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.

Uniform Law Addresses Child Custody and Visitation Issues During Deployment

Tennessee’s legislators may consider the Uniform Deployed Parents Custody and Visitation Act

Established in 1892, the Uniform Law Commission (ULC) drafts uniform laws for individual state adoption. For example, the ULC is responsible for writing the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA), both of which were adopted with changes in Tennessee.

The “uniform” aspect of these laws provides greater consistency from one jurisdiction to the next; harmonizing, simplifying, and standardizing state laws to a significant degree. This predictability in the law is particularly important when the subject matter relates to child custody and child support. The ULC’s uniform statutes are typically amended before adoption as state legislators debate and modify the language to suit their jurisdiction’s needs and objectives, often repealing existing statutes in the process.

Which States Have Enacted the UDPCVA?­­

At the ULC’s 121^st Annual Meeting at Nashville in 2012, the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) was approved. As of this writing, North Dakota and North Carolina have already enacted the UDPCVA. This child custody legislation has been introduced in Nevada, Colorado, and the District of Columbia as well. Will Tennessee be the next state to consider protective legislation for deploying military personnel and their families?

Demands of Military Service Require Greater Protections

State custody laws can represent a hodgepodge of rules that may effectively punish military personnel who are deployed or re-stationed, something that occurs frequently and is part of the service member’s job description.

The UDPCVA addresses a widespread child custody problem for active duty military. In general, too many states’ custody and visitation laws address the needs of civilian families, but may actually be punitive when applied to the circumstances of military parenting. For the most part, civilian parents pursue remedies and seek relief through the courts without undue delay or inconvenience.

For deploying service members, child custody, parenting time, child support, access and visitation issues present challenges that are quite different from those facing civilian families. Mainly, when ordered to active duty there is insufficient time to address all child custody matters through standard family court  proceedings (after all, time is of the essence when deployment means immediate mobilization). With sudden notice and orders to deploy, military parents must take action to depart immediately. Many state custody and visitation procedures are too cumbersome to address the immediacy of these military circumstances and service members’ parental rights are often negatively impacted.

Key Provisions of the Uniform Deployed Parents Custody and Visitation Act

The UDPCVA is intended to address multiple child custody issues tied to military parents’ deployment. To help service members make custody arrangements for their children, the uniform law includes these key provisions:

● To do what is in the best interests of the child during an active duty parent’s deployment;

● To protect the rights of the service members who are serving their country (Army, Navy, Air Force, Marine Corps, Coast Guard, Merchant Marine, NOAA, and National Guard);

● To protect the rights of the other parent;

● To allow co-parenting arrangements to be made quickly when parents are notified of deployment;

● To allow the state to continue exercising jurisdiction over custody and parenting time matters even though the service member is absent from the state (the residence of the service member is not changed by reason of deployment);

● To allow for written temporary agreements between the parents which specify and grant custodial responsibilities over the child during deployment (unless the agreement is terminated by court order, the agreement terminates when deployment ends);

● To ensure that permanent custody orders are not affected by the necessity of temporary modification agreements between parents when notified of deployment;

● To allow for powers of attorney to delegate custodial responsibilities during deployment;

● To arrange for custodial responsibility which includes legal and physical custody, parenting time, access, visitation, and the authority to designate limited contact to a non-parent;

● To arrange for child care during deployment;

● To arrange decision-making authority during deployment (decision-making authority refers to the power to make important decisions over education, religious training, health care, and the like, but does not include day-to-day child care decisions).

● To provide court procedures for hearings and the granting of temporary orders for custody, child care, decision-making authority, visitation, and child support;

● To provide procedures for terminating temporary orders and agreements when the service member returns;

● To provide for limited contact with a non-parent (a family member or someone standing in loco parentis to the child) as requested by the deploying parent, if in the best interests of the child;

● To allow for a smooth transition back into the child’s life upon the parent’s return from deployment;

● To prohibit the court’s consideration of a parent’s past deployment or possible future deployment exclusively in deciding what is in the child’s best interests for purposes of child custody.

