Coleman v. Olson, No. M2015-00823-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtJ. STEVEN STAFFORD, JUDGE
PartiesROSE COLEMAN v. BRYAN OLSON
Docket NumberNo. M2015-00823-COA-R3-CV
Decision Date20 October 2016

ROSE COLEMAN
v.
BRYAN OLSON

No. M2015-00823-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

August 16, 2016 Session
October 20, 2016


Appeal from the Circuit Court for Montgomery County
No.
MCCCCVDN130157
Ross H. Hicks, Judge

This appeal concerns two disputes between the widowed husband and mother of a deceased woman: (1) the proper party to whom the woman's life insurance proceeds are owed; and (2) a request for grandparent visitation. We conclude that the trial court erred in failing to return the life insurance beneficiary to the status quo that existed prior to wife's violation of the automatic injunction pursuant to Tennessee Code Annotated Section 36-4-106(d)(2). The proceeds from the life insurance policy are therefore awarded to husband. We vacate, however, the trial court's seizure of the grandmother's Bank of America account and remand for further proceedings to determine if the funds contained therein represent the remainder of the life insurance proceeds improperly paid to the grandmother. We further conclude that the trial court erred in awarding grandparent visitation, where there was no evidence of opposition to visitation prior to the filing of the grandparent visitation petition. Reversed in part, vacated in part, and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; Vacated in Part; and Remanded

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which ANDY D. BENNETT and W. NEAL MCBRAYER, JJ., joined.

Travis N. Meeks, Clarksville, Tennessee, for the appellant, Bryan Olson.

Christopher J. Pittman and Zachary L. Talbot, Clarksville, Tennessee, for the appellee, Rose Coleman.

OPINION

Background

Page 2

Defendant/Appellant Bryan Olson ("Father") and Jessica Olson ("Mother") were married in 2007. The couple's son ("the child") was born in 2008. In the summer of 2012, Father and Mother began having marital difficulties because Mother believed that Father was having an affair. At the time, Mother was pregnant with the couples' second child. The acrimony reached a breaking point on June 30, 2012, when Father and Mother's dispute resulted in Mother physically pushing Father. Although Mother initially called the police, she was arrested for pushing Father. Upon her release from jail, Mother moved from the marital home into the home of her friend, Jessica Mims. In addition, Mother spoke with a co-worker at the bank where she worked about removing Father from "everything" that had Father's name on it. At some point, Mother also spoke with her mother, Rose Coleman ("Grandmother") about removing Father from her financial accounts.

Mother filed a complaint for divorce against Father on July 5, 2012, in Montgomery County Chancery Court. Mother alleged grounds of inappropriate marital conduct, adultery, and irreconcilable differences. Upon the filing of the divorce complaint, an automatic injunction pursuant to Tennessee Code Annotated Section 36-4-106(d) issued preventing Mother and Father from, inter alia, changing the beneficiary on their life insurance policies.

Unfortunately, Mother began experiencing significant physical symptoms, including severe vomiting, around July 9, 2012. Mother sought treatment at her local emergency room, but was released shortly thereafter. In a text message between Mother and Grandmother on that day, Grandmother brought up the fact that Mother may have life insurance policies naming Father as beneficiary and suggested that Mother change the beneficiary to the child with Grandmother "as admin." Mother's symptoms progressed to the point to where she again sought medical attention at her local emergency room on July 10, 2012. That evening, Mother was transported to Vanderbilt University Medical Center ("Vanderbilt"), where she was diagnosed with Stevens-Johnson syndrome, "a serious, sometimes fatal inflammatory disease . . . characterized by the acute onset of fever, bullae of the skin, and ulcers on the mucous membranes of the lips, eyes, mouth, nasal passage and genitalia." Mosby's Dictionary of Medicine, Nursing, & Health Professions 1691 (9th ed. 2013). Mother was thereafter admitted to Vanderbilt and Grandmother traveled from her home out-of-state to be with Mother.

On July 12, 2012, while Mother was hospitalized, Grandmother created a hand-written document naming herself as the primary beneficiary of Mother's life insurance policy, with the child named as a contingent beneficiary. Mother allegedly signed the document, Mother's friend notarized the document, and it was submitted to the insurance company. By July 14, 2012, however, Mother was apparently no longer able to write or make medical decisions, as Grandmother began signing documents on her behalf. Mother's symptoms progressed rapidly and she passed away on July 19, 2012. After Mother's death, the proceeds from Mother's life insurance policy were paid to Grandmother in accordance with the July 12, 2012 handwritten change of beneficiary.

