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After a divorce, there are many decisions to consider regarding the couple’s children and financial obligations.  In a March 1, 2017 decision, the Court of Appeals of Tennessee considered an appeal of a trial court order concerning the father’s obligation to pay private school tuition and the mother’s imputed income for the purpose of calculating child support.graduation-1311237-639x852-225x300

In the case, the Final Decree of Divorce entered by the trial court incorporated the parties’ permanent parenting plan, wherein the father agreed to pay for his children’s private school education through high school.  In settling the amount of child support, the court also found that the mother was voluntarily unemployed and imputed to her an income of $72,000.  In March 2015, the father filed a petition seeking to modify his obligation to pay the tuition.  The lower court denied this request, holding that the father’s tuition obligations are not subject to modification.  The trial court also denied the mother’s request to modify her support obligation.

While Tennessee courts do not have authority to order a parent to pay the undergraduate or post-secondary tuition of a child who is at the age of majority, if a parent enters into such an agreement it will be enforced by the Tennessee courts.  This type of agreement retains its contractual nature when included in the final decree of divorce, and cannot be modified by the court.  However, tuition for private grade school or high school is considered an extraordinary educational expense that may, in some circumstances, be a part of a parent’s duty to support his or her child.  Unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education may be subject to modification if it is incorporated into the final decree of divorce.

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When planning the distribution of your estate, it is important to understand the legal consequences of naming beneficiaries on non-probated assets.  In a February 28, 2017 opinion, the Court of Appeals of Tdocuments-1427202-640x480-300x225ennessee considered whether evidence of the decedent’s intent was relevant in deciding the matter of her life insurance proceeds.  The decedent in the case had a life insurance policy designating her husband and sister as beneficiaries.  The husband filed suit to recover the proceeds left to the sister and place them in a trust for the benefit of his and the decedent’s son.  The trial court concluded the son was entitled to the proceeds based on the theory of promissory estoppel, and the sister appealed.

The decedent had been diagnosed with terminal cancer when her son was twelve years old.  A few years later, her husband discovered he had terminal cancer and was not expected to outlive the decedent.  The decedent’s life insurance policy initially named her husband as sole beneficiary.  However, the decedent added her sister as a co-beneficiary of her life insurance policy a few weeks before her death, unbeknownst to her husband.  Her husband believed that she left half the proceeds to her sister for the purpose of taking care of their son, who was a minor and would soon have no living parents to take care of him.  When the husband became concerned that the decedent’s sister was going to use the proceeds for purposes other than his son’s welfare, he filed a complaint against her and the life insurance company.

In the circuit court proceedings, the husband relied on a document created by the decedent that allocated $30,000 to her sister, her sister’s children, and her mother, and the substantial remainder of her sister’s share of the proceeds to the decedent’s son.  There was also testimony by several parties regarding the decedent’s wishes that the insurance proceeds be used by her sister to care for her son.

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In Tennessee, courts recognize that a reduction in parenting time following a divorce can affect the well-being of the child as well as the parent’s rights.  Accordingly, any motion to modify parenting time is reviewed pursuant to specific legal standards.  In a February 23, 2017 opinion, the Court of Appeals of Tennessee scrutinized a lower court’s order to reduce the father’s parenting time, ultimately reversing the decision.father and son

The parties had divorced in 2008.  Prior to the entry of the divorce decree, which incorporated an agreed permanent parenting plan, the mother moved to Texas.  Under the 2008 parenting plan, the mother was designated as the primary residential parent and received 317 days per year of parenting time, while the father received 48 days with the child in Tennessee.  The parenting plan provided for joint decision-making with respect to educational decisions; however, the mother was permitted to make decisions regarding non-emergency health care, religious upbringing, and extracurricular activities.

In 2013, the parties agreed to modify the parenting plan so that the father would receive 85 parenting days, regular webcam and telephone calls, and joint decision-making regarding major decisions in the child’s life.  In the present action, the father sought to modify the 2013 plan in order to increase his amount of parenting time to 113 days and provide the child with a cell phone to facilitate their phone calls.  After a hearing on the matter, the trial court reduced the father’s visitation to 68 days, denied the cell phone request but increased his number of phone calls per week, and ordered that the mother be allowed to make major life decisions for the child.

