Crone & Mason, plc Family Law Practice Group e-Newsletter
May 31, 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.
In May, Miles Mason Interviewed Live on WREG’s Live at 9, Interviewed in Memphis Business Journal, and Published in Georgia Bar Association Family Law Section Newsletter
On May 8, 2006, Miles Mason, Sr. was interviewed on WREG’s Live at 9 program about MemphisDivorce.com. Marybeth Conley and University of Alabama graduate, Alex Coleman, also asked questions about divorce and ways parents can work together for the benefit of their children. MemphisDivorce.com will host this clip soon. To learn more about Live at 9, see: http://www.wreg.com/Global/category.asp?C=31446&nav=menu93_2_2
On May 22, 2006, the Memphis Business Journal ran a story about Crone & Mason, PLC’s relationship with the firm’s advertising agency, Combustion, and quoted Miles Mason. The article ran with a picture of the Crone & Mason, plc Family Law Practice Group home page. To read the story: http://memphis.bizjournals.com/memphis/stories/2006/05/22/story7.html
The Georgia Bar Association Family Law Section published “Engaging a Business Valuation Expert” in its May newsletter, The Family Law Review, published for approximately 2,000 Georgia family law attorneys. The article appears on pages 22-24. To read it, see http://www.gabar.org/public/pdf/sections/familylaw/flsmay06news.pdf
EQUALLY SHARED PARENTING BILL WITHDRAWN
by Miles Mason, Sr. Excerpts from May TBA FLS Newsletter Family Practice:
The “equally shared parenting” bill, a major legislative initiative, has been withdrawn. The Tennessee Bar Association Family Law Section (“TBA FLS”) opposes HB 1729. It reads:
SECTION 1. Tennessee Code Annotated, Section 36-6-101(a)(2)(A), is amended by deleting the current language in its entirety and by substituting instead the following language:
(A) Except as provided in the following sentence, the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child. Unless the court finds by a preponderance of evidence to the contrary, or where the parents have agreed to a different custody arrangement, at a hearing for the purpose of determining the custody of the minor child, there shall be a rebuttable presumption that equally shared parenting is in the best interest of the child. For the purpose of assisting the court in making a determination whether an award of equitably shared parenting is inappropriate, the court may direct that an investigation be conducted. The burden of proof necessary to modify an order of shared parenting at a subsequent proceeding shall be by a preponderance of the evidence.
SECTION 2. This act shall take effect upon becoming law, the public welfare requiring it.
The current law, as described by Professor Janet Richards in her book Richards on Tennessee Family Law, may be described as follows:
Although the custody statute authorizes the court to award joint custody, Tennessee courts have generally been reluctant to approve joint custody awards because of the potential for disruption and instability for the child where joint physical custody is awarded and the potential for unresolved conflict that will injure the child and result in further litigation where joint legal custody is involved. Joint physical and joint legal custody have been awarded, however, and sustained by the appellate court, even over the objection of one or both of the parties.
In her book, Professor Richards also comments on the national trend regarding shared parenting and cautions against a serious problem with the presumption of shared parenting:
There is a growing national trend, however, to encourage greater sharing of parental responsibilities between divorced parents. When the parties can put the child’s needs above their own, shared parenting serves the child’s interests by fostering a meaningful relationship between the child and each parent. Increased involvement of the noncustodial parent also arguably correlates with greater child support compliance. The potential for emotional harm to the child is great, however, when the parents are forced, through court imposed shared parenting, constantly to interact and are unable to do so with any degree of civility.
Attorney Mary Frances Lyle, a family law practitioner in Davidson County, Tennessee, believes that the current law, which gives judges the “widest discretion to order a custody arrangement that is in the best interest of the child,” is a good law. It lets judges use their common sense in deciding what works best for a six-month-old nursing infant, as compared with a seventeen-year-old adolescent. The proposed equally shared parenting law presumes that all children have exactly the same needs. “Common sense is not evidence,” Ms. Lyle points out, “and absent expert testimony, courts would usually have to move the children back and forth between parents every other day, week, month, or some other schedule in order to attain equally shared parenting. Most people cannot afford to hire experts. The result will be a parenting arrangement that does not fit the needs of the child.”
