Tennessee Divorce Attorney Blog

In the case of Butler v. Vinsant, No. M2012-01553-COA-R3-JV (Tenn. Ct. App. April 15, 2013), Knoxville divorce lawyers learn that obtaining relief from a default judgment requires proof of mistake, inadvertence, surprise or excusable neglect.

Facts: In 2010, Mother filed a Petition to Set Child Support against Mr. Vinsant, the alleged biological father in Juvenile Court. Father filed a Response admitting paternity but denying that he owed support due to the fact that the children resided with him the majority of the time. Simultaneously but under a different docket number, Father also filed a Petition to Legitimate and for Custody, requesting that he be named the primary parent. The two actions were consolidated and Mother was allowed to amend her petition to include custody. Mother then filed an Amended Petition asking to be the primary parent. Meanwhile, Father's attorney withdrew. Father never filed an Answer to Mother's Amended Petition, so Mother filed a Motion for Default Judgment and set a hearing. Father failed to appear at that hearing. The trial court found the following: Mother was entitled to a default based upon Father' s failure to answer or appear; that Father's paternity was established; that Mother was primary residential parent with Father having every-other-weekend visitation; that child support was set and Mother was awarded an arrearage.

Father then filed a Rule 60.02 Motion to Vacate Default Judgment. In said Motion, Father provided affidavits stating that his failure to answer or appear was excusable because his prior attorney failed to forward his file to the new counsel. The Rule 60.02 motion was denied by the trial court and Father appealed.

Analysis: Rule 60.02 of the Tennessee Rules of Civil Procedure states that a court may relieve a party from a final judgment or order based upon mistake, inadvertence, surprise or excusable neglect. A trial court's ruling shall only be overturned upon a finding of abuse of discretion (meaning application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence or reasoning causing injustice to the complaining party).

Further, three factors are used to determine if the default should be vacated: whether the default was willful; whether there was a meritorious defense; and whether the other party would be prejudiced.

Here, the Appeals Court found that Father only had a meritorious defense regarding the custody issue. The evidence in the record submitted by Father - an affidavit and his original petition (which is not evidence by itself) - only contains allegations regarding child custody factors and failed to include facts about his income, child support obligation or arrearage. Further, his Rule 60 Motion fails to dispute or point out any error in the trial court's calculation of child support or the arrearage. However, his Petition avers that he has a loving relationship with the child, and had been the primary caretaker.

Next, the Appeals Court looked to see whether Father's failure to appear and answer was willful. "Willful" means intentional and voluntary rather than accidental and not due to coercion. Father argues he did not have actual notice of the hearing. Therefore, the question becomes whether Father's inaction in promptly obtaining a new attorney and failing to stay updated on the proceedings was willful, less than willful but not excusable, or excusable. Even though Father's first attorney failed to keep Father informed, Father failed to promptly obtain new counsel even after being advised to do so; Father further failed to inform opposing counsel or the court of his lack of representation for several months, until the filing of the Rule 60 Motion. The record also showed that Father ignored his prior attorney's repeated advice to quickly obtain substitute counsel. Therefore, although these actions were not calculated to avoid the court proceedings, the Appellate Court found his actions were not inexcusable, meaning Father is not entitled to any relief under Rule 60.02.

In the case of Wood v. Wood, No. W2012-01250-COA-R3-CV (Tenn. Ct. App. May 16, 2013), Knoxville divorce attorneys learn that trial courts determine the primary residential parent based upon the factors found in T.C.A. 36-6-106.

Facts: The parties married in 2007 and separated in 2010 after having one child together. At the trial, both alleged that the other had an alcohol abuse problem, and Mother additionally alleged that Father was guilty of physical violence as well. Father admitted his DUI conviction, other alcohol related offenses and two arrests for domestic violence that occurred during the marriage. Father alleged that the Mother admitted she had several relationships with different men and had introduced them to the minor child. At the time of trial, Mother worked from 7am to 7pm three days a week, but had a 2 hour commute. Father worked for his parents, who were also proffered as alternate caregivers. However, testimony showed that Father would sometimes leave the child in the care of his parents due to his drinking and social life. Mother also argued that the grandparents interfered with her relationship with the children. The trial court named Father the primary residential parent due to his flexible work schedule and support system. The trial court refused to impute Father's income to account for the free housing provided by his parents as Mother requested. Mother appealed.

Analysis: The Court of Appeals first turns to T.C.A. §36-6-106(a), which outlines the factors a court is supposed to use to determine the primary parent and the co-parenting schedule. Based upon those factors, the Appeals Court made the following analysis: that both parents were devoted to the child and this factor favored neither (same as the trial court); both parents were capable of providing for the child's needs and favors neither party (same as the trial court); that the continuity and stability factor favors Father, due to Mother's many other romantic relationships, Mother have relocated the child twice due to her job changes and Father having lived and worked in the same location continuously (same as the trial court); that stability of the family until also favored Father due to Mother's commute and the closeness of the paternal grandparents (same as the trial court); that the evidence of physical and emotional abuse to the child favored neither party (same as the trial court); all other factors were found to be equal or not applicable. Accordingly, the Appeals Court upheld the trial court's decision to make the Father the primary residential parent.

