Knowledge Key in Tennessee Child Support Arrearage Case

August 1, 2011 by The McKellar Law Firm, PLLC

In Burnine v. Dauterive, No. W2010-02611-COA-R3-JV, 2011, WL 3115967 (Tenn. Ct. App. July 27, 2011), the Tennessee Court of Appeals held that a father did not owe retroactive child support payments when he the mother falsely claimed that the child passed away a few weeks after birth.

In 1992, Victor Dauterive ("Father") and Teresa Burnine ("Mother") had a brief relationship, during which Mother became pregnant and had a child ("Daughter"). Father visited Daughter until Mother lied to Father, claiming Daughter died of Sudden Infant Death Syndrome. Father asked about the funeral, but Mother informed him that she had moved and had already taken care of it.
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Due to Mother's drug and alcohol problems, her grandmother gained custody of Daughter. In 2004, Daughter told her grandmother that she wanted to meet Father. Once Father was notified that Daughter was still alive, a Louisiana court held that Father was Daughter's biological father and ordered him to pay child support, which he did. Father then moved to Tennessee to be with Daughter and petitioned the Gibson County Juvenile Court for primary residential parent status. Daughter's grandmother then filed her own, seeking retroactive child support from Father preceding the Louisiana's court order from 2007. Father was awarded custody of Daughter, but was also required to pay the grandmother $40,950 in retroactive child support. Father appealed the juvenile court's decision.

According to Tenn. Code Ann. § 36-2-311(a)(11)(A), a court should consider extent of the father's knowledge that he had a child, the extent to which the mother intentionally failed or refused to notify the father of the child, and the attempts by the child's mother to notify the father of the existence of the child when making an award of retroactive child support. The Tennessee Supreme Court in In Re T.K.Y, 205 S.W.3d 343, 355 (Tenn. 2006) also added that a court may consider the "equity between the parties" when considering the issue of retroactive child support. Tenn. Code Ann. § 36-2-311(a)(11)(B) also adds that when the presumption of the application is rebutted by clear and convincing evidence, the court should deviate from the child support guidelines to reduce any retroactive support.

According to the appellate court, while Father originally knew of Daughter's existence, he was unaware of her existence in the years that followed. Therefore, the juvenile court erred when it concluded that it should only deviate from the guidelines when a father never knew of his child's existence. Regarding the equity between the parties, it was inequitable to require Father to pay retroactive child support when Mother prevented Father from knowing Daughter's existence. Lastly, the purpose of child support is to benefit the child, not to reward or punish a parent. Therefore, it would be inequitable to have Father pay retroactive child support when it would deprive Father's resources that could be used for Daughter. Accordingly, the Tennessee Court of Appeals reversed the juvenile court's decision to have Father pay retroactive child support.


Parental Rights Termination Case Raises Res Judicata Issue in Tennessee

In Re: Shyronne D.H, No. W2011-00328-COA-R3-PT, 2011 WL 2651097 (Tenn.Ct.App. July 7, 2011) has further established the limits of res judicata in Tennessee courts.
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On October 14, 2008, the Criminal Court of Shelby County indicted Mother on one count of aggravated child neglect or endangerment and one count of aggravated child abuse of a child under eight years of age. The Department of Children's Services (DCS) placed Mother's children in foster care while Mother was incarcerated. DCS subsequently petitioned to the juvenile court, who ruled that the children were not only dependent and neglected but were also victims of severe child abuse. Consequently, the juvenile court ordered the children to remain in DCS's custody and that Mother could have no contact with them. Mother appealed the juvenile court's decision to the Shelby County Circuit Court.