Although the key provisions noted above are part of the ULC’s approved version of the UDPCVA, the final version as adopted by any state may vary considerably.

Addressing Military Divorce Issues in Tennessee

Memphis military divorce attorney Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. 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.

Patricia Carlene Mayfield v. Phillip Harold Mayfield – Tennessee Alimony Law – 17 years married.  Note: this is the second case summary of this opinion on the Tennessee Family Law Blog.

Patricia Carlene Mayfield, the wife and Phillip Harold Mayfield, the husband, met while she was in pharmacy school and he was working as a maintenance machinist.  When her parents stopped paying for her schooling, the husband paid $10,000 in fees for the wife to complete her doctorate in pharmacy.  In 1989, the wife started work full-time as a pharmacist, moved in with the husband and began paying for the husband’s house and land payments on the husband’s family property.  The husband worked for a tool and die machine shop and planned to work in farming.  He soon lost his job and focused on farming.   The parties married in August 1992 and had two children, a daughter in 1998 and a son in March 2001.   The parties agreed that the husband would stay home to care for the children and work on their farm.

In April 2007, the husband became abusive.   The husband hit and slapped the wife and a number of occasions broke her nose.  Following an incident in January 2008 in which the husband ripped off the wife’s clothes and forced her outside, the wife took the children and moved out.    In January 2009, after 17 years of marriage, the wife filed for divorce.  In 2009, the wife earned over $127,000 a year.  The husband’s earning capacity was estimated at approximately $45,000 a year.  The trial court designated the wife as the primary residential parent, the marital property was divided and the wife received discretionary costs.    The husband was denied rehabilitative alimony by the trial court and appealed this decision.

On appeal, the husband asked for both rehabilitative alimony and alimony in futuro.  He argued that the parties agreed that he would stay home and care for the children, which meant he remained out of the workforce for an extended period while the wife advanced her career.  As a result, he required rehabilitative alimony to enable him to retrain or obtain an education that would allow him to reach the standard of living he had when the couple was married.   The father also argued that he should receive alimony in futuro to compensate for the disparity in his earning capacity.

The court held that when determining spousal support, the court first determines if one spouse is economically disadvantaged relative to the other spouse.  If the petitioning spouse is at a disadvantage, the court then determines the amount of alimony to be paid based on the petitioning spouse’s need and the obligor spouse’s ability to pay, with greater consideration given to the economically disadvantaged spouse.

There other factors that a court may also weigh to determine alimony.  The court may look at the different roles of each spouse and it may consider the economic contribution made by the primary caregiver and homemaker.   The court may also consider the economic disadvantage one spouse has as a result of contributing to the marriage as homemaker, and the need to provide a similar standard of living after the marriage as enjoyed during the marriage.

Taking these factors into consideration, the court of appeals denied both types of alimony.   The court held that rehabilitative alimony was inappropriate since the husband was “capable of finding suitable employment utilizing his skills in farming or in the tool and die industry.”   During the lower court trial, Rodney Caldwell, a vocational expert, testified that the husband had gained transferrable skills in his work in farming and in the tool and die industry and was capable of finding employment in either field.    It should be noted that the husband’s brother, who himself worked in the tool and die industry, said the husband would have trouble finding work since everything was now computerized and the husband would need to return to school and learn in order to adapt.  The court also denied alimony in futuro, holding that the husband had the ability to achieve an earning capacity that would help him maintain his standard of living.

The court of appeals, however, took it’s own initiative and granted the husband transitional alimony, which is not aimed at rehabilitation but rather “designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income.” See Gonsewsky.   The husband remained at home caring for the children.   Based on the daughter’s testimony, the husband also took care of most of the household responsibilities.  In this way, he suffered “an economic detriment for the benefit of the marriage” and should therefore receive transitional alimony.  When awarding the amount ($2,000 a month for 36 months), the court took into consideration the modest lifestyle the family led,  including the choice to live in a small house at the husband’s request, the amount of marital property that the husband already received, and the husband’s fault in the breakup of the marriage.