Next, the Court looked at whether the trial court erred in failing to impute income to Father because he received free housing. The Court found that Mother presented no evidence regarding the reasonable rental value of his home. The Court noted that even if Mother had shown the housing was a fringe benefit of Father's employment, that the Court had no way of determining from the evidence presented how much income to actually impute. Therefore, the trial court was correct in refusing to impute income to Father based upon his free housing in that the record lacked sufficient data with which to do so.

In Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. April 12, 2013), Tennessee divorce attorneys learn that courts require a material change in circumstances before modifying a permanent parenting plan; however, the material change standard is higher when a party wishes to change the designation of primary residential parent. Further, Tennessee divorce attorneys learn the terms under which a party can intervene in a pending action.

The facts: At the conclusion of a divorce action in Cumberland County, Mother was designated primary residential parent; however, Mother and Father were to share time with the children on a 50/50 basis. Mother then decided that the children should attend a different school nearer to her home. At Father's request, the trial court entered an ex parte order requiring the children to continue attending their original school. However, the local Board of Education averred that pursuant to its policy, the primary residential parent's residence determines which school a child must attend; therefore, the Board filed both a motion to intervene and motion to set aside the order. Mother felt that Father did not comply with the permanent parenting plan requirement that they make decisions jointly and therefore filed a motion to clarify the divorce decree. Father then requested to be named primary residential parent since Mother had disregarded the parenting plan by switching the children's school. After a hearing, the trial court found: (1) Mother violated the permanent parenting plan by switching the children's school; (2) legally, the Board was entitled to intervene; (3) that the children required stability; and (4) Father was designated primary residential parent as it was in the children's best interest.

The Appellate Court asserted that the issue of the Board's intervention, while not raised on appeal, was important. Essentially, if an individual wishes to automatically intervene in an action, he or she is required to establish: (1) that he or she requested to intervene in a timely fashion; (2) that a substantial legal interest in the subject matter of the pending litigation exists; (3) that [the] ability to protect that interest is impaired; and (4) that the parties to the underlying suit cannot adequately represent [that] interest. Tenn. R. Civ. P. 24.01. Further, the Court elaborated that the intervening party must "either gain or lose by direct operation of the judgment," and that the presence of a "mere contingent, remote, or conjectural possibility" that the intervening party will suffer consequences is not sufficient. In applying the above factors to the Board's intervention here, the Court averred that the Board's motion should not have been granted since the Board did not have a "substantial" interest in the case since the standard is "best interest of the child, regardless of any [opposing] policies that may be implicated."
However, there is another standard if a party wishes to permissively intervene, and it can be based on either a statutory conditional right or if "an applicant's claim or defense and the main action have a question of law or fact in common"; courts must assess any "undue[] delay or prejudice" to the original parties that could occur as a result of the intervention. Tenn. R. Civ. P. 24.02. Ultimately, the Court determined that the Board's intervention was not permissive since the trial court considered "the need for stability" while ignoring other factors and also incorrectly afforded more weight to the Board's policy than it did to the best interests of the children or the parents' rights.

Secondly, Mother challenged the fact that the trial court declined to hold an evidentiary hearing and neglected to determine if an unanticipated material change in circumstance occurred before changing the primary residential parent designation. However, Father said that Mother was at fault for not requesting an evidentiary hearing, that Mother's deciding to switch the children's school without consulting him constituted the requisite material change in circumstance, and that the court did not need to list and elaborate on every factor having provided adequate information in support of its findings; therefore, he asserted that Mother's issues should be waived at the appellate court level.

In response to these positions, the Court of Appeals explained that "material change in circumstances" is a standard for any change in custody, with the burden being with the parent who wants to modify; in determining whether such a change has occurred, courts must provide findings "as to the reason and facts" in favor of a decision to modify custody. Tenn. Code Ann. § 36-6-101(a)(2)(B). Also, the "threshold" to modify a primary residential parent designation is higher than that necessary to modify a residential parenting schedule.

The Court expressed that a situation no longer being in a child's best interest or a parent neglecting to follow the parenting plan would both serve as examples of "material change of circumstance." Included among factors that Tennessee courts are required to evaluate are whether: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way."

The Court explained that determining "the best interest of the child" is also crucial when courts are faced with requests to modify custody arrangements. In this case, the Court of Appeals concluded that the trial court neglected to make specific findings of fact regarding an unanticipated material change in circumstances, and that the possibility that the parents would reside outside the same school zone was foreseeable. As such, the Court held that Mother should remain the primary residential parent.

In the case titled Johnson v. Johnson, No. M2012-00900-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee divorce attorneys are shown an example of when a parental relocation request should be denied by a trial court.

Facts: The parties were married for 16 years and had three children before an agreed divorce was finalized in January 2010. Mother was named primary residential parent ("PRP") and Father had 122 days of coparenting. In April 2011, Mother sent Father written notice of her proposed relocation to California, due to her desire to go to school to study marine biology. Father filed a Petition in Opposition to Relocation and to Modify the Parenting Plan, asking to be named PRP. At the trial, the court learned the older child was in his final semester of high school and that he wanted live with his Father during college. Mother agreed he should be allowed to stay. Father called an expert who testified that he believed the daughter would suffer substantial emotional harm should she be forced to relocate. The expert also stated that the impact of dealing with her Mother moving to California would be considerably less than if the daughter was also forced to relocate. The trial court held that the daughter would not be allowed to relocate to California, noting the following: Mother's remarriage does support a reasonable purpose for relocation; that Mother's plan of returning to school was not supported by the record; that there was no vindictive purpose by Mother; that the expert opined the daughter would suffer serious harm; and that should Mother still want to relocate with either child, the parties should return to mediation to draft a new parenting plan.

