submit proof that changing M.J.H.'s last name was in the child's best interest; the child support arrearage was not valid; the court failed to issue written findings as required in regards to its deviation from child support guidelines for the arrearage amount; the child support obligation was set based on incomplete and/or erroneous information and should be reconsidered.

At the beginning of the hearing on the matter, the trial judge let Mother know he was not receptive to her petition. He then recapped the prior hearing from which the order originated and advised Mother that the prior attorney did represent her interests at the hearing. He further pointed out that Mother did not object to her representation at that time, and the prior attorney did not withdraw from the case until two months after the hearing.

The Judge inaccurately stated that the burden of proof was on Mother to show that it was in the best interest of the child not to change the last name of M.J.H. Mother's new attorney respectfully disagreed and pointed out that the burden was actually on Father. Mother's attorney further averred that the order to change the name had to be vacated because it was not relief sought in the parentage petition, and Father did not submit any evidence to support his position.

Moving forward, the Court advised Mother, "[w]ell, it's your motion to modify the child support. You should have the proof with you to show that what he is entering is not right." Mother's attorney attempted to correct the court, advising that Mother's petition was to vacate, not modify. The judge then denied Mother's petition in its entirety, and changed M.J.H.'s surname to Lewis (Father's last name). Mother appealed the decision.

While the appeal was pending and more than one year after the appeal was filed, the trial court filed an eighteen page order titled "Amended Finding of Fact and Response to the Finding of Fact and Order of April 25, 2012." In this order the trial court averred that it had listened to recordings of the original hearing when Mother's attorney attempted to withdraw, and it realized the order entered from that hearing should have been an agreed order instead of just an order. It went on to explain its impressions and reasons from that trial in detail which were not explained during the hearing.

Mother then filed a motion with the appellate court asking it to supplement the appellate record with the new order and strike the order for lack of jurisdiction. The appellate court ordered Father to file a response to Mother's motion and gave additional time at oral arguments to address the issue.

On appeal the appellate court had several issues to decide with the most prudent being whether the trial court should have proceeded in a hearing regarding paternity when Mother's attorney attempted to withdraw due to a conflict of interest after having conferred with both Mother and Father when the parentage petition was agreed upon.

Mother based her motion to vacate on Rule 34 of the Tennessee Rules of Juvenile Procedure. This rule permits relief from judgment or orders when there are the following: if the order was obtained via fraud or mistake; clerical error; if the court did not have proper jurisdiction over the matter; or if there was a change in circumstances regarding the best interests of the child. Rule 60 of the Tennessee Rules of Civil Procedure also governs relief from judgments or orders. Rule 60.02 gives five grounds on which relief may be sought:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Fraud,...misrepresentation, or other misconduct of an adverse party;
3. The judgment is void;
4. The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or
5. Any other reason justifying relief from the operation of the judgment.

When reviewing a denial of a motion for relief from a judgment by a trial court, the appellate court follows Rule 34 of Tennessee Rules of Juvenile Procedure or Rule 60.02 of Tennessee Rules of Civil Procedure which dictates an abuse of discretion standard. This is defined as only being found when "...the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party."

The appellate court found that Mother's attorney had an obvious conflict and was correct to request to withdraw from the matter and that the trial court committed error in "steamrolling" through the hearing despite having this information.

Father's argument that Mother did not object to the hearing proceeding was rejected by the appellate court as Mother was not a pro se litigant, because the court did not permit her attorney to withdraw. Therefore, she could not have objected.


The appellate court found the trial court to have abused its discretion in refusing to continue the hearing to allow Mother's attorney to withdraw and Mother to retain new counsel. Therefore, the order from the hearing was vacated and the trial court's denial of Mother's motion to vacate was reversed.

Tennessee's "Law of the Case Doctrine" Prevents Issues From Being Appealed More Than Once

September 16, 2013 by The McKellar Law Firm, PLLC

In the case of Leeper v. Leeper, No. E2012-02544-COA-R3-CV (Tenn. Ct. App. Sept. 13, 2013), Knoxville divorce attorneys learn that 1) appellate issues may not be re-raised in subsequent appeals and 2) failure of a parent to obtain an agreement does not relieve the other parent from having to pay a child's medical expenses.

