Tennessee Family Law

  1. Divorce

    1. Introduction

      Tennessee has two categories of divorce. The first is uncontested divorce, which is usually based on irreconcilable differences. The second is contested divorce, which requires proof of grounds for divorce. In the latter instance, the parties cannot agree, and they must go to trial. The grounds for a contested divorce include the following: adultery; habitual drunkenness or abuse of narcotic drugs; living apart for 2 years with no minor children; inappropriate marital conduct; willful or malicious desertion for one full year without a reasonable cause; conviction of a felony; pregnancy of the wife by another before the marriage without the husband’s knowledge; refusal to move to Tennessee with your spouse; and living apart for 2 years, malicious attempt on the life of another; lack of reconciliation for two years after the entry of a decree of separate maintenance; impotency and sterility; bigamy; and abandonment or refusal or neglecting to provide for spouse although able to do so.1 At least one of the parties must have resided in Tennessee for approximately 6 months before filing the complaint to proceed with a divorce in Tennessee. A divorce decree will not be final until it is approved by a judge. If the parties settle, a martial dissolution agreement divides the parties’ assets and debts, and may also identify the type/terms of any alimony. Where the divorcing spouses have children, the court also puts in place a permanent plain to decide child-related issues. The plan will designate a parenting schedule and make other provisions for any minor children. If the parties do not settle, a divorce trial will determine all issues.2

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 36-4-101 – Grounds for divorce from bonds of matrimony

      2. Tenn. Code Ann. § 36-4-106 – Contents of petition for divorce and legal separation

    3. Cases

      1. McDaniel v. McDaniel, No. E2009-00447-COA-R3-CV, 2010 WL 2134146 (Tenn. Ct. App. May, 27, 2010)

        • Procedural Posture: Wife appealed from lower court’s decision awarding divorce to father based on mother’s extramarital affair.

        • Law: Federal Wiretap Act and Tennessee Wiretap Act (“TWA”).

        • Facts: In a divorce proceeding between the McDaniels, Mr. M submitted a recording of Mrs. M’s phone conversation with her son from a previous marriage. When the recordings were played at trial, they impeached Mrs. M’s testimony about what she had told her son during a telephone conversation. The recording revealed that Mrs. M was trying to have Mr. M thrown in jail and that she had had an extramarital affair. The conversation had been recorded because the son was living with his father and stepmother who had installed a tape recording machine on their telephone line that recorded all telephone calls, assuming that it was turned on. Neither Mrs. M nor her son knew of the recording. The son’s stepmother had turned the recording over to Mr. M after she listened to the conversation as she thought it might help him in trial. Mrs. M appealed, arguing, among other things, that the conversation was not admissible because it had been recorded without her and her son’s knowledge or consent.

        • Outcome: The court affirmed the lower court’s ruling granting Mr. M a divorce and finding the mother at fault as well as its order finding that he should be the primary residential parent of the parties’ three minor children. The court determined that even if the recording violated the TWA, its admission was still harmless error because “there were so many other times that Mother lied that her credibility was ruined regardless of whether the tape recording was admitted. We agree that there were other instances where Mother’s credibility was damaged. As set forth previously, when concluding that Mother’s credibility was lacking, the Trial Court stated there were several times Mother’s credibility was implicated. However, the only specific instance actually discussed by the Trial Court involved the recorded conversation.”3

        • Special Notes: The court discussed the Tennessee statute and/or its federal counterpart in tandem, noting that they were generally “in agreement” that “there is no violation of either state or federal law if one party to a conversation consents to a recording.”4

      2. Klumb v. Goan, 884 F. Supp. 2d 644 (E.D. Tenn. 2012)

        • Procedural Posture: Order and opinion issued following a 4-day bench trial.

        • Law: Federal Wiretap Act and TWA.

        • Facts: The parties were married when the defendant C installed spyware on her then-husband’s computer and began to monitor his emails. She also allegedly tried to defraud him of his property during their divorce proceedings by drafting and having him sign a pre-nuptial agreement that contained terms different from what the parties’ had discussed.