Mother appealed, arguing that the trial court incorrectly held that the threat of harm of relocation outweighed the threat of harm of changing the PRP.

Analysis: The Court must look to T.C.A. §36-6-108(a) & (d), which states that unless the court finds one of the following, the parent shall be allowed to relocate with the child: that the relocation does not have a reasonable purpose; the relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody; or if the motive is vindictive. If any of these are found, the Court will move on to a best interests review under T.C.A. §36-6-108(e).

Here, the trial court found that Mother's remarriage was a reasonable purpose for relocation but also determined that the relocation posed a specific threat of harm that outweighed the harm of changing the PRP, mandating a best interests review. The trial court then determined that the daughter's best interests weighed in favor of not allowing the relocation. Mother argues that the expert testimony did not support a finding of harm. However, said expert stated that the daughter found it difficult to discuss the possibility of moving and would withdraw and shut down. Father testified the child "broke down" upon learning of Mother's intention, and continued to do so for several days afterward. The Appeals Court found that the expert testimony did support a finding of harm that outweighed the harm of changing PRP, and that the trial court also correctly determined that the daughter's best interests weighed in favor of not allowing her to relocate with the Mother.

In the case of Hardin v. Hardin, No. W2012-00273-COA-R3-CV, filed December 27, 2012, Tennessee divorce attorneys learn that a trial court's ruling can be vacated if a specific best interest finding is not properly noted in the record.

Facts: The parties divorced in 2009. In 2011, Father filed a Petition to Modify the Parenting Plan, Petition for Temporary Restraining Order ("TRO") and Petition for Contempt, alleging that he had been the primary caretaker for the child 75% of the time, and therefore the parties had not been following the Plan. He also alleged Mother had several paramours, that Mother had exposed the child to cigarette smoke and Mother had moved in with a third party due to financial constraints, and that this new residence was not appropriate. A TRO was entered, giving Father primary parenting responsibility and allowing Mother two days per week of co-parenting. Mother then also filed requesting to change the parenting plan and alleged Father was in contempt for failure to pay child support. After a trial, the court named Father the primary residential parent ("PRP"), stated a material change of circumstances existed and awarded Mother standard visitation. Mother appealed.

Issues: Mother argues that the trial court committed error in failing to consider the factors found in T.C.A. §36-6-106 and therefore also failed to correctly use a best interests standard. Father requested his attorneys fees.

Analysis: When courts modify an existing parenting plan or custody order, they must go through two steps. First, a material change of circumstances must be found under T.C.A. 36-6-101, and if so, whether a modification is in the child's best interests (T.C.A. §36-6-106) pursuant to the factors found in T.C.A. 36-6-404. These factors include: character and physical and emotional fitness of each parent, continuity, history of who was primary caretaker and emotional bond, among others.

Mother argues the trial court failed to make a best interests finding. The Appeals Court agreed. Accordingly, the trial court's order was vacated and remanded for entry of an order complying with Rule 52.01 of the Tennessee Rules of Civil Procedure (which requires the trial court to make specific findings of facts and conclusions of law). Moreover, the Appeals Courts notes this is not a "mere technicality" but instead gives the basis upon which the court reached the decision, which speeds up the appellate process. The trial court erred in failing to making a best interests finding and failing to apparently consider any of the statutory factors. Any evidence of the court doing so was omitted from the record. Father's attorney fee request was denied due to Mother's claims having been found meritorious.

In Fillers Crum v. Fillers, No. E2011-01885-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2012), Tennessee divorce attorneys learn how Tennessee courts determine whether a modification of a residential parenting plan is warranted by determining whether a material change in circumstances has occurred and by assessing the best interests of the child.

The facts are as follows: The parties married and had three children. The parties agreed that Father would pay child support and have visitation on regularly scheduled holidays, every Tuesday and Thursday for five hours, and every other weekend. Under the plan, each party was entitled to 182.5 days with the children, with Mother designated primary. Five years later, issues pertaining to the plan arose. Father failed to reasonably communicate, inform Mother of changes in his employment, pay child support, or visit with the children on holidays; also, he claimed the children on his income tax returns, behaved inappropriately and used inappropriate language in the children's presence, and had improper relations with a woman who was married (who also insulted Mother in front of the children). On account of the aforementioned reasons, Mother filed to modify the parenting plan to decrease Father's visitation, obtain a greater amount of child support, and hold Father in contempt.

