Anna Ruth Collins (Eisenberg) v. The Estate Of Harvey L. Collins  – Child Support and the Statute of Limitations

Anna Ruth Collins, the mother, and Harvey L. Collins, the father, were divorced in 1965.   At that time, the father was ordered to pay child support in the amount of $40 per week.  In 1970, the mother filed an action to obtain the child support but the case was dismissed because the father could not be found.   In 1979, the youngest child graduated high school, at which point the father’s obligation for child support ended.  In February, 2011, the mother filed a petition for child support against the father’s estate, claiming he had never paid any child support and that she was owed over $1,600,000 retroactively.  The father’s estate asked for a summary judgment, that is, that the case be decided without a trial, arguing that the statute of limitations was 10 years, beginning from 1979,  and therefore the mother had no legal claim to the money.  The trial court rejected the mother’s petition.

Petition filed after the statute of limitations ran out

On appeal, the mother argued that due to a change in the law, the statute of limitations should not apply to her request for child support.   The mother’s last opportunity to petition for child support was in 1979.  At that time, Tenn. Code Ann. § 28-3-110(2) applied, which limited the amount of time a petition could be filed to 10 years.  In 1989, ten years after the last child support payment should have been made, the statute of limitations ran out and the law prohibited the mother from filing a petition.  In 1997, a new law was enacted, Tenn. Code Ann. § 36-5-103(g), which said that there is no statute of limitations on awards for child support.  The mother argued that this second law should be applied retroactively to permit her to file for child support.

The appeals court rejected the mother’s claim, citing various cases to show the importance of the date on which the petition is filed.   In an earlier case, Rodakis,  the defaulting parent claimed he did not have to pay support on the portion of a judgment that was made more than ten years before the petition was filed to enforce the judgment.  In other words, a judgment was given which included back pay of child support, and when the custodial parent filed for the judgment to be enacted, the obligor parent claimed some of the money was owed over ten years prior.  The court rejected the claim that there was a statute of limitations, since the judgment on the entire child support issue had been given within the last ten years.  In Rodakis, however, the judges distinguished this from the case in which the custodial parent did not actually bring “an action to enforce the judgment” for over 14 years.  In that case, the court ruled that the statue of limitations had run out.   Citing other cases, the appeals court held that once a judgment is given, as is the case here, the custodial parent has 10 years in which to petition it’s implementation.

Tennessee Mother loses appeal – new law not applied retroactively

The appeals court held that the new law from 1997, which would have eliminated the statute of limitations, cannot be applied retroactively.   Since the last child support payments were due in 1979, the statute of limitations ran out in 1989.  The father (or his estate), according to the law in force in 1989, were no longer responsible for the child support or arrearages.   In a similar case, San Mateo, the court held that the new rule from 1997 “cannot be applied retroactively so as to resuscitate a claim that had expired under existing law.”  One reason for this prohibition is that the other party relies on the particularly law.   Citing an earlier case, the court held that “the right to rely upon the statute as a defense is

a vested right that cannot be disturbed by subsequent legislation.”  The court handed down a judgment in 1965, child support ended in 1979, and the mother’s claim to child support expired in 1989.   The father, or his estate, relied on this statute  and  no later rule could apply retroactively and deny the right.  The appeal was denied and the case dismissed.

No. E2012-00079-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2012).

See original opinion for exact language.  Legal citations omitted.

For more information, see Tennessee Child Support Answers to FAQ’s.  For legal updates, news, analysis, and commentary, visit our Tennessee Family Law Blog and its Child Support category.  A Memphis child support attorney from the Miles Mason Family Law Group can help you with Tennessee child support issues including setting or modifying child support. To schedule your confidential consultation about Tennessee child support, call us today at (901) 683-1850.

With recent awards for Academy of Country Music’s Male Vocalist  and Vocal Event of the Year  (2013), American Country Awards’ Touring Artist of the Year  (2012), and Country Music Association’s Album of the Year  (“My Kinda Party” – 2011), to name only a few accolades, Jason Aldean is one of the top earning country music artists.

The award-winning vocalist is also the child of divorced parents. Aldean’s early guitar-playing knowledge is credited to the musical instruction his father first shared with him when he was a young boy. Father and son would play their guitars together during what we would call parenting time today. In retrospect, the father-son quality time really had a positive influence on young Jason!

Aldean Seeks Absolute Divorce in Williamson County, Tenn.