No. M2010-01383-COA-R3-CV (Tenn. Ct. App. Jan. 17, 2012).

See original opinion for exact language.  Legal citations omitted.

To learn more, read Tennessee Alimony Law in Divorce | Answers to FAQs.  Also, for legal updates, news, analysis, and commentary, see our Tennessee Family Law Blog and its Alimony category.  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.

]]> http://memphisdivorce.com/tennessee-alimony-law/alimony-15-19-years-married/tenn-husband-receives-transitional-alimony-after-17-years-of-marriage/feed/ 0 http://memphisdivorce.com/tennessee-divorce-law/tennessee-father-welcomes-home-daughter-amanda-berry-free-after-decade-of-violent-captivity/ http://memphisdivorce.com/tennessee-divorce-law/tennessee-father-welcomes-home-daughter-amanda-berry-free-after-decade-of-violent-captivity/#comments Tue, 14 May 2013 00:56:49 +0000 Miles Mason http://memphisdivorce.com/?p=7914 One daughter’s father and her extended family members live in Elizabethton, Tennessee. This lush hill-country community of about 14,200 serves as the county seat of Carter County.

Amanda Berry, now age 27, was abducted in Cleveland, Ohio, at the age of 16 on April 21, 2003. She was held hostage for 10 long years, but was able to escape on May 6, 2013, with the help of a good Samaritan by the name of Charles Ramsey.

Amanda’s father is Johnny Berry who said, “I had my doubts all the time, but I always kept hope” that she would someday return to him.

Amanda Berry’s Family in Elizabethton, TN

In 1999, following his break-up with Amanda’s mother Louwana Miller, Johnny Berry moved to the Tennessee town he would call home near the Appalachian Mountains. As a girl, Amanda spent summer vacations visiting with her father and other family members in Elizabethton. That is, until the day she vanished on the way home from her Cleveland job at a Burger King.

Amanda was held captive along with two other women and a six-year-old girl, all of whom were rescued by Cleveland Police following Amanda’s amazing 911 call. The two other adult victims are Michelle Knight (abducted at age 20 in 2002, now age 32) and Gina DeJesus (abducted at age 14 in 2004, now about age 23).

After a decade of being restrained, malnourished, raped, and beaten, the three women and the one child are finally free. Amanda’s mother, however, would never see her daughter again. She died of heart failure in 2005, having kept her daughter’s room as it was on the day the teenager disappeared. Some say Louwana Miller simply died of a broken heart.

Amanda’s call to her Tennessee dad following her escape left them both in tears. “There was a lot of crying. We said we loved each other and missed each other,” said Johnny Berry, “She said ‘Hi Daddy, I’m alive… I love you, I love you, I love you.” What more could a father pray for? But there’s more.

Johnny Berry is a grandfather. During her ordeal, Amanda was presumably impregnated by her captor and gave birth to a girl, Jocelyn, who is now free.

Alleged Perpetrator Had a Long History of Domestic Violence

The owner of the Cleveland house in the mainly Puerto Rican neighborhood where the victims were enslaved is 52-year-old Ariel Castro, a former children’s school bus driver. Ariel Castro had a lengthy, well-documented history of domestic violence against his ex-wife, Grimilda Feguero (now deceased), his daughters, and his son Anthony.

After his parent’s divorce, Anthony Castro said he only occasionally visited his father’s house on Seymour Avenue which “was always locked, there were places we could never go. There were locks on the basement. Locks on the attic. Locks on the garage.”

So far, Ariel Castro has been charged with several felonies, including three counts of rape and four counts of kidnapping. DNA paternity testing will determine whether Ariel Castro fathered Amanda’s child.

Although Ariel’s two brothers, Onil Castro and Pedro Castro, were arrested along with him, they have since been released from police custody without charges. It seems that Ariel Castro was a violent lone wolf, deceiving his own family, neighbors, co-workers, and police for a decade.