After mediation failed, the parties had a hearing. Mother mentioned the above grounds and also alleged that one of the children was injured while with Father and that Father failed to maintain electricity at his home and neglected to maintain the children's life insurance coverage. In 2005, a pending domestic abuse case had resulted in the children's three-month placement in State Custody; however, Mother stated that there had been no other issues since that one incident. Mother complained about Father's failure to follow the designated visitation schedule and failure to relinquish the children in a timely manner several times; however, Mother conceded that "the procedure for exchanging the children had improved since the filing of her petition for modification." She also provided Father with more visitation time throughout the week than Father was granted under the Plan. Mother resided with her second husband in a five-bedroom home; her husband was financially stable and had no criminal background. Both Mother and her new husband were on prescription medication. The trial court held that there had been a material change in circumstances. It provided Father with only 80 days of co-parenting time and Mother with 285 days. The court also raised Father's child support. The court held father in contempt for violating the parenting plan by claiming the children on his tax return and by failing to maintain life insurance.

The Tennessee Court of Appeals considered only one issue: "whether the trial court erred in modifying the parenting plan by awarding Father with less than equal co-parenting time." Citing to case law from our jurisdiction, the appellate court explained: "When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstances has occurred and (2) that a change of custody or in the residential schedule is in the child's best interest." The following factors indicate that a material change in circumstances has occurred: (1) a change happened after the order was entered; (2) at the time of the order's entry, this change was not "reasonably anticipated"; (3) the change "affects the child's well-being in a meaningful way."

The court alleges that in this case, Mother only wished to modify the residential parenting schedule--not custody. As such, Mother "must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. [It] does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule 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 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 interests." Tenn. Code Ann. § 36-6-101(a)(2)(c).

The appellate court affirmed the existence of a material change in circumstances since Father made insulting statements regarding Mother and did not follow the plan. For assessing the best interests of the child, the court listed Tenn. Code Ann. § 36-6-404(b) factors including: "the relative strength, nature, and stability of the child's relationship with each parent...; willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent...; the disposition of each to provide food, clothing, medical care, education...; the degree to which a parent has been the primary caregiver...; the importance of continuity and the length of time the child has lived in a stable, satisfactory environment; evidence of physical or emotional abuse, the character and behavior of any other person who resides in or frequents the home of a parent and their interactions with the child; the reasonable preference of the child if 12 or older...; each parent's employment schedule..." Since Mother provided Father with greater visitation time than the parenting plan mandated, and since Father did not provide a proposed parenting plan, the Appellate Court upheld the trial court's adoption of Mother's proposed plan.

In In re: Jada C.H., No. W2011-02542-COA-R3-JV (Tenn. Ct. App. Sept. 18, 2012), Tennessee divorce attorneys learn the manner in which courts select the primary residential parent, decide whether a petition should be transferred to a different county, and define a "material change in circumstances."

The facts of the case are as follows: Mother (who had three other children in addition to the child involved in this case) and Father had a child out of wedlock in 2008. Father filed a Petition for Custody of the minor child in 2009. The Special Judge dismissed the petition because the court had not confirmed his paternity. The Juvenile Court Judge later agreed to Father's request for a hearing. Father affixed a paternity test to his motion to alter or amend the prior dismissal and established that he had attempted to petition the Court "to enter an agreed order of paternity" on an earlier date. Father later filed a petition to preclude Mother's potential relocation to another state. Father also filed a Contempt petition for interference with his parenting time. In a judicial order, Mother and Father were given joint custody, but the court designated Father as primary residential parent. The case was continued, but a new order granted Father temporary parenting time and designated Mother as primary residential parent. The final custody hearing involved allegations of dependency and neglect, and the expert testified that efforts of reconciliation "w[ere] fruitless." The judge stated that Mother refused to call the child when the child was with Father, that three different men fathered her four children (some of whom have been in prison and none of whom want to be a father to their children), and that Mother had a criminal history. The judge did not believe Mother's testimony regarding sending her older children to school and noted that she was "secretive" and "hostile", that she was seriously dating another man, and that she had difficulties controlling the behavior of her oldest daughter. Further, Mother was opposed to cultivating a relationship between the child and her Father. The court gave both parties joint custody but awarded Father primary residential parent but failed to find any dependency and neglect on Mother's part.

Later, Mother alleged inappropriate sexual contact on the part of Father and his new wife and therefore filed a Petition for Dependency and Neglect. In accordance with Tenn. Code Ann. § 37-1-112, the Special Judge entered an order transferring the petition to Lake County, sua sponte and on Father's verbal motion. Father alleged that these "unfounded allegations of sexual abuse were detrimental to the child" in his Petition for Modification, Supervised Visitation, and Contempt. The Special Judge granted Father's petitions, resulting in supervised visitation for Mother.

The appellate court decided the following issues: "(1) whether the trial court erred in naming Father primary residential parent; (2) Mother's dependency and neglect petition should be transferred to Lake County; and (3) whether there was a material change in circumstances to justify modifying Mother's parenting time to supervised."

First, the appellate court asserted that Tenn. Code Ann. § 36-6-106 provides factors that guide courts in selecting the primary residential parent and in assessing the best interests of the child, including: "stability of the family unit", "character and behavior of any other person who resides in or frequents the home of a parent" and "each parents' 'willingness and ability... to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents." After reviewing the evidence from the hearing and in light of the above factors, the appellate court affirmed the trial court's designation of Father as the primary residential parent. Second, the appellate court reversed the trial court regarding the transfer of Mother's neglect and dependency petition to Lake County Juvenile Court since Tenn. Code Ann.§ 37-1-112 provides that the juvenile court must make a finding of fact prior to transferring the case to the county where the child resides. Since in this case the trial court made no findings of fact, the appellate court must "vacate... and remand."

