When does a Material Change in Circumstances Warrant a Modification of a Parenting Plan?
The Tennessee Court of Appeals reversed a trial court’s order on a modification of a parenting plan. The trial court wrongly granted the mother’s petition to change the parenting plan, giving her primary residential custody and the majority of days with the children. The trial court found that based on the material changes of circumstance, and the geographical distance between the parties, it was in the children’s best interest to primarily reside with the mother and have visitation with the father. This new parenting plan would replace the one where each parent had joint decision making and equal parenting time. The Court of Appeals found that the changes of circumstance were not significant enough to warrant this modification, reversing the trial court’s order and remanding it back to the trial court for an order to be entered in accordance with the Final Decree, which had been agreed to and entered in Arizona.
Another Alimony Correction Court of Appeals Win for Donald Capparella
When divorce ends a long-term marriage, a court usually has to make a decision about an award of alimony. In this case, the trial court properly found that the wife was entitled to alimony, but did not properly account for the wife’s own income-earning capacity.
In its alimony analysis, the trial court determined that amount of income the wife needed to sustain a similar lifestyle was $9,700 per month. The trial court also determined that the wife had the ability to earn $2,333.33 in income per month. The trial court, however, failed to factor the amount she could earn – the $2,333.33 – and merely awarded wife $9,700 in alimony per month.
The husband appealed, arguing that the alimony should be adjusted to reflect the amount of wife’s earning capability. The Court of Appeals agreed and found that the income the wife was able to provide for herself should be deducted from her need of $9,700 per month. Accordingly, the Court of Appeals reduced the trial court’s award of alimony to $7,366.67.
You can read the full opinion here.
How Taxable Income Can Impact A Spouse’s Ability To Pay Alimony
Alimony in futuro is more likely to be awarded after a lengthy marriage, when one spouse is more economically disadvantaged than the other, and it’s typically awarded for life or until the economically disadvantaged spouse gets remarried. Donald Capparella recently argued two separate cases addressing alimony in futuro at the Court of Appeals. In the case discussed here, a husband was wrongfully granted a reduction in his alimony obligation by the trial court, which was reversed on appeal. Attorney’s fees to the former wife were also granted, as well as a substantial arrearage for unpaid alimony. On appeal, the main factor reviewed was the economically advantaged spouse’s ability to pay.
Amazon Can Be Liable for Negligent Assumption of Duty to Warn for Website Sale of Dangerous Product
In 2015, online retailer Amazon, Inc. sold more than 250,000 hoverboards through its website. By November 2015, Amazon knew that these products presented a risk of explosion. Amazon stopped selling the hoverboards and emailed customers with an “Important Product Safety Notification” that mentioned news reports of safety issues and offered information on how to return the product, Amazon did not, however, inform customers of the risk of explosion or fire. Amazon intentionally sent a “non-alarmist” email so as to avoid “headline news.”
In 2016, over half a million “hoverboards” were recalled because of the tendency to combust. The damages caused by these “exploding” hoverboards resulted in lawsuits around the country. The nature of the online business and the importation of products meant that plaintiffs were often unsuccessful in locating the actual manufacturer of the products. So, they sued online retailer Amazon, seeking to hold it liable for selling such a dangerous product on its website.
The Fox family of Nashville was among those seeking to hold Amazon responsible selling the dangerous hoverboards. In 2016, the Fox family of Nashville lost their home to a fire when a hover board sold by Amazon, Inc. exploded. The children, who were trapped on the second floor of the home, had to jump from windows to escape. The Fox family sued Amazon for negligent failure to warn of the dangers of the hoverboard product.
Throughout the country, Amazon’s repeated response to these lawsuits was that it was merely a “marketplace” that connected sellers with customers directly. In this way, Amazon argued, it was unlike a “big box” store like Wal-Mart that actually sold the products to customers. This legal theory prevailed in many jurisdictions. And, in the Fox family’s suit, Amazon once again won at the trial court via “summary judgment,” with a legal ruling that Amazon was not responsible because it could not be considered a seller of the product under Tennessee law.
The Foxes appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, which reversed the judgment of the trial court. The Court of Appeals held that Amazon assumed a duty to warn of the dangers posed by the hoverboards, and there remained material issues of fact as to whether Amazon was negligent in their failure to adequately warn of those dangers. It remanded the case for a jury trial on the theory of negligent failure to warn.
DPBC’s Donald Capparella was appellate counsel for the Fox family on appeal, along with co-appellate counsel, Steven Anderson.