The circuit court judge upheld the juvenile court's decision, basing the ruling on permanent mental and physical damage that mother inflicted on one of her children. The day after the circuit court's ruling, DCS also petitioned to terminate Mother's parental rights in a different circuit court, introducing the ruling made the previous day that Mother's children were dependent, neglected, and severely abused. By introducing this ruling, DCS sought to keep the issue of whether Mother committed severe child abuse from being relitigated under res judicata. Since the dependency and neglect order was actually signed on the same day that the parental termination proceeding began, Mother argued that res judicata did not apply because it could still be appealed or revised within thirty days of the order's entry. The court disagreed, deciding that res judicata did, in fact, apply. The court then ruled that Mother's parental rights should be terminated.

Mother appealed to the Tennessee Court of Appeals, who reversed the circuit court's decision. According to the appellate court, res judicata should not have applied to the instant case. While a minority view, in Tennessee res judicata cannot be applied until all appellate remedies have been used. In other words, a judgment is not final if an appeal is still pending. This is different from most other jurisdictions who rule that even if an appeal is taken up or pending it does not affect the finality of a judgment for res judicata purposes. If Mother had either denied her permission to appeal or failed to appeal the court would have come to a different outcome; but such was not the case here.


Because of the trial court's misapplication of res judicata, the appellate court reversed the trial court's decision to terminate since Mother did not have an opportunity to assert a defense. Since Tennessee courts "place decrees forever terminating parental rights in the category of cases in which the state may not bolt the door to equal justice," it was necessary for the trial court to allow Mother to fully litigate whether she committed severe child abuse sufficient to provide grounds to terminate her parental rights.


Alimony Arrearage Repayment Must Be Supported By Finding of Fact

The case of Colston v. Colston, 2011 WL 2601447 (Tenn.Ct.App., June 30, 2011) reminds us that a trial court must make specific findings of fact when determining monthly payments of alimony arrearages in Tennessee.

The couple divorced in September 2007 under a Final Decree that required Husband to pay $3,000 of alimony per month to the Wife. Husband appealed the alimony award, which was upheld. Husband then filed a Petition to Terminate Alimony, alleging he had become unable to work because of his medical problems, which rose to the level of a substantial and material change of circumstances. Wife responded, denying he was entitled to a termination and alleging his failure to pay alimony under the court order.
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The trial court heard testimony regarding Husband's physical ailments. Wife stated that she did not object to his alimony being terminated after the date of the filing of his petition in December 2009, but asked that he still be required to pay all amounts that accrued from the date of the Final Decree (September 2007) until he filed his Petition. The trial court terminated his alimony but ordered that he pay the $86,000 arrearage that had accrued between 2007 and 2009 at a rate of $1,500 per month plus ten percent interest. Husband appealed, alleging the court erred in assessing him an arrearage and asking for a reduction in the monthly payment to $500 per month.

The Appeals Court held that T.C.A. §36-5-121(f)(2)(A) does not "expressly authorize" a trial court to change an alimony award prior to the date that a petition to modify is filed. However, the Court goes on to imply that the trial court can order a retroactive modification dating back before the petition was filed, but that in this case the trial court did not abuse its discretion by not doing so.

The Court then turned to the monthly arrearage payment amount ordered by the trial court. The trial court had failed to make a finding regarding the Husband's ability to earn or actual earnings. Therefore, the Appeals Court could find no basis for order of a monthly payment. Accordingly, the case was remanded to the trial court for reconsideration of his ability to pay and to determine an appropriate payment amount, if any, based upon his income and expenses.


Tax Exemption Part and Parcel of Child Support Determination in Tennessee

Child support in Tennessee is determined pursuant to the Tennessee Child Support Guidelines.The recent Appeals Court case entitled Crews v. Staggs, 2011 WL 2848745 (Tenn.Ct.App., May 31, 2011) calls into question the relationship between the amount of support and the tax exemption award. This case involved a Primary Residential Parent (hereinafter "PRP") who appeals the trial court's decision to alternate the federal tax exemption for the minor child each year. This decision was made prior to a determination regarding the amount of child support owed each month.

