Judge declines divorce case, citing gay marriage ruling

Judge declines divorce case, citing gay marriage ruling

September 3rd, 2015 by Kendi A. Rainwater and Zack Peterson in Local Regional News

POLL: Should petitions for divorce always be granted?

A local judge contends the U.S. Supreme Court decision on same-sex marriage has derailed Tennessee's ability to determine what constitutes divorce — leaving one Signal Mountain couple married against their will.

Hamilton County Chancellor Jeffrey Atherton denied the divorce petition last week after hearing from seven witnesses and going through 77 exhibits. Among several reasons he cited in rejecting the couple's divorce, one was the Supreme Court's June ruling.

Atherton said the Supreme Court must clarify "when a marriage is no longer a marriage." Otherwise, he contended, state courts are impaired from addressing marriage and divorce litigation altogether.

"The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces," Atherton wrote.

The couple — Thomas Bumgardner, 65, and his wife, Pamela, 61 — were married in November 2002, records show. They had no children together and filed for divorce in September 2014, citing irreconcilable differences.

After four days of testimony, Atherton decided their marriage was not "irretrievably broken," and said it could be salvaged.

The Bumgardners and their attorneys, Jillyn O'Shaughnessy and Pamela O'Dwyer, decided not to comment on the matter.

Atherton's decision follows on the heels of officials in other states refusing to obey the Supreme Court's ruling legalizing same-sex marriage. The most prominent is Kim Davis, a county clerk in Kentucky, who said she invoked "God's authority" Tuesday by denying marriage licenses to same-sex couples. Davis is scheduled to appear in federal court today for defying several court orders.

Regina Lambert, one of the lawyers who represented Tennessee plaintiffs in the Supreme Court case, called Atherton's reasoning irrelevant.

Jeff Atherton speaks in the Hamilton County Courthouse in this file photo.

Jeff Atherton speaks in the Hamilton County Courthouse...

Photo by Dan Henry /Times Free Press.

Document: Chancellor Atherton's full order

Read through Chancellor Atherton's full order here.

"Overall, Tennessee has had a fantastic response to this Supreme Court decision," Lambert said. She said the Supreme Court's decision is about marriage equality — not divorce.

"He is just making a statement," she said. "I just think change is hard for people."

Here in Chattanooga, Atherton's order ruffled the legal community.

Some lawyers wondered why Atherton chose to cite the Supreme Court decision. Others emphasized how unusual it is for a judge to dismiss a divorce. And some questioned the legal grounds Atherton used to justify his ruling.

"I don't know for sure," said Chattanooga attorney Mike Richardson, "but I suspect the U.S. Supreme Court did not intend to preempt divorce law."

Jim Blumstein, a professor of constitutional law at Vanderbilt University, said the Supreme Court decision does not appear to be the main determinant behind Atherton's dismissal; he believes Atherton is expressing his political disagreement with the ruling.

Whether Atherton disagreed with the decision is beside the point, said Penny White, a former member of the Tennessee Supreme Court and now a professor at the University of Tennessee College of Law.

"State court judges, regardless of their personal points of view, must defer to the Supreme Court's constitutional interpretation," she said in a written statement.

In his office Wednesday afternoon, Atherton defended his decision but declined to discuss it.

"I don't want extraneous conversation," he said. "I'll have to stick with the words of the order."

Skirting questions about the Supreme Court, Atherton picked up a volume of Tennessee statutes, leafing through the pages.

"There are several different grounds a person can claim to support entitlement to divorce," he said.

The Bumgardners, in their petition, listed two: inappropriate marital conduct — which Atherton said was never proved — and irreconcilable differences.

The couple can file again for divorce, attorneys said. But this time, they have to come up with new reasons.

Asked what the couple could do next, Atherton was optimistic.

"Hopefully," he said, "they can reconcile."

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow @zackpeterson918.

Contact staff writer Kendi Anderson at kendi.anderson@timesfreepress.com or 423-757-6592.


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