News

Annual Estate Planning Forum Survey

The TBA Estate Planning & Probate Executive Council welcomes opinions about the Annual Estate Planning Forum. Completing this brief web form will assist in ensuring the forum remains timely and relevant. We welcome feedback regarding subject matter, length, location, etc. Please respond to this survey by Oct. 5. Your help and participation are greatly appreciated!

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Goodlettsville Creates Programs to Assist in Senior Well-Being

The City of Goodlettsville has created three new programs and hosted a resource fair to assist seniors, The Tennessean reports. The city incorporated its Tax Freeze and the Tax Relief programs that freeze property taxes at the current rate and provides a tax credit to seniors, respectively. Goodlettsville also established a new program called Operation Good Morning Sunshine, where someone from the city will call seniors periodically to check on them.

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Lawyer for Glen Campbell’s Children Withdraws from Inheritance Case

The attorney representing three of late signer Glen Campbell’s children in an inheritance dispute has withdrawn from the case, The Tennessean reports. Attorney Chris Fowler did not comment on the reasons for his withdrawal from representing Travis, Kelli and Wesley Campbell, who were all left out of their father’s will. Judge David “Randy” Kennedy set a 31-day deadline for the trio to find a new attorney.
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Changing a Life Insurance Beneficiary in Violation of an Injunction

 

Note: This article first appeared in the September 2018 Tennessee Bar Journal, in the "Family Matters" column.

 
In the recent Tennessee Supreme Court opinion issued in June 2018, Coleman v. Olson, the court dealt with the issue of an alteration of the beneficiary of a life insurance policy during the pendency of a divorce. Family law practitioners should take note of this case as it provides the clearest guidance available when dealing with a similar issue going well beyond the mere statutory language in its analysis of such situations.
 
The Tennessee Code provides that, once a divorce complaint is filed, the parties are generally prohibited from, among other things, making major financial alterations to the marital estate.[1] The Code contains a section specifically prohibiting either party from making a change to any insurance policy stating both are enjoined “from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life, health, disability, homeowners, renters, and automobile, where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. ‘Modifying’ includes any change in beneficiary status.”[2]
 
In the Coleman case, this exact scenario occurred. After the parties filed for divorce, Ms. Olson was diagnosed with a serious illness. Upon learning of her diagnosis, Ms. Olson changed the beneficiary of her life insurance policy from that of her current husband, Mr. Olson, to her mother Ms. Coleman. Prior to the disposition of the divorce, Ms. Olson died and, subsequently, Mr. Olson sued Ms. Coleman for the life insurance proceeds from Ms. Olson’s policy. Prior to making its way to the Tennessee Supreme Court, the trial court determined that Ms. Olson had intended to make her child, who was the contingent beneficiary of the policy, the primary beneficiary and had inadvertently made her mother the primary beneficiary.[3] Based on that finding and the determination that the primary purpose of the statutory injunction is to maintain the status quo of the parties until the disposition of the divorce, Ms. Olson’s decision to change the beneficiary to her child was proper despite violating the injunction since her decision to do so was not contemptuous of the order.[4] Further, citing its equitable power, the trial court determined that it was in the best interest of the Olson’s minor child for Ms. Coleman to be awarded the proceeds of the insurance policy and to have these funds deposited with the court for the future benefit of the child.[5]
 
On appeal, the Court of Appeals determined that it had the equitable power to “remedy the violation of an injunction after the abatement of a divorce action by considering the equities of the parties” and, based on this reasoning, determined that Mr. Olson should have been entitled to the proceeds of the life insurance policy as an equitable remedy to Ms. Olson’s violation of the statutory injunction.[6]
 
The Tennessee Supreme Court, in addressing the case, first determined that the factual determination of the trial court that Ms. Olson intended to name her child as the beneficiary of the insurance policy was not supported by the evidence presented, nor was it relief that either party to the suit was seeking.[7] The Supreme Court further determined that, while Ms. Olson clearly violated the statutory injunction, it was equally clear that, upon her death, the pending divorce action was then abated leaving the question of what remedy was then available, if any, to Mr. Olson against Ms. Coleman in a separate action.[8] Though this presented a case of first impression for Tennessee, the Supreme Court cited numerous sister jurisdictions for the proposition that even after abatement of a divorce action, the trial court could, when crafting a remedy to a violation such as the one Ms. Olson committed, exercise its powers to consider the equities of the parties.[9] The court did note that there were several jurisdictions that adopted the position that abatement of the divorce action ended the jurisdiction of the court, but Tennessee elected to take a flexible approach and determined the Court of Appeals was correct in determining that trial court could craft an equitable remedy to rectify the harm done by the violation of the statutory injunction.[10] The matter was remanded for further consideration of the equitable positions of Mr. Olson and Ms. Coleman based on further presentation of relevant evidence on the matter by the parties before the trial court.
 
