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Tennessee case summary on attorney’s fees in post-divorce action.

Katherine Mae Pruitt v. Travis Pruitt

Tennessee Divorce Client’s Handbook by Miles Mason, Sr. available on Amazon

The child in this Henry County, Tennessee, case was born in 2013, and the parents married in 2014.  The father, however, was not the child’s biological parent, a fact that was undisputed.  But he executed a document to place his name on the birth certificate.

In 2015, the mother filed for divorce in Madison County, and the child was listed as a child of the marriage.  The father executed a marital dissolution agreement under which he was to pay child support.

In 2017, the father filed a motion in Henry County to set aside the child support obligation.  A hearing was held, and the motion was denied, since the father had voluntarily signed the dissolution agreement.  The father was also ordered to pay the mother’s attorney fees.  The father then appealed to the Tennessee Court of Appeals.

The Court of Appeals first affirmed the lower court’s ruling on setting aside the earlier judgment.  But the father fared somewhat better when it came to the attorney fees issue.  The appeals court turned to the marital dissolution agreement, which provided for attorney’s fees if either party failed to abide by the agreement.  The court noted that this is a contract and should be enforced as such.

And the Court of Appeals looked at the plain language of the agreement, which stated that attorney’s fees could be awarded only if a party failed to abide by the terms.  In this case, the father was asking for a change in the judgment, but there was no evidence that he had failed to abide by the agreement.  For that reason, the Court of Appeals concluded that an award of attorney’s fees was inappropriate in the case.

Thus, the Court of Appeals affirmed the judgment in part, but reversed the portion awarding the wife attorney’s fees.  It remanded the case and assessed the costs of the appeal against the father.

No. W2018-00453-COA-R3-CV  (Tenn. Ct. App. Feb. 5, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.

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Tennessee case summary on findings of fact in post-divorce proceedings.

Jeffrey Glenn Mitchell v. Carol Ann Thomas Mitchell

Tennessee Divorce Client’s Handbook by Miles Mason, Sr. is available on Amazon

The husband and wife in this Blount County, Tennessee, case had two children, ages 15 and 11, at the time of their 2011 divorce.  In 2014, the husband came back to court to modify the child support and property division.  He alleged that there had been a substantial change of circumstances, namely his reduced income.

The wife filed an answer in which she asked that the husband be held in contempt, and the case was heard by Judge William R. Brewer, Jr.  A number of other motions were also before the court by the time the case was heard in 2016.  Both parties testified, and the court took the matter under advisement.  Judge Brewer requested that both parties file findings of fact and conclusions of law.

The trial court adopted the wife’s findings of fact and conclusions of law, and found the husband in contempt for failure to pay certain bills and make some of the required property division payments.  The husband then appealed to the Tennessee court of Appeals.

The first issue to be addressed by the appeals court was whether the trial court had exercised its independent judgment.  This issue was presented since the court had adopted the wife’s proposed findings and conclusions.  The appeals court concluded that it was not possible to determine whether the trial court had exercised independent judgment.  The appeals court noted that trial courts speak through their written orders, but in this case, the written order was prepared by the wife’s attorney.  It cited a number of cases, including one from the U.S. Supreme Court, criticizing the practice of a court simply adopting findings, especially when they were phrased in conclusory terms.  It quoted the Tennessee Supreme Court, which noted that the practice “detracts from the appearance of a hardworking, independent judge.”

The appeals court did not that the practice might be acceptable in some cases, but not in the circumstances of this case.  It noted particularly that there wasn’t even an oral ruling at the end of trial, which reinforced the impression that the trial judge hadn’t independently made the findings.

For these reasons, the Court of Appeals vacated the lower court’s ruling and sent the case back for further proceedings.  The appeals court assessed the costs of appeal equally to each party.

No. E2017-00100-COA-R3-CV  (Tenn. Ct. App. Jan. 3, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.