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Premises liability is a legal concept that allows a property owner to be held responsible for certain injuries that occur on his or her land.  In a February 7, 2017 decision, the Court of Appeals of Tennessee reviewed a personal injury action brought by a plaintiff who was injured at a restaurant.  After the trial court granted summary judgment in favor of the defendant, the plaintiff appealed the ruling for review by the higher court.restaurant sign

In 2012, the plaintiff, who was in her early 70s, visited the defendant’s restaurant to attend a party on the second floor.  The stairwell had railings on both the left and right sides of the stairs.  The right-hand stair railing was decorated with garlands and Christmas lights, while the railing on the left side had no decorations on it.  After the party ended, the plaintiff began to descend the stairs.  When she reached for the handrail, she was unable to grasp the railing itself but instead grabbed only a handful of garland.  Without the rail to steady herself, she fell down the stairs, suffering a femoral shaft fracture on her left leg that ultimately required surgery.

In Tennessee, property owners are required to exercise due care under all of the circumstances.  This general duty of care imposes a responsibility to either remove or warn against any dangerous condition on the premises of which the property owner is actually aware or should be aware through the exercise of reasonable diligence.  However, this does not include conditions from which no unreasonable risk was to be anticipated.

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The distribution of assets in a decedent’s estate may sometimes lead to disputes among beneficiaries.  In a February 15, 2017 opinion, the Court of Appeals of Tennessee decided a controversy regarding the disposition of several certificates of deposit that were held in joint tenancy, with right of survivorship, by the decedent and her daughter.  The other beneficiaries of the decedent’s estate argued that the certificates of deposit were probate assets.  The trial court denied the beneficiaries’ objection and closed the estate, prompting an appeal to the higher court.bank

The decedent died in 2008, leaving a valid will that devised her estate in equal shares to her children or their survivors.  Among her estate were three certificates of deposit titled in the names of the decedent or her daughter, with boxes checked on the signature card to indicate that they were held in joint tenancy with right of survivorship.  The decedent had originally opened and funded the original certificates of deposit decades before without her daughter’s assistance or knowledge.  During the administration of the decedent’s estate, the other beneficiaries contended that the CDs should be included in the residual estate, while the daughter argued they were non-probate assets because they were held in joint tenancy with right of survivorship.

In Tennessee, the decedent’s intent determines the disposition of the CDs at issue.  To establish the decedent’s intent, the court may consider the signed bank signature cards expressing the right of survivorship, as well as other extrinsic evidence to demonstrate intent as to the type of ownership.  At the trial, the daughter testified that she became aware of the CDs in the 1980s when she began to assist the decedent with her business affairs.  The daughter also stated that she renewed the CDs as joint tenants with right of survivorship while the decedent was alive, since it was the decedent’s wish to have them remain in joint tenancy.

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Sharing child custody and parenting decisions after a divorce can be difficult.  The Court of Appeals of Tennessee recently considered the legal aspects involved in these situations in a January 31, 2017 opinion.  The case reached the court after the father appealed a lower court order awarding the mother sole decision-making authority regarding their four children’s religious upbringing and designating that the children specifically attend the mother’s church.church

After the parties divorced in 2008, their parenting plan designated the mother as the primary residential parent and gave both parents joint decision-making authority with respect to the children’s upbringing.  The parties subsequently became engaged in contentious litigation concerning the children, particularly with respect to their religious upbringing.  The court appointed a guardian ad litem for the children and required the parents to submit to a psychological evaluation.  After a hearing, the court modified the parenting plan, giving the mother sole decision-making authority over the children’s religious upbringing.

Despite the parenting plan, the father continued to take the children to his church, sometimes for several hours at a time, which caused the children anxiety.  In response, the mother filed another motion for the court to modify its order, reflecting that the father should not force the children to practice his religious beliefs.  The court then entered an order providing that the children exclusively attend the mother’s church.

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A defendant may be held liable for any foreseeable injuries caused as a result of his or her negligence.  The Court of Appeals of Tennessee recently addressed the issue of foreseeability in a January 31, 2017 opinion regarding a personal injury action.  In that case, the plaintiffs filed a negligence action seeking damages for injuries sustained after a deck collapsed at the defendants’ home.  The lower court dismissed the claim, finding that the injuries were not reasonably foreseeable, and the plaintiffs appealed.deck

The action arose from a party hosted for approximately 40 to 70 high school students at the defendants’ home in 2008.  At the time, the plaintiff was 14 years old.  While the plaintiff and others were dancing and jumping on an elevated, wooden deck attached to the house, the deck suddenly collapsed, causing the plaintiff to fall and sustain injuries.  Within a year after the plaintiff turned 18, the plaintiffs filed suit against the homeowners, alleging that they were negligent in supervising the children, failing to prevent the deck collapse and injuries, and failing to exercise reasonable care.

