Recently in Appeals Category

Recent Case Highlights Importance of Transcripts, Explains When Awards of Attorney Fees are Appropriate

November 26, 2013 by The McKellar Law Firm, PLLC

The recent case of Hunn v. Hunn, No. M2013-00860-COA-R3-CV (Nov, 25, 2013 Tenn. Ct. App.) shows Knoxville divorce attorneys when it is appropriate to award attorneys fees in a divorce action.


The parties married in 2011 and had two children. The parties attended mediation and reached an agreement. In June 2012, Father filed a Motion to Enforce the Mediated Agreement alleging Mother had refused to follow the terms and would not sign a Marital Dissolution Agreement. Mother responded alleging the mediated agreement was not in the children's best interest and requested a trial. Father then filed a motion asking to lift the restriction against his paramour which was denied and Father was ordered to immediately disclose his phone number and address to Mother. Mother then filed another motion to obtain his address, to compel his compliance and for sanctions and attorneys fees for failing to follow court orders. After a hearing, the court ordered both parties to provide complete contact information about the whereabouts of the minor children at all times and that a violation of that could result in jail time for the parties. Father then filed a Petition for Contempt. A hearing was held on Mother's Complaint for Divorce, Father's Counter-Complaint and the Contempt. The trial court made three findings: 1) the Father did not act in good faith when he entered the mediated agreement 2) Father perjured himself in court regarding where he and the children had been living and his credibility is non-existent 3) that co-parenting will be determined by the court based on statutory factors and not the mediated agreement. The divorce was granted to Mother, who was also granted primary residential parent. The contempt motion was denied. Based upon the "additional attorneys necessary to determine the whereabouts of the children" and otherwise pursue the case, the court awarded Mother her attorneys fees and court reporter fees in addition to mediation costs which totaled $11,000. Father appealed.


Until it is signed by a judge, a mediated agreement is a contract. Under contract law, a party may be relieved of the contract if the agreement was "not the result of a good faith negotiation." In the absence of a transcript or statement of the evidence, it is unclear as to the nature of Father's misconduct. However, the Appeals Court presumed there was sufficient evidence to support the finding that Father acted in bad faith. Therefore the trial court's determination is upheld.

Regarding attorneys fees, the trial court has the power to award fees in custody or support proceedings under T.C.A. 36-5-103(c). The award of fees will not be modified unless an abuse of discretion is proven. A abuse of discretion is where a trial court applied an incorrect legal standard, reaches a decision that contravenes logic or uses reasoning that cause s injustice, or the evidence does not support the decision. Here, there is nothing in the record to indicate that the fee might be unreasonable or whether counsel for Father questioned or objected to the fees. Accordingly, there is no way to determine that an abuse of discretion occurred and the trial court is affirmed.

Additionally, because Father failed to file a transcript or statement of the evidence to support his appeal, the appellate attorneys fees are also awarded to Mother with the amount to be determined by the trial court.

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.

The Importance of Preserving the Record for Appeal (and the Importance of Having a Divorce Attorney)

April 28, 2013 by The McKellar Law Firm, PLLC

In Higgins v. Higgins, No. E2012-01376-COA-R3-CV (Tenn. Ct. App. April 16, 2013), Tennessee divorce attorneys learn the importance of preserving the record for appeal; if there is no record, the Court of Appeals must presume that the trial court's findings and conclusions are correct. Also, Tennessee family lawyers also learn that a party's decision to represent himself or herself pro se are not an excuse for failing to preserve the record.

The facts of the case are as follows: In 2010, Wife and Husband separated after twenty years of marriage; Wife subsequently filed for divorce. Husband was provided with an additional thirty (30) days before trial to acquire a new attorney after his former attorney withdrew from the case; however, he declined to do so, instead choosing to represent himself pro se. The parties then attended trial to address remaining issues of property division. At trial, it was clear to the trial court that the parties had similar health, financial resources, earning capacity, and ages. Also, the trial court noted that the marriage was long-term, and that the parties did not have any separate property. Accordingly, the trial court fairly equally divided the parties' property ($34,000 to Husband and $38,000 to Wife) and expressed its opinions in a memorandum opinion.

Testimony revealed that Wife's $50,000 gift and a prior sale of a residence that was in the name of both Husband and Wife was the source of funds by which the parties acquired their marital residence. The court granted this residence to Wife "subject to the first mortgage as well as two-thirds of the home equity line of credit (HELOC)," and determined that it was a marital asset. Husband was responsible for the remaining one-third of the HELOC. After trial, Wife filed a motion requesting that the court amend the memorandum opinion to elaborate on other matters; the court made amendments and entered a divorce decree and final judgment at a second hearing, which Husband declined to attend. Husband then filed a motion to amend, alleging that the court's initial memorandum opinion differed from the final decree. The trial court only made a few amendments to the final judgment. As such, Husband filed this appeal, claiming that the court improperly classified the marital residence as separate property and that the division of the marital property was inequitable because the trial court failed to account for his "substantial" debt. He also alleged that the trial court wrongfully awarded alimony to Wife.

