Immigrant Mom from Ukraine Awarded Custody of Kids in TN Divorce

Tennessee law case summary on custody in divorce and family law from the Court of Appeals.

Ilie Nita v. Olga Nita – Tennessee divorce custody

Olga and Ilie Nita were married in Olga’s native Ukraine in 1996.  The wife had a Ukrainian degree in early childhood education.  The husband, Ilie, was a native of Romania and had moved to Nashville, Tennessee in 1993.  In 1994, he bought a house for $77,000.  Olga moved to the U.S. in 1997, and moved in with her new husband.  They had two sons, born in 2000 and 2002.  In 2002, they moved to a new house in Antioch, Tennessee, and the new house was titled jointly in their names.  The husband used the proceeds from the sale of the first house to make the down payment on the new one.

After moving to the United States, Olga learned that she would need to take English classes and study for several years to become a teacher in the U.S.  She took a job bussing tables in a cafeteria until their first son was born, at which time she stayed home to care for the children.  After the kids started school, she sought employment again.  She trained as a medical assistant, but couldn’t locate a job in that field.  Starting in 2010, she was certified as a nursing assistant, and worked in nursing homes.  She earned about $9.50 per hour, but quit because of problems with lifting patients.  In 2011, she got a day care job paying $8 per hour.

The husband had worked since 1999 at Steel Summit and earned almost $19 per hour.  He also worked overtime, and earned almost $12,000 in overtime during the first nine months of 2012.

In 2010, the wife filed for divorce in Davidson County.  She alleged irreconcilable differences and inappropriate marital conduct.  The husband counterclaimed.  Trial was held in September, 2012, and the wife was awarded the divorce.  She was named the primary residential parent, with the husband having 94 days per year of parenting time.  The husband was ordered to pay child support of $1,126 per month and $800 per month rehabilitative alimony for seven years.  The wife was awarded the house, and was required to pay the husband for his equity.

Dissatisfied with the lower court’s rulings, the husband took the case to the Tennessee Court of Appeals.

The Court of Appeals first looked at the wife’s being named primary residential parent.  The husband argued that equal parenting time would have been more appropriate in the case.  The appellate court first noted that the wife was found to have less fault in causing the divorce, that he had been physically and verbally abusive, and that his testimony was not credible.

The court looked at the statutory factors and weighed the trial evidence.  One of those factors is the child’s preference, and in this case, the children had expressed a preference to live with their father.  But the Court of Appeals noted that this determination hinged on credibility, since the lower court had found that the father had made damaging statements about the mother, and that this had influenced the children.

After weighing the evidence, the appellate court concluded that the evidence did not preponderate against the trial court’s findings.  Therefore, it affirmed the custody rulings.

The husband also argued that alimony and the amount of the award were improper.  But the Court of Appeals also considered this evidence and concluded that the trial Judge had not erred in these finding.  The court also affirmed the property division and the award of attorney’s fees.

No. M2013-00201-COA-R3-CV  (Tenn. Ct. App. Jan. 31, 2014).

See original opinion for exact language.  Legal citations omitted.