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Tennessee alimony divorce case summary after 18 years married.

Jill Smothers Lucchesi v. Eugene Anthony Lucchesi

Error correction: Original post listed this as a 12 year marriage.  Parties married in 1994 and divorce originally filed in 2013.

The husband and wife in this Shelby County, Tennessee, case were married in 1994 and had one son, who was born in 2000.  The husband was the operations manager of a family-owned liquor distributorship.  He also bought and sold assets as a venture capitalist.  The wife had worked as a middle school teacher but later earned a degree in information technology.  Starting in 2003, she had worked on a part time basis selling real estate, but her income never exceeded $20,000 per year.

The wife filed for divorce in 2013, alleging inappropriate marital conduct and irreconcilable differences.  In particular, she argued that the husband had an extensive history of alcohol abuse and verbal and physical abuse.  The husband denied these allegations, and alleged that the wife had been physically and verbally abusive during the marriage.  The case dragged on for almost three years until the nine day trial was held in 2016.

After dividing the parties’ property, the trial court awarded the wife alimony in solido in the amount of $200,000.  Both parties then appealed various issues to the Tennessee Court of Appeals.

After addressing other issues, including the trial judge’s failure to recuse and property issues, the appeals court turned to the issue of alimony, which the wife alleged was insufficient.  The trial court had noted that the award was in the nature of attorney’s fees, and was not intended to provide support to the wife.  It had initially made an award of $400,000, but later amended this amount to $200,000.  It noted that this amount was to assist the wife with litigation expenses made necessary by the husband’s failure to comply with certain requests during trial.  The wife argued that support should have also been awarded, since she would need to deplete many of the awarded assets to maintain her standard of living.  She suggested that $800,000 would have been more appropriate under the circumstances of the case.

The appeals court noted that under the appropriate standard of review, the decision as to alimony is highly fact driven, and appellate courts are reluctant to second guess the trial judge.  But even under this standard, the appeals court agreed that the amount awarded was insufficient.  It noted that the primary purpose of alimony is support, and that the wife was already found to be the disadvantaged spouse.  It found that the wife had already incurred attorney fees of $272,000, so that even paying these fees would require her to deplete her assets.  Therefore, the appeals court increased the award to $300,000.

The appeals court also found that some type of rehabilitative or transitional alimony would be appropriate in the case, given the wife’s earning and employment history.  Since the amount of such alimony would require additional factual findings, the Court of Appeals remanded the case for the lower court to make that determination.

For these reasons, the Court of Appeals sent the case back for further proceedings.

No. W2017-01864-COA-R3-CV  (Tenn. Ct. App. Jan. 23, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Law in Tennessee.

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Tennessee child support case summary on income determination.

Anna Karpovich v. Gregory Brannick

The mother and father in this Shelby County, Tennessee case were divorced in 2003, and the father was ordered to pay $560 per month in child support for their son.  In 2016, the State of Tennessee, acting on behalf of the mother, filed a petition to establish arrears and to modify the child support.  A hearing was held before Judge Harold W. Horne, and the father’s obligation was increased to over $1,400 per month.  The father appealed to the Tennessee Court of Appeals.

The lower court had determined that the father’s income was $2,500 per month.  It made this finding based upon the father’s testimony, his prior work history, and his education.  Because of the child’s extraordinary educational needs, the court ordered an upward departure in the child support.  In a motion for rehearing, the father alleged that his only taxable income in 2016 was about $4,500, and that he had applied for social security disability.  But notwithstanding this evidence, the lower court affirmed its earlier findings.

After pointing out that the appeals court could not consider new evidence submitted by the pro se litigant, the court turned to the merits of the appeal.  The father alleged that the lower court erred in determining his income.  It framed the father’s position as being that the tax return reflected the father’s entire income.  But the appeals court pointed out that the trial court may consider other reliable evidence.  As the appeals court put it, the court is not required to accept a tax return at face value.  While they are usually useful, they are not necessarily definitive.

