Appeals in Tennessee Family & Divorce Law Cases

Sarah EasterAppellate Timeline for Divorce Cases in Tennessee

            First, the person who wishes to bring the appeal (also known as the “Appellant”) must file a Notice of Appeal with the trial court clerk within thirty (30) days after the trial court enters the final order. (TRAP 4(a)). Appellant must also file a cost bond, open with sufficient sureties (either $1,000 cash or pauper’s oath) with the trial court clerk within thirty (30) days after the trial court enters the final order. (TRAP 6, 9, 10). However, the cost bond is waived if an attorney filed the Notice on behalf of the Appellant and also signs a surety.

Then, no later than seven (7) days after Appellant has filed a Notice of Appeal, the trial court clerk will file a copy of such Notice with the appellate court clerk. (TRAP 5).

Appellant must make a designation of record with the trial court clerk if less than a full record is needed and has until fifteen (15) days of filing the Notice of Appeal to do so. (TRAP 24(a)). This designation should consist of “a description of the parts of the record the appellant intends to include on appeal, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal.” (TRAP 24(a)). Appellant will also receive an additional fifteen (15) day period of time after service of the designation during which to amend and file and serve additional information. (TRAP 24(a)). The person whom Appellant is bringing the appeal against (also known as the “Appellee”) then also designates the record with the trial court clerk within fifteen (15) days of Appellant designating the record. (TRAP 24(b)).

If no Transcript of Evidence or report is available, then Appellant must file a certified Statement of the Evidence with proof of service to Appellee within sixty (60) days of filing the Notice of Appeal. (TRAP 24(c)). Such statement “should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal” and can be composed “from the best available means, including the appellant’s recollection.” (TRAP 24(c)). If no Transcript of Evidence or Statement of Evidence is available, then Appellant must nevertheless notify the trial court clerk—however, Appellant only has fifteen (15) days after the Notice of Appeal is filed to do so. (TRAP 24(d)). Appellee will then be entitled to a fifteen (15) day period during which to object to the lack of Transcript of Evidence or Statement of Evidence if Appellee “believes them to be necessary.” (TRAP 24(d)).

Within Thirty (30) days after the fifteen (15) day objection period’s expiration, the trial court judge will file an approval of the Transcript of Evidence or Statement of Evidence with the trial court clerk. (TRAP 24(f)). The trial court clerk will file the Appellate Record within forty-five (45) days after filing the Transcript of Evidence, Statement of Evidence, or Notice of No Transcript and submit it to the appellate court clerk. (TRAP 25(a), (b)). It is important to note that the trial court clerk is entitled to an extension of time to complete the Appellate Record, but this extension may not exceed sixty (60) days from Appellant’s filing of the Transcript of Evidence or Statement of Evidence. (TRAP 25(d)). Once the trial court clerk has submitted the appellate record to the appellate court clerk, the appellate court clerk will immediately file a Notice of Filing of the Record. (TRAP 26(a)).

After the record has been filed, Appellant has thirty (30) days to file and serve a brief on all involved parties. (TRAP 29(a)). After Appellant has filed his/her brief, Appellee will have thirty (30) days to file and serve a brief on all involved parties. (TRAP 29(a)). Then, Appellant will have the opportunity to file and serve an optional reply brief up until fourteen (14) days after Appellee has filed his/her brief. (TRAP 29(a)).

The appellate court clerk will next set the appeal for oral argument and file a Notice of Oral Argument scheduled for all parties; this Notice shall include the time and location for arguments as well as any time limitations. (TRAP 35(b)). In the event that a party must reschedule oral arguments, the party must file “a request for postponement of the argument” and must do so “reasonably in advance of the date fixed for hearing.” (TRAP 35(b)). Then, once the Court of Appeals has issued an opinion and judgment, the appellate court clerk will file this opinion and judgment on its date of entry. (TRAP 38). A party wishing to appeal a Court of Appeals decision must file an Application for Permission to Appeal with the clerk of the Tennessee Supreme Court “within sixty (60) days after the entry of judgment of the Court of Appeals… if no timely petition for rehearing is filed, or, if a timely petition for rehearing is filed, within sixty (60) days after the denial of the petition or entry of the judgment on rehearing.” (TRAP 11(b)). The opposing party must file any Answer in Opposition within fifteen (15) days after the Application for Permission to Appeal is filed, “set[ting] forth the reasons why the application should not be granted and any other matters considered necessary for correction of the application.” (TRAP 11(d)). Sixty-four (64) days after entry of the judgment or immediately following the Supreme Court’s denial of the Application for Permission to Appeal (“unless the court orders otherwise”), the appellate court clerk will file with the trial court clerk and each party a certified copy of the opinion and judgment (also referred to as a “mandate.”) (TRAP 42(a)).