To succeed in a negligence action in Tennessee, the plaintiff must establish the following:  (1) a duty of care that the defendant owed to the plaintiff; (2) a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal causation.  All people have a general duty to use reasonable care to refrain from conduct that will foreseeably cause an injury to others.  However, if the injury could not have been reasonably foreseen, the duty of care does not arise, and there is no negligence and no liability, even when the act of the defendant in fact caused the injury.

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The Court of Appeals of Tennessee recently affirmed a judgment awarding a plaintiff $90,000 in his personal injury lawsuit against the City of Memphis.  In Turner v. City of Memphis (Tenn. Ct. App. Dec. 20, 2016), the plaintiff was injured in a motor vehicle accident involving a Memphis police officer.  The plaintiff filed a personal injury claim against the officer and the City under the Tennessee Governmental Tort Liability Act, alleging that the officer had negligently struck the plaintiff’s vehicle in a head-on collision.  After a bench trial, the court found in favor of the plaintiff and awarded him actual and compensatory damages in the amount of $90,000.  The City appealed the decision.traffic

In Turner, the court was presented with conflicting testimony from the parties regarding the existence of a dog in the road that forced the officer to veer into oncoming traffic.  The officer testified that while he was driving, he saw an object approach in his peripheral vision.  The officer believed it was a person and automatically steered toward the middle turn lane in order to avoid hitting the person.  In doing so, the officer struck the plaintiff’s vehicle head-on.  The officer testified that after the accident, he looked back and saw that the object was a dog.  The trial court ruled that the officer failed to establish that a dog or person was in the road on the night of the accident, and even if a dog or person was present, the officer nevertheless committed negligence in crossing two full lanes of traffic to veer into oncoming traffic.

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In most child custody cases, a parent sharing custody may not relocate with the children more than 50 miles from the other parent or outside the state, unless expressly authorized by the court.  In a recent case, the Court of Appeals of Tennessee addressed the burden of proof issue regarding a father’s petition to relocate to Oklahoma with his minor children.  The trial court concluded that since he was the petitioner, the father bore the burden of proof on whether the move was for a reasonable purpose.  The trial court ultimately denied the request, and the father appealed.horses

In the case, the parties’ parenting plan designated the father as the primary residential parent of the children.  The father notified the mother of his intention to relocate with the children to Oklahoma to work on a farm owned by his relatives, and he filed a petition with the court.  The mother subsequently filed an objection, contending that there was no reasonable purpose for the move.

In Tennessee, the parent spending the greater amount of time with the child may relocate over an objection filed by the other parent, unless the court finds that the relocation does not have a reasonable purpose, it would pose a threat of specific and serious harm to the child, or the parent’s motive for relocating is intended to defeat or deter the visitation rights of the parent spending less time with the child.  However, even if one of the grounds is proven, the court may still permit relocation based on the best interest of the child.

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In some divorce proceedings, alimony can become a major issue, particularly when one spouse has produced all or most of the income for a significant portion of the marriage.  The Court of Appeals of Tennessee recently addressed this matter in Mabie v. Mabie (Tenn. Ct. App. Jan. 9, 2017), when it reviewed an order by the trial court awarding rehabilitative alimony and alimony in futuro to the wife after the divorce.  Throughout the parties’ 14-year marriage, the husband was a medical doctor and partner in a successful practice that generated a significant income, while the wife’s primary role was as a stay-at-home mother.writing check

Tennessee recognizes four types of spousal support:  (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.  With regard to rehabilitative alimony, the purpose is to assist an economically disadvantaged spouse in eventually achieving an earning capacity that allows him or her a standard of living that is reasonably comparable to the standard of living enjoyed during the marriage.  Alimony in futuro is intended to provide support on a long-term basis until the death or remarriage of the recipient.  It may be awarded in addition to an award of rehabilitative alimony, in cases in which the spouse may be only partially rehabilitated, or in lieu of rehabilitative alimony, when rehabilitation is not feasible.

In Mabie, the trial court awarded the wife $6,000 per month in rehabilitative alimony for three years and $5,000 per month in alimony in futuro.  The award of alimony in futuro was ordered to be paid concurrently with the rehabilitative alimony and would terminate upon either party’s death, the wife’s remarriage, or the wife’s co-habitation with a third party.

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