The appeals court reviewed the entire record and concluded that the evidence supported the lower court’s finding.  For that reason, it affirmed the determination of income for child support purposes.  The appeals court also assessed the costs of the appeal against the father.

No. W2017-01796-COA-R3-JV  (Tenn. Ct. App. Jan. 8, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Support Laws in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.

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Tennessee alimony divorce case summary after 36 years married.

Richard Alan Ellis v. Donica Ann Woods Ellis

The husband and wife in this Shelby County, Tennessee, case were married in 1979 and had four children.  The husband was a surgeon.  The wife had jobs in nursing and teaching early in the marriage, but after the birth of the second child, she quit working to care for the children.  She did, however, maintain her nursing license.

The husband moved out of the marital home in 2015 and filed for divorce, alleging irreconcilable differences.  There was still one minor child at that time, and the wife asked for spousal and child support.  She alleged that the husband had committed adultery and was guilty of inappropriate marital conduct.

Trial was held in 2017 before Judge James F. Russell.  The wife was not working at the time, and both parties had vocational experts testify as to her expected income.

After assessing the wife’s potential income and expenses, the trial court concluded that she had a monthly need of about $8,000.  The final decree awarded her $9,000 per month in alimony in futuro.  In addition, the court awrded alimony in solido of about $22,000 to cover repairs to the marital residence, and over $121,000 for attorney’s fees.  Both parties appealed various issues.  The husband argued that the award of alimony and attorney fees was inappropriate.

The appeals court first addressed the award of alimony in futuro.  After stating the statutory factors, it examined the evidence regarding the wife’s need.  Ultimately, in concluded that the trial court had erred in its award of $9,000 per month.  The only finding as to need was a statement that the wife’s need was “something in the neighborhood of $8,000.”  But the appeals court found that the trial court hadn’t given due consideration to its finding that the wife would be able to re-enter the employment market as a nurse.  The trial court failed to factor in the potential wages the wife would be able to earn.

Also, the appeals court noted that the lower court hadn’t properly considered whether rehabilitative or transitional alimony might have been appropriate.  Before awarding alimony in futuro. the court must first make a determination that one of these forms of  temporary alimony could not be used.

For these reasons, the appeals court sent the case back for the lower court to reconsider the issue.  It pointed out that if long-term support was called for, there would need to be appropriate findings.

The Court of Appeals then tackled the issue of attorney’s fees.  It first noted that such an award was discretionary.  But it also pointed out that there were no findings as to the wife’s ability to pay.  There was also not a finding of reasonableness of the fees, which was required by earlier precedents.  For these reasons, the Court of Appeals also sent this issue back to the trial court for a proper determination.

After addressing the other issues, the Court of Appeals remanded the case.

No. W2017-02287-COA-R3-CV  (Tenn. Ct. App. Jan. 31, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Law in Tennessee.

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Tennessee case summary on classification of marital residence in divorce.

Jonathan George Carter v. Elizabeth Jo Browne

The husband and wife in this Shelby County, Tennessee, case were married in 2008 and had no children.  In 2015, the wife filed for divorce, and the husband filed a counter-complaint for divorce.

The trial court denied the wife alimony in futuro, but awarded her the parties’ residence.  The house had previously been owned by the wife’s family, and in 2009, the husband’s name was added to the deed in order to obtain a line of credit.  The proceeds of that line of credit were used to make improvements to the property.

The husband, on the other hand, took the position that the property had been in a state of disrepair.  In addition to the line of credit, he testified that other marital funds to do repairs.  He also testified that his family had done some of the work.

The wife appealed to the Tennessee Court of Appeals and argued that the lower court erred in denying her alimony.  The husband, on the other hand, argued that the marital residence was marital property and should have been divided.

The Court of Appeals first affirmed the lower court’s ruling with respect to alimony.  It then turned to the classification of the house.

