Issues concerning children and other personal matters are often disputed in divorce cases.  In a June 15, 2017 case from the Court of Appeals of Tennessee, a father argued that the lower court erred in not awarding him equal parenting time with the spouses’ three children and in not granting a fault-based divorce due to the mother’s infidelity.  The spouses had filed for divorce in 2015, each alleging inappropriate marital conduct on the part of the other.  The trial court’s order granted a divorce without finding fault, designated the mother as the primary residential parent, and awarded visitation rights to the father pursuant to a schedule.child's hands

On appeal, the father contended that the trial court should have awarded him more time with the children.  The father cited Tennessee’s parental custody statute, which provides that, when taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the child’s life, and that is consistent with certain factors, including the location of the residences of the parents, the child’s need for stability, and other relevant considerations.

The appeals court noted, however, that the rule does not mandate that each parent spend equal time with the child when such a schedule would not serve the child’s best interest.  The court also explained that the trial court’s analysis is guided by a number of other factors, including which parent served as the primary caregiver of the children, which parent is more likely to foster a relationship with the other parent, the stability and continuity offered by each parent, and the preferences of older children.  In the case, the mother worked from home, while the father worked outside the home and was unavailable during much of the week.  The court ruled that, under these circumstances, the trial court was well within its discretion to create a parenting plan that provided the mother with the majority of parenting time during the work week and alternating weekends.

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Although Tennessee law provides the deadline by which a claim must be filed, there are exceptions that may extend that time limit.  In a May 26, 2017 decision, the Court of Appeals of Tennessee considered whether any exceptions applied in a medical malpractice action filed by a mother and her child on September 29, 2015.  The plaintiffs alleged that they suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.  The trial court granted the defendants’ motion to dismiss the plaintiffs’ claims, based on the expiration of the statute of limitations.ultrasound

Health care liability actions in Tennessee are generally subject to a one-year statute of limitations that runs from the date on which the claim accrues.  There is an important exception under the Health Care Liability Act, however, if the alleged injury is not discovered within one year.  In such cases, the period of limitation is extended to one year from the date of the discovery, but no more than three years after the date on which the alleged negligence occurred (subject to certain exceptions).  This statute is commonly known as a statute of repose, since it establishes an absolute, three-year limit upon the existing statute of limitations.  Although the three-year statute of repose is not tolled during a plaintiff’s minority, it may be extended by 120 days if the plaintiff provides the defendants with pre-suit notice of his or her potential claims as required by the Act, before the statute of repose expires.

In the case, the plaintiffs alleged that the defendants’ negligence occurred on June 21, 2012.  Accordingly, the three-year statute of repose expired on June 21, 2015, well before the plaintiffs’ complaint was filed on September 29, 2015.  On appeal, one of the dispositive issues for the court was whether the plaintiffs provided the defendants with sufficient pre-suit notice of their claims, which would extend the statute of repose by 120 days to October 19, 2015 and save the child’s claim from being dismissed.

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Probate and estate administration can be difficult to settle when there are claims or challenges involved. In a May 26, 2017 case, the Court of Appeals of Tennessee reviewed a claim against the decedent’s attorney-in-fact, which alleged undue influence arising from a confidential relationship. The decedent’s survivors, two nieces and one nephew, filed the complaint against the attorney-in-fact, who was the decedent’s other nephew. Following a bench trial, the lower court dismissed the complaint, finding that although a presumption of undue influence had been raised by a confidential relationship between the defendant and the decedent, the defendant had successfully rebutted the presumption. The plaintiffs brought an appeal.pencil on desk

To prove undue influence, the plaintiffs generally must prove the existence of suspicious circumstances warranting the conclusion that the decedent did not act freely and independently. Examples of such suspicious circumstances may include the existence of a confidential relationship between the decedent and the defendant, the decedent’s physical or mental deterioration, the defendant’s active involvement in procuring the will, secrecy concerning the will or the lack of independent advice, the unjust or unnatural nature of the will’s terms, fraud or duress, or any other circumstances that establish undue influence. Under Tennessee law, there is a presumption of undue influence when the dominant party in a confidential relationship, i.e., the defendant, receives a benefit from the decedent. Once a presumption of undue influence arises, the defendant must establish that the transaction at issue was fair by clear and convincing evidence to rebut the presumption.

