Tennessee Divorce Attorney Blog

In Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV (Tenn. Ct. App. , the issue before the Court of Appeals ("CoA") was whether the trial court erred in dismissing Father's petition to restore his right to exercise visitation with his children without an evidentiary hearing. The CoA vacated the trial court's ruling and remanded for a evidentiary hearing.

Mother and Father had two children during the marriage. In 2005, Mother filed a legal separation, which later was amended to a divorce. Both parties sought restraining orders against each other and visitation schedules. A hearing was held, which resulted in an order for child support and a temporary visitation schedule; basic rules for communications between Mother and Father were also set up. In February 2006, the final hearing for divorce was conducted.

Between February and March 2006, Mother filed a petition against Father for contempt, for a restraining order and a show cause order. Mother alleged Father had intimidated the children and threatened to punish them if they told anyone. Also, Mother felt it was in the best interest of the children to suspend visitation from Father. The trial court enjoined Father from taking the children from the Mother's custody. In February 2006, the parties entered into an Agreed Order suspending Father's visitation and communications with the children; Father stipulated his visitation would resume only upon the children's counselor's recommendation. This order entered by the court did not include a Permanent Parenting Plan ("PPP") which is mandated by T.C.A. §36-6-404. In the follow-up hearing in May of 2006, the PPP adopted gave Father standard visitation--every other weekend--but was subject to the therapist's recommendation.

In September 2006, Mother filed to terminate Father's visitation. In April 2007, Mother filed a petition for criminal contempt against Father who had fallen behind on child support. In 2009, Father filed a petition for contempt and sought to modify custody and support. In June 2010, the court appointed a GAL who filed a report with the court. The GAL recommended the Father undergo psychological evaluation. The Father's March 2009 petition was heard in court the same day the GAL filed her report. The court dismissed the part of Father's petition relating to visitation without hearing any testimony.

According to T.C.A §36-6-404(a), any final decree in an action for absolute divorce involving a minor child must incorporate a PPP. According to T.C.A §36-6-406(a), a court can limit parenting time based on a prior order or reliable evidence the parent engaged in certain conduct. T.C.A §36-6-406(d), lists factors that can limit visitation. Accordingly, under T.C.A §36-4-406(d), a court may stop visitation only after a hearing is held to establish those factors. Here, no evidentiary hearing was held prior to suspending Father's visitation. Therefore, the Agreed Order of February 2006 cannot be used by the trial court to deny Father's petition for visitation.

This case shows Tennessee divorce attorneys that although a court is granted wide latitude in dealing with visitation, the factors listed in the statute must be considered and an evidentiary hearing held absent an agreement of the parties.

In Chavez v. Chavez, No. M2010-02123-COA-R3-CV, the Husband and Wife filed for divorce in 2008 in Montgomery County. Each alleged irreconcilable differences and inappropriate marital conduct; later, both complaints were amended to include adultery. A divorce was granted in 2010 based on Husband's "developing and fostering a relationship with another woman" and Wife's "engaging in alcohol and drug abuse." Wife was designated primary residential parent. The home was ordered sold with profits going to the Wife, each party was awarded their separate retirement accounts and marital property and debt was divided. The Husband was ordered to pay transitional alimony in the amount of $1,800.00 for four years and alimony in solido of $90,000.00 over six years. Also, Husband was ordered to pay child support in the amount of $1653.00 monthly. Husband appealed.

The Tennessee Court of Appeals affirmed the lower court's ruling concerning the primary parent designation and the alimony. This decision shows Tennessee Divorce attorneys that trial courts have a broad discretion in matters concerning child custody, visitation, and alimony.

The Tennessee Court of Appeals found that the lower court here did not abuse its discretion. In its review, the Court of Appeals applied the abuse of discretion standard, stated as "An abuse of discretion occurs when the trial court causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice."

In reviewing the primary residential parent designation, the trial court considered many factors. Those factors are located in T.C.A. § 36-6-106. After the court's analysis of these factors, the parents were found to fairly equal; however, the trial court awarded Wife primary parent status due to the Husband's job and Wife's testimony. Husband's travel is excessive in regards to providing a stable home for their children, especially the daughter. The trial court's decision is supported by a preponderance of evidence and was not an abuse of discretion. In the end, it was in the best interest of the children to reside with the Wife.

In regards to transitional alimony, the trial court considered the guidelines set out in T.C.A. § 36-5-121(g)(1). T.C.A. § 36-5-121(i) "instructs the court to consider all relevant factors in determining whether spousal support is appropriate and in determining the nature, amount, length of term, and manner of payment..." The single most important factor is the "need of the disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay support." Here, husband made four times the income of Wife. Husband's basic argument on appeal was the alimony is excessive and unnecessary. The trial court's findings, relative to the Wife's economic disadvantage and the statutory factors and requirements, were not an abuse of discretion standard. The trial court found the Wife did not need rehabilitative alimony because she already had the necessary skills to achieve and maintain an appropriate standard of living. Transitional alimony was awarded to the Wife in order to assist and adjust to the economic consequences of the 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.