The final step in the appeals process is taking the case before the Tennessee Supreme Court. If and when the Tennessee Supreme Court issues permission to appeal, the appellate court clerk will file an order granting the Application for Permission to Appeal. (TRAP 11(e)). “If permission to appeal is granted, Appellant shall serve and file his brief within thirty (30) days after the date on which permission to appeal was granted.” (TRAP 11(f)). “If Appellant files a brief with the application for permission to appeal… he/she may also file a supplemental brief, which shall likewise be served and filed within thirty (30) days of the date on which permission to appeal was granted.” (TRAP 11(f)). The appellate court clerk will file Appellee’s brief in the Supreme Court thirty (30) days after Appellant’s brief has been filed. (TRAP 11(f)). If Appellant fails to notify the clerk or Appellee that he/she will not file a supplemental brief within thirty (30) days, Appellee’s brief-filing time runs from the 30th day after permission to appeal was granted.” (TRAP 11(f)). Appellant has up to fourteen (14) days after the filing of Appellee’s brief to file and serve the optional reply brief. (TRAP 11(f)). Once the appeal has been scheduled for oral argument, the court clerk will file a Notice that oral argument has been scheduled on all parties. (TRAP 35(b)). This Notice shall include the time and location for arguments as well as any time limitations. (TRAP 35(b)). In the event that a party must reschedule oral arguments, the party must file “a request for postponement of the argument” and must do so “reasonably in advance of the date fixed for hearing.” (TRAP 35(b)). Upon the completion of oral arguments, the Supreme Court will render a decision. The clerk will file the Supreme Court’s Opinion and Judgment on the date that they are provided. (TRAP 38). Finally, eleven (11) days after the Supreme Court has entered the judgment (“unless the court orders otherwise”), the appellate court clerk will issue a mandate on all parties and the trial court clerk. (TRAP 42(a)).

 

Appellate Standards for Common Divorce Topics:

Recent Tennessee case law provides guidance as to the appropriate standards for appellate review on common divorce topics such as: alimony, parenting plans, attorney’s fees, division of assets and debts, and valuation of assets.

 

Alimony

Velez v. Velez, No. M2011-01949-COA-R3-CV (Tenn. Ct. App. July 31, 2012) provides the following guidance regarding appellate review for alimony decisions:

“Trial courts are afforded wide discretion in determining whether there is a need for spousal support, and if so, the nature, amount, and duration of the award. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000)). Absent an abuse of discretion, a trial court’s decision to award spousal support will not be disturbed on appeal. Id. An abuse of discretion occurs when the trial court ‘causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.’ Id. (citing Wright ex rel. Wright v. Wright, 335 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAID, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). The appellate court may not substitute its judgment for that of the trial court; rather, it should presume that the trial court’s alimony decision is correct and review the evidence in the light most favorable to that decision. Id. At 105-06 (citing Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d at 335). The deference to trial court decisions regarding spousal support follows from the recognition that such decisions are ‘factually driven’ and involve ‘the careful balancing of many factors.’ Id. (citing Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998)).”

 

Pollan v. Pollan, No. M2011-01896-COA-R3-CV (Tenn. Ct. App. July 3, 2012) provides further guidance regarding appellate review for alimony decisions:

“[While}… the decision in Gonsewski affirmed the longstanding preference for rehabilitative alimony or transitional alimony, the Court recognized that alimony in futuro could be awarded when economic rehabilitation is not feasible and long-term support is necessary. Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011) (citing Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Robertson v. Robertson, 76 S.W.3d 337, 341-42 (Tenn. 2002)). Further, Tennessee statutes continue to recognize alimony in futuro as a form of spousal support in this state. Tenn. Code Ann. 36-5-121(f)(1).”

 

Parenting Plans

Dobbs v. Dobbs, No. M2011-01523-COA-R3-CV (Tenn. Ct. App. August 7, 2012) provides the following guidance regarding appellate review for parenting plan decisions:

“The appellate court ‘review[s] findings of fact de novo upon the record of the trial court, accompanied by a presumption of correctness of the finding, unless the evidence preponderates otherwise.’ Hass v. Knighton, 676 S.W.2d 554 (Tenn. Ct. App. 1984). Where the trial court makes no specific factual findings, there are no findings to which the presumption can attach; therefore [the appellate court] conduct[s] [its] own independent review of the record to determine where the preponderance of the evidence lies. Coley v. Coley, No. M2007-00655-COA- R3-CV, 2008 WL 5206297, *6-7; Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App. 2006). [The appellate court] will not disturb a parenting plan unless the plan is based on a material error of law or the evidence preponderates against it. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997)). “