Both born in Georgia, Aldean and Ussery (age 33) began dating back in high school. The sweethearts were married on August 4, 2001, in their home town of Macon.

At age 36, and firmly on track with a platinum country music career, Aldean filed his complaint for divorce in the Chancery Court for Williamson County, Tennessee, south of Nashville. He is seeking an absolute divorce. (Learn more about the different grounds for absolute divorce in Tennessee.)

What grounds were cited in support of the Williams divorce complaint? The “parties are experiencing irreconcilable differences.” Perhaps a portion of their irreconcilable experiences may have resulted from Aldean’s casual romantic indiscretion back in 2012. More specifically, last September Aldean was caught on camera with former American Idol  contestant Brittany Kerr. The kissing singers seemed to be quite cozy with each other at a trendy Sunset Strip saloon in Los Angeles. Needless to say, when celebrities are caught doing things they should probably not be doing, the news and the pictures tend to emerge quickly.

Although the petition for divorce has the couple’s separation date as April 26 (which is the date Aldean filed), some sources place their separation earlier in January of this year.

Tennessee Child Custody and a Permanent Parenting Plan

Ussery and Aldean have two young daughters together, so child custody will be an issue in this divorce with a parenting plan forthcoming. The couple’s only children are Keeley Ann, age 10 and born on Valentine’s Day, and her younger sister Kendyl Alden, now a 5-year-old.

In his petition, Aldean anticipates a separation and parenting agreement, something the couple will negotiate as part of their divorce. Absent any objection, their dissolution agreement and permanent parenting plan will be incorporated into the Tennessee court’s final decree of dissolution.

Absolute Divorce in Memphis, TN

Memphis divorce attorney Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. If you’re contemplating absolute divorce, check out The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle. To schedule your confidential consultation, call us today at (901) 683-1850.

Shanette Collier Chandler v. Kylan Chandler – Tennessee custody and change of primary residential parent

This case involves the mother’s appeal to be reinstated as the primary residential parent.  The mother, Shanette Collier Chandler and the father, Kylan Chandler, were divorced in November 2005 and had one child, born in 2002.  The permanent parenting plan designated the mother as the primary residential parent and the father appealed this decision.  In June 2007, the court of appeals reaffirmed the lower court’s ruling.

The father also submitted a request to modify the parenting plan in January 2007.  He asked to be made the primary residential parent, arguing that the mother’s violent behavior towards him and his mother constituted a material change in circumstance, requiring a modification to the plan.  The father claimed the mother had sent several letters to make it appear that the father had threatened her.   The mother’s goal, according to the father, was to obtain an order of protection against him, and interfere with the time permitted him with his child.  The father also claimed the mother had instigated a physical fight with him at their son’s basketball game, for which she was arrested.

The father was temporarily designated as the primary residential parent, following the above incident.  The mother was permitted 8 hours of supervised visitation with the child.  The father, using a private detective, discovered that on one occasion the mother’s visitation was not supervised.  He filed a petition to hold the mother in civil and criminal contempt.  The attorney representing the mother, who was supposed to supervise the visitations, was dismissed and the mother chose to represent herself.

Physical assault on the other parent is a reason to modify the plan

The trial court considered the various factors listed in the Tennessee Code Annotated § 36-6-404(b) in making its determination about a change in custody.  The court specifically considered two factors: (1) the willingness of the parent to allow a close, ongoing relationship with the other parent and; (2) physical abuse to the other parent or other people.  Based on the evidence brought during trial, including many witnesses to the mother’s attempts to thwart the father’s relationship with the child and her physical assaults on the father and his relatives, the court found that there was a material change in the circumstances.  This change warranted a modification of the parenting plan, making the father the primary residential parent.  The mother appealed.

Mother lost appeal because she could not prepare record

The issues regarding custody of the child that the mother asked the appellate court to consider included whether:  the trial court was mistaken in making the father the primary residential parent; there was a change in circumstances and modification of the parenting plan and; the trial court erred when it did not allow the mother to submit documents and testimony which countered the father’s claims.  The mother, however,  did not submit the transcript from the trial court or a statement of the evidence when she submitted her appeal, thus limiting the appeal court’s ability to weigh the evidence.