Page 3

During the approximately eight days that Mother was in the hospital, the child resided with Mother's friend. Although Father came to the hospital, neither Mother nor Grandmother would see him, and they apparently refused to provide Father with any information regarding the child's whereabouts. Only after Mother passed away was Father able to obtain the child. By all accounts, no one informed the child of the severity of Mother's condition until Father was required to inform the child of Mother's death when he picked him up from the friend's house.

After Mother's death, Grandmother filed a dependency and neglect petition in the Montgomery County Juvenile Court ("juvenile court") regarding the child. On August 27, 2012, the juvenile court entered an agreed order setting a final hearing on Grandmother's petition on November 5, 2012, and granting Grandmother visitation with the child in Grandmother's home state of Massachusetts for a period of nearly one month uninterrupted, from September 21, 2012 to October 19, 2012. The juvenile court thereafter continued the matter several times without allowing the parties an opportunity to present any evidence. During this time, it appears that Grandmother was allowed month-long visitation with the child every other month. On January 24, 2013, Father filed a petition for a writ of certiorari in the Montgomery County Circuit Court ("trial court") asserting that the juvenile court had no authority to hear a grandparent visitation matter or order visitation without a finding of substantial harm. On February 13, 2013, Grandmother non-suited her juvenile court proceeding. Father's petition for a writ of certiorari was eventually denied.1

In the meantime, on February 12, 2013, Grandmother filed a petition for grandparent visitation pursuant to Tennessee Code Annotated Section 36-6-306. In her petition, Grandmother alleged that due to the juvenile court order allowing month-long visits with the child, substantial harm would result if Grandmother was not allowed to continue significant visitation with the child. Nothing in Grandmother's petition, however, suggested that Father opposed visitation.

On March 1, 2013, Father filed an answer to Grandmother's grandparent visitation petition. Therein, Father denied that he had ever opposed Grandmother's visitation requests. Father therefore argued that court-ordered grandparent visitation was not appropriate under the statute. On March 12, 2013, Father amended his answer to allege a counter-petition against Grandmother. In his counter-petition, Father asserted that he was entitled to the proceeds of Mother's life insurance policy because the change in beneficiary letter was

Page 4

forged. Additionally, Father asserted that any change was the result of Grandmother's control over Mother prior to her death. Father therefore asked the trial court to require Grandmother to pay into court the $400,000.00 proceeds from Mother's life insurance policy.

The parties engaged in several discovery disputes.2 The parties filed pre-trial briefs on November 12, 2014. In his pre-trial brief, Father noted that as a result of the filing of the divorce petition, the parties were enjoined from changing the beneficiaries on their life insurance policies. The trial court eventually held a hearing on November 14 and December 5, 2014.

Jenny Mims, Mother's friend, testified that Mother requested her assistance in changing the beneficiary of her life insurance policy. According to Ms. Mims, Grandmother drafted the document, but Mother signed. Having witnessed Mother signing the document, Ms. Mims then notarized the document and assisted in it being forwarded to the insurance company. Ms. Mims testified that Mother was coherent and lucid at the time. Although Mother's eyes later became swollen and her hands blistered so as to prevent her from signing documents, Ms. Mims explained that those symptoms had not progressed to prevent Mother from signing the document on July 12, 2012. Further, Ms. Mims testified that it did not appear that Grandmother was placing any pressure on Mother to cause her to change the beneficiary on the policy. Ms. Mims agreed that Mother's intent in changing the beneficiary of her insurance policy was to name her child as the beneficiary; however, Ms. Mims explained that Mother was concerned that Father would receive the funds, rather than the child, due to the child's minority. Accordingly, Mother "wanted [Grandmother] to get the funds so that they would be used for [the child]." Ms. Mims testified that Mother's primary concern was keeping the money out of Father's hands.

Another of Mother's friends, Jessica Stevenson, also witnessed Mother sign the change in beneficiary form. Ms. Stevenson likewise testified that Mother signed the form, at which time she was lucid and able to communicate by writing notes. Ms. Stevenson also testified that there was nothing to give the impression that the change in beneficiary was the result of pressure by...

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