After a divorce has been settled, changes to child custody arrangements may only be granted by the courts in certain circumstances. The Court of Appeals of Tennessee recently reviewed a case involving the modification of a permanent parenting plan in Williamson v. Lamm (Tenn. Ct. App. Sept. 30, 2016). In Williamson, the parties originally shared equal parenting time, with the mother designated as the primary residential parent. The mother filed a petition to modify the parenting schedule, arguing that since the child had reached school age, the distance between the parents made the current schedule unworkable. The father objected to the petition and requested that he be named the primary residential parent. After a hearing, the trial court established a new parenting schedule and changed the primary residential parent to the father. The mother appealed the order.child

In Tennessee, all final divorce decrees involving a minor child must include a permanent parenting plan. Absent an agreement, the parties must comply with the parenting plan unless it is modified by the court. The court must follow a two-step process in determining whether a modification is appropriate. First, the court considers whether a material change in circumstances has occurred since the adoption of the current parenting plan. If so, the count will then examine statutorily enumerated factors in deciding whether a modification is in the child’s best interest.

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Trial preparation and timely procurement of experts and evidence are a necessary part of bringing a personal injury claim. Plaintiffs who fail to actively prosecute their claim risk losing a summary judgment motion against them, as in Denton v. Taylor (Tenn. Ct. App. July 25, 2016). In Denton, the plaintiff suffered serious injuries after a head-on car accident that resulted in the death of the other driver. The plaintiff brought a negligence action against the decedent’s widow and estate. Some 15 months after filing the complaint, the defendant moved for summary judgment, arguing that the plaintiff’s evidence was insufficient to establish causation. The plaintiff responded with a motion asking the trial court for more time to obtain and file an accident reconstruction report. The court denied the plaintiff’s motion and granted summary judgment. The plaintiff appealed that decision to the Court of Appeals of accident

In Denton, there were no witnesses to the accident. The plaintiff had no memory of the accident, and the decedent was pronounced dead at the scene. The deputy investigating the collision stated that he had examined, photographed, and mapped the accident scene, but he was not able to determine the point of impact. However, a toxicology report indicated that there were prescription pain medication in the decedent’s system.

Under Tennessee law, when the party moving for summary judgment does not bear the burden of proof at trial, as in Denton, he must affirmatively negate an essential element of the plaintiff’s claim or demonstrate that the plaintiff’s evidence at the summary judgment stage is insufficient to establish his claim. The plaintiff must then demonstrate the existence of specific facts in the record that could lead a jury to find in his favor. The plaintiff may also attempt to deflect a summary judgment by submitting an affidavit requesting additional time for discovery. Under Rule 56.07, the affidavit must explain why the plaintiff has not been able to obtain and present the evidence needed to oppose the summary judgment motion.

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Years after settling a divorce, the parties involved may experience a change in financial circumstances that requires a modification of spousal support. The Court of Appeals of Tennessee recently addressed this issue in Hauf v. Hauf (Tenn. Ct. App. Aug. 26, 2016), after an ex-wife appealed an order by the lower court reducing alimony payments from her ex-husband from $1,500 to $900.hanging airplane

In Hauf, the parties had divorced in 2010 after 27 years of marriage. Pursuant to the parties’ Marital Dissolution Agreement, the husband agreed to pay alimony in futuro in the amount of $1,500 per month. At the time of the divorce, the husband worked as a pilot for military contractors in the Middle East, under yearly contracts that required him to be overseas for 60 days at a time. When the contract period was extended to 90 days overseas, he chose not to renew the employment contract. The husband subsequently filed a petition to amend his alimony and support obligations on the ground that his income would be reduced. The lower court granted the petition and lowered his obligation to $900, finding that the husband did not have the ability to work a 90-day rotation and had experienced a substantial and material change in circumstances.

Alimony in futuro is a form of long-term spousal support that can be awarded when the court finds that there is a relative economic disadvantage and that rehabilitation is not feasible. In Tennessee, a party seeking to modify an alimony award must prove that a substantial and material change in circumstances has occurred. A change in circumstances is considered substantial if it significantly affects either the ability to pay or the need for support. A change in circumstances is material when it occurs after the alimony order and was unforeseeable at the time the parties entered into a property settlement agreement.