The Juvenile Court of Maury County entered an Order putting the Father's child support obligation at $100.00 every week and giving him the obligation to carry health insurance. A hearing was then held to set the visitation schedule in the parenting plan. At that hearing, the court reserved determination of child support due to the State having filed a paternity action on Mother's behalf. The Parenting Plan did declare that Mother would be the parent receiving support and gave her the tax exemption every year.

Subsequently, and Agreed Parenting Plan was entered with child support and the tax exemption issues reserved. However, the Plan also stated that Father could claim the exemption if payments are current when the return is due. Mother filed an appeal, which was dismissed due to lack of a bond. A third Plan was entered in late 2009 with the same support and tax provisions as the earlier plan.

Father then filed a Motion to change the child's name, remove some of his visitation requirements (overnights at the Mother's home, not his) and to rotate the tax exemption. A hearing was held and the Court refused to change the child's name, allowed the visitation change, and allowed the exemption to be shared. Mother appealed the tax exemption ruling.
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Trial courts hold the discretion to set child support and therefore that decision is reviewed with an abuse of discretion standard, as are tax exemption rulings. The Appellate Court held that Tenn. Comp. R. & Regs. 1240-02-04-.03(6)(b)(ii), which describes that the formula used to determine the parties' net incomes assumes that the primary parent will receive the tax exemption, is not a rule, but rather a "mathematical assumption regarding an unrelated matter" (the internal formula used by the child support worksheet). Therefore, trial courts are not required to allow the PRP the tax exemption every year. However, because of the formula, the PRP being allowed the exemption is already calculated into the Worksheet, and therefore its actual allocation should be a factor in the trial court's decision.

The Appellate Court noted that the amount of support paid by Father was set to be recalculated by the State, and therefore until that is completed, the alternating exemption cannot be deemed an abuse of discretion, nor can it be deemed equitable in light of the scarce testimony regarding income at the Juvenile Court hearing. Therefore, the Appeals Court reversed the order awarding the exemption and remanded for reconsideration of that exemption as part and parcel of the as-yet-undetermined child support obligation to be determined by the State.


Tennessee Paternity Action Raises Rare Issues

A recent Tennessee Court of Appeals case entitled Danelz v. Gayden, 2011 WL 2567742 (Tenn. Ct. App. June 29, 2011) addresses the issue of paternity in Tennessee in a rare context.

The Appellant filed a Petition to Establish Parentage in Juvenile Court after his 18th birthday alleging that Dr. Gayden (hereinafter "Doctor"), not married to his Mother at his birth, was his biological Father and sought retroactive child support. At the time of his birth, his Mother was married to her now Ex-Husband, not the Doctor. The Juvenile Court granted the Doctor's motions to strike affidavits filed by Appellant (stating his date of birth) and of his Mother (stating the timing of her sexual relationship with the Doctor), and denied Appellant's motion for paternity testing and for discovery. Appellant appealed.
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The Appeal Court first decided that the Appellant was not stopped from bringing the petition because as a minor, he was not a party to his Mother's divorce proceeding. The Court also held that the Mother was not a party to the new petition and therefore her affidavit could be considered. At that point, the case was sent back to Juvenile Court for genetic testing to be done.

The testing showed the Doctor was indeed Appellant's Father. The Juvenile Court then found the Mother's Ex-Husband to be an indispensible party under T.R.C.P. 19.01, ruled the Doctor was Appellant's biological Father, and held that no cause of action existed that would allow an adult child to seek retroactive child support where no existing child support order had been in place and therefore dismissed the action.

The Appellate Court noted that although the Juvenile Court declared Mother's Ex-Husband to be an indispensible party, he was erroneously never made a party prior to the Juvenile Court's final ruling. The Court noted that parentage determination is a two-step process: determine the biological father under T.C.A. §§36-2-301 and 322 and then determine whether that person is the legal father under T.C.A. §§36-1-101 and 142.