Third, the court definitively found that the order awarding Mother unsupervised visitation "was final for purposes of modification." Modification of a final order requires "a material change in circumstances," and it occurs when: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way." In this case, the court found no material change in circumstances or "facts not in existence or reasonably foreseeable when the decision was made." Finally, the appellate court recommended that Father's Petition to Modify Mother's parenting time and Mother's Petition for Dependency and Neglect should be combined and potentially transferred to Lake County Juvenile Court (assuming the court provides adequate findings of fact).

In Henson v. Henson, No. W2011-02504-COA-R3-CV (Tenn. Ct. App. July 30, 2012), Tennessee divorce attorneys learn that courts select the primary residential parent in a manner that "give[s] each parent the maximum amount of time possible with the child, in accordance with the child's best interests," pursuant to Tenn. Code Ann. Section 36-6-106(a).

The facts of the case are as follows: The parties had two minor children. After a divorce, Father lived in a three-bedroom mobile home with six other people, most of whom were relatives. While Mother initially moved in with her mother, she later moved to a motel room where she did not have a kitchen; although the minor children had never met her boyfriend, she used his kitchen to cook for them. Mother had a job as a maid in the motel where she lived. Both minor children had been prescribed medication for attention deficit disorder and were involved in special education programs for learning disabilities. Mother was attentive to their medication and was primarily responsible for transporting the children to school and doctor visits.

At trial, the minor children each testified that Father's brother did not treat them well, that Father's house was crowded, and they would rather live with Mother. Father's testimony indicated that he was not aware of the children's medications or dosage. The parties' adult daughter's boyfriend (whose relationship with Mother was tense and who later moved in with Father) testified he had lived with Mother and her boyfriend and had witnessed them smoking marijuana, drinking alcohol, and stealing. At the conclusion of the trial, the court designated Mother the primary parent, also providing that there was to be no alcohol consumption in front of the minor children on the part of either party and that Mother's boyfriend was not to see the children.

The appellate court decided the sole issue of whether Mother or Father should be the primary residential parent.

On appeal, the Court stated its preference for joint parenting and referenced Tenn. Code Ann. Section 36-6-106(a), which provides that in accordance with the best interests of the child, "the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with [certain] factors... [such as] the location of the residences of the parents, the child's need for stability" and other "relevant factors." Factors that the court will consider pursuant to Tenn. Code Ann. Section 36-6-404(b) include: "the parent's ability to instruct, inspire, and encourage; relative strength, nature, and stability of the child's relationship with each parent; the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care; the degree to which a parent has been the primary caregiver; the love, affection, and emotional ties existing; the emotional needs and developmental level of the child; the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; the character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; the reasonable preference of the child if twelve (12) years of age or older/the preference of older children should normally be given greater weight than those of younger children; each parent's employment schedule; and any other factors deemed relevant by the court."

Emphasizing the minor children's need for "stability and continuity", the appellate court affirmed that Mother was the appropriate choice for primary residential parent. Mother served as the primary caregiver, provided transportation, and was aware of the medication that the minor children required. Mother supervised the children, cooked for them, and only went to her boyfriend's house to do laundry and cook (never introducing the children to her boyfriend). Both children preferred to live with Mother instead of at Father's residence, where it was crowded, they were unsupervised and lacked structure, and they were subjected to insults from Father's brother. At Father's residence, the parties' adult daughter (who has a child and who has a mental illness for which she is on medication) was primarily responsible for watching the minor children on account of Father's employment schedule; the parties' adult daughter felt overwhelmed with the additional responsibility of caring for her younger brothers. Therefore, the court scheduled the minor children to spend time with Father on weekends and Mother during the week.

In Herbert v. Harding, No. M2011-00419-COA-R3-CV (Tenn. Ct. App. Aug. 17, 2012), Tennessee divorce attorneys learn the manner in which courts assess a material change of circumstances and the best interests of the child in the context of transferring custody.

The facts of the case are as follows: The parties never lived together and were never married but had one child together. When Mother requested public assistance, the Department of Children's Services (DCS) initiated paternity proceedings against Father, who was ultimately required via an agreed order of paternity and support to pay future child support and make installment payments on past due child support. Mother obtained custody via the agreed order. Originally, Father did not make support payments as required; thus, he was held in criminal contempt and ordered to make payments. For nearly ten years Father successfully paid child support. Father is now married and has a second child and resides with his family in a four-bedroom home. Mother (who often moved to different apartments) told Father in 2008 that she was moving and requested that he "take care" of the parties' minor child "for a few weeks." Subsequently, Father enrolled the child in middle school (where the child was a good student), Boy Scouts, and football. The child remained with Father for six months, during which time Mother searched for housing while living with a church member. In spite of the fact that Mother was not responsible for the minor child during these six months, she remain on public assistance and claimed the child on her taxes; Mother also continued to receive child support payments from him.

Asserting that the minor child was thriving with him but was adversely impacted by "Mother's unstable home life and frequent moves," Father requested a transfer of custody by filing a petition. The court granted Father's additional request for a temporary restraining order preventing Mother from removing the child from school or "interfering with [Father's] peaceful possession of the child." Mother claimed that the child's best interests mandated that he continue in her custody and that no material change of circumstances had occurred.

