Knight on Family Law - Tennessee Family Law Blog - Tennessee Divorce Law Blog

Family Law Search Engine

sknight@baydoun.com (Stephen Knight) — Mon, 04 Dec 2006 19:51:00 +0000

As you may have noticed, this blog has been on a lengthy hiatus. In the meantime, other blogs and family law sites have been publishing loads of useful information. I have created a Family Law Search Engine to help you find some of this great content. The search box is located under the "About the Author" box in the right-hand column. This search engine was created using Google's Custom Search Engine technology. If you would like to add the search engine to your Google homepage, click on the "Add to Google" button.

If you have a website and would like to add the Family Law Search Engine to it, send me an email and I'll send you the code. And if you would like to help build the search engine by suggesting sites, email me and I'll arrange for that too.

Evaluating the Valuator

sknight@baydoun.com (Stephen Knight) — Tue, 30 May 2006 20:25:00 +0000

The Chattanoogan.com ran a detailed article recently on how to evaluate company appraisals.

Obviously, it is important to identify weaknesses in an opposing expert's valuation report. But your own expert can help with that. Even more important is your ability to objectively evaluate your own expert's report and identify its weaknesses. You don't want to learn about those for the first time from the opposing expert.

Negotiation: Lying or Puffing

sknight@baydoun.com (Stephen Knight) — Fri, 19 May 2006 14:02:00 +0000

The ABA recently issued an ethics opinion addressing false statements of material fact. The opinion attempts to distinguish between "puffing" in the context of negotiations and prohibited false statements of material fact:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a client may not make a false statement of material fact to a third person. However, statements regarding a party's negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation "puffing," ordinarily are not considered "false statements of material fact" within the meaning of the Model Rules.

From a practical standpoint, this distinction makes a great deal of sense. But I would hate to have to defend in court the ABA's justification that "consensual deception is intrinsic to the process" of mediation.

Thanks to Appellate Law and Practice for reporting this opinion.

Fast, Cheap DNA Paternity Tests

sknight@baydoun.com (Stephen Knight) — Tue, 16 May 2006 14:24:00 +0000

The Memphis Daily News had an article recently about the increasing use of DNA paternity testing. Memphis-based Test Express, Inc. can provide test results within 48 hours. The cost is $200 to $250, or $525 for a test documenting chain-of-custody for use in court.

Lawyer Reprimanded For Humming Twilight Zone Theme

sknight@baydoun.com (Stephen Knight) — Wed, 19 Apr 2006 13:54:00 +0000

Law.com reports that the Connecticut Statewide Grievance Committee has officially reprimanded a lawyer for humming the Twilight Zone theme during a divorce hearing. The parties and their counsel were meeting with the family services supervisor and the guardian ad litem when the possibility of psychological exams came up. One of the parties asked why such a test would be necessary, and the opposing lawyer explained that someone in the room had psychological problems, "doo doo doo doo, doo doo doo doo."

The previous nine grievance complaints against the lawyer had been dismissed.

Thanks to the Law Prof Blog for directing me to this story.

Extraordinary Educational Expenses

sknight@baydoun.com (Stephen Knight) — Mon, 17 Apr 2006 13:23:00 +0000

The Tennessee Supreme Court recently considered whether a party must prove a "significant variance" in the child support obligor's income before a court can order a child support modification to pay private school tuition. According to Kaplan v. Bugalla, the answer is no.

The court first clarified that private school tuition is an "extraordinary educational expense" as that term is used in the child support guidelines. In this context "extraordinary" simply means "additional" to the base child support amount.

The court then addressed the "significant variance" requirement. T.C.A. § 36-5-101(g) requires a party to establish a "significant variance" between "the guidelines and the amount of support currently ordered" before a court can increase or decrease child support payments. The court held that this provision applies only to modification of the "minimum base" child support calculated under the guidelines--it does not apply to adjustments for factors such as extraordinary educational expenses. Instead the court applied the "substantial and material change in circumstances test," which applied when the case was filed. (The court noted that the guidelines have been revised to more directly address the issue of extraordinary educational expenses.)

