DERRICK HUSSEY, ET AL. v. MICHAEL WOODS, ET A - Articles

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Posted by: Chandra Williams on Sep 23, 2015

Court: TN Court of Appeals

Attorneys 1:

Rachel E. Putnam, and Austin T. Rainey, Memphis, Tennessee, for the appellant, Sharondra E. Harris.

Attorneys 2:

Van D. Turner, Jr., Memphis, Tennessee, for the appellee, Estate of Mae L. Chearis. Kevin D. Bernstein, Betty Ann Milligan, and Bradford Jones Spicer, Memphis, Tennessee, for the appellee, Family Dollar Stores of Tennessee, Inc. Richard Glassman, Edwin E. Wallis, III, and William C. Terrell, II, Memphis, Tennessee, for the appellees, Porter & Strange, PLLC, Amanda K. Strange, and Matthew V. Porter. JoeDae L. Jenkins, Memphis, Tennessee, Pro Se.

Judge(s): ARMSTRONG

This is an appeal from the denial of Appellant’s Tennessee Rule of Civil Procedure 60.02 motion to set aside a settlement reached by Appellee, the decedent’s mother, in the underlying wrongful death lawsuit. Appellant brought the Rule 60.02 motion on behalf of her minor child, who was born out of wedlock. The decedent had executed a voluntary acknowledgment of paternity of the minor child in Mississippi; Appellant argued that the acknowledgment was entitled to full faith and credit in Tennessee such that the child would be the rightful plaintiff in the wrongful death lawsuit. Appellee filed a challenge to paternity, arguing that the decedent was incarcerated at the time of the child’s conception. The Circuit Court stayed all proceedings and transferred the question of paternity to the Probate Court, which had no authority to enroll the foreign acknowledgment of paternity under the Uniform Enforcement of Foreign Judgments Act. Furthermore, because the child’s paternity was challenged, there was a question as to whether the mere filing of the VAP in a Tennessee Court, pursuant to Tennessee Code Annotated Section 24-7-113(b)(3), was sufficient to establish paternity for purposes of the Wrongful Death Statute. If there is a challenge to the VAP, Tennessee Code Annotated Section 24-7-113(e) requires the trial court to first find that there is a substantial likelihood that fraud, duress, or material mistake of fact existed in the execution of the VAP. If the court so finds, then, under Tennessee Code Annotated Section 24-7-113(e)(2), DNA testing is required to establish paternity. Alternatively, the trial court could find that there is not a substantial likelihood of fraud, duress, or material mistake, deny the challenge to the VAP, and enroll the VAP as conclusive proof of paternity. Here, the trial court made no finding concerning fraud, duress, or material mistake under Section 24-7- 113(e). Despite the fact that the court never resolved the paternity question, it, nonetheless, denied Appellant’s Rule 60.02 motion and granted attorney’s fees to the defendant in the underlying wrongful death action and to the Appellee/mother for Appellant’s alleged violation of the order staying all proceedings in the Circuit Court. We conclude that the Rule 60.02 motion was not ripe for adjudication until such time as the trial court conclusively established the child’s paternity under either Tennessee Code Annotated Section 24-7-113 or 24-7-112. Accordingly, we vacate the trial court’s order denying Rule 60.02 relief and remand the case for further proceedings, including, but not limited to, entry of an order that complies with Section 24-7-113(e). We reverse the award of attorney’s fees and the order staying proceedings in the Circuit Court.

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