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It is important to understand your rights before signing an antenuptial agreement, as well as the consequences of its execution.  In a May 17, 2017 decision, the Court of Appeals of Tennessee reviewed a divorce case involving an antenuptial agreement that the spouses signed before their marriage in 1997.  As a result of that agreement, the trial court classified the bulk of the assets as the husband’s separate property, divided the modest amount of assets that were classified as marital property, and awarded the wife alimony in futuro and alimony in solido.contract

In Tennessee, spouses may control the disposition of property in the event of a divorce with an antenuptial agreement.  Antenuptial agreements are valid and enforceable as long as they are entered into freely, knowingly, and without duress or undue influence.  The terms of a valid antenuptial agreement will be applied instead of the statutory definitions regarding the distribution of marital and separate property and general principles regarding equitable distribution.

On appeal, the wife argued that property acquired by the spouses after the marriage by means of the husband’s earned income should be classified as marital property.  In considering the issue, the appeals court observed that the antenuptial agreement failed to provide a definition for the term “property.”  Accordingly, the court construed the agreement as a whole in order to ascertain the parties’ intent from the usual, natural, and ordinary meaning of the language.

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Tractor-trailer accidents can cause serious injuries that require long-term medical care. In an April 24, 2017 opinion, the Court of Appeals of Tennessee reviewed a negligence claim arising out of a collision between two semi-trucks. The plaintiff in the case was a long-distance driver. He was driving on a highway in western Tennessee when he suddenly saw an overturned tractor-trailer, which was blocking both lanes of the highway. Unable to stop or avoid the obstacle, the plaintiff collided with the overturned vehicle. The plaintiff brought suit against the owner of the overturned truck, alleging that its employee’s negligence caused the plaintiff’s injuries.


The defendant filed a motion for summary judgment on the ground that the plaintiff could not establish that its employee failed to exercise reasonable care. The defendant’s motion was supported by sworn affidavits of its employee and an accident reconstructionist. The affidavits stated that the employee was not speeding and that he had exited the roadway to avoid a collision with an unidentified driver, but as he attempted to re-enter the roadway, his tractor-trailer overturned. The circuit court granted the motion, finding that the plaintiff did not provide any evidence to dispute the employee’s testimony. The plaintiff appealed the matter to the higher court.

A negligence claim requires proof of five elements:  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. In Tennessee, all drivers have a duty to act with reasonable care to avoid foreseeable injuries to others.  Whether a driver has exercised reasonable care is evaluated in light of the circumstances, and it will vary according to the risk involved in a particular situation. The sudden emergency doctrine is a legal concept that recognizes that a person confronted with a sudden or unexpected emergency calling for immediate action is not expected to exercise the same accuracy of judgment as someone acting under normal circumstances, who has time for reflection and thought before acting.

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There are any number of situations that can complicate the settling of a decedent’s estate after their death.  In a March 7, 2017 case before the Court of Appeals of Tennessee, the decedent was in the midst of divorce proceedings with her estranged husband at the time of her death.  After the trial court concluded that the decedent’s assets were to pass to her estranged husband, the personal representative of her estate appealed the

The decedent in the case was in the process of divorcing her estranged husband at the time of her death.  The decedent and her husband had executed a separation agreement as part of the divorce proceedings, in which they agreed to individually maintain ownership of specified marital assets and execute the documents necessary to effectuate the transfer of each asset.  However, the decedent passed away before the respective transfers of property were made, and her personal representative filed an action seeking to enforce the terms of the settlement agreement.  The husband argued that the agreement had been rescinded because the parties failed to perform under the agreement.  The trial court determined that the agreement had been rescinded by the husband, and in ruling in this way, all jointly owned marital assets passed to him at the decedent’s death.

On appeal, the court initially determined that the agreement was enforceable pursuant to ordinary rules of contract construction, despite the absence of a final divorce judgment.  Since the agreement was executed in Georgia and contained a choice of law provision, the court looked at Georgia’s statutes governing contracts.  Accordingly, to justify rescission, there must be a material nonperformance or breach by the opposing party.  However, the right to rescind belongs only to a party who is free from substantial default himself.  A party who has substantially broken the contract cannot rescind it on the ground that the other party subsequently refused or failed to perform.

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The Tennessee Health Care Liability Act (THCLA) covers injuries arising out of medical treatment provided by health care professionals.  In a relevant decision issued on May 2, 2017, the Court of Appeals of Tennessee reviewed a personal injury claim that the trial court had determined was subject to the THCLA. ambulance

In the case, the plaintiff alleged that, while he was strapped to a gurney, an EMT negligently hit him in the face with his fist.  The plaintiff filed his lawsuit against the EMT and the EMT’s employer.  The defendants asserted that the plaintiff’s action was, in essence, a health care liability action because the EMT was a health care provider, and the plaintiff’s injuries were related to the provision of health care services.  The trial court agreed and dismissed the plaintiff’s claims with prejudice, based on his failure to file a certificate of good faith as required by the THCLA.  The plaintiff’s appeal followed.

