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Tennessee Court of Appeals Discusses Out-of-State Paternity Agreements and Wrongful Death Actions
Posted by Martin Heller Potempa & Sheppard, PLLC on September 28, 2015
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In a newly published opinion, Hussey v. Woods, the Tennessee Court of Appeals addressed the roles of the probate court and the circuit court in determining paternity for purposes of the Tennessee wrongful death statute. The procedural history of the case is lengthy, beginning with the death of the purported father after he was allegedly detained and assaulted by an employee of Family Dollar. The decedent’s mother subsequently brought a wrongful death claim against Family Dollar, which was settled out of court. Twenty months after the settlement, the appellant filed a Rule 60.02 motion to set aside the settlement, contending that her minor child was the son and lawful beneficiary of the deceased, and as a result, he had priority over the deceased’s mother, pursuant to the Tennessee wrongful death statute. The deceased’s mother challenged the paternity of the child and requested DNA testing, arguing that, although the deceased had filed a Voluntary Acknowledgement of Paternity in Mississippi, he was in prison at the time the child was conceived.
The circuit court ordered that the Rule 60.02 motion regarding the wrongful death settlement is held in abeyance pending the determination and priority of heirs by the probate court and that the parties should agree to a DNA test (which the appellant repeatedly refused). The probate court ultimately accepted the Voluntary Acknowledgement of Paternity without a DNA test, ruling that the appellant’s child was the only heir of the deceased. The matter returned to the circuit court, which denied the appellant’s motion to set aside the order of dismissal. The appellant appealed the circuit court’s decision to the Tennessee Court of Appeals.
The Tennessee Wrongful Death Statute provides that a wrongful death action may be brought by the personal representative of the deceased or the surviving spouse, or if there is no surviving spouse, by the children of the deceased or next of kin. Under Tennessee law, an illegitimate child may maintain a wrongful death action for the death of his natural mother, but the child cannot bring an action for the wrongful death of a putative father, even if the father has acknowledged the child and contributed to his support. However, one of the exceptions to this rule is where, after the father’s death, paternity has been proven by clear and convincing evidence.
Generally, a Voluntary Acknowledgement of Paternity (VAP) is sufficient to establish paternity without requiring other evidence. VAPs executed out of state are given full faith and credit, but they are subject to the same rules regarding challenges. If the validity of a VAP is challenged, Tennessee law requires a showing of fraud, duress, or material mistake in the execution of the VAP in order to negate its conclusiveness as to paternity. If there is a substantial likelihood of such a factor, the trial court should order DNA testing as provided in § 24-7-113(e)(2).
In Hussey, the decedent’s mother challenged paternity, and the appellant provided no countervailing evidence. The appeals court held that the question of whether the appellant’s son or the deceased’s mother had the right to bring the wrongful death lawsuit should have been answered by the circuit court through an adjudication of paternity under § 24-7-113. In addition, the court further held that the probate court could not rely solely on the VAP to establish paternity without complying with § 24-7-113 as well. The circuit court’s order denying the 60.02 motion was vacated, and the case was remanded.
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