On appeal, the Court of Appeals addressed the following issues: (1) "Did the trial court err in its classification of the parties' property and did the court err in failing to equitably divide the marital estate?" and (2) "Did the trial court err in amending the final order to include an award of alimony?"

Regarding the classification and division of property, the Court of Appeals found that the trial court properly classified the home as a marital asset and that the trial court averred that Husband did not provide evidence of his alleged debts; since Husband presented no record, the Court had no basis on which to challenge the trial court's position. Finally, the Court found that neither the trial court's memorandum opinion nor amendment reflect any alimony award; the amount was purely an attempt to allocate the mortgage debt between Husband and Wife.

The most important aspect of this case is that the Court of Appeals noted that Husband entirely failed to provide a record of trial, and that his self-representation was not an excuse for his failure to do so. The Court warned that appellants are responsible for "prepar[ing] a record which conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues which form the basis of the appeal." If they fail to do so, then the appellate court is required to "assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's findings."

Recent Case Explains Juvenile Court Custody Appeals Go To Appeals Court, Dependency and Neglect Cases are First Appealed to Circuit Court

March 20, 2013 by The McKellar Law Firm, PLLC

In the case of Clark v. Clark, No. E2012-00684-COA-R3-CV (Tenn. Ct. App. March 18, 2013), Tennessee family law attorneys learn that appeals of custody matters are heard by the Court of Appeals, but appeals of a dependency and neglect action must be first appealed to the Circuit Court.

Summary: Father voluntarily gave custody of the minor child to the Grandparents. Mother then filed seeking custody, but her requests were denied. The Juvenile Court had described the case as both a custody case and as a dependency and neglect matter at different points throughout the litigation. Mother appealed from Juvenile Court to Circuit Court, but her request was denied based on the holding that the case was a custody matter which should have therefore been appealed to the Court of Appeals instead of Circuit Court. Mother then appealed that ruling. The Court of Appeals held that the trial court was correct in concluding that the case was a custody matter and that the Circuit Court therefore had no jurisdiction to hear Mother's appeal, but her appeal should have been transferred to the Court of Appeals instead of being dismissed.

Facts: After establishing paternity, the parties entered an agreed order giving custody to the grandparents. Mother then filed a motion requesting a hearing, which was denied. At that hearing, the Juvenile Court stated that the action was a visitation and/or custody case, not dependency and neglect. Mother then filed several subsequent requests for custody and visitation, which were denied. However, in denying these subsequent motions, the Juvenile Court classified the action as a dependency and neglect case when the grandparents received custody, thus contradicting the earlier ruling. Mother then appealed to Circuit Court. The Circuit Court found the matter to be a custody case and therefore dismissed the appeal.

Analysis: The issue is whether the Circuit Court erred in denying Mother's appeal because the action sounded in custody rather than dependence and neglect. A case of dependency and neglect is directly appealable to Circuit Court, whereas a custody action is only appealable to the Court of Appeals. Here, the Juvenile Court first labeled this case custody and later labeled it dependence and neglect. The Appeals Court noted that "the nature and substance of a proceeding cannot be transformed simply by the filing of a petition with a different caption." Therefore, the Court looked to the nature of the action. From the record, there was no evidence that this was ever a dependency and neglect action. Instead, the only issue that ever came before the court was a custody arrangement. Therefore, the Circuit Court correctly held that the case sounded in custody. However, the Mother's appeal should not have been dismissed. The appeal should have been transferred to the Court of Appeals. Anytime a court is lacking jurisdiction to hear an appeal, the proper step is a transfer, not a dismissal. Therefore, the Circuit Court is directed to do so upon remand.

Appellate Rules Must Be Followed Carefully To Win Divorce Appeal

In the case of Butcher v. Butcher, No. W2011-01808-COA-R3-CV, (Tenn. Ct. App. June 12, 2012), Tennessee divorce attorneys learn that arguments not made at the trial court level cannot be made on appeal; this case also highlights the reasoning behind the requirement for an asset and debt table to be filed in divorce appeals concerning property division.