The Court of Appeals rejected all of the mother’s appeals regarding modification of the plan, custody of the child and the issues of additional testimony and evidence.  If no transcript or statement of evidences is submitted to the appeals court, it is assumed every fact admitted in the lower court was found in favor of the respondent/appellee, and not the appellant.  Therefore, the appeals court had no choice but to uphold the decision of the trial court to modify the parenting plan and affirmed the trial court’s designation of the father as the primary residential parent.

No. W2010-01503-COA-R3-CV (Tenn. Ct. App. June 26, 2012).

See original opinion for exact language.  Legal citations omitted.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book,Your First Steps: 7 Steps Planning Your Tennessee Divorce.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.

Announcing Your Tennessee Divorce on Facebook and Social Media

For those who routinely post to Facebook, Twitter, MySpace, and other social media websites, deciding whether to share or withhold news of a Tennessee divorce should be taken seriously. News of your impending divorce is, after all, an intensely private matter. One that strongly affects your children’s future, your family relationships, and your closest friendships.

Divorce Parties, Cakes, Rings, and Announcements

There are divorce parties, divorce cakes, and even divorce rings, all of which are intended to memorialize the big “I un-Do.” If you decide to announce your divorce via social media, you would be wise to refrain from disclosing details or disparaging your spouse (or disparaging opposing counsel, your attorney, or the judge for that matter).

Pros and Cons of Breaking Your Divorce News Via Social Media

As with so many important decisions, there are pros and cons to announcing an upcoming divorce in a tweet, Instagram, or Facebook post. Consider the following:

Pro:  How easy it is to let everyone know via social media about the upcoming divorce. You won’t have to keep repeating the painful news, “We’re getting a divorce,” ad infinitum.

Con:  The friended and the followers now know your private news (and are likely to share it with others who have only a vicarious interest). Your personal business is now public. If you thought proactive disclosure would stop the inquiries, think again. Many will want to follow every detail of your Tennessee divorce. “Is the divorce final yet?” NO. “Did you get the house?” NO. “How much will you pay in alimony?” TOO MUCH. “How much is the divorce costing you?” WAY TOO MUCH!

Pro:  Celebrities announce their decisions to divorce all the time. For example, take NASCAR driver Danica Patrick’s Facebook post in 2012 about her marital break-up: “I am sad to inform my fans that after seven years, Paul and I have decided to amicably end our marriage.” (Patrick’s divorce by consent decree was signed in Arizona on April 15, 2013.)

Con:  Celebrities make announcements to their fans for publicity reasons, not privacy reasons.

Pro:  You’ll get plenty of support from those who really care about you.

Con:  You’ll get plenty of disdain from those who really care more about your soon-to-be ex-spouse.

Pro:  Your children are living with the other parent and need to know about the divorce.

Con:  News of their parents’ divorce should never be received by children through social media. Whenever possible, children need to learn about the divorce directly from their parents in an environment wherein they feel safe and sufficiently secure to ask questions (preferably face-to-face). Exposing minors to the truth of their parents’ marital break-up in an online post is almost certain to accomplish at least two things:  emotionally upset the children and seriously anger the judge.

Announcing the court’s divorce decree via social media may be less problematic than divulging the initial separation on your Facebook page. Consider keeping things on the QT until the court has issued all orders and the divorce is final, particularly when minor children are involved. Your children’s best interests always come first.

To learn more about the potential impact of social media evidence on the outcome of your divorce, read Memphis Divorce Attorney Warns: Stay Off Facebook & Twitter During Your Divorce Case.

Before Announcing Your Upcoming Divorce on Social Media

Interview with attorney Miles Mason, Sr., on social media evidence

Before you decide to announce your upcoming divorce on social media, take a moment to watch Tennessee Divorce, Facebook & Social Media Evidence.

Call us today at (901) 683-1850 to schedule a confidential consultation with Memphis divorce lawyer Miles Mason, Sr., founder of the Miles Mason Family Law Group, PLC. To help you get started and plan for what is ahead, take a moment to download our free e-Book about Your First Steps: 7 Steps Planning Your Tennessee Divorce.

Jeanette Rae Jackson v Bradley Kent Smith – Tennessee Grandparent Visitation Rights

Bradley Smith, the father, and Stephanie Smith, the mother  were married and had a child in November 2006.   From August 2008 through February 2009, the child lived only with the mother.  In February 2009, the child went to live with the father.   In April 2009, the mother died unexpectedly.    Jeanette Jackson, the mother’s mother and the grandmother of the child, asked to visit the child on several occasions.  The father denied all of her requests.