In Tennessee, civil actions alleging that a health care provider has caused an injury related to the provision of, or the failure to provide, health care services are health care liability actions subject to the THCLA.  In a health care liability action in which expert testimony is required under the THCLA, the plaintiff must file a certificate of good faith with the complaint.

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A modification of a child custody or visitation schedule typically requires approval by a court if the parents don’t agree to the terms.  In a March 29, 2017 case, the Court of Appeals of Tennessee reviewed a matter involving the modification of an agreed parenting plan under which the child’s mother was the primary residential parent.  After the father obtained an injunction to prevent the mother from homeschooling the child, the mother sought to obtain sole decision-making authority.  The father responded by filing a petition to be named the primary residential parent and sole decision-maker.  The juvenile court granted the father’s request, limited the mother’s visitation, and enjoined her from using social media and making disparaging remarks about the father.  The mother brought the subsequent appeal.children

In Tennessee, the threshold issue for the court in considering a petition to modify a parenting arrangement is whether a material change in circumstances has occurred.  If the court finds that a material change in circumstances does exist, it will go on to consider whether a modification is in the child’s best interest.  When determining the child’s best interest, the court is required to consider a non-exclusive list of factors enumerated by law.

In the case at issue, the appeals court concluded that several of the statutory factors favored the designation of the father as the primary residential parent.  Reviewing the evidence, the court pointed to the mother’s unwillingness to cooperate with the father regarding educational decisions and her history of disregarding orders of the court.  The court also observed that the mother’s chronic fatigue episodes often left her unable to get out of bed, and her mental instability was evidenced by the condition of her home, which the Tennessee Department of Children’s Services found to be inappropriate for raising a child.

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If a person has exerted undue influence over a decedent in matters concerning his or her estate planning, it may be appropriate to overturn a bequest in some instances.  In an opinion released on March 14, 2017, the Court of Appeals of Tennessee reviewed a claim of undue influence following the decedent’s death.  The nieces of the decedent filed the complaint, contesting the validity of a quitclaim deed and the decedent’s will on the ground that they were results of undue influence exerted upon the decedent by her stepson and his wife.  After a jury found the documents to be valid, the plaintiffs brought the current appeal.golden pen

The decedent in the case died in 2012.  After the decedent’s death, a will that she executed in 1985 was submitted for probate.  However, the defendants subsequently provided a document dated in 2010, purporting to be the decedent’s will.  In the 2010 will, the decedent revoked all prior wills, disinherited the plaintiffs, and named the stepson as the sole beneficiary.  They also submitted a 2011 codicil that designated the stepson’s wife as the sole beneficiary in the event that her husband predeceased the decedent.  Lastly, the defendants presented a 2010 quitclaim deed conveying the decedent’s real property to herself, her stepson, and his wife as joint tenants with right of survivorship.

The defendants had moved into the house next door to the decedent in 1985.  After the decedent suffered a stroke in 2005, the defendants began caring for her.  In 2010, the decedent executed a document designating the defendants as her powers of attorney.  Witnesses testified that the 2010 will was read aloud to the decedent, and she seemed to be mentally sharp, although she was in a wheelchair, and her stepson steadied her arm so that she could sign.

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Even when a settlement agreement has been reached in a divorce case, subsequent issues may bring the matter back to court.  In an April 13, 2017 decision, the Court of Appeals of Tennessee reviewed a post-divorce dispute regarding the wife’s claim against the husband for a portion of his military retirement benefits, among other claims.  The lower court had ruled that the wife was entitled to approximately 30 percent of the husband’s retirement benefits going forward, but it declined to award her any portion of the benefits he received prior to the hearing because she had not presented sufficient proof as to the amount of those benefits.  The wife timely appealed the matter to the higher court.retirement money

The parties in the case were married in 1979 and had two children before divorcing in 1998.  The parties mediated an agreement on the terms of the divorce and custody of the children, which was incorporated into the final divorce decree entered by the court. The marital dissolution agreement provided that the wife was entitled to the maximum allowable pension benefit available to her through her husband’s former employment with the U.S. Army, but not more than 50 percent.  In 2004, the husband was notified that through an error, he was not eligible for retirement pay.  The husband returned to the military and eventually qualified for military retirement benefits, albeit a different type of benefits than he was originally promised.  The wife filed a complaint in 2015 against the husband for his alleged failure to provide her with her share of his military retirement benefits, pursuant to the parties’ marital dissolution agreement.

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