Crone & Mason, plc Family Law Practice Group e-Newsletter

June 15, 2006

 

The Crone & Mason, plc Family Law Practice Group e-Newsletter is a service provided by Crone & Mason, plc’s Family Law Practice Group to clients, friends, and persons requesting family law updates through e-mail from: www.MemphisDivorce.com.

 

 

 

Mason to Speak to Memphis Area Psychological Association June 27

 

Crone & Mason will host the next Memphis Area Psychological Association (MAPA) meeting.  On Tuesday, June 27^th , Miles Mason, Sr. will give a presentation the following topic:

 

Divorce Coaching for Psychologists

Lawyers and Psychologists Working Together to Better Serve Clients

 

This presentation will take place at the University Club (1346 Central Avenue).  Admission to the seminar and dinner is FREE to MAPA members.

 

Family Law Web Site Spotlight

 

ABA Family Law Section - http://www.abanet.org/family/welcome.html .

The ABA Family Law Section publishes a web site with a wealth of information, like the following charts from its quarterly publication, the Family Law Quarterly in conjunction with the annual Family Law in the Fifty States Case Digests. The charts summarize basic laws in each state by topic, including custody, alimony and grounds for divorce. All charts are current as of November 2004.

Chart 1 -- Alimony/Spousal Support Factors

Chart 2 -- Custody Criteria

Chart 3 -- Child Support Guidelines

Chart 4 -- Grounds for Divorce and Residency Requirements

Chart 5 -- Property Division

Chart 6 -- Third-Party Visitation

Chart 7 -- Appointment Laws in Adoption, Guardianship, and Parentage Cases

 

 

Important Family Law Decisions from the Tennessee Court of Appeals

 

Lawrence Brown v. Kelly Brown - W2005-00811-COA-R3-CV View
Shelby County - This appeal involved a post-divorce dispute regarding child support and related issues. The trial court awarded Wife/Appellee all of her attorney’s fees and expenses, and couched one-half of that award as additional child support pursuant to T.C.A. §36-5-103(c)(2005). Husband/Appellant appealed asserting that the trial court erred in categorizing the attorney’s fees as child support and on the ground that the attorney’s fees were excessive. The Court of Appeals affirmed.

 

 

Pamela Smith v. William Fair - W2005-00455-COA-R3-CV View
Shelby County - The parties were divorced in October of 1999. The final decree of divorce incorporated the parties’ marital dissolution agreement which provided a formula for establishing the father’s child support obligation. The father subsequently filed a petition to modify his child support obligation, which culminated in the entry of a consent order incorporating a permanent parenting plan utilizing essentially the same formula for establishing the father’s child support obligation found in the marital dissolution agreement. Shortly thereafter, father retained new counsel and filed another petition to modify his child support obligation seeking to have it set at $2,100 a month pursuant to the child support guidelines. In response, the mother filed a motion to dismiss the petition for, among other reasons, failure to state a claim upon which relief could be granted. At a hearing on the mother’s motion, the father presented several exhibits which were considered by the trial court, thereby converting the motion to dismiss into a motion for summary judgment. The trial court dismissed the father’s petition for, among other reasons, failure to state a claim for which relief could be granted. The father timely filed an appeal to this Court. On appeal, the mother requested her attorney’s fees incurred in defending this appeal. The Court of Appeals affirmed the trial court’s decision, and remanded this case to the trial court for the entry of an order awarding the mother her reasonable attorney’s fees.

 

 

Lorita Brackett vs. Steve Brackett - E2005-00345-COA-R3-CV View
Monroe County - This was a divorce case. The trial court granted Lorita Brackett (“Wife”) a divorce from Steve Brackett (“Husband”), set aside to the parties their respective separate property interests, divided the net marital estate, and awarded attorney’s fees to Wife. Husband appealed, claiming that the trial court erred in its classification and division of the marital residential property. Husband also challenged the propriety of the court’s award of attorney’s fees to Wife. The trial court’s award of fees was reversed. The court’s judgment regarding the division of the net marital estate was modified, and, as such, affirmed.

