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

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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The executor of an estate owes certain fiduciary duties to that estate during its administration.  Recently, the Tennessee Court of Appeals considered whether a defendant had breached her fiduciary duties as an executrix in In re Estate of Darken (Tenn. Ct. App. Dec. 20, 2016).  The sons of the decedent filed the challenge, contending that the executrix breached her fiduciary duty by refusing to communicate with them, refusing to provide them with certain documents, and concealing certain assets of the estate.  The defendant was the decedent’s surviving spouse and served as the executrix of the

In Tennessee, executors occupy a fiduciary position and therefore must deal with the beneficiaries of the estate in the utmost good faith.  The duties of an estate’s personal representative include notifying the decedent’s beneficiaries that the will has been filed for probate, collecting and inventorying the decedent’s assets, resolving the claims submitted by the creditors of the decedent and the estate, making interim distributions of the estate when appropriate, and filing accountings.  An executor also has the duty to communicate with the beneficiaries of the estate in a professional manner.

The appeals court first addressed the plaintiffs’ claim that the executrix refused to communicate with them as the beneficiaries of the decedent’s estate.  While acknowledging that the record showed the executrix did not want to communicate directly with the plaintiffs, she provided the information to her attorney, who then communicated that information to the plaintiffs.  The court concluded that the evidence demonstrated that the defendant fulfilled her duty to communicate with the beneficiaries of the estate.

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In a premises liability lawsuit, individuals who are injured on the property of another person or business may be compensated if they can prove the property owner was negligent.  The Court of Appeals of Tennessee recently reviewed a case involving this issue in Woodgett v. Vaughan (Tenn. Ct. App. Dec. 13, 2016).  In Woodgett, the plaintiff filed suit against the defendant homeowners after she fell and sustained injuries while viewing their home as a prospective buyer.  After a trial, the jury found in favor of the defendants.  The plaintiff appealed, arguing that the trial court erred in allowing the jury to see a surveillance video recorded by the defendants’ private investigator.steps

In Woodgett, the plaintiff viewed the defendants’ house without the listing realtor or the defendants present.  Below the attic doorway was a large landing and a wooden box that was used as a step to access the landing.  The box step was constructed out of wood planks and covered in carpet, and it was not fastened to the landing itself.  The plaintiff alleged that when she attempted to go down on the step, it gave way and caused her to fall.  The plaintiff testified that after the fall, she suffered injuries and a limp that made everyday activities difficult, including walking, standing, bending, using stairs, and otherwise being active.

The defendants retained a private investigator to observe and record the plaintiff during her daily activities outside her home.  At trial, the defendants sought to introduce the surveillance videos into evidence.  The plaintiff objected, arguing that the videos were irrelevant and unduly prejudicial and held her out as a person of means by driving a Cadillac Escalade and several other cars and shopping.  The defendants contended that the videos were probative because they showed the plaintiff walking in heels, standing, and getting in and out of motor vehicles without difficulty.

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In rare circumstances, the court may award primary custody of a child to a non-parent, instead of the child’s father or mother. The Court of Appeals of Tennessee addressed this issue and the requirements necessary to award child custody to a non-parent in Vinson v. Ball (Tenn. Ct. App. Nov. 9, 2016). The appeal followed the trial court’s order granting primary custody of the children to their maternal grandfather.

In Vinson, the mother and father of two minor children entered into a 2010 agreed order providing that the mother would be the primary residential custodian, and the father would have visiting rights while residing in Louisiana. Some time thereafter, the mother sent the children to live with their maternal grandfather in South Carolina, since she was unable to financially care for the children on her own. The father did not pay child support to the mother or grandfather, although he did provide for the children when they were visiting him. In 2014, the father filed a petition to modify the parenting order, alleging that the grandfather was interfering with his visitation rights. In response, the mother and grandfather requested that the court formalize the grandfather’s custody of the children because he had been their primary caregiver and financially supported them for many years. After a hearing, the court awarded primary custody of the children to their grandfather and ordered the mother and father to pay child support.children

In Tennessee, a parent cannot be deprived of custody in favor of a non-parent unless there has been a finding of substantial harm to the child. The courts have explained that the harm must be a real hazard or danger that is not minor or insignificant, and more than a theoretical possibility. In addition, custody decisions should focus on the parties’ present and anticipated circumstances and their current fitness as custodians. Although the court will consider past conduct, biological parents are not required to demonstrate they are perfect before they can be granted custody of their children.

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A legal challenge to the validity of a will may only be brought by a person who, if successful, would benefit under the terms of another will or the applicable intestacy law.  In In re Estate of Bostic (Tenn. Ct. App. Dec. 6, 2016), the Court of Appeals of Tennessee reviewed whether the decedent’s sister had standing to contest his will during probate administration, and whether the trial court erred in finding that she was estopped from bringing her claim after she entered the decedent’s will into probate as the executor.library

In In re Estate of Bostic, the decedent’s will bestowed his house, personal property, and $25,000 to a friend, $12,000 to each of his grandsons, and the residue of the estate to his sister.  The decedent’s sister was appointed as the executor of his estate upon his passing.  The sister also filed a petition challenging the bequest to the decedent’s friend as a product of undue influence, alleging that they had a confidential relationship, that the decedent was in a weakened mental and physical condition, and that the friend was involved in the creation of the decedent’s will.  In response, the friend denied the allegations and also filed a motion for the court to remove the decedent’s sister as the executor.

The trial court granted the motion and appointed a new administrator to carry out the provisions of the decedent’s will.  The trial court also dismissed the will contest, finding that although the sister did have standing in the matter, she was estopped from contesting the will because she had introduced it into probate and affirmed its provisions when she received her appointment as the executor.  On appeal, the sister argued that the dismissal was in error because she learned of the alleged fraud after the will had been offered for probate.  The estate argued that she lacked standing to challenge the will.

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Accident victims may face additional challenges when pursuing a personal injury claim against a municipality or government body, due to legal restrictions on liability.  However, there are statutory exceptions that may apply under the Tennessee Governmental Tort Liability Act (GTLA).   In Miller v. Jackson-Madison County General Hospital District, et al. (Tenn. Ct. App. Dec. 8, 2016), the Tennessee Court of Appeals reviewed a negligence claim brought by the plaintiff against a municipal hospital after a lower court ruled in favor of the hospital following a bench trial.hallway

In Miller, the plaintiff was injured when she slipped and fell in water on the floor of a municipal hospital.  The plaintiff filed suit against the hospital, alleging that it negligently caused her injuries by failing to maintain the hallway and protect her from hidden and latent defects of which it had knowledge.  Although generally, a case may not be brought against a governmental entity under the doctrine of sovereign immunity, the GTLA removes immunity in limited and enumerated instances for certain injuries.

Under the GTLA, a governmental entity such as the hospital in Miller is not immune from suit for an injury caused by the dangerous or defective condition of a public building or improvement owned and controlled by the governmental entity.  For latent defective conditions, as in Miller, liability is only removed if the governmental entity had constructive or actual notice of the condition.  Accordingly, the plaintiff must establish that a dangerous condition existed and that the hospital had notice of the condition.  Notice may be shown when the condition was caused or created by the defendant, or when the condition was caused by someone other than the defendant if the defendant nevertheless had actual or constructive notice of the condition prior to the accident.

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