In April 2009, the grandmother filed a petition with the court according to the Tennessee grandparental visitation statute.   At that time, the law required the grandmother to prove that she had a previously existing relationship with the child and that the child would suffer severe emotional harm or some other substantial harm if this relationship ended and that permitting the grandmother to visit was in the best interest of the child.  The trial court denied the petition, finding that although the grandmother visited the child frequently before the mother’s death, terminating the relationship would not cause substantial harm to the child.  The grandmother did not appeal the decision.

Court determined that the case was heard and completed (res judicata)

In 2010, the Tennessee law was amended and Tenn. Code Ann. § 36-6-306(b)(4) took effect.  This new rule stated that a “rebuttable presumption of substantial harm” exists if the relationship between the grandparent and the child is terminated.   This meant that rather than have to prove the potential for harm, the harm was assumed and the parent opposing the visitations had to prove that there would be no harm.   Based on this change in law, the grandmother filed a new petition for visitation rights in 2010.   This new petition contained no new facts or information that had not appeared in the original petition from 2009 but was based solely on the change in law and the presumption of harm.

The father asked that the petition be dismissed because the case had already been decided in 2009 (res judicata) and according to law, could not be re-litigated, unless there was a “material change in the child’s circumstances.”   In response, the grandmother held that while there had been no such change, there had been a “substantial change in the law” which permitted the case to be heard again.   The trial court dismissed the grandmother’s petition.    The grandmother appealed and the court of appeals held that while the doctrine of res judicata did apply, it could not rule because the grandmother had not provided enough information.

The Supreme Court first grappled with the question left open by the appeals court, that is, was her case fully litigated and therefore a second trial prohibited?  The law prohibits a second claim from being brought “between the same parties… on the same claim with respect to all issues which were, or could have been, litigated…”   The reason for this rule is that it ensures finality or closure in litigation, prevents contradictory decisions from being made, conserves resources and protects the parties from the cost and time involved in additional law suits.

According to the Supreme Court, the grandmother’s new petition in 2010 did not contain any “allegations that would give rise to a res judicata defense.”  It did not even mention the claim from 2009.   Additionally, the father did not file any of the court papers from the 2009 case.   However, in her response to the father’s petition to dismiss the case, the grandmother actually admitted to all of the facts that would make the claim inadmissible because of res judicata.  The grandmother agreed that: this was her second petition on the matter of visitations; there had been a hearing on the previous petition; the trial court had issued a final judgment and; all findings of fact made by the trial court were res judicata.  The appellate court therefore concluded that the two petitions involved the same parties, asserted the same claim, that the earlier judgment was based on its merits and that it was a final judgment, properly entered.

Grandmother argued that change in law should allow for second petition

The grandmother argued that the change in the law allows her to file a new petition for visitation rights, despite the rule of res judicata.    The Supreme Court disagreed.   The court held that the enactment of a new law ordinarily does not permit a completed case to be reopened and tried again.   The cases are rare in which the court will relax this rule.   The court will permit opening the case when the new law offers “an independent basis for relief” which did not exist previously, or if one party was denied a fair chance, or when the issues are particularly sensitive, such as constitutional issues or matters of public policy.  The court cited, for example, a case of continued environmental pollution.

The court held that none of these conditions apply in this case.   Firstly, the grandmother had a fair opportunity to present her request, her new petition did not have new reasons for visitation rights, and there was no issue of public policy.    Secondly, courts and the legislature work independently of one another.  The courts make decisions based on the law in existence at the time the case is tried and each party establishes rights based on that particular decision.  Therefore, laws made by the legislature cannot apply retroactively to a case that has already been decided and in that way, change the court’s earlier decision.  The grandmother’s petition in 2010 was therefore denied.

No. W2011-00194-SC-R11-CV (Tenn. Nov. 16, 2012).

See original opinion for exact language.  Legal citations omitted.

For more information, see Tennessee Grandparent Visitation Rights Law in Tennessee Divorce Law.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book,Your First Steps: 7 Steps Planning Your Tennessee Divorce.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.

Jahn v. Jahn – Tennessee lawyer divorce with law firm valuation.

In a Tennessee divorce proceeding, a Court must specifically identify the marital assets of the parties and establish the value of those assets in order to equitably divide marital property.

The Tennessee Court of Appeals in Jahn v. Jahn held that a husband’s interest in the assets of his law partnership qualified as marital assets as opposed to separate property since the assets of the firm were created or acquired after husband and wife were married.