The TBA FLS and the Tennessee Judicial Conference both oppose this legislation. The TBA FLS asks its members and the judiciary to contact members of the State House and voice opposition. Attorneys who have spoken with legislators have the impression that legislators believe this will reduce litigation over parenting time and decision-making authority. The TBA FLS believes it will have the opposite effect, essentially guaranteeing increased litigation.
Steve Cobb, Legislative Counsel for the Tennessee Bar Association, describes this legislation as a “continuing threat.” Overall, even if this legislation is not voted on by the House this year, the TBA FLS expects this or a similarly problematic bill to reappear next term.
The excerpt of the above article was published in this May’s Tennessee Bar Association Family Law Section’s Family Practice newsletter.
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 27th , 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.
State ex rel. Gwender Taylor v. Ian Taylor, Sr. - W2004-02589-COA-R3-JV View
Shelby County - This action stemmed from a petition for child support and a subsequent petition to modify child support. In this appeal, the appellant presented numerous issues for review. However, the Court of Appeals found one issue dispositive of the case: whether the trial court complied with Tennessee Rule of Civil Procedure 58 when it entered its order establishing child support and its subsequent order modifying child support. The Court of Appeals dismissed this appeal and remanded for entry of both orders pursuant to Tennessee Rule of Civil Procedure 58.
Kerry C. Lyons v. Gregory M. Lyons - W2004-02907-COA-R3-CV View
Shelby County - The trial court determined a material change of circumstances had occurred which warranted modification of the parties’ child visitation scheduled. Father appealed. The Court of Appeals affirmed.
Leslyn Elizabeth Miller Ballew v. John Michael Ballew - W2005-00337-COA-R3-CV View
Shelby County – The Court of Appeals was asked to determine the validity of a consent judgment entered by the chancery court granting a divorce to the parties. At trial, the parties voluntarily submitted their case to mediation. At the conclusion of the mediation, the mediator dictated the settlement terms onto a tape recorder, and the parties acknowledged onto the tape recorder that these terms were the understanding of the parties. The chancery court found that this acknowledgment was a modification of the mediation agreement and that the parties entered into a settlement agreement. On appeal, the husband asserted that the chancery court erred finding a settlement agreement because the mediation agreement specifically required that the parties would not be bound unless a written, executed settlement agreement was entered into by the parties. Second, the husband contended that, even if an oral settlement agreement was effective against the parties in this case, he had properly repudiated the agreement to his wife and the chancery court before the chancery court entered its judgment. In addition, both parties requested attorney’s fees on appeal. The Court of Appeals reversed and remanded for further proceedings and declined to award attorney’s fees to either party.
Keith Greene vs. Clara Greene - E2005-01394-COA-R3-CV View
Hawkins County - The issue presented in this post-divorce case involved the interpretation of a provision in the divorce decree allowing the wife to keep the mobile home she was awarded in the divorce on the land the husband received in the divorce for “as long as she needs to or has any desire to do so.” The husband initiated this action seven years after the divorce, asserting that the provision should be construed as an award of periodic alimony, which should be terminated due to the wife’s remarriage. The trial court held that the provision was unambiguous, was part of the division of the marital estate and not alimony, and was consequently not modifiable. The Court of Appeals affirmed the judgment of the trial court.
Jimmy D. Jones, Jr. v. Patricia Ann Jones - M2004-02687-COA-R3-CV View
Montgomery County - In this divorce case, the issue presented was whether the trial court erred in awarding the wife periodic alimony in the amount of $2,000 per month for three years and “arrearages of temporary back support” in the amount of $9,318. The Court of Appeals affirmed the judgment of the trial court as to the amount of monthly alimony awarded; however, modified the award to designate it as rehabilitative alimony rather than periodic alimony. The court further held that there could be no arrearage of temporary spousal support when there was no order prior to the final divorce hearing awarding the wife temporary support. However, the Court of Appeals held that the award to wife of $9,318 in alimony was appropriate, but should be modified to properly classify it as alimony in solido.
Dwight O'Brien Jackson v. Darcilla Jackson - E2005-01690-COA-R3-CV View
Hamblen County - The wife sued the husband for divorce and the Trial Court granted the wife a divorce, divided the parties’ marital assets and awarded the wife alimony in futuro. The husband appealed the award of alimony in futuro. The Court of Appeals affirmed.