The trial court's Statement of Evidence revealed conflicting testimony regarding Mother's moves and Father's relationship with the child. The minor child typically did well in school while in Mother's custody, but in a fourth grade accelerated program he was frequently late, had numerous absences, and his grades plummeted. Since the child had been with Father, he had done well in school and Father repeatedly attended his extracurricular activities. Testimony revealed that the minor child had been present in 2004 when Mother was arrested and convicted for shoplifting, and that Mother had been arrested and convicted a second time for shoplifting. Additional testimony indicated that the minor child was suspended in 2009 for stealing money from a classroom fundraiser box and referenced his mother's habit for stealing (but said that "Father broke him from doing that.") Mother also failed to fulfill her promises to attend the minor child's football games. The child testified that he preferred to be in Mother's primary custody and that the arrangement with Father seemed temporary. The trial court, referencing Tenn. Code Ann. Section 36-6-106(a), evaluated the best interests of the child factors and found the existence of a material change of circumstances; thus, it awarded Father custody.

On appeal, the court considered the following issues pertaining to transfer of custody: "(1) whether a material change of circumstances had occurred; and (2) whether the transfer of custody or residential schedule was in the child's best interest."
First, the appellate court referenced the factors that the Tennessee Supreme Court has provided that courts should use to determine whether a material change of circumstances has arisen: "(1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child's well-being in a meaningful way."

The appellate court found that Mother's unanticipated request that Father supervise the minor child "for an indefinite period of time" constituted a material change in circumstances and that the minor child's well-being benefitted from Father's supervision. The court expressed concern about Mother's history of shoplifting and the fact that the child had indicated that she frequently stole. Second, to determine the best interest of the child, the court evaluated the custody factors provided in Tenn. Code Ann. 36-6-106(a) in the context of the case at hand as follows: (1) Love and affection and emotional ties during the first part of the child's life favored Mother as the primary caregiver... in June 2008 the relationship with the child favored Father; (2) The disposition of the parents to provide the necessities for the child were equal; (3) Continuity in the child's life favored Father; (4) Stability of the family unit slightly favored Father; (5) The mental and physical health of the parents were equal; (6) The home, school and community record of the child more recently favors Father; (7) The preference of the child favors Mother; (8) The physical and emotional safety of the child favors Father due to Mother's conviction of a crime committed in the presence of the child; (9) The character of others who interact with the child favors Father; (10) Past and future potential performance of parenting responsibility slightly favors Mother. Regardless of Mother's reasoning for leaving the child with his Father, the appellate court upheld the decision to grant Father custody in conformity with the best interests of the child.

In Elcan v. Elcan, No. M2011-00530-COA-R3-CV (Tenn. Ct. App. March 7, 2012), Tennessee divorce attorneys learn the factors courts consider in determining whether modification of a parenting plan is appropriate pursuant to Tenn. Code Ann. Section 36-6-101(a).

The facts of the case are as follows: The court designated Mother the primary residential parent of the three minor children in a post-divorce parenting plan. One provision of the plan gave Father the right to drive the children to school three days per week and two hours of visitation on Wednesday nights. Numerous criminal contempt petitions were filed on the part of both parties, and the trial court found Father liable for fourteen counts of criminal contempt for the fourteen times that he returned the children to their Mother later than 7:00pm on Wednesday nights. The court determined that Father could exchange his right under the parenting plan to drive the minor children to school three days per week for the right to keep the children overnight on Wednesdays and drive them to school on Thursday mornings. The court further stated via restraining order that when the children were present, each party was not permitted to have overnight guests of the opposite sex "under inappropriate circumstances." Later, the court modified this "vague" order to restrain Father from having members of the opposite sex "stay overnight in the same bed with him" while he kept the children after Mother accused Father of sleeping with his girlfriend many times while he supervised the minor children; on this occasion, the court refused to terminate Father's Wednesday overnight parenting time or penalize Father on account of its finding that the children benefited from the time they shared with Father on Wednesday nights.

The appellate court was asked to decide the following issues: (1) Whether the court was justified in modifying the parenting plan to provide Father with overnight visitation on Wednesday nights; and (2) Whether the court was justified in declining re-modification of the plan after Father shared a bed with his girlfriend (allegedly in contempt of court).
First, the appellate court referenced that Tenn. Code Ann. Section 36-6-101(a)(2)(C) explains what constitutes a material change of circumstance warranting modification of a residential parenting schedule: "The petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule 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 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."

The court elaborated that it would primarily consider the child's best interest (rather than what each parent wanted) in evaluating the "very low threshold" of material change of circumstance, and stated that in this case, the modification occurred because Father was consistently (yet understandably) late in returning the children to Mother on Wednesday nights; he had only two hours during which to coach the soccer team of one child, cook dinner, spend time with the children, and assist the children with finishing homework, which was further complicated by the fact that the children did not wish to leave Father's care at the end of the allotted time. The appellate court affirmed the trial court's rationale that if the children stayed Wednesday nights with Father, they would have an earlier bedtime and not consistently feel hurried during their time with Father; the appellate court provided that the overnight Wednesday visits could continue unless the children struggled in school or failed to get enough sleep. Second, the appellate court mentioned the testimony of both parties regarding re-modification, but ultimately found that Wednesday overnight visitation improved the quality of the time Father and children spent together as well as their relationship. Noting the trial court acknowledged that transportation would be an inconvenience and that difficulties would likely result from the children forgetting school books or clothing, the appellate court nevertheless affirmed Father's Wednesday night visits since the children were almost never late to school, continued to succeed in school, and enjoyed the Wednesday nights with Father.