Here, the Doctor was the biological Father, passing the first hurdle. Regarding the second, a "legal father" is defined as the man who is married to the biological Mother when the child is born or within 300 days after the marriage was terminated, or if separation was entered by a court; any man who was adjudicated to be the legal father by a court; or a man who has signed an unrevoked and sworn, voluntary acknowledgment of paternity. A legal parent is not a man who is a biological parent without an adjudication or acknowledgment of paternity.

Here, the Juvenile Court made no finding as to whether the Doctor was the legal father. The Appellate Court held that the Juvenile Court must first decide who is the legal father, Mother's Ex-Husband or the Doctor, prior to deciding whether any retroactive child support was owed. Further, because the Juvenile Court entered an order that the Ex-Husband was an indispensable party, Rule 19 prevents the court form making a final order in his absence unless the court had made a separate finding that he was not indispensable after all.

Accordingly, the judgment of the Juvenile Court was vacated and upon remand, the court is to determine whether the Ex-Husband can be made a party or if the action should be dismissed. If he is made a party, the court is then to determine which man is the legal father. If the legal father is determined to be the Doctor, only then can the court turn to whether the action for retroactive child support is a valid one.


Judicial Recusal in the Context of a Tennessee Divorce

The case of Camp v. Camp, 2011 WL 2567542 (Tenn.Ct.App., June 29, 2011) brings up the rare but interesting issue of judicial recusal in the Tennessee divorce context.

The Wife filed for divorce in the Chancery Court for Crockett County, Tennessee in 2005. The Chancellor recused himself, citing two reasons: that he was personal friends with the parties and that the Husband worked for the AOC, which controls the administration for all judge's offices in the state. Therefore, the AOC scheduled a special judge to hear the divorce proceedings.

At the time of the trial, the Husband earned $120,000 while the Wife had not worked in fifteen years. The special judge ordered the Husband to pay $1,600.00 per month in alimony in futuro to the Wife and to pay her attorneys fees. Post- divorce, Husband declared a candidacy for the State Senate, thereby leaving his salaried job. Husband lost the election, became unemployed and finally found a position making $25,000 at a law firm. Meanwhile, Wife began earning $33,000 per year.

Husband filed a Petition to Modify, asking that his alimony be terminated or reduced. Wife denied his claims and asked the Court to increase his alimony because the youngest child reached 18, thereby stoping child support.

Even though the parties had litigated other post-divorce issues with the special judge, this Petition and Cross-Petition was set to be heard before the Chancellor who had recused himself in the initial divorce action. Wife filed a motion for disqualification of the Chancellor. Husband argued he was no longer employed with the AOC and therefore no reason existed for the recusal. The Chancellor denied Wife's Motion. After a hearing, the Chancellor found a material and substantial change of circumstances existed and terminated Husband's alimony obligation. Wife appealed.

The rule for recusal is found in the Tennessee Supreme Court Rule 10, Canon 3(E)(1) which states a judge shall recuse themselves in any proceeding where a judge's impartiality might reasonably be questioned, including if the judge has a personal bias or prejudice. Additionally, the standard that Tennessee Courts follow states that recusal is appropriate "when a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality." Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 564-65 (Tenn. 2008).

Here, the Appellate Court "reluctantly concluded" that the Chancellor erred in denying Wife's motion to disqualify, and reversed that holding. Therefore, the termination of alimony is vacated and the case was remanded to be heard by a special judge. The Court noted that the Chancellor's decision regarding the alimony would in all probability be the same finding upon remand, but with a different presiding judge.


Two Standards in Tennessee for Modifying Parenting Schedules

The recent Tennessee Appeals Court case entitled Schreur v. Garner, 2011 WL 2464180 (Tenn.Ct.App., June 20, 2011) showcases the two different standards that may apply in modification of parenting plan cases.

The Husband was named primary parent ("PRP") under a 2007 Williamson County, Tennessee divorce. In 2008, Mother filed a petition to modify the parenting schedule and asked to be named the PRP. Under the original plan, Mother was given co-parenting time from Friday until Tuesday morning every other week and Tuesday nights in the off-week. Further, Mother was required to attend counseling for twelve months and at that time, the parenting plan would be reviewed in mediation.
The parties entered mediation in 2009 but did not come to a resolution, so Mother filed a petition with the court, alleging that the current schedule caused the son to struggle in school and that the alternating residences caused the children confusion. Father alleged Mother did not complete her counseling.