Though this situation may seem like a very narrow ruling on a narrow issue, violations of the statutory injunction are far from uncommon. It is worthwhile for a practitioner to be aware that, if such a violation occurs and there is an abatement of the divorce, one ought to be prepared to defend the position of their client, on either side of the violation, against an equitable remedy favoring the other party. However, this ruling could have further implications regarding the purpose of the statutory injunction in general.
 
While not yet knowing the outcome of the Coleman matter upon remand, it is not hard to see that permitting equitable redress of these types of violations might take the sting out of powers of the court to curb such behavior as a trial court may determine, from an equitable viewpoint, that the interests of the estate of the violator demand consideration where before there would have been none. Also, there is nothing in this line of reasoning by the Supreme Court that limits its applications to life insurance proceeds only, or even to Tenn. Code Ann. § 36-4-106(d)(2). A trial court now seems justified in dealing with a party in violation of the statutory injunction upon equitable lines regardless of the willfulness of their conduct. Further, a question arises of whether the ruling in Coleman requires the consideration of equitable positions when remedying a violation. A close reading of the case seems to indicate the court’s entire purpose in taking up this issue is to vest a trial court with “the authority to ‘right a wrong’ and remedy an injustice based on equitable considerations”,[11] but there is nothing that requires the trial court to determine that the “wronged” party deserves, in equity, to have relief. In the Coleman matter, the trial court may determine, in equity, Ms. Coleman as the representative of Ms. Olson’s estate is entitled to some of the proceeds based on a need related to the minor child despite the clear violation of the injunction by Ms. Olson. Still, based on the approach of other states, Mr. Olson would have had no remedy at all and, based on this decision, he now does.
 
Despite the fact that these situations arise infrequently, it is certainly a facet of the law of which a family law practitioner should be aware. If presented with a situation where there has been a violation of the statutory injunction and then the divorce is abated by the death of the party in violation, you are not without remedy. You can and should proceed against the estate of the deceased party to have the trial court remedy the violation.
 
Notes
1. Tenn. Code Ann. § 36-4-106(d).
2. Tenn. Code Ann. § 36-4-106(d)(2).
3. Coleman v. Olson, P. 7 (Tenn. 2018).
4. Id., page 7.
5. Id., page 7.
6. Id., page 8
7. Id., page 10.
8. Id., page 11; see Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008).
9. Id., page 12.
10. Id., pages 12-13.
11. Id., page 12.

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
 
MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.

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Aretha Franklin's $80 Million Estate in Limbo

If recent history is an indication, Aretha Franklin’s estimated $80 million estate could be in for a contentious battle, according to Rolling Stone. The Queen of Soul left no will when she died, so according to Michigan law, her estate should be evenly divided among her four adult sons: Ted White Jr., Kecalf Franklin, Edward Franklin and Clarence Franklin. However, the possibility of unreleased music, royalty streams and the likelihood of numerous financial accounts increases the likelihood of this being contested in court. 

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Actor Tim Conway's Daughter Granted Temporary Restraining Order

Actor Tim Conway‘s daughter was granted a temporary restraining order, preventing his wife, Charlene, from moving him to a new residence, People reports. Conway was recently diagnosed with dementia and is unable to communicate. Conway’s lawyer, Michael Harris told People that there were no plans to move him and that the wife “is an adequate and appropriate steward of her husband’s well-being and that her motives regarding Mr. Conway are in his best interest.” Conway is best known for his work on The Carol Burnett Show and McHale’s Navy. The next hearing date is set for Friday.

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Trial Begins in Class-Action Lawsuit Against Funeral Home Accused of Mishandling Bodies

The class-action lawsuit against Galilee Memorial Gardens, accused of mishandling bodies and failing in its obligations to the families of the grieving, began today in Memphis, The Commercial Appeal reports. More than 1,200 plaintiffs joined together in the suit, which accuses funeral directors of regularly leaving early and failing to complete the job they were hired to do. Hundreds of plaintiffs attended the first day of the trial, forcing Shelby County to form a makeshift courtroom on the third floor of the Shelby County Administration Building.
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Changing a Life Insurance Beneficiary in Violation of an Injunction

In the recent Tennessee Supreme Court opinion issued in June 2018, Coleman v. Olson, the court dealt with the issue of an alteration of the beneficiary of a life insurance policy during the pendency of a divorce. Family law practitioners should take note of this case as it provides the clearest guidance available when dealing with a similar issue going well beyond the mere statutory language in its analysis of such situations.