Sheryl and Richard Jahn were married on March 29, 1985.  The couple had two children together, Madison Ann Jahn born in 1986, and Hayden Erich Jahn born in 1987.   Ms. Jahn worked as a certified registered nurse anesthetist and Mr. Jahn was lawyer and a partner at his law firm.

On December 6, 1993, Mr. Jahn filed for divorce from his wife.  The Trial Court awarded Mr. Jahn’s interest in his law firm entirely to him.  Ms. Jahn disagreed with the Trial Court’s decision and appealed alleging that the court erred in failing to treat her husband’s interest in the assets of his law partnership as a marital asset.

The Tennessee Court of Appeals heard the case, and in May of 1996 made a decision to vacate and remand on the issue of division of property based on the failure of the Trial Court to make specific findings as to the identity and value of the marital assets and obligations.  Specifically, the Trial Court did not indicate whether it found that Mr. Jahn’s interest in the law firm assets was a separate property interest or a marital asset.

As far as the Tennessee Court of Appeals was concerned, Mr. Jahn’s interest in his law practice was a marital asset. Mr. Jahn offered no evidence that the law partnership’s accounts receivable were in existence before his marriage in 1985, and if they were that old, Mr. Jahn would not have claimed that the accounts were collectible. All evidence on the record indicated that the accounts receivable, as well as other assets of Mr. Jahn’s law firm, were created or acquired after he and his wife were married.

The Court of Appeals declined to consider the value of Mr. Jahn’s interest in his law firm assets at the time of the marriage in order to allow him to offset that amount against the value at the time of his divorce, since the law firm assets that existed at the time of marriage were no longer owned by the firm at the time of the divorce.  Those accounts receivable had already been collected or were no longer collectible and the fixed assets had been discarded. Therefore, since the accounts and the other assets of the law firm were created or acquired during the marriage, they qualified as marital assets.

The Court of Appeals also noted that Ms. Jahn made substantial contributions as a wage earner, wife and mother during the course of the parties’ marriage.  To not include Mr. Jahn’s interest in the assets of his law firm in the division of marital property would be an inequitable result.

However, the Court of Appeals was not able to ascertain the true value of many of the marital assets from the trial record. Consequently, the Appellate Court found it appropriate to remand the case to the Trial Court in order to (a) identify the marital assets of the parties; (b) establish the value of those assets; and (c) equitably divide the assets between the parties, directing the Trial Court to consider the full value of the law firm interest of $180,065 as a marital asset.

932 S.W.2d 939 (Tenn. Ct. App. May 1996).

See original opinion for exact language. Legal citations omitted.

To learn more about Tennessee business valuation law, see Business Valuation in Tennessee Divorce Law. To learn more about the division and valuation of professional practices in divorce, see When Professionals Divorce in Tennessee: Valuing Professional Practices.

Miles Mason, Sr. JD, CPA handles complex divorce matters including business valuations and forensic accounting issues. View his professional biography listing books and articles published on business valuation and forensic accounting and seminars presented to lawyers, judges, business valuation experts, and forensic accountants. Miles Mason, Sr. authored The Forensic Accounting Deskbook: A Practical Guide to Financial Investigation and Analysis for Family Lawyers, published by the American Bar Association. The Miles Mason Family Law Group, PLC’s offices are located in Memphis, Tennessee and serves West Tennessee and Nashville. Contact Us today at (901) 683-1850.

IN THE MATTER OF JUSTICE A. F. – Tennessee law on termination of parental rights

This case involves the termination of parental rights.  T.L.A., the mother, and J.E.F., the father, had two children together, the child in question, who was less than two years old at the time of the initial trial, and another baby, who was three months old when she was murdered by the father.

The mother had four older children with another man.  The Tennessee Department of Children’s Services (DCS) twice removed the four older children from the mother’s custody following a report that the father had sexually abused the oldest daughter and the father’s continued contact with those children, despite court prohibitions.   The child was born in February 2007.  In May 2008, the baby was born.

The mother left the child and the baby with the father, at his request, when she left for work in August 2008, rather than leaving them with their regular caregiver.  The baby was found dead in the evening and the father was found guilty of second degree murder and sentenced to 25 years in prison.