Country music star Sara Evans' former Husband Craig Schelske recently won a settlement in his slander case against Evans' former Tennessee divorce attorney. Although the divorce case was actually finalized years ago, the fallout from the scandalous allegations is still being litigated.

The actual divorce Complaint itself, although alleging adultery and other misconduct by Schelske, was not the reason for the slander suit. Evans' divorce attorney, John J. Hollins Sr., had made statements during an interview that included People magazine, internet entertainment news site TMZ, Inside Edition and The Tennessean newspaper alleging that he had photographs of Schelske in compromising positions. The evidence against Hollins had been rumored to include Evans' deposition testimony admitting the photographs were described incorrectly by the attorney. Schelske's suit also alleged that attorney Hollins was aware that the statements regarding the photographs in question were false when he made them. Hollins went as far as to state that the pictures in his possession showed adulterous behavior between Schelske and the parties' former nanny, as well as allegations that Schelske had placed other explicit photographs on the internet. The nanny in question also filed suit for slander, and has already settled for an undisclosed but rumored to be substantial amount.

In general, divorce attorneys in Tennessee and elsewhere are supposed to make a reasonable inquiry into allegations such as these that may be provocative. However, in order to prove a slander case, the plaintiff must show that the defendant knew the statements were false when stated to third parties.

The settlement was announced last week, immediately before the slander trial scheduled to begin on March 28, 2011.

The legislature of the state of Tennessee requires most contested divorce cases to participate in mediation according to T.C.A. 36-4-131(a). However, there are some exceptions to this general rule, such as those found in T.C.A. 36-4-131(b): If either party cannot financially afford the cost and expense of hiring a mediator (but the requirement still applies if the mediator's fee is waived or subsidized by the state); if the cost would be an "unreasonable burden" on either party; if the parties have filed a Marital Dissolution Agreement, Agreed Order or Final Judgment addressing all issues; if a settlement conference has been held with the court or special master; if the court believes impasse will result from mediation. The legislature has also carved out additional situations where parties are exempt from mediation. Those can be found in a T.C.A. 36-6-409(4), which allows relief when a court enters a default judgment or finds just cause upon motion of a party, and in T.C.A. 36-4-406, which does not allow mediation to be ordered by the court if any of the following circumstances regarding minor children are found: willful abandonment for long periods of time or refusal to participate in parenting duties; physical, sexual or emotional abuse of the other spouse or the child; if a third party living with a parent has engaged in physical, emotional or sexual abuse; if a parent has been convicted as an adult of a sexual offense; or the court finds that a parent's involvement in the child's life will cause an adverse effect.

In cases where domestic abuse does exist or an order of protection is in effect, a mediation order is only valid if the victim agrees, the mediator is trained in domestic violence and family law and the victim is allowed an attorney or other advocate's presence at the mediation session.

Once mediation begins, parties are always informed that the statements made and records used are privileged and confidential. Disclosure is only allowed if and when the parties agree to such disclosure in writing, if a party goes against a mediator for damages, when documents are also subject to discovery and not prepared just for the mediation alone; when there is a third party lawsuit involving one of the parties to a divorce where fairness requires such disclosure to that third party; or when there is abuse or neglect of a child. Regardless, the mediator cannot be called as a testifying witness.

For more information about the mediation process for Tennessee divorces, see the Mediation Primer.

Upon the initiation of a contested divorce in Tennessee, one must file and then abide by the provisions of T.C.A. § 36-4-106(d), which is a mandatory injunction "restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court." However, the statute does allow the parties to spend from current income in order to "maintain the marital standard of living" and pay normal operating costs for businesses.

This injunction goes farther, keeping parties from "voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy..." ; disallowing threats, assault, abuse or derogatory remarks, and restraining parties from "hiding, destroying or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices."

When minor children are involved, neither parent may relocate with the children outside the state or move 100 miles away from the marital home unless there is "well-founded" fear of abuse (in which case the court will schedule an emergency hearing).

Abiding by these provisions is very important for divorcing parties in Tennessee. If a party violates these orders, not only do they lose credibility and trustworthiness with the court, but they will be required to make up for any losses or expenditures.

In the case of Davis v. Goodwin, 2010 WL 5449844 (Tenn. Ct. App. Dec. 23, 2010), the Wife added a home equity line of credit to the marital residence, which was deemed a violation of the injunction. The court in that case held her in civil contempt and ordered her to pay the entire balance of the credit line. In Barnett v. Barnett, 2010 WL 680983 (Tenn. Ct. App. Feb. 26, 2010), the Husband sold assets from his business and a parcel of real property, which the court held was a violation. In Hopkins v. Hopkins, 2002 WL 31387297 (Tenn. Ct. App. Oct. 23, 2002), the Wife sold a horse belonging to both parties and gave the proceeds of the sale to her daughter. The court held that the Husband was allowed a credit toward his alimony obligation for one half of the amount of the proceeds.

While going through a divorce, spouses must ensure that they abide by provisions of the injunction. If necessary, parties may file motions with the court asking for permission to engage in one of the forbidden actions. The court may grant such an allowance, if a good reason is shown.