The parties divorced in 2005, at time when the children of the marriage were minors. The trial court allowed Mother to relocate the children to Texas. Father subsequently filed several contempt petitions allegation parental alienation. In 2006, all parties were ordered to have psychological evaluations done, a cost of $14,400, with each party ordered to pay half. The trial court also stated that unless it "clearly appears" that one party was the "sole precipitating factor of the current state of events" the cost would be split equally as previously ordered. After completion of the evaluations, Father was named primary residential parent "PRP" and although the trial court described the psychologist's report as "not one sided," the court ordered Mother to pay the balance of the bill. Mother appealed. In 2008, the Court of Appeals vacated the trial court's designation of Father as PRP because Father had not requested to be PRP in the proceedings. On remand, special master was appointed to address the parties' financial issues. The special master determined that Father owed $13,000 in child support and unpaid medical expenses, even though Father objected to many of these expenses. The trial court partially modified the special master's finding regarding one bill (allocating it to Mother instead of Father) but otherwise accepted the special master's findings which resulted in judgment against Father of $11,000, $9,000 of child support and $2,000 of medical bills. Father appeals.

Analysis and Conclusion
Father argues that Mother should pay the whole fee for the psychological evaluation due to her interference with his co-parenting, which caused the evaluation to be necessary. Here, the final order directing how the fee would be paid was in a 2007 order, which was subject to a previous appeal to this court and which has not been raised in this second appeal. This second appeal only addresses a November 2012 order that only touches upon child support and medical bills. This November 2012 order never references the evaluation fee. Under the "law of the case doctrine," the Appeals Court may not reconsider an issue that has been decided in a prior appeal of the same case. This doctrine also "applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication." Here, the issue of the evaluation fee was first decided by the trial court by order entered in 2007; then that order was subject to an appeal and appellate decision handed down in 2008. Father's failure to raise the issue of allocation of the evaluation fee in the 2007/08 appeal bars him from doing so now.

Regarding the medical expenses, Father argues Mother failed to obtain his agreement prior to incurring the expenses and therefore he is not liable for them. After review of the record, the Appeals Court found that even if Mother failed to consult with Father before incurring the expenses, that action would not serve to relieve his responsibility to pay them, and that issue is without merit.

New Standard for Modifying or Terminating Grandparent Visitation in Tennessee

September 12, 2013 by The McKellar Law Firm, PLLC

Grandparent's rights have always been a gray area of family law in Tennessee. However, on September 6, 2013, the Tennessee Supreme Court made a unanimous ruling that may clear up some of the confusion.

It has always been the standard that parents have "superior parental rights" in initial proceedings to determine if grandparent's visitation rights are appropriate. In order to overcome this, a grandparent must prove to the court that if the parent(s) oppose the visitation, that the child will "suffer substantial harm" if visitation with the grandparent is denied, and the visitation is in the best interest of the child. The new ruling set a precedent that while parents enjoy these "superior parental rights" in the initial proceedings for grandparent visitation, they do not carry over to subsequent proceedings to modify or terminate grandparents' visitation rights.

In the case at bar, Neal Lovlace et al. v. Timothy Kevin Copley (Tenn. Sept. 6, 2013) the grandparents were given court-ordered visitation with their grandchild. Soon after the order was entered, tension between the parents and grandparents grew to the point that the grandparents petitioned the court for more time with the child. In response, the parents asked the trial court to terminate the grandparents' visitation altogether. The trial court refused to terminate the visitation, but also refused to extend any more time with the children to the grandparents. It was reasoned that the deterioration of the relationship between the parents and grandparents amounted to a "material change in circumstances." It was further found that the best interest of the child would be best served by minor changes to the visitation arrangement. This decision was appealed, and the Court of Appeals reversed the trial court's judgment citing the parents' "superior parental rights" were not properly weighed in the case. The decision was again appealed to the Supreme Court which ruled the trial court made the right assessment and reinstated its judgment.

