Articles Posted in Family Law Litigation

Spouses who divorce after a lengthy marriage may have disputes related to a sudden change in income or other financial concerns.  The Court of Appeals of Tennessee considered the issue of transitional alimony in an August 1, 2017 case.  The spouses in this Tennessee divorce case had divorced after nearly 30 years of marriage.  The husband brought the appeal, contesting the trial court’s award of transitional alimony to the wife.check

The spouses had resolved many of the issues related to their divorce through mediation, but with the question of alimony unsettled, the matter went before the trial court.  Testimony established that the husband’s post-divorce gross monthly income would be approximately $9,500, while the wife’s income was estimated at $3,600.  After deducting their respective expenses, the lower court ordered an award of transitional alimony paid to the wife in the amount of $500 a month for the next 12 years, until the wife could claim Social Security retirement benefits.  In his appeal, the husband challenged both the amount and duration of the alimony awarded, arguing that the wife failed to demonstrate a sufficient need for it.

In Tennessee, alimony decisions by the court require the careful balancing of many factors, which are provided by law.  The two most important factors are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.  Other factors that courts are directed to consider include, but are not limited to, the duration of the marriage and the standard of living enjoyed during the marriage, the age and physical condition of the spouses, the education and training of each spouse, their separate assets, and, if appropriate, the relative fault of the parties.

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Even when a settlement agreement has been reached in a divorce case, subsequent issues may bring the matter back to court.  In an April 13, 2017 decision, the Court of Appeals of Tennessee reviewed a post-divorce dispute regarding the wife’s claim against the husband for a portion of his military retirement benefits, among other claims.  The lower court had ruled that the wife was entitled to approximately 30 percent of the husband’s retirement benefits going forward, but it declined to award her any portion of the benefits he received prior to the hearing because she had not presented sufficient proof as to the amount of those benefits.  The wife timely appealed the matter to the higher court.retirement money

The parties in the case were married in 1979 and had two children before divorcing in 1998.  The parties mediated an agreement on the terms of the divorce and custody of the children, which was incorporated into the final divorce decree entered by the court. The marital dissolution agreement provided that the wife was entitled to the maximum allowable pension benefit available to her through her husband’s former employment with the U.S. Army, but not more than 50 percent.  In 2004, the husband was notified that through an error, he was not eligible for retirement pay.  The husband returned to the military and eventually qualified for military retirement benefits, albeit a different type of benefits than he was originally promised.  The wife filed a complaint in 2015 against the husband for his alleged failure to provide her with her share of his military retirement benefits, pursuant to the parties’ marital dissolution agreement.

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In Tennessee, courts recognize that a reduction in parenting time following a divorce can affect the well-being of the child as well as the parent’s rights.  Accordingly, any motion to modify parenting time is reviewed pursuant to specific legal standards.  In a February 23, 2017 opinion, the Court of Appeals of Tennessee scrutinized a lower court’s order to reduce the father’s parenting time, ultimately reversing the decision.father and son

The parties had divorced in 2008.  Prior to the entry of the divorce decree, which incorporated an agreed permanent parenting plan, the mother moved to Texas.  Under the 2008 parenting plan, the mother was designated as the primary residential parent and received 317 days per year of parenting time, while the father received 48 days with the child in Tennessee.  The parenting plan provided for joint decision-making with respect to educational decisions; however, the mother was permitted to make decisions regarding non-emergency health care, religious upbringing, and extracurricular activities.

In 2013, the parties agreed to modify the parenting plan so that the father would receive 85 parenting days, regular webcam and telephone calls, and joint decision-making regarding major decisions in the child’s life.  In the present action, the father sought to modify the 2013 plan in order to increase his amount of parenting time to 113 days and provide the child with a cell phone to facilitate their phone calls.  After a hearing on the matter, the trial court reduced the father’s visitation to 68 days, denied the cell phone request but increased his number of phone calls per week, and ordered that the mother be allowed to make major life decisions for the child.

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Relocation after a divorce can become complicated when children are involved, since one party often loses parenting time as a result of the other’s move.  Most times, the relocating parent will need the court’s approval to move with the child out of state.  In Mouton v. Mouton (Tenn. Ct. App. Nov. 16, 2016), the Court of Appeals of Tennessee addressed a lower court’s finding that the mother did not have a reasonable purpose in relocating to Colorado for her employment.  After review, the appeals court ultimately reversed the trial court’s decision.child

In Mouton, the spouses had divorced in 2015 with a permanent parenting plan that designated the mother as the primary residential parent for their child, with 280 days of parenting time per year.  Shortly thereafter, the mother lost her job in Tennessee and accepted an employment offer in Colorado for approximately the same salary.  The mother notified the father, who filed a petition in opposition to the removal of the child.  Due to the court’s order requiring her to be in Tennessee, the mother was unable to keep that position, but she was offered other employment in her field by a Colorado entrepreneur developing a start-up company.  After a hearing, the trial court ruled that there was no reasonable basis for the move, but the mother’s motive for relocation was not vindictive.  The mother appealed the decision to the higher court.