The appeals court first noted that the question of classification of property must take into account all of the relevant circumstances.  It also noted that the trial court’s determination has a presumption of correctness.

One issue the Court of Appeals considered was the fact that the title to the property was in both names.  It stated that this is evidence of the property being marital.  But it also noted that this is not always controlling and can be overcome by evidence of contrary intent.  In this case, the trial court had found that the wife had overcome the presumption that the name on the title should be controlling.

The Court of Appeals, citing an earlier case, agreed with the husband.  Even though the presumption might have been rebutted at the time the title was changed, the lower court had not taken into account later circumstances.  In particular, the parties used the property as their marital residence for many years, and they made improvements with joint funds.

For these reasons, the Court of Appeals concluded that the residence was marital property.  Therefore, it reversed this portion of the lower court’s ruling and remanded the case for further proceedings.

No. W2018-00429-COA-R3-CV  (Tenn. Ct. App. Feb. 4, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Transmutation in Tennessee Property Division Divorce Law.

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Tennessee Divorce Client’s Handbook by Miles Mason, Sr. is available on Amazon

Tennessee alimony divorce case summary after 11 years married.

Anupam Singla v. Anupam Garg Singla

The husband and wife in this Williamson County, Tennessee, case were married in 2006 and had one child.  In 2015, the husband filed for divorce, and the case went to trial in 2017.

The spouses had met in India and the marriage was arranged.  At the time of the marriage, the husband had been working in the United States for 11 months.  The mother had been working as a teacher in India.  She moved to the U.S. shortly after the marriage and lived with the husband in California.

Within the first year of the marriage, the wife obtained a work permit, and got her driver’s license in 2012.  However, she did not get a job until 2014, since she stayed home with the child who was born in 2009.

In 2013, the husband filed for divorce in California but later dismissed the case.  About this time, he made cash withdrawals of $14,000.  He later testified that he thought the money was used for down payment on a vehicle.

In 2014, the parties moved to Kentucky, and then moved to Franklin, Tennessee, four months later.  After an argument in 2015, the wife and child moved to Ohio, and the husband filed for divorce.  The husband later testified that he gave the wife no money in July 2015, and gave her only $500 in August and September.  When she returned from Ohio in October, he paid her $1,700 temporary support.

The husband had a 401(k) with a value of $93,000.  In 2015, the husband borrowed over $43,000 to start a business, which both opened and closed that same year.  He also failed to disclose one bank account, into which he had transferred $5,000.  In 2011, he had also transferred $4,000 to his father, and there had been a transfer of $11,000 to an account in India.

At the time of trial, the husband had a salary of $130,000, and had an income of $137,000 in 2016.

After trial, the court granted the wife a divorce on the grounds of inappropriate marital conduct.  The order called for the wife to receive both rehabilitative alimony and alimony in futuro.

The wife had claimed that the husband had dissipated over $128,000 by imprudent investments and transfers to his parents.  The court largely agreed, finding that the husband had dissipated over $96,000.

The lower court also found that the husband had a far greater earning capacity and that the wife was the economically disadvantaged party.  It granted the wife rehabilitative alimony in the amount of $1,500 per month for 84 months, to be followed by alimony in futuro of $1,000 per month.  The husband appealed to the Tennessee Court of Appeals.

In addition to property issues, the husband argued that the alimony in futuro was improper, and that he had not committed dissipation.  The appeals court first addressed the alimony issue, and noted that alimony in futuro is intended for cases where the disadvantaged spouse cannot be fully rehabilitated.  It found that it was appropriate in this case for a number of reasons, including the wife’s limited English ability.  For that reason, it affirmed the alimony award.

The appeals court next turned to the issue of dissipation.  It noted that this depends on the facts of the particular case.  Overall, the appeals court agreed with the lower court’s ruling.  However, the lower court had found dissipation of $23,000 due to poor investments made by the husband.  The appeals court held that these bad business decisions did not rise to the level of dissipation.  Therefore, it reduced the lower court’s finding that $96,000 had been dissipated and reduced it by this amount.

