Congrats to new White & Rhodes partner, Adam Porter

White & Rhodes has a new partner, Adam Porter.  After completing his studies at Vanderbilt University and the University of Tennessee, Adam has ably served as associate attorney with the firm, demonstrating skill, creativity and diligence in defense of personal injury and tort litigation.  He will continue to focus his practice in these areas going forward.

 

We are honored to be associated with a lawyer of Adam’s caliber.

 

Downward Adjustments in Alimony or Child Support

Persons seeking to lower their alimony or child support obligations due to changed economic circumstances should be familiar with the term "voluntary underemployment."  Before allowing reduced payments, the court will examine whether the unemployment or underemployment is willful.  It will look at evidence and hear testimony on past and current employment and the reasonableness of taking the current job.

Cocke v. Cocke, 2016 WL 1613205 (Tenn. Ct. App., Apr. 19, 2016)  is a case study in what NOT do if you want to prevail on this issue.  The Mother may have made a strategic mistake by starting things with a petition to modify child support, wherein she asked that the Father be ordered to pay a pro rata share of their 15 year old daughter's private school and extracurricular expenses.  Father responded with a motion to modify child support.

Mother held a journalism degree but limited her work to part-time swim lessons, which she described as "pretty exhausting."  While able to recall precise details about her daughter's soccer expenses, she could not recall much about her own income or produce supporting documentation.  The trial court did not find her believable and granted the Father's motion.  Mother was ordered to pay $11,290 in past arrearages and $113 per month going forward after the proof showed the daughter was spending substantially more time with the Father than reflected in the parenting plan.

Be careful what you ask for when you demand your day in court and know what you can and cannot prove.  Persons seeking to reduce payments should be prepared to detail all income, expenses, efforts to generate more income and/or reasons for remaining unemployed or underemployed.  Once again, the trial court's conclusions on these issues will be given much respect and deference by the Court of Appeals.

Current Status of Medical Expense Evidence

Language in the decision published in West v Shelby County Healthcare, 459 S.W.3d 33 (Tenn. 2014) raised questions concerning wider application of the erosion of “sticker price” medical charges billed but never collected in tort cases. A mixed panel of the Tennessee Court of Appeals ruled in Dedmon v. Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016) that a hybrid approach that allows Plaintiffs to present evidence of the full, unadjusted charges billed by healthcare providers also allows Defendants to present evidence of the lower, adjusted or discounted charges that were actually paid in order to refute the excess charges claimed by Plaintiffs.

 

In considering the issue, the Court of Appeals concluded that under existing authority, damages in personal injury cases are not measured by ‘fixed rules of law’ but rest largely in the discretion of the trier of fact.”  Therefore, the Court ruled that Plaintiffs are entitled to present expert testimony regarding the reasonableness of their claimed damages but Defendants are permitted to offer proof contradicting the reasonableness of the medical expenses, cautioning not to run afoul of the collateral source rule by indicating how a bill was actually paid.

 

Both the majority decision as well as a concurring opinion of the Court of Appeals specifically asked the Supreme Court to review this case to weigh in on whether the logic of West should apply in the larger context of personal injury actions.  To date neither party has requested permission to appeal to the state Supreme Court and given the state of the record in Dedmon, it is our belief that the highest Court will not opt to consider the issue at this time with this largely undeveloped trial court record.

 

A corollary to the evidentiary issues clarified by Dedmon is that unredacted medical expense billings should never be withheld from properly answered written discovery.

Alimony: The Basics

Tennessee courts may award four different types of alimony: (1) in futuro (often called "periodic"), (2) in solido (a.k.a. "lump sum"), (3) rehabilitative and (4) transitional.

The decision on whether alimony will be awarded will turn on the court's consideration of multiple factors found at Section 36-5-121(i) of the Tennessee Code.  The factors with the most weight are need and ability to pay.  If alimony is appropriate, the court's goal is generally to establish a roughly equal standard of living between the parties.

Alimony in futuro is the least favored form of alimony, but is frequently seen when one spouse has a severe economic disadvantage and cannot reasonably be expected to generate sufficient income in the future.  Stay-at-home parents who have been out of the work force for a long time or the physically disabled are oftentimes prime candidates for this type of alimony.  If awarded, the amount of this alimony can be modified if there is a later "substantial and material" change of circumstances for either spouse.  There is a presumption a substantial and material change has occurred when an ex-spouse starts living with a third party.  The obligation to pay ends automatically following the death or re-marriage of the recipient.

Alimony in solido is the use of marital assets to support a needy spouse.  The court can divide the assets in such a way that the goal of alimony is achieved, which means the parties should not assume there will simply be a 50/50 split.  These awards are usually not modifiable.  They may sometimes take the form of periodic payments from one spouse to the other.  If payments are made, it should be made clear in the divorce agreement they are to be made for a limited period of time and the amount to be paid should be specific.  Otherwise, there is the risk these payments will be considered alimony in futuro.

The purpose of rehabilitative alimony is almost self-explanatory in its name.  This type of alimony is awarded to give a spouse temporary support needed to prepare him or herself to become economically self-sufficient.  The award can be modified if there is a "substantial and material" change in circumstances, but the parties can agree to make it non-modifiable.  It terminates upon the death of the recipient spouse, unless the parties agree otherwise.

