Day on Torts
In Spires v. Simpson, No. E2015-00697-COA-R3-CV (Tenn. Ct. App. April 26, 2016), the Court of Appeals addressed an issue of first impression regarding the interpretation of a wrongful death statute related to a surviving spouse who has outstanding child support obligations.
In this case, decedent mother was killed in a car accident, leaving behind a surviving spouse and one child, whose biological father was the surviving spouse. At the time of the accident, the decedent and surviving spouse had been living apart and the child had been living only with the decedent. The spouse instituted a wrongful death action on behalf of himself, the child, and the decedent. When he instituted the suit, the spouse owed child support to children of four other women (though he did not owe any regarding the child at issue in this case because there was no court order regarding that child). While the wrongful death litigation was ongoing, a maternal uncle adopted the child, and the uncle petitioned to intervene on behalf of the child. Ultimately, the trial court held that Tenn. Code Ann. § 20-5-107(b) disqualified the surviving spouse from commencing the action or collecting proceeds due to his outstanding child support arrearages. The trial court substituted the child’s uncle as plaintiff and awarded the agreed damages in trust solely to the child. The Court of Appeals, however, reversed.
The central issue in this case was whether the statute at play, § 20-5-107(b), barred a surviving spouse who owed child support from commencing a wrongful death action or simply prohibited that person from recovering proceeds. The statute states:
In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent’s estate if deceased.
To interpret this wrongful death subsection, the Court first pointed out that Tennessee law recognizes a surviving spouse as having “the prior and superior right above all others to bring a wrongful death action.” (internal citation omitted). Absent a statutory disqualification, the surviving spouse has the right to commence any wrongful death suit.
While the Court of Appeals agreed with the trial court that the above statute forbid the spouse in this case from recovering any proceeds until the child support obligations were fulfilled, it did not agree that the statute barred spouse from commencing and maintaining the suit. The Court held that a parent owing child support obligations could commence and maintain a wrongful death suit, but could not recover his or her portion of the proceeds until the child support arrearage plus interest was paid.
Since the spouse here was not statutorily disqualified, Tennessee law required that the proceeds be split one-half to the surviving spouse and one-half to the minor child. Because the spouse was statutorily prohibited from recovering his portion until his child support was paid in full, his portion was to be divided (as determined by a hearing on remand) between the mothers to whom he owed obligations. The Court noted the seeming unfairness in this situation—that four children who were in no way related to the decedent mother would receive monetary benefit from her death, stating in part:
We are mindful of the trial court’s finding that only the Child, as the Decedent’s heir, should be granted recovery from the Decedent’s wrongful death action, but we cannot agree. Although the result may seem harsh in light of [spouse’s] acknowledged separation from the Decedent at the time of her death and [spouse’s] acknowledged failure to support the Child, [spouse] was also the Decedent’s surviving spouse and thus also her legal heir.
The maternal uncle in this case attempted to argue that the spouse should be disqualified based on abandonment of decedent under Tenn. Code Ann. § 20-5-106(c). That statute, however, was enacted after the death of decedent, and spouse’s right to recover thus “vested prior to the enactment [of the abandonment statute,]” and the statute was inapplicable to the case.
This case of first impression shows that the wrongful death statute regarding child support arrearages can lead to a seemingly bizarre result, with a child of a decedent losing a significant amount of money to children completely unrelated to the deceased person. This case highlights the need for and the importance of the abandonment statute. When a plaintiff’s attorney begins working on a wrongful death case wherein children or next of kin wish to assert rights in opposition to a person who was not living with the decedent but is technically a surviving spouse, the abandonment and/or willful withdrawal provisions of the wrongful death statute can be vital in avoiding an unfair and sometimes absurd result.
One last point. I think it will come as a surprise to many that Section 107(b) in essence operates as a child support lien against any wrongful death recovery as opposed to lien that arises only when the decedent was a child for whom support had not been paid. The words of the statute support the more expansive interpretation, but I would be curious to know the legislative history of this provision.