The trial court held a hearing and found that no material change of circumstances existed, but determined that the children's best interest would be served by changing the schedule to alternating weeks with each parent due to the disruptive nature of the previous plan.

The Appellate Court reviewed de novo. The Court described the two separate standards that arise when dealing with parenting plan modifications under T.C.A. §36-6-101(a)(2)(C): when a party wishes change custody, a material change of circumstances must be shown; however, when a party wishes to change the residential schedule but not the PRP, the standard for showing that material change is lower, and includes demonstrating the current schedule simply is not workable. Therefore, the Appellate Court disagreed with the trial court's decision that it was not necessary for Mother to show a material change. However, the Court found the Mother met this burden of proving such a material change which is precipitated upon best interests of the children. Therefore, the trial court, in deciding a change was in the children's best interests, also impliedly decided a material change existed.

The evidence supporting this conclusion included the children becoming confused as to where they were going each night, resulting in transportation issues at school and downward academic performance which could be addressed with more stability during the school week.

Therefore, the evidence supported the trial court's decision that alternating weeks would be in the children's best interests and less unsettling, and provided the statutory ground of material change of circumstances necessary to modify the residential schedule.


Parental Relocation Post-Divorce in Tennessee is Possible, But Not Automatic

How should a court evaluate a custody arrangement when one parent seeks to move the children away from the other parent after the finalization of their divorce in Tennessee? The Tennessee Court of Appeals was faced with such a situation, and on June 8th delivered its opinion in In re Iyana R.W. No. E2010-00114-COA-R3-JV (Tenn. Ct. App. 2011).
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In this case, the mother was the primary residential parent ("PRP") of a ten-year-old daughter. The mother also spent significantly more time with the daughter than the father did as he visited every other weekend. The mother eventually remarried a man in the military who was stationed in Colorado. She wished to relocate there with her daughter and sent a letter to the child's father notifying him of her plan to move. She also filed a Plan to Modify Visitation with the court. The father then filed a Petition to Change Custody because he opposed the move.

The trial court ultimately granted the father's Petition and he became the child's PRP. The Court of Appeals reversed the trial court, holding that the trial court did not apply the correct standard for determining whether the mother should be allowed to relocate with her daughter. The Court relied on Tennessee Code Annotated § 36-6-108(d), which applies when a parent who is spending more time with the child than the other parent wishes to relocate. The statute states that the parent spending more time with the child shall be permitted to relocate with the child unless the court finds one of three exceptions apply: first, the relocation does not have a reasonable purpose; second, the relocation would pose a specific threat of harm to the child; third, the motive for relocating is vindictive, meaning that the reason one parent wants to move is to interfere with the visitation rights of the other parent.

The parent opposing relocation can petition the court to prevent the child's relocation. However, it will be up to that parent to prove that one of the three exceptions applies. If one of those exceptions applies, only then is the court to consider whether relocating is in the best interests of the child.

In Iyana R.W., the trial court erred in not applying the statutory requirements. Instead, the trial court simply considered whether the move would constitute "a substantial and material change in circumstances." The Court of Appeals determined that because the purpose of the move was reasonable - so the mother could live with her new husband - and because there was no evidence that the other exceptions applied, the mother and child should be allowed to move.

In such a case, it is important for all the parties involved to know the legal standards under which a court will evaluate relocation of a minor child and what each parent will be responsible to prove.


Divorce Mediator Sued Over Lack of Impartiality

The Tennessean newspaper recently reported on a case in which a divorce mediator was sued for failing to maintain impartiality. The mediator allegedly instructed the Husband involved in the divorce case to file a restraining order against the Wife as well as how to retain copies of all email correspondence between the two parties and then to disseminate them to Wife's family in an attempt to shame and/or embarrass Wife into ceasing contact with Husband.

