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In re Estate of Diviney

Court of Appeals of Tennessee, Nashville

November 28, 2017

IN RE ESTATE OF ALFRED C. DIVINEY, SR.

          Session November 7, 2017

         Appeal from the Probate Court for Davidson County No. 15P-1234 Randy M. Kennedy, Judge

         In an 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

          Alan C. Housholder, Nashville, Tennessee, for the appellant, Audrey Diviney.

          Richard Horton Frank, III, and Katlin Anne Ryan, Nashville, Tennessee, for the appellee, Frances Colleen Couey Diviney.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Thomas R. Frierson, II, and W. Neal McBrayer, JJ., joined.

          MEMORANDUM OPINION [1]

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Alfred 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.

         On 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.

         While 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.

         The 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.

         Frances 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 ...


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