 

Velez v. Velez, No. M2011-01949-COA-R3-CV (Tenn. Ct. App. July 31, 2012) provides further guidance regarding appellate review for parenting plan decisions:

“Appellate courts are reluctant to second-guess a trial court’s determination regarding parenting schedules. See Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Trial courts have broad discretion to fashion parenting plans that best suit the unique circumstances of each case. See Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). Furthermore, it is not the role of the appellate courts to ‘tweak [parenting plans]… in the hopes of achieving a more reasonable result than the trial court.’ Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). Decisions regarding parenting schedules often hinge on subtle factors, such as the parents’ demeanor and credibility during the proceedings. Adlesperger, 970 S.W.2d at 485. Thus, a trial court’s decision regarding a permanent parenting plan will be set aside only when it ‘falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.’ Eldridge, 42 S.W.3d at 88.”

 

Attorney’s Fees

Pollan v. Pollan, No. M2011-01896-COA-R3-CV (Tenn. Ct. App. July 3, 2012) provides the following guidance regarding appellate review for attorney’s fees in divorce cases:

“An award of attorney’s fees in divorce cases is treated as a form of spousal support, and the award is characterized as alimony in solido.” Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn. Ct. App. 2001) (citing Sannella v. Sannella, 993 S.W.2d 73, 76 (Tenn. Ct. App. 1999); Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1998); Smith v. Smith, 984 S.W.2d 606 (Tenn. Ct. App. 1997); Gillam v. Gillam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988)). The trial court has wide discretion to award attorney’s fees. Id. Upon review, this court will not interfere with an award, except upon a showing of an abuse of discretion, where the evidence preponderates against the award. Id. (citing Long v. Long, 957 S.W.2d 825 (Tenn. Ct. App. 1997); Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995); Elliot v. Elliot, 825 S.W.2d 87, 92 (Tenn. Ct. App. 1991); Butler v. Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App. 1984).”

 

Division of Assets and Debts

Pollan v. Pollan, No. M2011-01896-COA-R3-CV (Tenn. Ct. App. July 3, 2012) provides the following guidance regarding appellate review for division of debts and assets:

“The division of marital property involves the distribution of both marital assets and marital debts. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002) (citing Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989)). ‘Trial courts have not completely divided a marital estate until they have allocated both the marital property and the marital debt.’ Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007) (citing Robertson, 76 S.W.3d at 341; Hopkins v. Hopkins, No. M2002-02233-COA-R3-CV, 2003 WL 21462971, at *6 (Tenn. Ct. App. June 25, 2003); Anderton, 988 S.W.2d at 679). The division of the parties’ marital estate begins with the classification of the property as separate or marital property. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001). Once the marital property has been valued, the trial court is to divide the marital property in an equitable manner. Tenn. Code Ann. 36-4-121(a)(1); Miller, 81 S.W.3d at 775. A division of marital property in an equitable manner does not require that the property be divided equally. Robertson, 76 S.W.3d at 341. ‘Dividing a marital estate is not a mechanical process but rather is guided by considering the factors in Tenn. Code Ann. 36-4-121(c).’ Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn. Ct. App. 1998). ‘Trial courts have wide latitude in fashioning an equitable division of marital property.’ Id. Marital debt is also subject to equitable distribution. Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App. 1995); Mondelli v. Howard, 780 S.W.2d at 773). ‘[M]arital debts are all debts incurred by either or both spouses during the course of the marriage up to the date of the final divorce hearing.’ Id. In determining the equitable distribution of marital debt, Tennessee courts should consider the following four factors set forth in Mondelli v. Howard: (1) the debt’s purpose; (2) which party incurred the debt; (3) which party benefitted from incurring the debt; and (4) which party is best able to repay the debt. Id. (citing Mondelli, 780 S.W.2d at 773). [The appellate court] accords great weight to the trial court’s division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). Thus, [the appellate court] defer[s] to the trial court’s division of the marital estate unless it is inconsistent with the factors in Tennessee Code Annotated 36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).”

 

Valuation of Assets

Dobbs v. Dobbs, No. M2011-01523-COA-R3-CV (Tenn. Ct. App. August 7, 2012) provides guidance regarding appellate review for the proper valuation of assets:

“The value of marital property is a question of fact to be determined by considering all relevant evidence regarding value. Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). Where there are conflicting opinions regarding the value of a marital asset, the trial court may place a value on the asset that is within the range of the values presented by the evidence. Owens v. Owens, 241 S.W.3d 478, 489 (Tenn. Ct. App. 2007). Thus, a trial court’s decision with regard to the value of a marital asset will be given great weight on appeal. Wallace, 733 S.W.2d at 107.”