The Husband did indeed seek a restraining order in Knox County, where he resided, which was ordered by the Court but Wife claims she was never served with that Order. Husband also took out a criminal warrant against Wife in Nashville. Wife was then arrested in January of 2011, but has filed a complaint against the police department related to that arrest. The Order of Protection, originally issued in Knox County, was dismissed by a Judge in Davidson County.
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Due to the alleged malpractice chain of events, Wife claims in her civil suit against the mediator that the malpractice set off a "domino effect" that resulted in the events described above, including her arrest. The suit asks for five million dollars in damages for each individual act of malpractice , emotional distress and breach of contract. The mediator was officially sanctioned earlier this year but can continue mediating divorces in Tennessee.

Every contested divorce in Tennessee that does not reach a settlement within six months of the initial filing must go to mediation per state statute. Although the parties are not required to reach an agreement, they are required to participate in good faith. When a mediator is not impartial, the outcome of some very important issues can be affected, from distribution of the marital estate to co-parenting plans. Therefore, also ensure that your divorce attorney is familiar with your mediator.

Click here for the full article from The Tennessean.


Tennessee Divorce Courts Will Uphold Valid Contracts Between Spouses

Tennessee courts will enforce agreements between spouses, but only if they are found to be valid contracts. The case of Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004) adopted the standard that spouses may enter into a contract to divide the marital estate and/or set out support provisions, and that they do not violate public policy even if not contemplated in light of an impending divorce or separation.These "post-nuptial agreements" are looked at as any other contract, and must have adequate consideration from both parties to be upheld as valid. Additionally, these agreements must be free from fraud, duress coercion or undue influence. However, courts can and will decide that the division of the estate is inequitable, even if there is a valid, enforceable contract, resulting in a redistribution of property.
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A trial court will find that consideration exists when a party agrees to take action or to refrain from some action even though they have a legal reason for doing that action. Mutual promises meet this threshold. Spouses who waive their rights given under statute also are normally deemed to have given sufficient consideration. However, the court will look closely at promises to ensure they are not too vague or illusory. In the Bratton case, the Court found that the Wife's promise to refrain from entering a career in the dental industry was not adequate consideration. This occurred in part because the Wife never applied to school, or took admission exams but rather had decided to become a stay-at-home mom prior to entering the agreement. Therefore, the court determined she had either given insufficient consideration or prior consideration, which would result in invalidity of the contract. Trial courts will also want to ensure that neither party had a superior bargaining position.

The Court in Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006) found that a Marital Dissolution Agreement signed by the parties was enforceable in light of Husband's arguments to the contrary. First, he argued that he was under duress when the document was signed because Wife stated she would leave the state with the children. The court found that her threat was not "credible" due to her job and family ties. The Husband then argued that Wife's adultery, committed after the agreement was signed, was grounds for invalidation. The court found Wife's behavior irrelevant to the enforceability issue. Next, Husband argued that Wife's mediation request should result in estoppel, which the court held was not a ground for repudiation nor could used against her based on the rules of evidence.


Retroactive Child Support Dating Back to Birth Not Automatic in Tennessee

Whether you are going through a divorce or a custody matter in Tennessee, child support is sure to be a confusing issue for those unfamiliar with the process. For parents of children who were never married, the issues can be even more intricate, especially when dealing with retroactive child support.


The first step is for the court to establish parentage and then set a current child support amount for the obligor to pay going forward. Next, the court must determine the amount of child support arrearages dating back to the birth of the child using the Child Support Guidelines. T.C.A. §36-5-101(e); Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(e).