The court's holding is not limited to educational expenses. The key point is that the significant variance test applies only to the minimum base child support amount.

Joint Custody Of Poodle

sknight@baydoun.com (Stephen Knight) — Mon, 10 Apr 2006 13:31:00 +0000

After two days of unsuccessful mediation and an hourlong hearing before Shelby County Circuit Judge Robert Childers, a custody dispute over Zena the poodle has been resolved. Technically the issue was possession, not custody, because dogs are considered property. But the decision to award possession to the husband during the week and possession to the wife from 6 p.m. Friday to 6 p.m. Sunday sounds more like a custody decision.

To find out more about this story (and about the pet pig case) see these links:
Commercial Appeal article
WBIR article

Failure to Anticipate Judicial Error Not Malpractice

sknight@baydoun.com (Stephen Knight) — Fri, 07 Apr 2006 21:41:00 +0000

A Michigan court has decided that a lawyer's failure to raise a meritless statute of limitations defense did not give rise to a malpractice claim. The lawyer failed to assert the defense in a child support action because the parent had made partial support payments, which renews the child support obligation under Michigan law. But when the parent was arrested for failure to pay child support, the family court judge erroneously raised the statute of limitations defense sua sponte and released the parent.

The Michigan Court of Appeals held that the lawyer had no duty to foresee and exploit the court's error. More interesting is the court's statement that the lawyer would not have been guilty of malpractice even if the statute of limitations had been a valid defense. It seems the court would have considered failure to raise the defense to be an honest and reasonable mistake.

Does the reasonable mistake defense apply in Tennessee? I'd rather not test that theory.

For more information see this post in the Family Law Prof Blog, and this copy of the opinion.

Audit Critical of Metro Nashville's Juvenile Court and Clerk's Office

sknight@baydoun.com (Stephen Knight) — Wed, 29 Mar 2006 14:36:00 +0000

The National Center for State Courts and Matrix Consulting Group released a report yesterday that was critical of Metro Nashville's Juvenile Court and Juvenile Court Clerk's Office. The biggest problems relate to missing or incomplete files, which can delay hearings.

Juvenile Court Clerk Vic Lineweaver says his efforts to address the problem have been hampered by budget cuts. For example, Lineweaver has requested a bar code system to help track court records, but that request has been denied. Lineweaver also says that some referees fail to return court files after hearings.

This appears to be another situation in which a little investment in our court system could save litigants a great deal of time and money.

For more information, see the following stories in the Tennessean:
Metro Juvenile Court's office in disarray, audit reports
Lost files, communication woes hinder Juvenile Court, audit says

Expected Inheritance as Alimony

sknight@baydoun.com (Stephen Knight) — Wed, 15 Mar 2006 22:46:00 +0000

The Georgia Supreme Court has held that a husband's portion of the undistributed estate of his deceased parents can be distributed as alimony. The court drew a distinction between expected inheritance from a living parent and expected inheritance from an undistributed estate. Under Georgia law, the court may consider but not award expected inheritance from a living parent. A court may actually award part of an expected inheritance from the undistributed estate of a deceased parent. You can read the opinion here. For more on the Georgia Supreme Court opinion, see this post from the Family Law Prof Blog.

Under Tennessee law, inheritance is considered separate property, not part of the marital estate -- but a court can still award one spouse's inheritance to the other as part of an award of alimony in solido. Blummer v. Blummer, 1995 WL 414872 (Tenn. Ct. App. July 14, 1995).

Even More About Virtual Visitation

sknight@baydoun.com (Stephen Knight) — Tue, 28 Feb 2006 20:29:00 +0000

I know, I know, enough about virtual visitation already. Here's the thing: the AP has a story today about virtual visitation. And it contains some new (to me) information.

First, it provides a full picture of the status of virtual visitation legislation: Utah has a virtual visitation law; Wisconsin will have a law when the governor signs it; and the Illinois, Missouri, and Virginia legislatures are considering virtual visitation bills.

