After a divorce, modifications to court-ordered support obligations for a spouse may be possible in certain situations, such as retirement.  In a Tennessee spousal support opinion issued on January 3, 2018, the Court of Appeals of Tennessee reviewed whether a post-divorce modification of alimony in futuro was appropriate after the husband retired.coins

The spouses in the case had divorced in 2011 after 42 years of marriage.  Their divorce decree provided that the husband would pay monthly alimony in futuro to the wife.  In 2012, the husband suffered a heart attack and sold his dental practice shortly thereafter.  He filed a petition to terminate his alimony obligation, since he was no longer able to pay.  The trial court found that despite a substantial and material change in circumstances as a result of his retirement, the husband had the ability to pay, and the wife had the need for support.  The husband appealed the decision.

In Tennessee, an award of alimony in futuro may be increased, decreased, terminated, extended, or otherwise modified upon a showing of a substantial and material change in circumstances.  On appeal, the court agreed that the husband’s retirement was objectively reasonable and constituted a material and substantial change of circumstances.  The court next considered whether a modification was justified in light of all of the statutory factors.  In making its determination, the two most important considerations are the financial ability of the obligor to provide the support and the financial need of the party receiving the support.

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Establishing a trust may be advantageous for Tennessee estate planning purposes in some situations.  However, it is important to understand the limitations of revocable living trusts.  In a February 13, 2018 case, the Tennessee Court of Appeals considered a challenge filed by the beneficiary of a living trust against a trustee for exceeding her authority under the terms of the trust agreement.pen

The defendant in the case and her husband had executed a removable living trust agreement.  They conveyed approximately 200 acres of real property to the trust.  Upon the death of the husband, the trust was the sole residual beneficiary of his will.  The defendant, as the successor trustee, distributed all of the real estate in the trust to herself by way of a quitclaim deed.  She then terminated the trust.  Her son, who was a beneficiary of the trust, filed an action alleging that she had exceeded her authority under the trust.  He requested an accounting of the trust’s assets and sought the return of any wrongfully distributed assets.

In Tennessee, trusts are interpreted by looking at the language, context, purpose, and scope of the trust agreement to determine the grantor’s intent.  In addition, a trust must be interpreted in order not to frustrate the intent of the grantor.

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The death of a child is a heart-wrenching experience, and more so when family members believe it could have been prevented.  In such situations, a Tennessee medical malpractice attorney can handle the procedural aspects of a negligence lawsuit, while the family focuses on healing.  A February 6, 2018 medical malpractice case before the Court of Appeals of Tennessee was brought by the parents of an infant who died in childbirth.  After a jury ruled in favor of the medical provider defendants, the plaintiffs appealed.  The plaintiffs’ lawyers argued a technical point on appeal concerning the jury selection, and they ultimately succeeded in reversing the verdict and obtaining a new trial.sleeping child

The plaintiffs in the case, individually and as administrators of the child’s estate, filed a complaint against the hospital, the treating physician, and the obygn practice, alleging negligence and vicarious liability for the wrongful death of their child.  During the jury selection process, the plaintiffs requested eight peremptory challenges, arguing that there were two party plaintiffs.  The trial court denied the request, finding that it was only the estate’s lawsuit, and granted the plaintiffs four peremptory challenges with two additional challenges for alternates.  The plaintiffs could therefore strike only four potential jurors from the selection pool without cause.

One of the arguments on appeal was whether the trial court erred in limiting the plaintiffs to less than eight peremptory challenges.  A peremptory challenge is a right provided by statute, permitting a party plaintiff to exclude a prospective juror without giving any reason for it.  The statute at issue allows four challenges for the party plaintiff, and in the event there is more than one plaintiff, it provides for an additional four challenges.  The initial question for the court, therefore, was whether the wrongful death action belonged to one plaintiff, i.e., the estate, or whether both parents named in the lawsuit constituted two plaintiffs.