In T.C.A. §36-2-311(a), the legislature has carved out four instances where it would be unfair or unjust to require the arrearages to reach back to the child's birth. The first is when the father was unaware and could not have known of any of the following: the birth of the child, his potential parentage and/or the child's location; second, if the mother intentionally and with no good cause kept the child's birth from the father, his parentage or the child's location; and thirdly if the mother failed to make any attempts to notify the father of the pregnancy or birth. If these events occur, the court has the discretion to decide that the presumption of arrearages dating back to the birth is overcome. The statute also allows the court to look at the equity between the parties as a fourth safety valve, allowing reasons other than those spelled out in T.C.A. §36-2-311 to be considered in allowing a deviation from the Guidelines. This fourth factor could apply when a parent unilaterally cuts the other parent out of the child's life for no legitimate reason. However, a Mother's failure to legitimate the child, on its own, or the fact that a child was supported by other relatives will not be considered by the court as grounds to overcome the presumption.


Post-Divorce Interest Can Be Tricky in Tennessee

In a recent Court of Appeals case entitled Moss v. Moss, 2011 WL 1459170
(Tenn.Ct.App., Apr. 15, 2011), post-judgment interest in a Tennessee divorce is explored.

The divorce finalized at end of 2008 and Husband was awarded marital residence and farm worth $580,000 plus equipment worth $200,000. Wife was awarded a chalet in Gatlinburg and a cash award of $250,000 to be paid upon Husband's receipt of his expected inheritance, to be paid within 30 days of the estate closing. If this did not happen within 12 months, Wife was given the option to petition the Court for relief, which she did, asking for immediate payment. The trial court denied her request and denied awarding her interest but ordered Husband to pay $417.00 per month until the estate closed, credited toward the $250,000. Wife appealed.

The Court of Appeals held that by denying the Wife any benefit of the martial estate along with denying post-judgment interest was not fair to the Wife, because of her financial circumstances and the Husband's farm produced income for him. Therefore, the Court remanded the case to the trial court with instructions to lift the stay regarding payment of the $250,000 and allow her to execute upon that judgment. The Court also held that interest should be awarded to the Wife as of December 2009 when she petitioned for relief. The Court reversed the $417.00 payment in light of the fact that the Wife can now execute on the judgment.

The Court noted that cash awarded in divorces are money judgments, meaning that post-judgment interest is allowed to accrue under T.C.A. §47-14-121, a mandatory statute requiring that interest in the amount of 10% per year shall accrue unless specified otherwise by statute or contract. Here, Wife is only entitled to interest beginning after the 12-month stay, because the rule in Tennessee is that interest doesn't accrue until the party is actually entitled to the funds.


Timing of Post-Divorce Relief Filings Key In Tennessee


The recent Tennessee Court of Appeals Case Warren v. Warren, No. M2009-02255-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2011) highlights the importance of quickly filing for relief once a judgment has entered by the court.

Wife filed for divorce in Tennessee in May 2007 alleging irreconcilable differences. In April 2008, Husband filed an Answer but no Counter-Claim. Husband then filed a summons, served on Wife, stating failure to respond would result in a default judgment, even though no counterclaim or other document was filed. Husband then filed a Notice of Hearing for Default Divorce. The trial court entered a Final Decree of Divorce against Wife at the noticed hearing based on inappropriate marital conduct. That day the court also awarded each party the property in their separate possession and entered a parenting plan waiving child support.

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One year later, Wife filed a Petition to Modify Child Custody and Support, Motion to Set Aside Default judgment and Motion to Compel Mediation under T.R.C.P. 60, arguing that the default was void since a counter-claim was never filed. The trial court denied Wife's request for the following reasons: the Notice of Hearing had a certificate of service indicating that Wife was served with a copy of the Notice of Entry of Default and the court took testimony from witnesses at a prior default hearing before granting the judgment.