Marian L. Crull vs. Donald R. Crull - E2005-02430-COA-R3-CV View
Knox County - This declaratory judgment action was filed by Donald R. Crull (“Husband”) on November 4, 2003. It sought primarily a declaration as to the rights of Husband’s former spouse, Marian L. Crull (“Wife”), in and to Husband’s United States Department of Agriculture (“USDA”) retirement benefits, a subject addressed in the parties’ judgment of divorce entered in the trial court some 14 years and 3 months earlier, i.e., on July 11, 1989. In addition, Husband’s complaint sought to terminate his alimony obligation effective when he retires at some unspecified time in the future. The trial court – interpreting the language of the judgment of divorce – held that the language mandates that Wife was entitled, without limitation, to one-half of Husband’s retirement benefits. The court, in its judgment, did not grant or deny Husband’s request for termination of his alimony obligation; but, in the incorporated memorandum opinion, the court did opine that Husband’s retirement, when it happens, would constitute a change in circumstances. Husband appealed, arguing that Wife’s entitlement with respect to the retirement benefits should be limited to a share of the benefits that accrued before the divorce. Wife, by way of a separate issue, contended that the trial court erred in stating that a retirement, which has not yet occurred, would constitute a change in circumstances when it takes place. The Court of Appeals vacated this latter observation by the trial court but otherwise affirmed the judgment.
John L. Medearis vs. Bonnie Baumgardner - E2005-01785-COA-R3-CV View
Hamilton County - The mother sued to enforce Agreement with the father to pay college expenses for adult child of the parties. The Trial Court refused to enforce the terms of the Agreement on the equitable grounds of unclean hands and the lack of cooperation and fair dealings by the mother. The Court of Appeals affirmed.
Charles Ford, Jr. vs. Valerie Ford - E2005-01772-COA-R3-CV View
Knox County - This is a divorce case. The trial court granted Charles Clayton Ford, Jr. (“Husband”) a divorce from Valerie Denise Ford (“Wife”) and awarded him primary physical custody of the parties’ two minor children. Wife was ordered to pay prospective child support. According to Husband, the children had been in his custody since the parties’ separation, almost a year and a half prior to the entry of the judgment of divorce. Despite this, the trial court failed to award any retroactive support. Husband appealed, contending that the trial court erred in failing to order retroactive child support or to file written findings as to why such support was not ordered. The Court of Appeals affirmed.
In Re: Giorggianna H., Stuart H., Sabrina H., Savannah H., Victoria H., Benjamin H., & Sarahanna H. - M2005-01697-COA-R3-PT View (Concur) - View
Perry County -This appeal involved the parental rights of the biological parents of seven minor children. After the children had been removed from their biological parents’ custody for approximately one year, the Tennessee Department of Children’s Services filed a petition in the Circuit Court for Perry County seeking to terminate the parental rights of the biological parents. The trial court conducted a bench trial and then entered an order terminating the biological parents’ parental rights because the conditions that caused the children to be removed from the parents’ custody continued to persist and because the parents had committed severe child abuse. Both parents appealed. The Court of Appeals determined that the record contains substantial and material evidence supporting the trial court’s conclusions that the biological parents’ conduct provides substantive grounds for terminating their parental rights and that the termination of the biological parents’ parental rights is in the children’s best interests.
C. Noelle Chaffin v. Marcus Ellis - M2003-01620-COA-R3-CV View
(Order withdrawing earlier opinion) - View
Williamson County - This is a divorce and child custody case. The husband and the wife were married in February 1998. Throughout the marriage, they lived together with the husband’s mother. The parties’ relationship began to deteriorate soon after the wedding. The wife felt that the husband and his mother were controlling and oppressive, while the husband felt that the wife was unfit. One child was born of the marriage. In October 2000, the wife filed the instant petition for divorce. After a nine-day trial, the trial court granted a divorce to the wife on the ground of inappropriate marital conduct, and designated the wife as the primary residential parent of the parties’ child. The trial court also awarded the wife a portion of her attorney’s fees and discretionary costs. From that decision, the husband appealed. The Court of Appeals vacated a portion of the award of costs, and affirmed as to the remaining issues, finding that the evidence preponderates in favor of the trial court’s opinion in all other respects. The cause was remanded for reconsideration of a portion of the award of costs for expert fees.
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.
Lighter Side Features:
Abigail Mason Explores Memphis Zoo’s New Northwest Passage
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