 

 

State of Tennessee, Department of CHildren's Services vs. D.L.M.L. - E2005-02194-COA-R3-PT View
Hamilton County - In May of 2005, the State of Tennessee, Department of Children’s Services (“DCS”) filed a petition seeking to terminate the parental rights of D.L.M.L. (“Mother”) to her three minor children. After Mother failed to respond timely to the petition, the Juvenile Court Referee granted DCS’s motion for a default judgment. At the hearing where the default motion was granted, no proof was offered concerning whether grounds for terminating Mother’s parental rights existed or whether terminating Mother’s parental rights was in the children’s best interests. Following the hearing, the Referee entered an order terminating Mother’s parental rights. The Juvenile Court Judge subsequently adopted and confirmed the order of the Referee. Because the complete lack of proof in the record prevents this Court’s effective review of the propriety of the Juvenile Court’s judgment, the judgment of the Juvenile Court terminating Mother’s parental rights was vacated and this case was remanded for further proceedings consistent with this Opinion.

 

 

Wendy Rose v. William Rose, Jr. - E2005-01833-COA-R3-CV View
Knox County - Wendy Whitman Rose (“Mother”) and William Sehon Rose, Jr. (“Father”) were divorced in February of 2004. The parties entered into a marital dissolution agreement dividing the parties’ marital and separate property and establishing joint custody of the parties’ two children with equal co-parenting time. The terms of the marital dissolution agreement were incorporated into the final judgment of divorce. The Trial Court later found Mother in civil contempt for willfully failing to return property to Father as required by the final judgment. The Trial Court incarcerated Mother for the civil contempt, although she quickly was released and thereafter purged herself of the contempt. Mother also was required to pay attorney fees incurred by Father in pursuing the contempt proceedings, and to reimburse Father for property that was lost or damaged while wrongfully in Mother’s possession. Mother appealed. The Court of Appeals affirmed the Trial Court’s various findings pertaining to the civil contempt proceedings, but dismissed all other issues for lack of a final judgment as required by Tenn. R. App. P. 3(a).

 

 

Ann S. Wing v. Kathy Parchman - M2005-00273-COA-R3-CV View
In this appeal from Circuit Court in Davidson County, the daughter by a previous marriage of a deceased ex-husband appeals the imposition of a constructive trust upon monies received from the ex-husband’s pension death benefit. The trial court held that the ex-husband’s designation of the daughter as a death beneficiary was in contravention of the court’s prior divorce decree and order regarding personal property division. For the reasons and under the authorities cited herein, the Court of Appeals affirmed the trial court in all respects.

 

 

Paula Greene v. Paul Greene - M2005-00456-COA-R3-CV View
Davidson County - The trial court granted Wife a divorce based on Husband’s adultery and awarded Wife alimony in futuro in the amount of $1,500.00 per month. Husband appealed the award of permanent alimony as opposed to rehabilitative alimony as well as the amount of monthly alimony, claiming an inability to pay due to other financial obligations, including child support for the parties’ four children. The judgment of the trial court was modified with respect to the award of alimony in futuro and the amount of monthly alimony, otherwise, the judgment of the trial court was affirmed.

 

 

Willie Melvin, III v. Anita Johnson-Melvin - M2004-02106-COA-R3-CV View
(Concur) - View
Sumner County - Dr. Johnson (“the wife”) and Dr. Melvin (“the husband”) were married in October 1988 while the wife was pregnant with the parties’ first child. That child born in 1989 and the second child born in 1991 were the only minor children of this marriage. Husband filed a complaint for divorce, claiming inappropriate marital conduct. The wife counterclaimed in that action. The actions of the trial court from which the wife appealed, and with which both parties raises issues on appeal, included the Decree of Divorce issued August 6, 2004; the interlocutory order and memorandum entered July 28, 2004; and three post-trial orders and one memorandum. Issues raised on appeal concerned distribution of marital property, award of alimony and child support, and refusal to award the wife attorney fees and costs. The Court of Appeals affirmed the judgment of the trial court in all respects.

 

 

Important Family Law Decisions from Around the Country

Alimony

Kelley v. Kelley
No. 4106
(South Carolina Court of Appeals, April 24, 2006)
Wife's claim for past due alimony was barred by laches where there was a 24 year delay between divorce and claim for arrears, and during period wife knew where husband was and maintained good relations with him.
http://www.judicial.state.sc.us/opinions/displayOpinionPF.cfm?caseNo=4106

Richardson v. Richardson
No. ED86807
(Missouri Court of Appeals, Eastern District, April 18, 2006)
Even though the parties' agreement provided that alimony was non-modifiable, when the wife hired a hit-man to have the husband killed, the husband could seek to have his alimony obligation terminated.
(Opinion still unpublished; available only on Westlaw.)