In Tennessee, the appropriate analysis for addressing parental relocation depends on the relative amount of time each parent spends with the child.  When, as in Mouton, one parent spends substantially more time with the child than the other, there is a presumption in favor of the relocating parent.  Specifically, the statute provides that relocation with the child will be permitted unless the court finds that the relocation does not have a reasonable purpose, that the relocation would pose a threat of specific and serious harm to the child that outweighs the harm of a change of custody, or that the parent’s motive for relocating with the child is vindictive, in that it is intended to defeat or deter the visitation rights of the other parent.

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In some cases, divorce settlement agreements may be contested if the circumstances of the parties change. The Court of Appeals of Tennessee recently reviewed a dispute related to this issue in Turner v. Turner (Tenn. Ct. App. Aug. 11, 2016). In Turner, the parties had entered into a Child Custody, Support, and Property Settlement Agreement (PSA) after they divorced in 2011 in Mississippi. The PSA provided that each parent was responsible for one-half of their child’s tuition and expenses at a mutually agreed-upon private school. In 2014, the father advised the mother he could no longer afford to pay the tuition, and he did not consent to the child’s re-enrollment at her current private school. The mother filed a petition to enforce the PSA in Tennessee, where the mother and child resided.school desk

At the hearing, the father testified that during a period of self-employment, he accumulated credit card debt to meet his monthly expenses. He conceded that his current salary was more than he earned at the time the parties executed the PSA. However, he argued that he could not afford to continue paying $622.50 per month in tuition, in addition to saving for her college education, his attorney’s fee bills, and his credit card payments. The trial court concluded that it was not in the child’s best interest to switch schools and declined to allocate the tuition and expenses differently than set forth in the PSA. The father subsequently appealed.

On appeal, the court honored the choice of law provision in the PSA and applied Mississippi law to the case, observing that the rules governing contract interpretation are largely similar to those in Tennessee. Although the court noted that the PSA was not a model of clarity, after examining all of the provisions together and applying the canons of contract interpretation, it found that the parties’ intent to send the child only to private school became manifestly clear. In particular, the court found it illogical that the parties would provide detailed conditions for the child’s private schooling, while failing to mention any possibility of public education, if they had intended public school as an option.

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In a recent child custody case, the Tennessee Court of Appeals reversed a decision in which the trial court failed to find a material change in circumstances to warrant a modification of the parties’ residential schedule. In Cook v. Cook, the parties had an agreed parenting plan that was incorporated into the final divorce decree, naming the mother as the child’s primary residential parent and granting the father approximately 96 days a year of parenting time. The father subsequently filed a petition to modify the parenting plan to allow for equal parenting time. The father alleged that the modification was appropriate because his work schedule had changed significantly, both parties had remarried, and the child had begun school since the entry of the previous parenting plan. After a hearing, the trial court ruled that the father failed to show a material change in circumstances affecting the child’s best interests, and it denied the motion.meeting-at-the-playground-1199754-639x463

In Tennessee, trial courts have broad discretion to alter parenting plans, since such decisions are factually driven and require consideration of numerous factors. In considering whether to modify a residential parenting schedule, the court must first determine if a material change in circumstances has occurred. A material change in circumstances may include significant changes in the needs of the child over time (particularly age-related changes), significant changes in a parent’s living or working condition that significantly affect parenting, failure to adhere to the parenting plan, or other factors that the court deems relevant. In Tennessee, the statute sets a very low threshold for establishing a material change in circumstances when a party seeks to modify a residential parenting schedule. The second step requires a determination of the child’s best interests, utilizing several statutory factors. If the court finds a material change in circumstances affecting the child’s best interests has occurred, the court must next determine how, if at all, to modify the residential parenting schedule.

