Recently in Conflict of Interest Category


Child's Preference Not A Deciding Factor in Tennessee Custody Decisions

October 11, 2013 by The McKellar Law Firm, PLLC

In the case titled Carter v. Carter, No. M2013-00193-COA-R3-CV Slip Copy, 2013 WL 5568360 (Tenn. Ct. App. Oct. 7, 2013) Knoxville divorce attorneys learn how much bearing a minor child's preference has on the court in regards to modification of a parenting plan and when it is appropriate to disqualify an attorney from representation in a matter.

Facts

The parties divorced in 2006. Mother was named the primary residential parent ("PRP"), with Father awarded 85 days of parenting time per year. In July 2009 Mother filed a petition to modify child support, and then filed a notice of appeal of the trial court's findings on the matter in February 2012. However, just prior to filing the notice of appeal, she filed a motion to modify parenting time alleging a material change in circumstances.

In her petition to modify the parenting plan, Mother alleged that the parenting schedule (which gave Father Tuesdays and every other weekend) "inappropriately interfere[d] with the school, extracurricular and social activities in which the minor child of the parties engage[d] and/or wishe[d] to engage in at [that] time."

The attorney that filed Mother's petition to modify was her new husband. Father filed a motion to disqualify him as counsel for "any matter related to the modification of the parties' permanent parenting plan." The trial court agreed with Father and, subsequently, entered an order ruling that, "[Mother's attorney] shall be disqualified from representing [Mother] in any pending or new matters in this case." After the trial court disqualified Mother's counsel, a hearing was held on her petition to modify the parenting plan. The trial court ruled that Father's Tuesday night parenting time be eliminated. Mother filed a motion to alter or amend the trial court's order, but it was denied. She immediately appealed.

Analysis

On appeal, Mother averred that the trial court erred in refusing to allow the parties' 16-year-old daughter the ability to determine when and whether she would have parenting time with Father and in disqualifying her new husband as her counsel in the petition to modify and any new filings in the matter.

Trial courts have broad discretion in regards to parenting arrangements due to the unique circumstances in each case. See Eldridge v. Eldridge, 42 W.W.3d 82, 85 (Tenn. 2001); Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006). An abuse of discretion occurs "only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Id. at 88.

Tenn. Code Ann. § 36-6-101(a)(2)(C) states that with respect to a change in parenting time (but not the PRP), "[a] material change of circumstance does not require a showing of a substantial risk of harm to the child." Instead, it "may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent's living or working condition[s] that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child." Per Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980 at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006), the threshold to prove a material change of circumstances requires showing the court that the current plan is not working for the parties.

Whether this case had a material change of circumstances warranting a modification of the parenting plan was not an issue before the appellate court. However, Mother averred that the trial court erred in disallowing the minor child to determine when and how she will spend parenting time with Father as this was not in the best interest of the child. While Tenn. Code Ann. § 36-6-404(14) does allow a child that is age 12 or older to express their preference regarding parenting time to the court, there is no statute or precedent that gives a minor child discretion to determine when he or she will or will not see a parent. A child's preference is one of many factors the trial court may consider. Therefore the trial court's ruling is affirmed.

The next issue before the court was to determine if the trial court erred in disqualifying Mother's husband as her counsel in the petition to modify hearing and any subsequent filings in the matter. Per Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001), an abuse of discretion standard is used by the appellate court when reviewing a trial court's decision to disqualify an attorney.

In the trial court's order disqualifying Mother's husband as counsel, it cited Rule 3.7 of the Tennessee Rules of Professional Conduct. This rule provides that a "lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness..." Tenn. Sup. Ct. R. 8, RPC 3.7. Father's counsel notified the trial court that he did intend to call Mother's husband as a fact witness in the modification matter. In her appeal, Mother pointed out that her husband/counsel was never called or deposed as a witness. The appellate court found this argument to be invalid, as the rule does not require the attorney to be called as a witness; it simply requires it to be shown that he was likely to be a necessary witness.

The trial court did not simply disqualify Mother's new husband from representing her in the modification hearing. In its ruling it stated that he was also disqualified from representing her in any "new matters in the case." The appellate court found this to be an abuse of the trial court's discretion, because disqualification of counsel must be determined based on the specific matters being litigated in a case at that time, and not future matters.

Conclusion

The appellate court affirmed the trial court's ruling in regards to the modification of the parenting plan. It also affirmed the trial court's ruling disqualifying Mother's new husband from acting as her counsel in the modification proceeding. However, the appellate court reversed the trial court's ruling disqualifying Mother's husband as counsel in any "new matters in the case," as that will need to be determined as the issues arise.


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.

Analysis
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.

Conclusion

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.