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Animal Law Forum 2019 & Special Guests

Register now for the TBA Animal Law Section's 2019 annual forum at the Nashville Zoo. This unique opportunity will provide updates on trends and advancements in animal law while allowing participants to network, enjoy all of the fun and activities offered by the zoo and a chance to meet the two latest additions to the organization's family. We will be joined by the zoo's President and Chief Executive Officer, and the board's general counsel, who will discuss conservation efforts and laws affecting procurement and care for animals.
 
Additional topics will include animal considerations in divorce and domestic law, ethics, legislative updates affecting the practice area and the humanization of animals. A midday lunch is included, with additional time to explore the zoo, the recently added Expedition Peru exhibit and new state-of-the-art veterinary medical space that also serves as a teaching center, where you can learn about the diagnosis, treatment, and management of animal health. Don't miss this chance to fulfill necessary CLE requirements while experiencing one of the top zoos in the nation. Here are the key details:
 
When: Friday, May 17, registration at 8 a.m., CDT
Where: Nashville Zoo, 3777 Nolensville Pike, Nashville

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Judge Rules Parties Have 45 Days to Develop Plan for Aretha Franklin’s Memphis Birthplace

Those interested in preserving the Memphis home in which Aretha Franklin was born have until Oct. 16 to present their plans, Environmental Court Judge Patrick Dandridge ruled this week, The Commercial Appeal reports. Receiver Jeffrey Higgs, the current homeowner, the city and more are interested in using the site to commemorate the late singer, but are waiting to make a decision until after all ideas have been considered.
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2018 Health Law Primer and Forum

Tennessee remains at the forefront of the health care industry, so it’s only fitting that we host the nation’s preeminent health law forum. This must-see, must-do event for Tennessee health law lawyers features timely programming designed to up your game and keep you on top of trends in the field. Topics for this year include new issues in health care as related to transgender and immigrant patients, the opioid crisis, fraud and abuse developments/enforcement, legislative updates and much much more. This year’s keynote speaker Chief Counsel to the Inspector General Gregory Demske will also detail priorities and enforcement efforts for the U.S. Department of Health and Human Services Office of the Inspector General. Don’t sleep on this opportunity to learn from seasoned practitioners while networking with top players in the field. Here are the key details:
 
Health Law Primer (introductory program)
When: Wednesday, Oct. 10
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
 
Health Law Forum
When:  Thursday, Oct. 11 – Friday, Oct. 12
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
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TBJ Has it: Banking, Estate Planning ... and John Ward

Laced with SARs, PEPS and OBITs, this month's Tennessee Bar Journal is full of acronyms you need to know (or are now curious about). To help with that, Nashville lawyer Kathryn Reed Edge writes about international intrigue and the importance of financial institutions’ willingness to report suspicious activity. That "OBIT" is not a death notice, but an "Optimal Basis Increase Trust" with which estate planners must be familiar. Knoxville lawyer Dan Holbrook covers it. Tennessee's Solicitor General Andrée Blumstein reviews the book Borrowed Judges: Visitors in the U.S. Court of Appeals, and Jackson lawyer Daniel Taylor reviews former TBA President Sam Elliott's book about John C. Brown. But perhaps the juiciest piece of information in this issue is about a law school graduate who walked out of the bar exam -- that's right, your Voice of the Vols, John Ward, didn't even finish the test -- he hadn't even studied! As you know, he went on to do OK in another career; Memphis lawyer Bill Haltom writes about that. Read the entire issue online.

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Judge Expands Administrator's Powers for Glen Campbell Estate

In the battle over Glen Campbell's estate, Judge David "Randy" Kennedy has expanded the powers of the estate’s administrator while also ordering a detailed accounting of a joint bank account Campbell maintained with his wife, the Tennessean reports. This development comes after Stanley B. Schneider — who serves as the estate’s administrator and was formally Campbell's business manager — petitioned the court for the power to pay taxes and other estate obligations. Under the order, Schneider is required to determine what funds in the account are considered community property with Kimberly Campbell and what funds belong to the estate. 

