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Posted by: Barry Kolar on Dec 27, 2017

Court: TN Supreme Court

Attorneys 1:

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellant, Major Dana Trent Hensley, Jr.

Attorneys 2:

Timothy A. Roberto and Ralph Brown, Knoxville, Tennessee, for the appellee, Kenneth M. Spires.

Judge(s): KIRBY

We granted permission to appeal in this case to clarify when two Tennessee statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds from a wrongful death lawsuit. In this case, the plaintiff and the decedent were married and had one child; the plaintiff abandoned the decedent and their son soon after the child was born. The plaintiff and the decedent never divorced. The decedent spouse died unexpectedly, and soon afterward the plaintiff surviving spouse filed this wrongful death action. At the time, the plaintiff surviving spouse owed child support arrearages for four other children unrelated to the decedent. The trial court dismissed the plaintiff surviving spouse from the wrongful death lawsuit based on a provision in Tennessee’s wrongful death statutes, Tennessee Code Annotated section 20-5-107(b) (2009 & Supp. 2017), and a similar provision in Tennessee’s intestate succession statutes, Tennessee Code Annotated section 31-2-105(b) (2015 & Supp. 2017). It held that these two statutes disqualified the plaintiff from filing the wrongful death action or recovering the proceeds from it because he never provided financial support for his child with the decedent spouse and because he had child support arrearages for his four children unrelated to the decedent spouse. The Court of Appeals affirmed in part and reversed in part. It held that the two statutes did not bar the plaintiff from commencing the lawsuit for the wrongful death of his spouse, but it also held that they precluded him from recovering proceeds from the wrongful death lawsuit until his outstanding child support arrearages were satisfied. Consequently, the Court of Appeals ordered that the plaintiff’s recovery from the wrongful death action be paid toward satisfaction of his child support arrearages for his four children who were unrelated to the decedent spouse. On appeal, we hold that the prohibitions in Tennessee Code Annotated sections 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent’s child support arrearage is owed for the support of that decedent child. Therefore, neither statute is applicable under the facts of this case. Accordingly, the decisions of the lower courts are reversed and vacated insofar as they applied those two statutes to this case. We affirm the Court of Appeals’ holding that newly enacted wrongful death statutes regarding a surviving spouse’s waiver based on abandonment of a decedent spouse may not be applied retroactively.