IN RE ESTATE OF ALFRED C. DIVINEY, SR.
Session November 7, 2017
from the Probate Court for Davidson County No. 15P-1234 Randy
M. Kennedy, Judge
agreed order settling a widow's claim for exempt property
and homestead against her husband's estate, the parties
included language that they were settling "all claims
that the Petitioner asserted or might have asserted in the
Petition." When the widow subsequently petitioned for a
year's support and elective share, the trial court held
that her claim was barred by res judicata. We affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
C. Housholder, Nashville, Tennessee, for the appellant,
Richard Horton Frank, III, and Katlin Anne Ryan, Nashville,
Tennessee, for the appellee, Frances Colleen Couey Diviney.
D. Bennett, J., delivered the opinion of the Court, in which
Thomas R. Frierson, II, and W. Neal McBrayer, JJ., joined.
MEMORANDUM OPINION 
D. BENNETT, JUDGE.
and Procedural Background
C. Diviney, Sr., died intestate on July 19, 2015. He was
survived by his wife, Audrey, and three adult children.
Frances Diviney, mother of the three children, and Alfred
divorced in 1985. Audrey was appointed administratrix of
Alfred's estate on August 12, 2015.
August 19, 2015, Frances filed a verified claim against the
estate for child support that Alfred had failed to pay her
during his lifetime as well as interest at the statutory
rate. Frances's total claim, as amended in October 2015,
amounted to $208, 193.10 plus interest from July 19, 2015
until the claim was paid. Audrey filed an exception to the
claim on January 14, 2016.
the child support claim was pending, on January 21, 2016,
Audrey filed a "Petition to Award Exempt Property, Etc.
and Application for Homestead." On March 4, 2016, the
trial court entered an agreed order "upon the agreement
of the Petitioner [Audrey] and Frances Diviney to compromise
and settle all claims that the Petitioner asserted or might
have asserted in the Petition." In the agreed order, the
parties listed the items to be awarded to Audrey as exempt
property and fixed the homestead allowance at $5, 000.
Audrey's petition for exempt property and homestead was
dismissed with prejudice. Then, on April 5, 2016, Audrey
filed a petition for a year's support and elective share.
trial court held a hearing on Frances's claim for child
support on May 16, 2016. The trial court allowed the claim
and entered judgment in the amount of $58, 076.00 in
principal, $150, 117.10 in interest through the date of
Alfred's death, and $5, 766.23 in interest accrued from
the date of Alfred's death until May 16, 2016. Frances
also received an award of her costs and attorney fees.
filed an answer to Audrey's petition for a year's
support and elective share on June 15, 2016. She asserted
defenses including res judicata and claim preclusion. On July
26, 2016, Audrey filed a motion for partial summary judgment
asserting that res judicata did not preclude her from seeking
her year's support and elective share. Frances filed a
cross motion for summary judgment on August 16, 2016, asking
the court to ...