Second, the story contains some interesting arguments in favor of virtual visitation. Of course the story repeats the old argument that virtual visitation can't replace the real thing. But it also asserts that virtual visitation can help spouses get along by removing fear or uncertainty that a child is being monitored or manipulated. Also, a better connected parent is more likely to pay child support.

New Tennessee Family Law Blog

sknight@baydoun.com (Stephen Knight) — Thu, 16 Feb 2006 14:23:00 +0000

Al Frazier of Kennedy & Brown has started a promising new blog called Tennessee Family and Probate Law. Al has already posted some substantive and informative commentary. Most interesting to me are posts on two recent family law decisions by the Court of Appeals.

Sinor v. Barr clarifies that criminal contempt for willful failure to pay child support must be treated like other criminal charges -- you must prove the essential elements beyond a reasonable doubt. The court held (at least by implication) that a court cannot shift the burden of proof to the accused by presuming an ability to pay.

Lichtenwalter v. Lichtenwalter emphasizes that the primary beneficiaries of child support orders are children, not parents. Therefore, a parent cannot waive another parent's child support obligations, and private agreements to modify child support are not enforceable. One interesting twist is that this case was decided after the children had all reached the age of majority. The court held that this fact did not relieve the father of his obligation to pay child support arrearage. And the court held that the arrearage should be paid to the children because they should have been the primary beneficiaries of the payments.

To read Al's comments on these cases, visit his blog.

Virtual Visitation Law In Wisconsin

sknight@baydoun.com (Stephen Knight) — Mon, 30 Jan 2006 15:12:00 +0000

The Wisconsin legislature recently passed a bill addressing virtual visitation. (If you are unfamiliar with the concept of virtual visitation, see this post.)

According to a summary published by the Wisconsin Legislative Reference Bureau, the bill provides that electronic communication may be used only to supplement -- not replace -- physical visitation. The bill also prohibits a court from considering the availability of electronic communication as a factor in support of custody changes or in support of approval of a custodial parent's relocation.

Why should you care? For on thing, this law could be used as persuasive authority if you have a dispute involving virtual visitation. For example, if the other party argues that the availability of video conferencing supports a relocation request you can point out that the Wisconsin legislature carefully considered and rejected that suggestion because it would be bad public policy.

Thanks to the Iowa Family Law Blog for reporting this development.

Creative Discovery Techniques

sknight@baydoun.com (Stephen Knight) — Fri, 20 Jan 2006 22:07:00 +0000

The Texas Bar Association's Ten Minute Mentor website has an interesting video on creative discovery techniques for family law cases. The presentation is a bit kitschy, but it includes some useful tips on valuing assets, using third-party subpoenas, and consulting unusual information sources.

Cohabitation Can Be Expensive

sknight@baydoun.com (Stephen Knight) — Mon, 16 Jan 2006 18:40:00 +0000

Robert Thym had a good thing going. He was looking at $4,000 per month in alimony over twenty years. But nine years after the divorce his former wife got a court to terminate the payments because Thym moved in with his girlfriend. (Specifically, he was spending six nights a week with her and eating ten meals a week at her house.)

The Court of Appeals affirmed the trial court's decision that the $4,000 per month was alimony in futuro rather than a division of marital property. Why did this matter? Because under the Cohabitation Statute, alimony in futuro may be suspended if a spouse lives with a third person. Proof of cohabitation gives rise to a rebuttable presumption that the alimony recipient does not need the amount of alimony awarded.

The Court of Appeals did reverse the trial court's decision to terminate the alimony payments -- the statute says payments may be suspended, not terminated. (Any bets on how long it will take Mr. Thym to move back into his condo?)

Unanswered Question: The Cohabitation Statute allows a court to suspend "all or part" of the alimony obligation. Did the evidence really support a suspension of all payments? Are six nights and ten meals a week a substitute for $4,000 a month? What kind of food were these people eating?