        • Outcome: The court held that the defendant had violated the federal Wiretap Act and the TWA by surreptitiously installing and using spyware on her ex-husband plaintiff’s office computer, so she could forward those emails to her own account when he accessed them. Given that defendant was trying to use the spyware and her access to plaintiff’s email to leverage herself in the parties’ divorce proceedings, and that she tried to orchestrate a fraud in the signing of the prenuptial agreement, and frame him for adultery, the court also found the defendant liable for punitive damages. Finally, the court found that defendant was required to pay plaintiff’s attorney fees resulting from the dispute. Notably, both the federal Wiretap Act and the TWA allow a person who’s electronic communication was intercepted in violation of the federal and Tennessee Wiretap acts to obtain damages, including punitive damages and reasonable attorney’s fees and costs.5 The court found, however, that the defendant’s installation of the spyware twice on two different computers did not warrant defendant paying more than $10,000 in liquidated damages.6

        • Special Notes: In analyzing the claims that defendant had violated the TWA, the court explained that the TWA was “in all respects relevant to this lawsuit, identical to the federal Wiretap Act,” and that, therefore, it was proper to rely on cases interpreting the federal Wiretap Act to interpret the TWA.7

    4. Practice Pointers

      • Tennessee is an at-fault divorce state, meaning that a court may hold one party responsible for the breakdown of the parties’ marriage.

      • A court will consider the improper admission of evidence to be harmless error where that evidence was not the sole information impeaching the party’s credibility.8

    1. See Tenn. Code Ann. § 36-4-101 (setting forth grounds for a contested divorce). 

    2. More information on Tennessee’s divorce laws and the applicable forms are available at http://www.tncourts.gov/help-center/court-approved-divorce-forms (last visited July 19, 2013). 

    3. McDaniel v. McDaniel, No. E2009-00447-COA-R3-CV, 2010 WL 2134146, at *4 (Tenn. Ct. App. May, 27, 2010). 

    4. Id. (citing State v. Mosher, 755 S.W.2d 464, 467 (Tenn. Crim. App. 1988) (“So long as one of the participants to an electronically recorded conversation consents to the procedure, there exists no constitutional infringement.”); see also Robinson v. Fullton, 140 S.W.3d 312 (Tenn. Ct. App. 2003) (involving unlawful recording conversations by a husband of a conversation between his wife and her brother when neither party to the conversation was aware that it was being recorded)). 

    5. Klumb v. Goan, No. 2:09-cv-115, 884 F. Supp. 2d 644, 664 (E.D. Tenn. 2012) (citing 18 U.S.C. § 2520(c)(A)-(B), and Tenn. Code Ann. § 39-13-603(a)(1)(A)-(B)). 

    6. Id. at 665. 

    7. Id. at 661. 

    8. McDaniel, 2010 WL 2134146 at *4. 

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  2. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover. When determining child custody, the court’s primary consideration is to decide what is in the “best interest(s) of the child.”

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 36-6-106 – Child Custody

      2. Tenn. Code Ann. § 36-6-301 – Visitation

    3. Cases

      1. Hill v. Hill, No. 02A01-9104CV00059, 1991 WL 206515 (Tenn. Ct. App. Oct. 16, 1991)

        • Procedural Posture: On appeal from the lower court’s decision granting custody of the parties’ two minor sons to the defendant Mr. H.

        • Law: Tenn. Code Ann. § 39-13-601.

        • Facts: The parties were married with two young sons. They separated in relevant part due to the father’s ongoing extra-marital affair with another woman. The couple divorced, and the father married the other woman. Both parties sought custody of their children, and the mother wanted to move the children to her new home in Colorado, for which the mother would have to show that the move was in the children’s best interest. The trial court specifically found that granting custody to the children’s father was in the best interest of the kids. Ms. H appealed. Among other things, she argued that the trial court improperly admitted certain tape recordings of telephone conversations between her and her sons taken without her permission, as well as photographs taken without her consent.

        • Outcome: The court affirmed, holding that the trial court’s findings were proper under the current law: “The best interest test, while incorporating the concept of comparative fitness, encompasses more than just a comparison of the parties’ individual parenting skill.”1 Accordingly, the court weighed heavily the facts that the children had always resided in and gone to school in Memphis, the father had remarried and the children had a good relationship with both him and their stepmother, and the children’s’ paternal grandmother lived nearby. In contrast, the mother wanted to move the children to Colorado, which would uproot them from their otherwise stable lives.2 Moreover, the court held that even if the trial court had erred in admitting the tape recordings and photographs, the error was harmless due to the “other abundant evidence which exists to support the judgment of the trial court,” and Mrs. H’s inability to specify the potential prejudicial effects tape recordings, photographs and documents, could have had on the case.3

        • Special Notes: “The best interest test” incorporates the concept of comparative fitness, and comparison of fitness to the judge, and relocation is an important factor.