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In a recent car accident case, the Court of Appeals of Tennessee reviewed an order granting an insurance company’s motion for summary judgment against the plaintiff. In Shempert v. Cox (Tenn. Ct. App. Aug. 24, 2016), the plaintiff brought suit against his insurance company, seeking uninsured motor vehicle insurance coverage after being involved in a car accident with an uninsured motorist. The insurance company argued that the plaintiff was operating a vehicle that was not insured under his policy but was available for his regular use, and therefore he was not covered. After the trial court ruled against him, the plaintiff appealed the issue to the higher accident

In Shempert, the plaintiff was injured when his vehicle, owned by his employer, collided with a vehicle operated by an uninsured motorist, who died at the scene of the accident. While the insurance policy at issue provided for uninsured motorist coverage, it contained a “regular use” exclusion. Specifically, the policy excluded damages arising out of the use of any vehicle other than the insured car that is owned or made available for the regular use of the insured.

The insurance company argued that since the plaintiff was not operating his insured car at the time of the accident but was instead operating a vehicle that his employer allowed the plaintiff to regularly use, there was no coverage under the policy. On appeal, the plaintiff contended that the term “regular use” created ambiguity because its meaning altered throughout the policy.

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In some cases, disputes may arise among family members during the administration of a loved one’s estate, leading to contentious court proceedings. The Court of Appeals of Tennessee recently reviewed such a case, In re Estate of Reed (Tenn. Ct. App. Aug. 22, 2016), involving a decedent who died intestate and claims made by her parents against her estate.signing will

In Reed, the decedent’s daughter was appointed administratrix of the decedent’s estate by the court. Following publication of notice, several claims were filed against the estate, including one by the decedent’s parents for approximately $28,500. The parents alleged that they loaned the money to the decedent in 2012 in order to pay off the mortgage on her home and prevent foreclosure. The claim was supported by an employee of the bank who facilitated the wire transfer. The decedent, however, never made any payments to repay her parents before her death. The daughter denied the claim, arguing that it was barred by the executor-administrator provision and the more than one-year provision of the statute of frauds.

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In some cases, divorce settlement agreements may be contested if the circumstances of the parties change. The Court of Appeals of Tennessee recently reviewed a dispute related to this issue in Turner v. Turner (Tenn. Ct. App. Aug. 11, 2016). In Turner, the parties had entered into a Child Custody, Support, and Property Settlement Agreement (PSA) after they divorced in 2011 in Mississippi. The PSA provided that each parent was responsible for one-half of their child’s tuition and expenses at a mutually agreed-upon private school. In 2014, the father advised the mother he could no longer afford to pay the tuition, and he did not consent to the child’s re-enrollment at her current private school. The mother filed a petition to enforce the PSA in Tennessee, where the mother and child desk

At the hearing, the father testified that during a period of self-employment, he accumulated credit card debt to meet his monthly expenses. He conceded that his current salary was more than he earned at the time the parties executed the PSA. However, he argued that he could not afford to continue paying $622.50 per month in tuition, in addition to saving for her college education, his attorney’s fee bills, and his credit card payments. The trial court concluded that it was not in the child’s best interest to switch schools and declined to allocate the tuition and expenses differently than set forth in the PSA. The father subsequently appealed.

On appeal, the court honored the choice of law provision in the PSA and applied Mississippi law to the case, observing that the rules governing contract interpretation are largely similar to those in Tennessee. Although the court noted that the PSA was not a model of clarity, after examining all of the provisions together and applying the canons of contract interpretation, it found that the parties’ intent to send the child only to private school became manifestly clear. In particular, the court found it illogical that the parties would provide detailed conditions for the child’s private schooling, while failing to mention any possibility of public education, if they had intended public school as an option.

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Last week, the Court of Appeals of Tennessee reviewed a jury verdict in a premises liability case, ultimately affirming the award of $250,000 to the injured plaintiff. In Glasgow v. K-VA-T Food Stores, Inc. (Tenn. Ct. App. Aug. 31, 2016), the plaintiff filed a personal injury lawsuit against the operator of a grocery store after he was injured while using the restroom. At trial, the court denied the defendant’s request for a directed verdict and submitted the case to the jury, which awarded $350,000 in compensatory damages. The trial court approved the verdict but reduced the award to the amount of damages actually pled by the plaintiff, i.e., $250,000. The defendant appealed, arguing that the damages awarded by the jury were not supported by material evidence.restroom

In Glasgow, the plaintiff entered the defendant’s grocery store and proceeded to the restroom. After using the facility, the plaintiff attempted to stand but lost his balance, causing him to grab a handrail. The handrail pulled away from the wall, causing the plaintiff to fall and hit his head. The plaintiff immediately sought medical treatment from a hospital. In the days, months, and years following the accident, the plaintiff experienced uncontrollable migraines, accompanied by severe nausea or vomiting.