The Appeals Court noted that "void" under Rule 60 means the court lacked jurisdiction or violated due process, regardless of whether procedural flaws exist. Here, the judgment was found not to be void even though the default failed to comply with the rules of procedure (T.R.C.P. 55), because this was an appeal from a Rule 60 denial and not a direct appeal from the entry of the default (an argument that would have been meritorious if made immediately).
The Wife next argued that the default judgment should have been set aside based upon two additional grounds. The first is based upon mistake, inadvertence, surprise or excusable neglect, determined by looking at all relevant circumstances including prejudice, good or bad faith, impact on proceedings and principles of equity. Here, the Appellate Court determined the default judgment to be equitable and refused to set it aside. Second, Wife argued that default judgment did not comply with the requisite laws and rules. The Appellate Court looked at whether the failure to respond was willful, whether the default had a meritorious defense, and the extent of prejudice caused. Because Wife failed to produce proof at the Rule 60 hearing that she could have established a defense or that the court erred in the Final Decree, and instead only addressed argument to parenting and support provisions, her argument fails. Moreover, Wife waited eleven months to file her Rule 60 Motion.

The Court noted that had Wife filed to have the default set aside immediately, the procedural errors would have resulted in the judgment being set aside, but because of her delay and due to the T.R.C.P. 60 standards, the Final Decree stands.


Recent Tennessee Attorney General Opinion Sheds Light on Termination Based on Incarceration

April 22, 2011 by The McKellar Law Firm, PLLC

jail.jpgIn order to terminate a parent's parental rights, a court must find that grounds to terminate exist and that termination is in the best interest of the child. A recent Tennessee Attorney General opinion addressed the issue of whether Tennessee Code Annotated §36-1-113(g)(6) can be used as grounds to terminate parental rights when the parent has already served his sentence and been released. The statute provides grounds to terminate parental rights when the parent has been confined in a correctional or detention facility under a sentence of ten or more years, and the child is under eight years of age when the sentence is entered by the court.

The opinion shows that the statute can be used to terminate even if the parent has already served his sentence and been released. The opinion relied on a Tennessee Court of Appeals case where the Court held that the statute applies regardless of whether the parent is incarcerated or has already been released. In the Matter of D.M., 2009 WL 2461199 (Tenn. Ct. App. 2009). The Court noted that the "clear language of this statute does not contain limiting language requiring the parent actually to be incarcerated when the termination petition is filed."

Parental rights may be terminated even if the parent is no longer incarcerated or served less than ten years in confinement. So, if you have been sentenced to serve ten or more years in a correctional or detention facility, the court can find grounds to terminate your parental rights. The court would then conduct a best interest analysis to determine whether terminating your parental rights would be in the best interest of the child.


Tennessee Family Law Legislative Update

April 15, 2011 by The McKellar Law Firm, PLLC

The Tennessee Legislature has been busy lately trying to remodel certain statutory provisions in the realm of divorce and other family law issues. I have summarized two for you here.
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First, Senate Bill 0721 (by Woodson, B.) and companion House Bill 1106 (by Johnson, C.), was signed by the Governor on April 14, 2011. This change mandates that a court can hold an expedited hearing on the temporary modification of a parenting plan if there is a "mobilized parent" (armed forces service member who is active duty or obtains orders for duty outside the state or country). This change would also allow the court to take testimony from that parent via telephone if they are not in the state at the time. Also changing is that a court can permanently modify a parenting plan if there is a parent who volunteers for duties that require the parent to be outside the state frequently.

Second, Senate Bill 1172 (by Berke) and companion bill House Bill 0714 (by Brooks, H. and Hardaway), was transmitted to the Governor for action on April 13, 2011. This bill clarifies that "dissipation of assets," a relevant factor that trial courts must consider in making a equitable division of marital property in a divorce case, means "wasteful expenditures made either before or after the marriage is determined to be irretrievably broken that are not consistent with spending patterns during the marriage or that are made for purposes unrelated to the marriage, unless the other spouse condones or fails to object to the expenditures that were known or reasonably could have been known." This places a new burden on the non-spending spouse to object during the course of litigation to known expenditures by the other spouse. This bill would also direct a trial court, when considering a spouse's right to alimony or child support, to not consider as income any distributions received from retirement accounts under the court's property division order.