In the recent case titled Brewster v. Brewster, No. E2011-01455-COA-R3-CV (July 11, 2012), the Tennessee Appellate Court discusses how to use T.C.A. §36-6-106 to determine child custody and primary residential parent status. The Court also affirms that T.C.A §36-5-103 allows awards of attorneys fees in custody cases for married and unmarried parents alike.

Facts: Child was born to Mother, who was not married to Father at the time. Both parents later married other individuals, referred to here as Stepfather and Stepmother. In 2006, a paternity test confirmed Father as the biological dad. Four years later, the State of Tennessee filed a petition to establish his paternity and set child support under T.C.A. §71-3-124. The parents worked out a visitation schedule which they followed for 7 months until Father requested to be the primary parent (PRP) and alleged Mother had domestic violence and substance abuse issues as well as ignoring the child's medical and developmental needs. At the trial, the court kept Mother as the PRP and gave Father 80 days of co-parenting. This was based upon the following: that Mother raised the child almost alone and her emotional ties were stronger than Father's; that Father pursued surrender of his rights; that the testimony regarding neglect was not found convincing, and the record was devoid of medical proof of neglect; that continuity favored Mother; stability favored Father; mental and emotional health were equal, home, school and community favored Mother; and preference was not applicable and the stepparents posed no concern.

Issues: Whether the trial court erred in designated Mother as PRP and whether the trial court erred in awarding Mother her attorneys fees.

Appellate Review: Father argues that the court should not have designated Mother PRP because it was contrary to the preponderance of the evidence. T.C.A. §36-6-106(a) list all relevant factors a court should consider when making a custody decision. The appellate court found the following factors relevant here: the bond between Mother and child was shown by child's initial distress upon beginning visits with Father; Mother had been the primary caregiver; the evidence did not show Mother was neglectful or dangerous to the child; stability favored Mother in light of child's home, school and community records; Father is more stable due to his new Wife, business income and residence. All other factors were found to be equal. Accordingly, the trial court's determination was correct and the decision to keep Mother as PRP was upheld.
Regarding attorneys fees, Father argued that T.C.A. §36-5-103, which allows awards of attorney fees in spouse custody cases, is not applicable here because the parties were never married. Father failed to raise this issue with the trial court, and therefore this argument is not properly brought upon appeal. Further, the Appellate Court has upheld awards of attorney fees in similar cases of unmarried parents and therefore there was no abuse of discretion by the trial court.

The factors discussed in this case are always used in divorce and custody disputes. Be sure to contact a local Knoxville divorce attorney to see how these factors might affect your family.

T.C.A. 36-6-106 provides Tennessee courts with the framework for determining child custody and co-parenting schedules for married and unmarried parents.

Formerly, subsection 10 read as follows: "Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child."

A new bill that went into effect on July 1 of this year adds to that language, requiring courts to look at each parent's likelihood of following court orders and the history of either party denying co-parenting to the other in violation of any court order. You can read the new bill here.

Lee v. Lee, No. M2011-01893-COA-R3-CV (Tenn. Ct. App. May 17, 2012), shows Tennessee Divorce attorneys that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") allows for TN courts to decline to exercise jurisdiction and will transfer petitions to other state courts.

In November 2008, Father and Mother divorced and the Court allowed Mother to relocate to the State of Florida. Starting in 2009, Mother allegedly engaged in an "ever-expanding pattern of vexatious litigation against the Father in Florida." In 2010, Father filed a petition to modify the parenting plan, for criminal contempt, and application of an ex parte restraining order. Father alleged that litigation against him by Mother in Florida represented a material change in circumstances. The trial court granted the restraining order against Mother which prevented her from litigating the case outside the jurisdiction of the Chancery Court for Williamson County, TN. In June 2010, Mother filed a petition to dismiss because of lack of jurisdiction and for summary judgment. Mother argued the Tennessee court was an inconvenient forum and Florida was more convenient forum. The court dismissed Mother's petition and summary judgment requests. In March 2011, the parties attempted mediation which resulted in no resolution. In June 2011, Mother filed a motion to transfer jurisdiction or to set for trial. Mother filed an affidavit outlining her and the daughter's connections to Florida. The court granted Mother's request to transfer and Father filed a motion to alter or amend judgment. The court denied the motion and Father appealed.

Father's appeal raised two questions: (1) whether the Tennessee trial court had exclusive, continuing jurisdiction over the case; and (2) whether the trial court erred in declining to exercise jurisdiction.

In their analysis, the Court of Appeals had to determine whether the state that made the initial custody determination (Tennessee) retained exclusive continuing jurisdiction. The court making the initial custody determination (here, Tennessee) retains exclusive jurisdiction unless and until one of two statutory triggers occur under T.C.A. §36-6-217(a): (1) a Tennessee court determines that neither the child nor the child and one parent nor the child and one person acting as the parent have a significant connection with the state and substantial evidence does not exist in this state concerning the child's care, protection, training and personal relationships; 2) both parents live outside the state of original jurisdiction.