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In some cases, procedural issues could result in barring a personal injury claim, but a skilled Tennessee premises liability attorney can advance an argument against dismissal.  In a January 30, 2018 case, the Court of Appeals of Tennessee reviewed whether a trial court had properly dismissed the plaintiff’s claims against some of the defendants that she had sued after suffering a fall in a grocery carts

The plaintiff in the case had slipped on an unsecured mat at a supermarket and fell, sustaining injuries.  She alleged that the shopping cart and the unsecured mat caused her to trip, and she brought claims for ordinary negligence, premises liability, and negligence per se against four entities that owned or operated the store.  The plaintiff voluntarily dismissed without prejudice three of the four defendants a few months after bringing the lawsuit.  She subsequently filed an amended complaint against the one remaining defendant.  The defendant filed its answer, asserting as an affirmative defense the comparative fault of the other defendants who had been dismissed.   The plaintiff then filed a second amended complaint, renaming those defendants pursuant to TCA § 20-1-119.  The trial court ruled that the plaintiff’s claims were barred, and the plaintiff appealed.

The Tennessee statute at issue generally provides that in civil actions in which a defendant alleges the comparative fault of another person in its answer, and the plaintiff would otherwise be barred from bringing suit against the person by the statute of limitations, the plaintiff may amend the complaint to add the person as a defendant within 90 days.  The only question on appeal was whether the plaintiff in the case properly added the defendants to the second amended complaint pursuant to that statute, in light of the fact that the defendants were once parties to the original complaint.

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Agreeing to child custody changes outside of court may affect future proceedings to modify a court-ordered parenting plan.  A January 9, 2017 Tennessee child custody case before the Court of Appeals of Tennessee illustrates the complexities of this issue.  The appeal arose out of the modification of a parenting plan in a post-divorce

The parents in the case had divorced in 2010, and a permanent parenting plan was adopted as part of the divorce decree.  Under that plan, the parents were awarded equal parenting time.  When the child started school in 2012, however, the parents informally modified the parenting schedule, since the parents were living in different counties.  Their arrangement provided the father with parenting time every other weekend, with holidays and school breaks split equally.  In 2015, the mother sought court approval of their informal arrangement by filing a petition to modify.  When the trial court adopted the mother’s proposed plan, the father appealed.

In Tennessee, the modification of an existing parenting plan requires the parent who seeks the change to prove that a material change of circumstances exists that affects the child’s best interest.  Unlike the process to switch the primary residential parent, the threshold to establish a material change of circumstances is very low when the court is merely changing a parenting schedule.  As a result, a material change of circumstances may include, but is not limited to, a failure to adhere to the parenting plan under the relevant statute.

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In some estate cases, disagreements may arise as to whether an asset is part of the estate to be distributed to the beneficiaries, or whether it is marital property belonging to the surviving spouse.  A previous blog post from 2016 highlighted this issue in a Tennessee estate litigation case before the Tennessee Court of Appeals.  The dispute centered around the ownership of a certificate of deposit that the decedent had purchased with funds from a joint checking account with his wife.  Since that post, the decision has been appealed and reviewed by the Supreme Court of Tennessee.  In a December 6, 2017 opinion, the court ultimately reversed the appeals court and overruled prior case law on the issue.writing check

During the administration of the decedent’s estate, his surviving wife filed a petition to designate a certificate of deposit, titled in the sole name of the decedent, as her separate marital property rather than part of the decedent’s estate, which had been left to his children of a prior marriage.  The decedent purchased the certificate of deposit with funds he withdrew from his and his wife’s joint bank account, designated with a right of survivorship.  The Court of Appeals ruled that the certificate of deposit belonged to the surviving spouse because the funds could be traced back to the joint account.

In Tennessee, a tenancy by the entirety is a form of property ownership unique to married persons.  Each spouse holds an interest in the entire property, rather than in undivided parts. Upon the death of one spouse, the survivor continues to own the whole property.  In most cases, one spouse cannot alone terminate the tenancy by transferring part of it to another party without the consent of the other spouse because it would destroy the other spouse’s ownership interest in the whole.  However, bank accounts are treated differently, and portions of a joint bank account may be unilaterally withdrawn without destroying the tenancy.

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If the death of a family member was caused by the negligence of another person, a personal representative may institute a Tennessee wrongful death action on behalf of the decedent’s beneficiaries.  Generally, the beneficiaries identified by statute receive the compensation obtained in a successful lawsuit.  However, there are some situations in which a statutory beneficiary may not recover.  In a December 27, 2017 opinion, the Supreme Court of Tennessee discussed how two statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds in a wrongful death

In the case, the plaintiff and decedent were married and had a son in 2009.  The plaintiff left both of them soon after the child was born, but the spouses never divorced.  After the decedent died in 2010, the decedent’s mother was awarded custody of the child, and her brother adopted him in 2012.  The adoption order terminated the plaintiff’s parental rights, based on abandonment for failure to visit or support him.