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Judge: Absentee Father Not Entitled to Share of Son’s Wrongful Death Settlement

A Wisconsin judge ruled that an absentee father whose son was conceived with his 15-year-old cousin is not entitled to a portion of a settlement for the son’s wrongful death, the ABA Journal reports. Judge David Borowski said he would not allow “a six-figure windfall” to Marcus Crumble, whose son died at age 25 at a mental health facility in 2012. Giving Crumble half of the $837,000 settlement would amount to unjust enrichment, Borowski said.
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Court Affirms 6-Month Suspension for Memphis Attorney

The Tennessee Supreme Court has affirmed the suspension of Memphis attorney Larry Edward Parrish from the practice of law for six months, with 30 days to be served on active suspension and the remainder on probation. Previously, a Board of Professional Responsibility (BPR) hearing panel found that Parrish had violated his ethical duties under the Rules of Professional Conduct by making derogatory statements about three appellate judges, however, the panel declined to issue discipline beyond a public censure because they argued his statements were protected by the First Amendment. Upon appeal, the Tennessee Supreme Court found that his statements were not protected under free speech and affirmed Parrish's suspension.
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Put TBA UPS to Work

Have you enrolled in TBA’s UPS account for members? Visit UPS's TBA page and save up to 45 percent on UPS’s broad portfolio. Shipping services include next day air, international, ground and express.
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Law Office Management Tips on Shipping

If your law office uses shipping services, your TBA membership team can help you compare those costs to TBA’s UPS member benefit. Your firm office manager can work directly with TBA staff and UPS services to enroll or transfer shipping accounts. Members can save up to 45 percent on UPS’s broad portfolio of shipping services, including next day air, international, ground and express.
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Tennessee Senior Law Alliance Expands Legal Help for Seniors

The Tennessee Alliance for Legal Services, in cooperation with several legal aid providers, is taking a coordinated approach to assisting Tennessee seniors facing legal problems, according to a press release on its website. The Tennessee Senior Law Alliance will partner with the Legal Aid Society of Middle Tennessee and the Cumberlands, Legal Aid of East Tennessee, Memphis Area Legal Services and West Tennessee Legal Services in effort to reach all 95 Tennessee counties, helping seniors identify and resolve core legal issues such as wrongfully reduced or denied access to benefits and health care; illegal barriers to obtaining and maintaining safe and secure housing; physical, emotional and financial abuse and exploitation; and a lack of help with basic estate planning such as creating wills, advance directives and powers of attorney. You can learn more about the program using this link.

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Next Thursday: Elder Law Basics

The annual Elder Law Basics program will be held at the Tennessee Bar Center in Nashville on Sept. 13. Designed for attorneys new to practice or those looking to refresh their skills, the program focuses on the ins and outs of public benefits as they pertain to seniors, and the latest developments and changes in this field. Earn up to four hours of CLE.
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Destination CLE Survey

Let's take a trip! The TBA CLE Committee would like your feedback on destination CLE events. Taking a moment to complete this brief survey will greatly assist us in developing the best CLE experience for you. Please complete this survey by Aug. 10. We greatly appreciate your help with this endeavor.
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Tax Law Forum 2018

The annual Tax Law Forum will be held at the Tennessee Bar Center in Nashville on Sept. 17. Sessions will focus on the new Tax Cuts and Jobs Act. Topics include the new pass-through entity tax law, an overview of the changes to international tax law, corporate and other business tax changes as well as non-profit law changes.

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Trump Administration Freezes Affordable Care Act Payments

In a surprise move on Saturday, the Trump administration announced that it will be temporarily halting billions of dollars of “risk adjustment” payments, designed to help insurers meet the Affordable Care Act requirement of providing coverage regardless of whether a person is healthy or sick, reports NPR. The program assists in determining risk for insurers, transferring funds from those who enroll healthier members for relatively less, to those that take on higher costs to enroll sicker members, insulating insurance companies from the cost of enrolling people with pre-existing conditions. Some critics fear that the recent action could spur a spike in insurance premiums for 2019.

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Anthony Bourdain Leaves Bulk of Estate to Daughter

Celebrity chef and TV host Anthony Bourdain, who died by suicide in June, left most of his estate to his 11-year-old daughter, Ariane Busia-Bourdain, reports the Chicago Sun-Times. Bourdain named ex-wife Ottavia Busia executor of the $1.2 million estate, which is far below previous estimates of his net worth. Some reports claim that the Bourdain/Busia divorce was not finalized, which could open the estate up to a legal dispute.

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Schedule Time to Read Email

A tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.
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Michael S. Goode to Chair Estate Planning & Probate Section for the 2018–19 Bar Year

Michael S. Goode has dedicated his legal career to helping businesses and families with their tax, business and estate planning needs, working closely with advisors, banks and trust companies to provide innovative solutions to clients' wealth preservation needs. Goode co-founded the Chattanooga chapter of the Succession Planning Professionals and is a member of the Atlanta chapter. Goode has also written pension legislation under Georgia law for a large county school district and represented an estate client before the Supreme Court of Georgia in a case that caused a shift in Georgia law regarding the interpretation of Wills. Goode received his JD from The College of William and Mary, and his LL.M. in Taxation from New York University. Please join us in welcoming your Estate Planning & Probate Section Chair for the 2018–19 bar year.

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