Following a petition filed by the DCS, the juvenile court declared the child dependent and neglected.  The court ruled that she was a victim of severe abuse as a result of the father’s severe abuse against her sister and her mother’s failure to protect the child from this abuse.  The court also commented that the history of abuse and neglect in the family shows the mother has a pattern of poor decision-making and willfully failed to protect her children.   The DCS then filed a petition with the Chancery court, asking to terminate the mother’s and father’s parental rights as to the child, using the finding of severe abuse as grounds.

The trial court

Since grounds (severe abuse) were already established by the juvenile court’s order, the testimony in the trial court focused on the best interests of the child.  The DCS case manager, Letina Pruitt (Pruitt), testified that the mother had undergone some counseling, attended domestic violence classes, maintained a visitation schedule with the child and always had employment.  Despite this, Pruitt raised several concerns, including the fact that the mother had moved five or six times since the child was taken away from her, raising  concerns about her stability and her lack of remorse and her refusal to take responsibility for her part in the death of the baby.  Pruitt also testified that the child was doing well in her new foster home, her behavior had improved and the foster-mother wanted to adopt her.  In contrast, when she saw the mother, the child regressed and became angry.  Pruitt believed that returning the child to the mother was not in her best interest.  The foster mother’s testimony matched much of what Pruitt stated.

Dr. Catherine Collins (Collins), a clinical psychologist, testified about the mother and the child.  She said the child was withdrawn, had little emotional expression, and was isolated and resistant to contact.  Collins testified that the mother  was detached from her children, showed no enjoyment from interacting with them, and spoke harshly and in a commanding tone.   The relationship between the mother and the child was particularly poor.

Collins testified that the mother was unlikely to provide a safe, stable and nurturing environment for the child.  The mother herself was a victim of sexual and domestic abuse and had a history of bad and abusive relationships.  The mother continued her relationship with the father despite warnings and even after he was imprisoned.  She took little responsibility for her own actions and showed no remorse for the baby’s death.  The mother also failed to show up for three individual therapy appointments.

The mother, in her testimony, said she had completed all of the goals of the DCS program, including attending parenting classes, attending domestic violence and grief counseling, providing a stable home, holding down a job and regularly visiting Justice.   She admitted that her children were taken from her, but that the court order prohibiting contact with the father only referred to the oldest daughter.  She admitted to having relations with the father during this no-contact period.   She also admitted to at least one incident of domestic violence with the father but said there was no indication of abuse since he had always taken care of the child before the baby was born.  She also saw nothing wrong with leaving him with the children since there was no court order against it.  She said she had changed, could better judge people and knew how to take care of her children better.  As proof, she mentioned her five month old baby.

The trial court found that there was “clear and convincing evidence” that the child’s best interest required that the mother’s parental rights be terminated.

The Tennessee Court of Appeals

The court of appeals acknowledged that a biological parent’s right to the care and custody of her child is one of the oldest rights protected by both federal and state constitutions, but that this right is not absolute.  It exists so long as the parent has not given up the right or “engaged in conduct requiring its limitation or termination.”   The state raised the grounds of severe abuse as a reason for terminating the mother’s parental right and the mother did not appeal the grounds.  The question raised was the best interest of the child.

While the Tennessee code provides a number of factors a court may use to determine the best interests of the child (did the parent make adjustments in conduct, is there a meaningful relationship between the parent and the child), this list is not closed and the court may weigh certain factors more than others.   The Appeals court held that the testimony of the two witnesses and the mother’s own testimony showed she failed to make the necessary changes to make her home safe for the child.  While she did complete some of the programs required of her, her behavior and actions showed she had not made the necessary adjustments.    The Appeals court also found that not only was there no meaningful relationship between the mother and the child but that the relationship was detrimental to the child’s well-being.  For these reasons, the Appeals court upheld the decision of the lower court and terminated the mother’s parental rights as to the child.

No. W2011-02520-COA-R3-PT (Tenn. Ct. App. Sep. 24, 2012).

See original opinion for exact language.  Legal citations omitted.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book,Your First Steps: 7 Steps Planning Your Tennessee Divorce.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.

Sandi D. Jackson v Mitchell B. Lanphere – Standard for Granting Tennessee Orders of Protection

Ms. Sandi D. Jackson (the mother) initially filed a petition for orders of protections against Mitchell Lanphere (the father), on behalf of herself and their minor child.  The mother claimed that the father sent her threatening text messages and caused her to fear for herself and her child.  The mother said this occurred after the father did not pick up the child at the appointed time for his parenting time.  In June 2010, a hearing was held and included testimony from the mother and from a police officer.  In July the court dismissed the petition and found that the mother had not proven “by a preponderance of the evidence” the allegations in the petition against the father.