Experiencing Domestic Violence in Tennessee

According to a Washington, DC, study conducted by the Violence Policy Center, in 2010 Tennessee sadly rated third in the nation for women killed by men during acts of domestic violence. Learn more about domestic violence from a Memphis divorce attorney:

Domestic Violence & Tennessee Divorce Law | Get Safe Now

Contact a Memphis Divorce Attorney

Memphis divorce attorney Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. 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.

Memphis Area Programs at The Exchange Club Family Center

At The Exchange Club Family Center in Memphis, TN, the emphasis is on restoring healthy family relationships by addressing domestic violence and abuse issues one family, one adult, and one child at a time.

With every abusive relationship there may be an adult victim or a child victim, or both. All too often, the abuser was (or is) also a victim. The cycle of violence that undermines families is one that The Exchange Club works diligently to stop.

The Exchange Club in Memphis opened its doors to struggling families back in 1984. True to its mission, it has expanded its operations and counseling services to help more people in the community.

Offering 23 Vital Programs to Families in Distress

The Exchange Club has expanded significantly since its humble beginnings and now offers 23 vital programs from anger management for adults to play therapy for young children. All of these programs are designed to help families understand the sources and consequences of family violence and to break free of the abuse cycle.

The Exchange Club also offers programs designed specifically for those adults and children dealing with divorce and separation, including the following:

 ►Family Mediation Services

Mediation is a useful dispute resolution alternative to litigating in court. A neutral facilitator, the mediator, helps the participants settle divorce issues so that child custody, visitation, property settlement, child support, and alimony may be decided by the parties themselves instead of by a judge.

For legal information about the role of mediation in divorce, visit:

Divorce Mediation in Tennessee | Answers to FAQs

►Rollercoasters

This program is directed at the children of divorce who need group counseling. In group therapy, children are given opportunities to vent and express their feelings about their parents’ divorce. The program is aptly named! Many children really are on an emotional roller coaster when their parents break up.

►Transparenting

This four-hour seminar is for divorcing parents. In this class, they learn about the many ways a divorce can emotionally and developmentally effect their children.

The parenting-through-divorce class is a required program for any divorcing Tennessee couple and a certificate of completion must be filed with the court. If you need more information about mandatory parenting-through-divorce classes, then visit: 

Tennessee Child Custody Laws in Divorce | Memphis Divorce Attorney

►Safe Exchange

Another program for parents who divorce or separate deals with the nuances of parenting time exchanges. Children need to be transferred safely from one parent to the other. How parents react to each other during these exchanges typically influences their children who observe them.

► Supervised Therapeutic Visitation

When supervised visitation is ordered in the child custody case, the child must be protected. Under the supervision of a qualified counselor, therapeutic visitation is structured so that the child is kept safe during visitation with the non-custodial parent. The counselor observes the parent-child interaction, provides the emotional support and security the child needs while guiding the parent, helping them repair and strengthen their relationship.

Some additional programs offered at The Exchange Club Family Center include:

► First S.T.E.P.S. (Skills to Ensure Parenting Success)

For teen mothers at risk of abuse or at risk of becoming neglectful of their children, this in-home intervention program offers a hands-on education in good parenting skills.

► Team Up

Through The Exchange Club, individuals can volunteer to mentor a child with the Memphis Grizzlies Charitable Foundation. The Grizzlies proudly assist children through one-on-one mentoring, group mentoring, and team mentoring.

►EARNBENEFITS

When families are troubled by domestic violence, financial problems can heighten tensions and make home life unbearable. The Exchange Club connects individuals to financial benefits for affordable housing, child care, health care services, and additional community resources.

There is always help available for Memphis families dealing with domestic violence and family abuse issues. For the current program schedule, visit The Exchange Club Family Center Programs today.

Memphis Divorce Lawyer

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.