      2. Rial v. Rial, No. M2002-01750-COA-R3-CV, 2003 WL 21805303 (Tenn. Ct. App. Aug. 7, 2003)

        • Procedural Posture: Mother appealed from trial court decision finding no material change of circumstances justifying a change of child custody.

        • Law: Tenn. Code Ann. § 39-13-601.

        • Facts: Mother and father of two girls were divorced in 1993, and the court awarded primary custody of their daughters to the father. The court twice denied mother’s petition for a change of custody in 1998 and 2002, finding that no material change of circumstances justifying modification of the previous orders was required. Mother appealed, alleging that the trial court’s decision was in error. Among other things, mother argued that the trial court improperly relied on recordings of telephone conversations she had with her elder daughter made without the mother’s knowledge and consent.

        • Outcome: The court affirmed the lower court’s decisions finding that there was no material change of circumstances affecting the children’s’ well-being that would justify the change of custody. The court did an in-depth review of the record from the trial court, and determined that though both parties had made some bad decisions, it was proper to allow the girls to remain in their fathers’ custody. The court also noted that the “propriety of admission” of the evidence of the surreptitious recordings of mother’s telephone conversations were irrelevant to the question of whether a material change of circumstances had occurred, so the court did not consider the issue.4

        • Special Notes: Both daughters were old enough to testify regarding their custody suit.

      3. Lawrence v. Lawrence, 360 S.W.3d 416 (Tenn. Ct. App. 2010)

        • Procedural Posture: Appeal from lower court ruling that defendant had violated the Connective disclosures.

        • Law: Tenn. Code Ann. § 39-13-601.

        • Facts: Defendant mother secretly tape-recorded her 2½ year old daughter’s telephone conversation with the child’s father, defendant’s ex-husband, during the course of the parties’ divorce and custody dispute. After the divorce was concluded, the plaintiff father filed a complaint against the defendant seeking damages for, among other things, wiretapping in violation of the TWA. The plaintiff also moved for partial summary judgment, which the trial court denied upon finding that “[n]o set of facts would create liability under the TWA for mother’s interception of father’s communication. The court then entered partial summary judgment in favor of the defendant mother, and certified the judgment as final before plaintiff appealed. The parties agreed that the issue of whether the defendant’s actions had violated the TWA centered on the statute’s definition of the word “consent” since a 2½-year-old child could not consent to a phone call and/or a recording of the same.

        • Outcome: The court affirmed the lower court’s ruling that the defendant had not violated the TWA by listening in on her daughter’s phone call with her father. The court explained that “‘childrearing autonomy’ encompasses control of a 2½-year-old child’s access to the telephone, including to whom the child speaks and when the child speaks and under what conditions the child speaks. . . Since 2½ is obviously an age at which a child is too young to give consent, we see no need to determine a bright line rule in this case.”5 The court then held that there was no violation because it did not believe the legislature had intended to subject a parent to criminal penalties and money damages for eavesdropping, from another telephone, on a 2½ year old child’s conversation without her knowledge since the legislature would not have intended to “invade the parent-child relationship.”6

        • Special Notes: The court explained that it was following the majority rule from numerous other jurisdictions, and circuit courts explaining that the minor’s age is an important factor in determining whether a parent or guardian could “vicariously consent” on the minor child’s behalf.7

    1. Hill v. Hill, No. 02A01-9104CV00059, 1991 WL 206515 (Tenn. Ct. App. Oct. 16, 1991). 

    2. Id. at *2. 

    3. Id. at *3. 

    4. Rial v. Rial, No. M2002-01750-COA-R3-CV, 2003 WL 21805303, at *4 (Tenn. Ct. App. Aug. 7, 2003). 

    5. Lawrence v. Lawrence, 360 S.W.3d 416, 420 (Tenn. Ct. App. 2010). 

    6. Id

    7. Id. at 418. 

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