Child Custody

Knowlton v. Knowlton
No. 40,931-CA
(Louisiana Court of Appeals, Second Circuit, April 12, 2006)
Change in custody of teenage daughters from remarried father to remarried mother was not in daughters' best interests, even though daughters had a difficult relationship with stepmother and younger daughter had discipline problems and expressed desire to live with mother, where the older daughter had job and friends in current city and preferred to stay there, the younger daughter had frequent contacts with mother, and nothing suggested that parents were unable to work together to provide younger daughter with consistent love, attention, and discipline to address her needs.
http://www.lacoa2.org/Opinions%20PDF/40931ca.pdf

Middleton v. Johnson
No. 4108
(South Carolina Court of Appeals, April 24, 2006)
Mother's ex-boyfriend, whom mother allowed to have visitation with out-of-wedlock child for over nine years even after testing proved that he was not the biological father of child, had standing to seek visitation with child as psychological parent of child.
http://www.judicial.state.sc.us/opinions/displayOpinionPF.cfm?caseNo=4108

Child Custody - Hague Convention

Karkkainen v. Kovalchuk
Nos. 05-1581, 05-2202
(United States Court of Appeals, Third Circuit, April 24, 2006)
Child was habitually resident in the United States as of the date of her retention, where child was acclimatized to the U.S. and her conduct demonstrated a degree of settled purpose to remain there, and until mother unilaterally retracted her consent, parents had a shared intent, which modified previous custody agreement, that child would choose her country of residence.
http://www.ca3.uscourts.gov/opinarch/051581p.pdf

Child Support

Clark v. Clark
No. 26209
(Hawaii Court of Appeals, April 19, 2006)
Social security retirement benefits paid to the children on behalf of a disabled parent may not be credited against child support arrearages which accrued prior to the parent's eligibility for benefits; any excess payment to the children is deemed a gratuity to the extent it exceeds the contemporaneous child support obligation. (Ed. note: This is the majority rule.)
http://www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html

Child Support - Imputed Income

In re Bazemore
No. 2005-194
(New Hampshire Supreme Court, April 11, 2006)
Court should not consider the entire difference between the amount ex-husband, who had voluntarily resigned from his employment, was currently earning and the amount he had earned, but, rather, would only consider a portion of that difference for child support purposes where the husband had became voluntarily unemployed in reasonable reliance upon the parties' permanent stipulation and not some desire to avoid child support obligations.
http://www.courts.state.nh.us/supreme/opinions/2006/bazem029.pdf

In re Rossino
No. 2004-896
(New Hampshire Supreme Court, April 21, 2006)
Under statute that grants the court discretionary authority to "consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated," the court must consider whether a party is physically incapacitated before it consider whether the party is voluntarily unemployed or underemployed.
http://www.courts.state.nh.us/supreme/opinions/2006/rossi031.pdf

Byers v. Ovitt
No. S-11605
(Alaska Supreme Court, April 21, 2006)
Trial court's imputing income to father of child born out of wedlock based on his estimated expenses was not an abuse of discretion in proceeding on mother's motion for modification of child support order, where father was uncooperative, he did not accede to court's repeated requests for documentation of his current income, and in fact actively obstructed fact-finding process by submitting four incomplete, mutually inconsistent tax returns.
http://www.state.ak.us/courts/ops/sp-6004.pdf

Property Division

Parry v. Parry
No. 2D04-2109
(Florida District Court of Appeals, Second District, April 28, 2006)
Husband's stock and stock options that had been awarded, but had not vested, during the marriage were not husband's nonmarital property since husband had performed marital labor during the vesting periods of the stock and option grants.
http://www.2dca.org/opinion/April%2028,%202006/2D04-2109.pdf

 

 

Why Do We Pick These Particular Cases?

Each month, many appellate decisions are available from which to choose.  We include in the e-Newsletter all family law cases from the Supreme Court of Tennessee, most appellate cases originating from Shelby County Circuit and Chancery Courts, and a handful of cases from across the state and occasionally from across the U.S.  Our goal is to provide an array of cases most likely of interest to our readers.

 

Soccer photo in honor of 2006 FIFA World Cup.  Photo from Mike Rose Soccer Complex action this March.  The Mason family hosted two soccer competitors from Ireland.  They performed exceptionally well and a young man that stayed with us obtained a college soccer scholarship in Florida.

 

Featured Web Cam:

 

Great Smokey Mountain Cam:

http://www2.nature.nps.gov/air/webcams/parks/grsmcam/grsmcam.cfm

 

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