Vawter, Kennedy and Kennedy v. Vawter – Tennessee valuation law - professional practice – Note: This is not a divorce case but is offered as a background for business valuation procedural law.

In the context of determining the value of a business interest for marital property distribution, how do individuals who are terminated from their corporate partnerships get a determination of the fair value of their shares and redeem their stock?  In 1989, the Supreme Court of Tennessee addressed the issue in Vawter, Kennedy and Kennedy v. Vawter.

In 1981, Bobby Kennedy and his brother entered into an agreement with Vilas Vawter to create the accounting firm of Vawter, Kennedy and Kennedy, P.C. As members of the professional corporation, each of the Kennedy brothers owned twenty-five percent of the corporation and Vawter owned fifty percent.

In 1984, the corporation issued an additional one hundred shares of stock.  Forty-five of these newly issued shares were sold to Von Gammon, and the remaining fifty five shares were divided among the three original shareholders. Subsequently, Mr. Vawter and Mr. Gammon entered into a voting trust agreement which assigned Mr. Vawter as proxy for Mr. Gammon’s shares, effectively giving him control of 52.5% of the corporation.

In November of 1985, Mr. Vawter voted his shares to terminate Bobby Kennedy as an employee, officer and director of the corporation, and a buy-out of Mr. Kennedy’s shares was proposed. Thereafter, Mr. Kennedy filed suit against Mr. Vawter and Gammon, alleging derivative causes of action for redemption, dilution of stock value, and nonderivative causes of action for fraud, civil conspiracy, breach of fiduciary duty, and voting trust violations.

Mr. Kennedy brought suit in the name of the corporation, Vawter, Kennedy, and Kennedy, P.C. as a dissenting shareholder entitled to valuation and payment for his shares in the corporation pursuant to T.C.A. §§ 48-3-405(c) and 48-1-915. Mr. Kennedy requested that the court determine the fair value of his shares and require the corporation to redeem his shares of stock.

The defendants Mr. Vawter and Mr. Gammon filed a motion to dismiss Mr. Kennedy’s suit, arguing that he had no cause of action under T.C.A. §§ 48-3-405(c) and 48-1-915. The Chancellor agreed with the defendants’ argument and granted the motion to dismiss on the grounds that §§ 48-3-405(c) only allowed for redemption of the stock of a deceased, retired or disqualified shareholder.  Since the plaintiff was involuntarily terminated from his employment with the corporation, the Chancellor decided that Mr. Kennedy did not fall within any of those categories.

The majority of the Court of Appeals affirmed the Chancellor’s dismissal of Mr. Kennedy’s complaint, but for entirely different reasons.  The Court of Appeals found that plaintiff Mr. Kennedy failed to name the proper parties to the derivative actions for determination of stock and redemption of shares, since §48-1-915 required that shares of stock be valued and redeemed by the corporation, and not shareholder defendants.

The Supreme Court agreed with the Court of Appeals that §48-1-915 made it clear that the relief granted is against the corporation and that the corporation is also the party plaintiff. However, the Supreme Court reversed the Court of Appeals decision, agreeing with Court of Appeals Judge Crawford’s dissenting opinion that the Court was overly technical in dismissing the complaint since the technical defects could have easily been remedied by remanding the case and allowing the plaintiff to amend the complaint under Rule 17, T.R.C.P.

The Trial Court treated the complaint as properly filed, but dismissed it on the grounds that plaintiff Kennedy did not have a cause of action under T.C.A. § 48-3-405 since he did not retire from the corporation but was involuntarily terminated.  While the Trial Court interpreted “retire” to mean voluntary termination of employment, and not involuntary termination of employment, the Supreme Court interpreted the word “retire” to mean to retire from, withdraw from or to terminate employment.  Consequently, the Supreme Court held that Mr. Kennedy qualified as a retired shareholder under § 48-3-405(c), allowing him to bring suit as a dissenting shareholder under § 48-1-915.

776 S.W.2d 520 (Tenn. 1989).

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.