Chancery Court Judge Jeff Atherton speaks to plaintiff attorney Nelwyn Inman about the deterioration of Red Bank's Cambridge Apartment complex at the Hamilton County Courthouse on Sept. 8, 2010.Divorce lawyers are sorting out how to deal with a local judge who drew national attention when he denied a divorce last month, saying the U.S. Supreme Court ruling on gay marriage took away states' jurisdiction.
Last month, Hamilton County Chancellor Jeffrey Atherton denied the divorce petition of Thomas and Pamela Bumgardner, a Signal Mountain couple in their 60s who have no children together.
Earlier this week, Atherton faced another contested divorce case. That hearing was delayed.
Ryan Fetters, one of the lawyers in the case, explained why.
"He'll hear the case, but it'll ultimately turn out like the Bumgardner case," Fetters said. "He won't grant the divorce."
Fetters' client, Loyd Witherspoon, and his wife, Robbin Suzanne Witherspoon, filed for divorce March 9, 2013, court records show.
The afternoon before Wednesday's hearing, Fetters dropped off additional documents to Catherine M. White, a family law attorney representing Robbin Witherspoon.
In her office, White asked if Fetters had seen Atherton's Bumgardner ruling.
No, he told her.
"Well," she replied, "it looks like he's not granting contested divorces."
A quick phone call by the lawyers to Atherton confirmed their suspicions: the Witherspoons needed to agree on their reasons for divorce.
Otherwise, Atherton might not grant it.
Both lawyers said they needed a delay anyway to prepare their cases, but still, the Bumgardner decision played into their strategy.
"We're going to change it so it's non-contested," Fetters said. "If that doesn't occur, then we may end up postponing again."
Other divorce attorneys may also follow suit, he said, until a higher court clarifies this "temporary hiccup."
White also sympathized with Atherton's reasoning. The Supreme Court decision has been frustrating for divorce attorneys, she said, because the justices legislated from the bench and told states what to do.
Instead, "they should have amended the constitution to reflect what marriage is," she said. "Right now, it's a man and a woman."
Atherton's decision in the Bumgardner divorce case created a stir beyond the legal community.
"I think he should be reprimanded," said Chattanooga City Councilman Chris Anderson. "If he's not willing to adjudicate marriage, then he is free to resign."
Activists also questioned whether Atherton's order, which gained international attention, opened a Pandora's box for conservatives.
"If this kind of thing is allowed to stand," said Chris Sanders, with Tennessee Equality Project, a statewide LGBT advocacy group, "then this stuff will be popping up in every other county.
"And we don't need that."
Meanwhile, the Bumgardners and their respective attorneys, Jillyn O'Shaughnessy and Pamela O'Dwyer, have declined to comment about the case - and about their next move.
The Bumgardners have 30 days to appeal to a different court or refile for divorce with new reasons, other attorneys say.
In Tennessee, divorce petitions can be filed in either chancery or circuit court. So far, Hamilton County court clerks said, Atherton's order has not demonstrably affected the number of divorce cases being filed.
That's because attorneys don't generally have a preference, said Fetters, who has practiced in Chattanooga since 2008. Instead, they tend to file in whichever court is moving faster.
"A lot of times," Fetters said, "you're going to go with the docket that has a lighter load."
Contact staff writer Zack Peterson at 423-757-6347 or zpeterson@timesfreepress.com. Follow @zackpeterson918.