Tennessee Supreme Court Argument Marks Third Appellate Review in Ten Year Old Case
When litigation begins, lawyers try to prepare their clients for delays. Sometimes a civil trial is delayed because it takes longer to gather materials than expected, because a witness is unavailable, or because a judge’s docket is full. Sometimes, litigation is protracted not because of delays but because of appeals. This is why it is important to have an experienced appellate litigation team–one that understands the procedure and strategy necessary to handle a matter no matter how long it may take for justice to prevail.
While the appellate process in the U.S. attempts to streamline matters, sometimes a fair application of the rules means that the same case will be heard on appeal multiple times. DPBC attorney Donald Capparella, who heads the firm’s appellate practice team, is familiar with this scenario. In fact, one of his recent Tennessee Supreme Court arguments provides an example of how a litigant can “win” a case multiple times and yet still be embroiled in litigation.
“Final” Doesn’t Mean Last When It Comes to Court Orders
In Tennessee, a “final order” is not necessarily the last order that a court enters at the trial level, and that’s an important point to know when considering whether a litigant has a right to appeal.
Generally in Tennessee, parties in civil trial matters are fortunate to have the absolute right to an appeal after the trial court issues its final order. Under Tenn. R. App. P. 4, the entry of the final order sets the 30-day clock running on the time to file an appeal. Unfortunately, it is not always easy to determine what constitutes a “final order.”
Under Tenn. R. App. P. 3, any order that “adjudicates fewer that all the claims” among all the parties is not a final order. In common parlance, attorneys refer to this as an order leaving nothing to be done except execute on the judgment. Unfortunately, it is sometimes surprisingly difficult to determine when there is “nothing to be done.” A recent Tennessee Court of Appeals case illustrates this conundrum.
In Brooks v. Woody, a suit filed in 2012 was dismissed via an order signed February 24, 2017 and entered March 9, 2017. The order reserved the taxing of costs for a later date. In other words, the court waited to decide which parties had to pay court costs. The plaintiff did not file a notice of appeal within 30 days, and the right to appeal was lost. The Tennessee Court of Appeals explained matters this way:
The Tennessee Supreme Court has held that “when consecutive
‘final’ judgments are entered, a subsequent entry of judgment operates as
the final judgment only if the subsequent judgment affects the parties’
substantive rights or obligations settled by the first judgment.”
This is a somewhat roundabout way of saying that assessing court costs doesn’t count as a claim between the parties that has to be decided before the matter is ripe for an appeal. (While the Court didn’t mention it, it is important to note that if one party had to pay the other party’s attorneys fees, that would “count” as a claim that has to be adjudicated before appeal.)
The lesson here is that it can be hard to know what counts as a final order and litigants should be mindful of details. More importantly, when in doubt, they should file the notice of appeal anyway and take advantage of Tenn. R. App. P. 4(d), which provides that if you file a notice of appeal before there is actually a final judgment, it will be deemed to be filed at the right time when a final judgment eventually occurs.
Big Changes to Appellate Procedure in Tennessee
Big changes are coming to Tennessee’s appellate courts in 2017. While news of the move to electronic filing is not new, the recently filed proposed amendments to the Tennessee Rules of Appellate Procedure have some significant changes to make way for the change…. read more
Third Appeal’s the Charm…
The recent Tennessee Court of Appeals case of Bancorpsouth Bank v. 51 Concrete, LLC provides a good analysis of the principles for an award of prejudgment interest but an even better argument for reasonable settlement of claims… read more
Does Oral Argument Really Matter?
[Excerpted from materials presented at the Tennessee Appellate Academy in Memphis, Tennessee on April 1.]
Can you change a judge’s mind at oral argument? If you are committed to doing one, the only attitude to take is that you can; any other assumption is both risky and counterproductive. One writer stated that “oral arguments are as useless today as the judges during my clerkship considered them….Oral arguments have become little more than a moot court exercise….At the end of the day, you may have picked up points for style, but you have still lost your case.” It is no surprise that this was written by someone who represents criminal defendants in Texas.
Historically, oral argument certainly garnered more attention from the courts. In the United States Supreme Court, for example, oral argument originally lasted for days at a time! However, since 1931, each side gets thirty minutes to present to the Nation’s Highest Court in oral argument.
If the question is what percentage of the time is a judge’s mind changed by oral argument, the answer seems to vary widely depending on the judge who is asked. One self-imposed poll of three 8th Circuit judges tracked their cases over a ten month period and found that their minds were changed 31%, 17% and 13% of the time respectively. read more