The mother appealed this decision and the Court of Appeals found that the lower court had erred regarding both findings of facts and legal conclusions.  The petition was sent back to the lower court.  In July 2011, the lower court made a number of findings of fact.

The findings of fact in the Tennessee trial court

The lower court concluded that the mother was not a credible witness.   The court also held that the mother was never in fear for herself or for her child but rather was aggravated.   The court based this finding on the police officer’s testimony.  The officer said the mother did not act or appear afraid and that she misled the officer during the investigation at the scene.  Additionally, the officer examined all of the text messages sent between the mother and father and found nothing threatening.  The officer found the mother to be aggravated with her.

The lower court found that the father did not commit or threaten to commit any act which might be considered domestic violence, a threat to the mother or the child, or a reason for an Order of Protection.

The court held that the evidence proved the mother knew she made false allegations at the time they were made.  The mother took out the petition to get back at the husband because he caused the police to harass her and because she wanted to limit his parenting time with the child.

Legal conclusions analyzed

Based on these facts, the lower court concluded that the wife had failed to prove by a preponderance of the evidence the allegations she made in the petition for an Order of Protection.  The court also found that the wife was not a victim of domestic abuse.  Accordingly, her petition was dismissed.

The appeal to the Tennessee Court of Appeals

The mother argued that the lower court used an incorrect standard of proof.  In its decision, the lower court said that there was “clear and convincing evidence” that the mother knew that her allegations were false when she made them.   The wife argued that this is a higher standard of proof than “a preponderance of the evidence,” which is what was required for a protection order.

The court of appeals explained that the reference to clear and convincing evidence referred to the court costs and not to the proof needed for the petition.  If an order of protection is granted, the respondent (or father, in this case) pays the costs.  If the order is denied, the court may require the petitioner (here, the mother) to pay court costs.  The court may order the petitioner to pay these costs  if it determines by “clear and convincing evidence” that the petitioner is not a domestic abuse victim and that the petitioner knew the allegations of domestic abuse were false at the time the petition was filed.   The higher standard was used only to determine only whether or not the mother abused the process and not to determine the strength of the allegations made in the petition.  The court clearly stated that the level of proof for the allegations was a lower one of the “preponderance of the evidence.”  The appeals court upheld the decision of the lower court.

No. M2011-02009-COA-R3-CV (Tenn. Ct. App. June 15, 2012).

See original opinion for exact language.  Legal citations omitted.

Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, alimony modification, and divorces including business valuation and forensic accounting issues.  A Memphis divorce attorney from the Miles Mason Family Law Group can help. Contact the Miles Mason Family Law Group, PLC at 901-683-1850.

Foreign Divorces for Tennessee Military Families

Tennessee military foreign divorce issues include Navy, Army, Marines, Air Force and Coast Guard concerning service members stationed at the Naval Support Facility Mid-South near Millington, Tennessee, Fort Campbell, an army base that straddles the Tennessee and Kentucky border and their families living in the Memphis, Germantown, Collierville, and Bartlett areas.

Pros and Cons of Foreign Divorces for Tennessee Military Families

Here’s a good rule of thumb when it comes to a member of the military or his or her spouse thinking about getting a foreign divorce: Don’t even think about it.

Lawyers who’ve tried to help members of the military or their spouses who’ve gotten “quickie” divorces out of the country, say in Mexico, the Dominican Republic, or Germany, will be quick to tell you that it can open up a large-sized basketful of problems that can take a lot of time and money to solve.

The big problem is that unless at least one of the parties is a legal resident of the foreign country, the divorce will not be recognized in the United States because the courts in that country don’t have jurisdiction over the matter.  Some countries allow for “mail-order” divorces, not requiring either party to show up for divorce proceedings, but these won’t be recognized in any state.

If both parties in the divorce agree about getting their divorce abroad, it could be later recognized in the United States, but if, say, a German or a Mexican court has awarded alimony to the nonmilitary spouse, how can that foreign court enforce the matter?

There are international rules and regulations (the Uniform Child Custody Jurisdiction and Enforcement Act) that can govern, say, whether the State of Illinois upholds a German court’s award of custody or child support, but states will carefully scrutinize a foreign divorce and could refuse to recognize it or enforce it if it doesn’t meet some pretty strict and stringent guidelines.

