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Posted by: Amelia Ferrell Knisely on Apr 26, 2016

Court: TN Court of Appeals

Attorneys 1:

Timothy A. Roberto and Ralph Brown, Knoxville, Tennessee, for the appellant, Kenneth M. Spires, o/b/o Charity Felicia Spires, deceased; Kenneth M. Spires, individually; and o/b/o Uriah T.S.[H.].

Attorneys 2:

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellee, Captain Dana Trent Hensley, Jr., M.D., f/b/o Uriah T.S.[H.].

Judge(s): FRIERSON

The surviving spouse in this wrongful death action appeals the trial court?s dismissal of him as a plaintiff. The decedent and surviving spouse had one child together, who was eighteen months old at the time of the decedent?s fatal automobile accident in October 2010. The decedent and surviving spouse were living apart, and the child had been residing solely with the decedent. On November 18, 2010, the surviving spouse, acting on behalf of the decedent, the child, and himself, filed the instant action in the Monroe County Circuit Court (“trial court”) against the seventeen-year-old driver of the other vehicle involved in the accident and her parents, who were the owners of the vehicle. Also in November 2010, the Monroe County Juvenile Court granted custody of the child to the maternal grandmother. Upon a subsequent petition filed by the maternal grandmother and maternal uncle in the Monroe County Chancery Court, the surviving spouse?s parental rights to the child were terminated and a decree of adoption was granted to the maternal uncle on August 8, 2012. The child?s maternal grandmother and adoptive father subsequently filed successive motions to intervene in this action on behalf ot the child. Upon announcement of an agreement as to the settlement amount offered by the defendants? insurance company, the trial court entered an agreed order awarding a $100,000.00 judgment against the defendants.1 Following a bench trial regarding the remaining issues, the court found that pursuant to Tennessee Code Annotated § 20-5- 107(b), the surviving spouse was statutorily disqualified from commencing and maintaining this action or collecting any portion of a settlement because he owed outstanding child support arrearages on behalf of children born to four women other than the decedent. We determine that although Tennessee Code Annotated § 20-5-107(b) operates to prohibit the surviving spouse?s recovery of his one-half of the settlement until his child support obligations are paid, it does not operate to disqualify him from commencing and maintaining this wrongful death action. We therefore reverse the trial court?s dismissal of the surviving spouse as a plaintiff and the court?s substitution of the adoptive father as an intervening plaintiff. We remand for distribution of the wrongful death settlement proceeds, one-half toward payment of the surviving spouse?s child support arrearages with interest, pursuant to Tennessee Code Annotated § 20-5-107(b), and one-half to the minor child in trust with the adoptive father as trustee. We affirm the trial court?s judgment in all other respects.