Under the UCCJEA and T.C.A. §36-6-205(5), jurisdiction attaches at the commencement of proceeding which is defined as the date of the filing of the first pleading. Here, Father filed a petition in May 2010 and Mother had lived in Florida since 2008. At issue is whether one of the statutory triggers had occurred prior to Father's filing in May 2010.
Here, the Appellate Court did not rule on whether Tennessee had continuing, exclusive jurisdiction. However, the Court did determine under T.C.A. §36-6-222, sufficient evidence existed to support the trial court's decision that Tennessee was an inconvenient forum and it would be appropriate to transfer jurisdiction to Florida.

This determination is separate and apart from the original and continuing jurisdiction question, and relies upon several factors, including: the length of time the child has lived outside this state, the distance between Tennessee court and the other state's court, the parties' financial circumstances, any agreement between the parties as to the appropriate state, the nature and location of the evidence needed to resolve the pending litigation, each court's ability to decide the case quickly, whether domestic violence has occurred and which state may best protect the child and parties, and each court's familiarity with the relevant facts and issues.

Dillard v. Blanks, No. M2010-00901-COA-R3-JV (Tenn. Ct. App. September 20, 2011), reminds Tennessee child custody attorneys to raise all arguments at the trial court level so that they are not barred from making those arguments on appeal. Here, Child was born to unmarried Mother and Father in 2008. In 2009, the State filed a Petition to Set Support on behalf of the Mother. Father filed a motion seeking temporary custody of the Child and asked to be named primary residential parent "PRP."

In August 2009, parents reached an agreement on some but not all issues, so a Temporary Agreed Order was entered. Father was named biological father and Mother named PRP.

The court held an evidentiary hearing where Father stated he had been at his current job for over ten years and owned his own home; Mother stated she lived in five different locations since their 2008 breakup and currently lived with her family. Also, Mother stated she was enrolling in nursing school. Mother denied keeping Father from having visitation but admitted removing the paternal grandmother from the pickup list. In March 2010, Father was named PRP and Mother granted visitation. Mother appealed.
Mother contended the following: (1) the court erred in not finding that Father's PRP claim barred under res judicata; (2) the court erred in finding a material change in the minor child's circumstances justifying a change of PRP; (3) the court erred in changing the PRP without conducting a comparative fitness analysis of the child's best interests; and (4) requested attorneys fees.

The Court of Appeals affirmed the trial court's decisions. First, Mother contended Father's claims were barred under the res judicata principle of issue preclusion. The Court of Appeals stated the Temporary Agreed Order was not a final order upon which res judicata would apply. The trial court's order did not constitute a final appealable order because a final order must leave nothing for the trial court to determine. Therefore, the Temporary Agreed Order was interlocutory. Further, Mother failed to argue this issue at the August 22, 2010 hearing and therefore waived the issue on appeal.

Second, Mother lost PRP status and argued that a material change had not occurred. The Court of Appeals found this issue without merit because a final determination had not been made regarding the designation of the PRP; therefore, Father did not have to establish a material change of circumstance to modify the Temporary Agreed Order. A material change of circumstances need only be proved when modifying a final judgment.

Finally, both parties believed they should be awarded their attorney's fees. There is no absolute right to fees and the trial court is allotted broad discretion. The Court of Appeals stated it must uphold the trial court's ruling on trial fees because "as long as reasonable minds could disagree", the Court cannot overturn the trial court's decision about fee awards. Regarding attorney's fees on appeal, the Court of Appeals awards Father his attorney's fee because of his good faith and the Mother's claims having lacked in merit.

In Jones v. Smith, et. al., No. W2010-01160-COA-R3-CV, (Tenn. Ct. App. Dec. 12, 2011), the paternal grandparents (hereinafter "GP") filed to intervene in their son's divorce action and requested custody of the two minor children. This case highlights for Tennessee custody attorneys when one may recover fees.

After a twelve-day custody trial, the court dismissed the GPs motion to intervene and named Mother primary residential parent (PRP). The court also held that the GPs had to pay some of Mother's attorney's fees, expert witness fees and discretionary costs under T.C.A. §36-5-103(c) for a total of $66,043.06. GPs appealed.

T.C.A. §36-5-103(c) states as follows:
"The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court."

The subsequent case law states that although such a fee award is not mandatory, it is commonplace.

In their appeal, GPs argued that the statute only allows attorneys fees to be awarded between spouses. However, prior Tennessee case law interpreted the statute to allow courts to award fees against third parties in Toms v. Toms, 98 S.W. 3d 140, 145 (Tenn. 2003). In that case, the Tennessee Supreme Court explained that the spouse obtaining custody may recover fees from a third party intervenor seeking custody.

Secondly, the GPs contended that the Toms decision was erroneous. However, because the Appeals Court is bound by any Supreme Court Rulings, then that issue is moot and the GPs' only relief is review by the Supreme Court. The GPs also argue that Toms only applies where fees for an appeal are awarded. The Court of Appeals found nothing in the Toms case or the statute that would lead to an interpretation that the fees authorized were for appeals only. Accordingly, the case was affirmed and appellate costs were taxed to the Grandparents.