If you’ve gotten a foreign divorce or were the “respondent,” whether or not you knew about it, in a foreign divorce, check with an attorney as soon as you can. Otherwise, you might find out only years from now that a pension or a settlement of marital assets you were counting on won’t be coming your way because your divorce isn’t considered valid in the United States or its decrees aren’t enforceable.

This could require another divorce proceeding, one in the states, and you or your ex may have moved on, gotten remarried, perhaps with children. Such a situation could radically change the future you thought was secure.

So if you’re contemplating a foreign divorce, military or no, refer to the Don’t even think about it line at the beginning of this blog. Talk to a divorce lawyer about the potential pitfalls and trouble you could avoid by initiating or agreeing to one.

For more information, read:

• Military Divorce Laws in Tennessee
• Military Family Tennessee Child Support Laws
• Military Alimony and Tennessee Divorce Laws
• Military Divorces in Tennessee: Answers to FAQs
• Service Members’ Exes Are Not Alone in Tennessee Military Divorce
• Military category of the Tennessee Family Law Blog for updates and legal analysis

Since 1995, as part of the American Bar Association Family Law Section’s Military Pro Bono Project, Miles Mason, Sr. has volunteered to serve as an attorney on the Operation Stand-By list, supporting military families by answering legal questions from members of the Judge Advocate General’s Corps from around the world on Tennessee family law and military divorce involving service members and their spouses.

For more information about divorce planning, download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce or, purchase The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle.  Memphis divorce attorney, Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC.  To schedule your confidential consultation, call us today at (901) 683-1850.

Mary Butcher v Ronald Butcher – Tennessee property division law and classification

In Butcher v. Butcher, the husband appealed the trial courts classification and division of property in divorce proceedings.   The court of appeals affirmed the decision of the lower court.

Mary Butcher (the wife) and Ronald Butcher (the husband) were married in October 1976.   In September 2007, after 31 years of marriage, the wife filed a complaint for legal separation and in May 2009, she filed an amended decree for legal separation and divorce.   The trial court awarded a final divorce decree in July 2011.   The trial court also divided the parties’ property, awarded each party their own business and the wife the real property in which the businesses operated.  The trial court also awarded Ms. Butcher $26,139.00 in alimony in solido, a lump-sum payment.  The property division gave the wife 61% of the marital assets and 39% went to the husband.

On appeal, the husband asked the court to rule that the lower court did not divide the marital property fairly.  He argued that one of the businesses, Butcher Tax Services, was a partnership between the two parties and therefore it should have been given a monetary value before it was divided.

The wife argued that the appeal should be dismissed for two reasons.  Firstly, the husband did not comply with Rule 7 of the Rules of the Court of Appeals of Tennessee.  This rule requires that on appeal in domestic relations cases, all marital and separately owned properties in question must be listed in a table format and include such information as classification and valuation.  The husband failed to submit this table on appeal and made no offer to submit them at any time.  The Court of Appeals held that the Rule 7 table is vital in helping the court make appropriate and fair decisions regarding the value and distribution of property.  The Court of Appeals further held that the court has no obligation, in the case when such a table is omitted, to search through the court records to try to ascertain the status of the property and/or its value.

The wife’s second argument was that since the husband did not argue in the lower court that the parties operated a joint business partnership, this claim could not be made for the first time on appeal.   The Court of Appeals agreed with the wife.  During the trial, the husband did not assert that the parties operated a joint business that should be valued and divided as a partnership.  His only objection at the time the final decision was granted was that the trial court made a mistake by not determining the value of each parties business.  During trial, it was clear from testimony by both parties that each had their own separate business, and that each maintained their own separate business bank accounts.  The husband never argued that they operated a partnership nor did he submit any kind of documentation or other evidence to the trial court which indicated the value of each business.  Since these issues were not raised in the trial court, the Court of Appeals agreed with the wife and found that the husband could not raise them for the first time on appeal.   The Court of Appeals further added that it is the job of the parties, and not the court, to offer values to the property.

No. W2011-01808-COA-R3-CV (Tenn. Ct. App. June 12, 2012).

See original opinion for exact language.  Legal citations omitted.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book,Your First Steps: 7 Steps Planning Your Tennessee Divorce. A Memphis divorce lawyer from the Miles Mason Family Law Group can help. To schedule your confidential consultation, call us today at (901) 683-1850.