Husband and Wife married in 1976 and Wife filed a complaint for legal separation in 2007. In 2009, Wife filed an amended complaint for separation and/or Complaint for Divorce alleging irreconcilable difference and inappropriate marital conduct. In 2011, the trial court heard the matter and entered a Final Decree. Husband and Wife were awarded their separate businesses and Wife awarded the real property where the businesses were housed. Wife was also awarded alimony in solido. The final division of property resulted in a 61% versus 39% split. Husband filed a motion for a new trial and to stay the judgment. The trial court denied Husband's motion. Husband appealed.

Husband raised one issue: whether the trial court failed to equitably divide marital property when it awarded Butcher Tax Services, which was owned jointly, without first determining a value for the partnership. Wife argued the appeal should be dismissed for two reasons: first, that Husband's failure to comply with Rule 7 of the Court of Appeals of Tennessee bars his claim and second that Husband's argument was not raised in the trial court and therefore cannot be argued for the first time on appeal.

Analysis: Rule 7 of the Court of Appeals provides: (a) in any domestic relations appeal in which either party takes issue with the classification of property or debt or with the manner in which the trial court divided or allocated the marital property or debt, the brief of the party raising the issue shall contain, in the statement of facts or in an appendix, a table in a form substantially similar to the form attached. This table shall list all property and debts considered by the trial court, including: (1) all separate property, (2) all marital property, and (3) all separate and marital debts; (b) each entry in the table must include a citation to the record where each party's evidence regarding the classification or valuation of the property or debt can be found and a citation to the record where the trial court's decision regarding the classification, valuation, division, or allocation of the property or debt can be found; (c) if counsel disagrees with any entry in the opposing counsel's table, counsel must include in their brief, or in a reply brief if the issue was raised by opposing counsel after counsel filed their initial brief, a similar table containing counsel's version of the facts.

Here, Husband's attorney failed to include a Rule 7 table and made no request to supplement the briefs submitted. Failure to comply with Rule 7 waives all issues relating to the requirements of the Rule (i.e. property division and valuation). Complying with Rule 7 aids the Appellate Court in reviewing the trial court's decision and allows the Court to easily and correctly determine the valuation and distribution of the marital estate. Husband failed to include a Rule 7 table and also failed to assert that the parties' business should be valued and divided as a partnership during the proceedings in the trial court. Husband's failure to raise the issue at the trial court level means he cannot argue the issue for first time on appeal; therefore, Husband has waived that issue on appeal. The Court of Appeals affirmed the judgment of the trial court and dismissed the appeal.

Importance of Transcript Highlighted in Tennessee Post Divorce Modification Appeal

November 4, 2011 by The McKellar Law Firm, PLLC

The Tennessee Court of Appeals has further emphasized the need for parties to bring forth evidence to support their claims when petitioning to modify a party's parenting rights following a divorce in Tennessee. In Hamilton v. Hamilton, No. M2010-02320-COA-R3-CV, the appellate court denied Mr. Hamilton's request to reverse the trial court's decision not to modify his parenting plan and telephone rights.

Mr. and Ms. Hamilton were married in 1996 and had one child before they divorced in 1999. When the divorce decree was entered, the court named Ms. Hamilton the primary residential parent. Yet Mr. Hamilton did not give up without a fight. The years between 2000 and 2010 were filled with legal disputes regarding modifications to the parenting plan and Mr. Hamilton's child support obligations. When the trial court in 2010 denied Mr. Hamilton's petition to restore his telephone privileges and modify custody, Mr. Hamilton finally appealed to the Tennessee Court of Appeals.

Upon appeal, Mr. Hamilton argued that his basic and fundamental parental rights were denied by the trial judge and requested that his case should be moved to another county. However, he failed to offer any facts to support his allegations. Mr. Hamilton failed to provide a transcript of the proceedings in the court below. The Appeals Court did note that the Husband could have included a Statement of the Evidence pursuant to Tennessee Rules of Appellate Procedure 24(c), which is a narrative record of what transpired in the lower courts when no transcript is provided. The documents that Mr. Hamilton filed were not proper under this rule and only included parts of the case. Since here no proper evidence was presented regarding the trial court's decision, the Tennessee Court of Appeals must presume that the trial court's judgment was correct. The Court of Appeals therefore denied Mr. Hamilton's appeal and affirmed the trial court's judgment.

This case highlights the decision many clients make to not have a court reporter present at their proceedings. Without a court reporter, the record that the Court of Appeals is bound to review may have gaps in evidence presented, objections made, testimony given and exhibits that were produced on the trial court level. Without such a record, the Appellate Court can only review the pleadings filed in the case - motions, orders, etc., and have no method of obtaining the actual substance of what occurred during evidence presentation. This is an issue that all clients and attorneys should discuss prior to attending any hearing or trial regarding child custody or divorce matters in Tennessee.