Transitional alimony is intended as temporary aid to a spouse who faces the harsher economic consequences of a divorce.  It should be limited to a specific period of time.  Recent case law strongly suggests it should not be awarded for more than 8 years. It is generally not modifiable unless the parties agree otherwise, the court includes a modification clause in the original divorce decree or the receiving spouse moves in with a third party.  The obligation to pay ends automatically  if the receiving spouse dies.  It also ends automatically if the paying spouse dies, unless the parties otherwise agree.  One small benefit to the paying spouse is that transitional alimony payments can be deducted from income on tax returns.  On the flip side, the receiving spouse must report transitional alimony as taxable income.

Parent Relocation After a Divorce

After a divorce, there are a number of reasons why a parent may wish to move away.  Better job opportunities may lie elsewhere, much needed family support might require a change of address or the parent could be urged to move by a new romantic interest.

Parenting plans will almost inevitably be affected if a parent makes a long distance move.  Recognizing this, the Tennessee Code has a specific statute on parent relocation that must be followed to the letter.  The statute is found at Section 36-6-108 and applies when one parent with joint custody or who has been designated as the primary residential parent wants to move more than 50 miles away from the other parent.  The law requires the moving parent to give notice of the impending move to the other parent at least 60 days before the move.  Notice is to be provided by registered or certified mail and must include information about the move, including the new address and the reason for the move.  The non-moving party then has 30 days to file a petition to block the move or else any objection to the move will be considered waived.  There is a presumption a primary residential parent desiring to move should be able to do so but the objecting parent must be given an opportunity to show there is no reasonable basis for the move and the relocation would not be in the "best interest" of the child.  There is no presumption in favor of or against the move if the parents exercise joint custody.

A moving parent's failure to comply with the statute can lead to very negative consequences in litigation, including loss of status as the primary residential parent and an obligation to pay the other parent's attorney's fees.  A Chattanooga case makes that point.  In Mackey v. Mayfield, 2015 WL 5882657 (Tenn. Ct. App., Oct. 8, 2015), a father who had been designated the primary residential parent decided to move to Wisconsin, allegedly for better job opportunities, but more likely to be with his wife and her family.  At trial, Father did not prove proper notice was given and probably hurt his chances further when it was learned the move was made in violation of a previous Order of the trial court.  Father tried to side-step the Order by going to a Georgia court for permission to move.  This led the trial court to conclude Father could not be trusted to follow any parenting plan if he took the child to Wisconsin so Mother was designated the new primary residential parent.  The Court of Appeals affirmed this ruling and also ordered Father to pay the attorney's fees Mother incurred during the appeal.

What Justifies a Change in Custody?

A recent case coming out of the Circuit Court for Williamson County serves as a primer on Tennessee law about when it is appropriate to alter custody arrangements.  In Robinson v. Robinson, 2015 WL 1259265 (Tenn. Ct. App., March 16, 2015), Father sought to be designated the primary residential parent after a couple earlier modifications to the parenting plan.  Father, who lived in a different city than the Mother, claimed the change was necessary to further his son's career as a competitive swimmer.  The trial judge agreed and Mother appealed.

The Court of Appeals stated the decision as to whether a change in custody should be made starts with these two questions: (1) Has a material change in circumstances occurred since the original determination and (2) Is a change in custody in the child's best interest?  The burden of convincing the trial court that the answers to these two questions are "yes" lies with the party seeking the change.  In other words, a change of custody case starts with a presumption the current custody Order is correct.  The Court also emphasized in a lengthy footnote that, when considering a change in custody, and not simply a modification of the parenting schedule, the party seeking the change must convince the trial court that the facts justifying the sought after change could not have been anticipated at the time the current Order was entered.

There is no "bright line" for determining when a change is material.  This will largely be left to the discretion of the trial judge who must determine whether the change in circumstances affects the child in a meaningful way.  If the trial judge concludes there has been a material change, the appellate court will be reluctant to reverse the trial judge unless there is strong evidence to the contrary.

In determining whether a change is in the child's best interest, the Court of Appeals directed trial courts to look at the 15 factors set out in T.C.A. § 36-6-106(a).  A child's preference is one of the factors and, in this case, the high school age child expressed a preference to live with Father and the trial court gave this factor additional weight.  The Court of Appeals said it was not a mistake for the trial court to do this when there is no evidence the child is being manipulated by a parent and due consideration is given to all applicable factors found in the statute.

This opinion re-emphasizes the importance of winning at the trial court level if you are the party seeking a change in custody.  The Court of Appeals will only reverse the trial court's ruling if the Record clearly shows the trial court did not weigh the evidence properly or reached incorrect conclusions about the law that may have led to an incorrect outcome.

Firm Winning Streak Continues

In Wireman v Ramirez, Kreis White continued to build on a streak of defense verdicts (some with admitted fault) numbering 8 of his last 10 jury trials over two years.  The client was sued in a disputed fault traffic light suit where speed was alleged by an unbiased witness and where the client admitted never seeing the opposing party before the significant impact accident.  After a two day trial in the First Circuit Court in Nashville, a jury concluded that the opposing litigant failed to carry his burden of proving fault on Wireman’s part, resulting in dismissal of the suit for personal injuries and property damage.

Firm begins year with defense verdict in breast implant failure trial

On April 5and 6, 2016, Kreis White's client received a defense verdict on both liability and on causation issues after the defendant allegedly changed interstate lanes into the path of the  plaintiff.  The plaintiff claims that the  lane change was negligent and that as a consequence, the plaintiff's right saline breast implant deflated.  The jury in Judge Gayden's Davidson County Circuit Court rejected both contentions, dismissing the suit in its entirety.