In 2010, the plaintiff filed a wrongful death action as a surviving spouse.  At the time, however, the plaintiff owed child support for four other children, who were unrelated to the decedent.  The decedent’s mother intervened, arguing that the plaintiff was disqualified from bringing the action and sought to replace him in the lawsuit.  The trial court dismissed the plaintiff from the wrongful death case, based on Tennessee wrongful death and intestate succession statutes, and the subsequent appeals ensued.

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When alimony is awarded to one spouse after a Tennessee divorce, it is not uncommon for disputes to arise in the future, particularly if there is a change in circumstances. In a December 11, 2017 case, the Tennessee Court of Appeals considered whether the husband’s alimony obligation should be reduced, and whether, in light of his failure to pay that amount in full, he should be held in criminal contempt.empty pockets

The parties had divorced in 2007 after 22 years of marriage. Their settlement agreement, which was incorporated into the divorce decree, provided that the husband would pay the wife 50 percent of his gross income as alimony, until the death of one of the parties. In a separate agreement, the parties agreed that the husband would also pay half of his bonuses and that the remarriage of either party would not terminate the alimony obligation.

In 2015, the husband filed a petition to modify his alimony obligation, claiming that his income had not kept up with inflation since the time of the divorce. He argued that he could not afford to purchase a home and owed a significant amount of taxes, while the wife had a job making $20 per hour and had purchased a home. The wife opposed the petition and also asserted a counterclaim for an arrearage judgment, requesting the court hold the husband in contempt for alimony that he had failed to pay.

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An individual generally has the right to decide how his or her estate should be distributed.  In cases in which the decedent’s will is a product of undue influence, however, the court may set aside the will as invalid.  In a December 28, 2017 case, the Court of Appeals of Tennessee addressed the issue of undue influence in a challenge to the decedent’s handwritten will filed by her son.diary

The relationship between the decedent and her son had become strained after a disagreement just three months before her death, and they stopped speaking.  Prior to their disagreement, the son regularly visited his mother and spoke with her on the phone.  Around the time of their falling out in June 2015, the decedent hired a housekeeper.  The housekeeper also assisted the decedent by running errands, caring for her pets, buying groceries, cashing checks for her, and keeping her company.

In August 2015, the decedent was diagnosed with cancer.  She did not tell her son that she was ill.  The decedent asked the housekeeper if she would stay at her house until she died because she did not want to be alone.  In September, she contacted an estate attorney and requested that he draft a will leaving everything to her housekeeper because she did not want her son to have anything of hers.  Before the attorney had time to prepare the will, the decedent took a turn for the worse.  The attorney advised her to write a handwritten will, which she did in front of her nurse.  Shortly thereafter, the decedent passed away, and her will was submitted to probate.  The son filed a petition to set aside the will, arguing that it was invalid because the decedent did not have the capacity to make her will, and the housekeeper exerted undue influence over her.

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Having your legal claim heard in court is an important part of the civil justice system.  In a December 14, 2017 case before the Tennessee Court of Appeals, the plaintiff appealed a decision from a lower court granting summary judgment on her personal injury claim in favor of the defendant.  The decision would have prevented the plaintiff from recovering compensation from the defendant for the injuries she suffered on its property. Ultimately, however, the appeals court vacated the trial court’s order and allowed the case to proceed.bus stop sign

The plaintiff in the case was employed as a school bus driver by the local metro government (Metro). She parked her bus at the middle school to attend a mandatory training program. As she walked across the asphalt parking lot, she tripped on a buckled and cracked portion of the pavement and fell, sustaining injuries. The plaintiff filed an action alleging that Metro was negligent in maintaining the parking lot. Metro denied negligence and asserted that the action was controlled by the Governmental Tort Liability Act. The plaintiff then sought to amend her complaint to include allegations of negligence per se, asserting that Metro was in violation of several building codes.

Without addressing the plaintiff’s motion to amend, the trial court granted Metro’s motion for summary judgment. Specifically, the trial court found that, although the parking lot at issue was uneven due to buckled pavement and a 54-foot crack, it did not have to be absolutely smooth as long as it was not unreasonably dangerous. The trial court held that it was not and also concluded that the plaintiff should have been aware of the open and obvious condition of the pavement.

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