The impact of this judgment will be known in the coming months, but it is safe to assume that parents can no longer rely solely on their role as a parent in regards to termination or modification of grandparents' visitation rights. Parents and grandparents will now be on equal footing when attempting these types of modifications or terminations.

Rehabilitative Alimony May Be Modified Post-Divorce if Economic Rehabilitation Not Feasible

September 4, 2013 by The McKellar Law Firm, PLLC

In the case titled Owens v. Owens, No. 2012-01186-COA-R3-CV 2013 Slip Copy, WL 3964793 (Tenn. Ct. App. July 30, 2013) Knoxville divorce attorneys learn when it is appropriate for a rehabilitative alimony award to be modified to alimony in futuro.

Facts: Husband and Wife were married 25 years and divorced in 2004. As part of the divorce, Wife was awarded rehabilitative alimony. An appeal of the trial court's decision resulted in a change to the original division of marital property and increased the amount and duration of the alimony through November 2012.

In 2009, Wife filed a petition requesting the court to increase her alimony or change the award to alimony in futuro. To support her argument, Wife asserted she was unable to support herself selling real estate or teaching yoga classes. She averred she had to increase her credit card debt and borrow money from family in order to pay her living expenses while Husband had fewer expenses and a more disposable income.

A trial was held on Wife's petition in 2011. At the time, Wife was 62 years old. Wife provided proof to the court of her attempts to support herself through selling real estate and teaching yoga. She provided evidence of real estate classes and renovation bills to turn her pool house into a yoga studio. When this did not work, Wife rented the pool house for $700 a month. However, her mother became ill and was unable to pay for in home care, so Wife let the tenant go to allow her mother to move in so she could care for her. As further proof of her financial dilemma, Wife introduced a statement of monthly income and expenses an increase from the statement included with her original petition of more than $3,000 per month. These expenses did not include a mortgage or car payment as both were already paid in full.

In 2012 the trial court issued its Memorandum and Order denying Wife the relief she sought citing that she did not meet the preponderance of evidence standard. It further stated that Wife did not exhaust all reasonable efforts to support herself. However, the trial court did find Wife to have a need for continued alimony and kept her current award in effect. Wife appealed this decision.

Analysis & Conclusion: In the case a bar, Wife sought to extend her rehabilitative alimony or convert it to alimony in futuro. Tenn. Code Ann. ยง 36-5-121(c)(2) states that the court has discretion to control the duration, increase, decrease, termination, modification, or extension of rehabilitative alimony. It further states that the burden of proving reasonable efforts lies on the receiving party in order to show the court a need for an extension or increase of same.

The Tennessee Supreme Court has added that once an award of alimony has been made, it can be modified if it is shown to the court that the receiving party's prospects for rehabilitation have materially changed. If it is deemed by the court that the party cannot feasibly rehabilitate, the trial court can convert the alimony award to alimony in futuro. The standard for rehabilitation, as provided by Tennessee statute, requires the disadvantaged party, through reasonable efforts, to reach an earning capacity that permits the party to enjoy a reasonably comparable standard of living to that which was enjoyed when married. The Tennessee Supreme Court has also explained that a material change in circumstances occurs when an unanticipated change happens after the initial award has been granted by the court.
In this case, the trial court found that Wife had a continuing need for alimony and limited job skills. The appellate court agreed with these findings. At trial, it was learned that Husband earned a significant income and had the likelihood of continuing to earn same. Wife had not worked outside the home since 1980.

In considering these factors, the appellate court found Wife to have made reasonable efforts to rehabilitate by selling real estate, but, due to the market, she was unable to do so. It also considered her age and skill set and found that she did not have the capacity to earn a living comparable to that which she enjoyed when married. Therefore, it was determined that the modification from rehabilitative alimony to alimony in futuro was appropriate and within the court's discretion.

However, when looking at Wife's assets, the appellate court saw that Wife was awarded a partial interest in a real estate company that had the potential to produce rental income. It was also found that when Wife's mother moved in with her, Wife could then rent her mother's home for additional income.

For these reasons the appellate court modified the alimony award to alimony in futuro, and modified the amount from $3,000 per month to $2,000 per month.