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In a newly released opinion, the Tennessee Court of Appeals reviewed a family law decision denying a request by the father, who is the primary residential parent, to relocate to Wisconsin with the parties’ minor son. In Mackey v. Mayfield (Tenn. App. Oct. 8, 2015), the mother filed a petition in opposition to the relocation, alleging that she had not received proper notice of the father’s intent to relocate, as required by Tenn. Code Ann. § 36-6-108(a). The mother also contended that the proposed relocation was not for a reasonable purpose and not in the child’s best interest, and that a change in circumstances had occurred and the parenting plan was no longer in the child’s best interest. Following a two-day trial, the court found in favor of the mother and entered an order prohibiting the father from relocating with the child and designating the mother as primary residential parent. The father appealed that decision.moving-on-1214659-639x479

When a parent seeks to relocate with his minor child outside Tennessee, that parent must give written notice to the other parent of the proposed move, the location of the new residence, and the reasons for the move, 60 days before the move. If the other parent does not file a petition in opposition to the relocation within 30 days of receiving the notice, the relocating parent will be allowed to move without any further inquiry by the court. In Mackey, the court of appeals affirmed the trial court’s determination that the mother’s petition in opposition was not barred as untimely filed.

When a petition in opposition to the relocation is filed, the court first determines the amount of time the relocating parent spends with the child. If the relocating parent spends the majority of time with the child, as in Mackey, a statutory presumption in favor of the relocation request arises. In order to rebut this presumption, the opposing parent, here, the mother, must then establish that the relocation does not have a reasonable purpose, the relocation would pose a specific and serious threat of harm to the child, or the parent’s motive for relocating is vindictive. If any of these three grounds is established, the court then determines whether relocation is in the child’s best interest.

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In a newly published opinion, Hussey v. Woods, the Tennessee Court of Appeals addressed the roles of the probate court and the circuit court in determining paternity for purposes of the Tennessee wrongful death statute. The procedural history of the case is lengthy, beginning with the death of the purported father after he was allegedly detained and assaulted by an employee of Family Dollar. The decedent’s mother subsequently brought a wrongful death claim against Family Dollar, which was settled out of court. Twenty months after the settlement, the appellant filed a Rule 60.02 motion to set aside the settlement, contending that her minor child was the son and lawful beneficiary of the deceased, and as a result he had priority over the deceased’s mother, pursuant to the Tennessee wrongful death statute. The deceased’s mother challenged the paternity of the child and requested DNA testing, arguing that, although the deceased had filed a Voluntary Acknowledgement of Paternity in Mississippi, he was in prison at the time the child was conceived.law-order-1240301-640x480

The circuit court ordered that the Rule 60.02 motion regarding the wrongful death settlement be held in abeyance pending the determination and priority of heirs by the probate court, and that the parties should agree to a DNA test (which the appellant repeatedly refused). The probate court ultimately accepted the Voluntary Acknowledgement of Paternity without a DNA test, ruling that the appellant’s child was the only heir of the deceased. The matter returned to the circuit court, which denied the appellant’s motion to set aside the order of dismissal. The appellant appealed the circuit court’s decision to the Tennessee Court of Appeals.

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The Tennessee Court of Appeals discussed the requirements for a modification of custody in a newly issued opinion, Burnett v. Burnett (Tenn. Ct. App. Aug. 31, 2015). The case involved the mother’s request for a change in the primary residential parent designation for her children. The trial court found that the mother failed to prove that a material change in circumstances existed, as required for such a modification. The Tennessee Court of Appeals ultimately affirmed the decision of the trial court denying her request for custody of the three children in the father’s care.broken-heart-1166622-638x421

In Burnett, the mother and father had five minor children. After their divorce, the mother was named primary residential parent of two of the children, and they continued to reside with her in Tennessee. The father was designated primary residential parent of the three older siblings, who moved with him to Montana. In her petition seeking permanent custody of the children in the father’s care, the mother made numerous allegations, including that the father had violated the terms of the parenting plan by removing the children from school and homeschooling them without her permission, and that the father obstructed her visitation rights.

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In a newly issued opinion, Buchanan v. Buchanan (Tenn. Ct. App. July 30, 2015), the Tennessee Court of Appeals addressed the strict and mandatory filing requirements to oppose a notice of relocation.airplane-1480118-640x480

The mother in Buchanan is a German citizen, who married the father, a U.S. citizen, and moved to the United States. They had one child together and divorced in 2008. The parties had joint physical custody of the child, with the mother as the primary residential parent and the father receiving 122 days of parenting time per year.

On December 27, 2013, the mother sent a certified letter to the father notifying him of her intention to move to Germany with the child to assist her ailing parents, and informing him that she had secured employment there. The father objected to the move in a letter written to the mother’s attorney on January 24, 2014. The father also filed a pro se petition in opposition of relocation with the court on February 12, 2014, which the mother moved to dismiss as untimely.

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