After addressing the property distribution, the Court of Appeals modified the judgment and remanded the case.

No. M2017-01278-COA-R3-CV  (Tenn. Ct. App. Nov. 27, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Law in Tennessee.

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Tennessee child support modification case summary on private school tuition expenses in family law.

James Curtis Pierce v. Hollie Marie Pierce (Marszaek)

At the time of their 2012 divorce in Shelby County, Tennessee, the mother and father were the parents of three children, ages nine, five, and three.  They agreed to a permanent parenting plan naming the mother the primary residential parent, with each parent having 182.5 days of co-parenting time.  The plan also specified that if the father elected to pay private school tuition, then he would bear all such expenses for all three children.

At the time of the divorce, the father’s gross monthly income was listed as $6,667, with the mother’s set at $5,000.  Based on these figures, the father was ordered to pay $325 per month in child support plus $112 per month for health insurance premiums.

In 2017, the mother came back to court asking for an increase in child support.  She had recently received a copy of the father’s W-2 form showing an annual gross income of over $269,000.  Also, she noted that the eldest child had expressed a desire to live primarily with her.  She also argued that the cost of health insurance had increased to $158 per month.

Based on these figures, she argued that child support should increase to $2,049 per month.

The father, cited changed circumstances, also made a petition requesting that the mother be responsible for a portion of the private school expenses.  The father also noted that his base salary was $93,000, and that his total income would fluctuate.

After hearing the parties’ testimony, the trial court issued its order.  The court agreed with the mother that there was a significant variance in income.  After looking at the father’s income over three years, it set the average monthly income at about $20,000.

The court found that the tuition expense was about $2,000 per month.  It assigned this amount to both parents, but in computing the child support, the court listed the tuition as a “work related childcare” expense of the father, which had the effect of reducing the support obligation.  The court ultimately set the child support at $1,265 per month.  The mother then appealed to the Tennessee Court of Appeals.

The mother argued that the lower court had erred in listing the tuition as a “work related childcare” expense.  The appeals court agreed.  It noted that under the permanent parenting plan, the father essentially had discretion to decide on the private school.  As a matter of contract interpretation, the court read the agreement to place the burden for this tuition on the father.  Therefore, it held that the lower court’s contrary interpretation was in error.  It also noted that there had been no finding of material change of circumstances as to warrant departing from the plan.

For these reasons, the Court of Appeals held that the apportionment of tuition expenses was error, and that it was also error to denominate them work related childcare expenses.  Therefore, it reversed this portion of the judgment.

After addressing health insurance premiums and attorney fees, the Court of Appeals remanded the case.

No. W2017-02447-COA-R3-CV  (Tenn. Ct. App. Nov. 19, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Support Modification in Tennessee | How to Modify Child Support.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.

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Tennessee case summary on grounds of adultery and vaccination over objection of mother in divorce.

Brianna Danielle King v. Aaron Jefferson Daily

The husband and wife in this Rutherford County, Tennessee, case were married in 2011 and had two children, a son born in 2011 and a daughter born in 2013.  The husband worked for Nissan, and the wife stayed at home to care for the children.  In 2016, police responded to a domestic disturbance and arrested the wife for domestic assault.

Shortly thereafter, the wife filed for divorce on the grounds of irreconcilable differences and inappropriate marital conduct.  The husband filed a counter complaint on the grounds of inappropriate marital conduct and adultery.

One issue of contention was vaccination of the minor children.  While the divorce was pending, the parties entered into an agreed order naming the child’s pediatrician and stating that the children would be vaccinated before the start of the school year.  But the wife changed her mind and filed a religious exemption with the school.  The husband filed a motion for contempt, and a special master agreed.