On appeal, the defendant did not contest the issue of fault but instead the amount of compensatory damages awarded to the plaintiff for his injury. The appeals court therefore reviewed the evidence concerning the extent of the plaintiff’s injuries. At trial, the plaintiff testified that his migraines and light sensitivity caused him to change his 14-year career from television and video production to radio. The plaintiff’s doctors also provided testimony that the post-concussive migraine headaches he experienced for years following the accident may continue through his lifetime, although there was no objective test to determine one’s tendency to have future migraines.

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In a recent divorce proceeding, the Court of Appeals of Tennessee addressed issues surrounding the separate and marital property of the parties, as well as the doctrine of transmutation. In Douglas v. Douglas (Tenn. Ct. App. Aug. 8, 2016), the husband appealed the lower court’s classification of a brokerage account as the wife’s separate property. The husband argued on appeal that the account was marital property, based on the doctrine of transmutation.notebook

In Douglas, the account at issue was funded solely by money that the wife inherited from her late father in 2010. Although the husband was not involved with the creation of the account, the wife established it as a joint account with a right of survivorship in both her husband’s and her names. The wife testified that she titled the account in both parties’ names for estate planning purposes and to avoid estate taxes. After establishing the account, the wife began withdrawing approximately $5,000 per month to support the family, make home improvements, and buy adjacent property. The husband did not make any deposits or withdrawals from the account. In 2012, the wife contacted the bank to remove her husband from the account and provided the necessary paperwork to her husband for his signature. After several weeks had passed, the parties’ daughter signed the husband’s name on the documents. The husband testified that he had no knowledge that he had been removed from the account until the parties separated in 2013.

Since Tennessee law distinguishes between separate property and marital property in divorce proceedings, the trial court must first classify the parties’ property as marital or separate. Generally, property that is acquired during the marriage is deemed marital property. Separate property is that acquired by gift, bequest, devise, or descent. Separate property can become marital property subject to division, however, through the doctrine of transmutation. In Tennessee, transmutation occurs when the parties treat separate property in a way that manifests an intention that the property become marital property. The party claiming that the separate property has been transmuted into marital property must prove that this has occurred.

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In a recent case involving a will contest, the Tennessee Court of Appeals determined whether a handwritten will, known as a holographic will, was valid. In In re Estate of Pierce (Tenn. Ct. App. July 22, 2016), the decedent was survived by five living children and one predeceased son with two adult children, the decedent’s grandchildren. During the administration of her estate, the decedent’s surviving children, the petitioners, filed a petition seeking to admit a purported holographic will to probate. Under the holographic will, two of the decedent’s grandchildren would not inherit.holographic will

The decedent had signed a document in 2007 bequeathing her assets to her living children and, if any of her children did not survive her, to that child’s children. In 2010, the decedent wrote by hand a purported holographic codicil to the 2007 document, in which, among other things, she clarified that her son was to receive her home. However, her son passed away 11 months before the decedent in 2013. Days before she died, the decedent completed a three-page document she had obtained from an attorney, titled “Confidential Estate Planning Questionnaire.” This document ran contrary to the 2007 and 2010 will and codicil in that it did not mention any distribution to her grandchildren. The issue on appeal was whether the 2007 and 2010 documents should be admitted to probate, and whether the 2013 purported holographic will served to revoke and replace those earlier documents, even if they were otherwise appropriate to be admitted to probate.

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In a recent Tennessee premises liability case, the Court of Appeals addressed the issue of whether the defendants owed the plaintiff a duty after he was injured while voluntarily performing work on their property. In Reynolds v. Rich (Tenn. Ct. App. July 22, 2016), the plaintiff agreed to assist with the installation of a metal roof on the defendants’ house. During the installation, the plaintiff fell from the roof and suffered serious injuries, including skull fractures, a broken neck, shattered bones, and nerve damage to his face. Although no one knew what caused the plaintiff to fall from the roof, the plaintiff brought suit against the defendants for negligence. The trial court granted summary judgment in favor of the defendants, finding that the plaintiff was a volunteer worker rather than an employee of the defendants, and there was no evidence that the defendants violated a duty to the plaintiff.roofing accident

To establish a claim for negligence in Tennessee, a plaintiff is required to prove the following elements:  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care, amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate causation. In a premises liability case, a property owner has a duty to exercise reasonable care with regard to social guests or business invitees on the premises. The duty includes the responsibility to remove or warn against latent or hidden dangerous conditions on the premises of which the owner was aware, or should have been aware through the exercise of reasonable diligence.

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