Trial was held before Judge William Acree, who awarded the divorce to the husband on the grounds of inappropriate marital conduct and adultery.  The finding of adultery was based on the wife’s testimony that she had sexual relationships with other men during the marriage, even though these were after the couple had split up.  The husband was named the primary residential parent, with sole decision-making authority as to medical issues.  The wife appealed, pro se, to the Tennessee Court of Appeals.

The wife first argued that she was not guilty of adultery, since the sexual encounters took place after she and the husband were separated, albeit not legally separated.

Citing earlier cases, the appeals court made clear that the legal obligations of marriage are not terminated by mere separation.  Indeed, it pointed out that such adultery makes the possibility of future reconciliation much less likely.  For this reason, the Court of Appeals affirmed the finding of adultery as grounds for the divorce.

The wife next argued that giving the husband sole decision-making authority with respect to medical decisions violated her fundamental right to make decisions regarding her children.  In particular, she argued that she was opposed to vaccinations on religious grounds.

The appeals court noted that parenting issues should be left to parents, but by necessity, in divorce cases, courts must intervene.  The court examined the facts of the case and agreed with the lower court that the decision was in the children’s best interest.

For these reasons, the Court of Appeals affirmed the lower court.

No. M2017-01743-COA-R3-CV  (Tenn. Ct. App. Nov. 30, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.

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Tennessee Parenting Plans and Child Support Worksheets book by Miles Mason, Sr. available on Amazon

Tennessee child custody case summary on parental relocation.

Lindsey Bailey Harmon (Jean) v. Richard Bradley Harmon

The mother and father in this Shelby County, Tennessee, case were the parents of a 2-1/2 year old child at the time of their 2013 divorce.  The mother was named the primary residential parent with 209 days annual parenting time.  The father was allocated 156 days per year.  Bothe parents lived in Memphis and worked well together with parenting arrangements.  They frequently deviated from the schedule due to accommodate each other’s schedule.

Both parents remarried and both step-parents had a healthy relationship with the children.  In 2017, the mother informed the father that her new husband, a surgeon, had been offered a job in Chattanooga.  She informed the father that she intended to move with the child.  The father filed a petition in opposition to the move, which was heard by Judge Mary L. Wagner.  He alleged that the move would cause harm to the child by ending the day-to-day interaction with the father.

The mother responded that she would encourage the relationship with the father.  A hearing was held at which the parents and other family friends testified.  Judge Wagner held that the child had been spending substantially equal amounts of time with each parent.  This is the first decision that must be made, since it determines which section of the parental relocation statute applies.  The court went on to find that the move was not in the child’s best interest and prohibited the mother from moving with the child.  The court’s order also speified that if the mother moved, then the father would be named primary residential parent.  Disappointed with this outcome, the mother appealed to the Tennessee Court of Appeals.

The mother first argued that the lower court had erred in finding that the child had spent substantially equal time with each parent.  After reviewing the parental relocation statute, the appeals court turned to that issue.  It noted that there is no bright line as to what constitutes “substantially equal,” but noted that the key factor was time actually spent with the child.

Here, the parties generally followed the parenting plan, which called for a 57%/43% split.  But both parties introduced calendars to show time actually spent over the year.  The trial court found that the differences were negligible, and that the split shown in the parenting plan could constitute substantially equal time.  It cited an earlier case with the same split, which held that the amounts of time needn’t be exactly equal.

After reviewing the evidence and later caselaw, the Court of Appeals agreed with the lower court that the times spent were substantially equal.  It then turned to the issue of whether the move was in the child’s best interest.  It noted that the lower court had made extensive factual findings, and after reviewing the evidence and the statutory standards, it agreed with the lower court’s ruling.

For these reasons, the Court of Appeals affirmed the lower court’s ruling.

No. W2017-02452-COA-R3-CV  (Tenn. Ct. App. Nov. 27, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Tennessee Parent Relocation Statute Law.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.

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