United States District Court, M.D. Tennessee, Nashville
HORABLE WAVERLY D. CRENSHAW, JR.
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE
reasons stated below, the Magistrate Judge recommends that
the motion for default against the Defendants Virginia Neel
and Frankie Dalton be granted and that the Court enter an
order directing the Operating Engineers Local 147 Annuity
Fund to pay the benefits due from the death of Eric Hazelwood
to the sole remaining Defendant, Amber Carter. The Magistrate
Judge further recommends that no attorneys' fees be
awarded to anyone in this case.
complaint (Docket Entry 1) succinctly states the issues
presented in the case and no one has disputed its factual
allegations. The annuitant, Eric Hazelwood (Hazelwood) died
in 2017 and did not designate a beneficiary. It was alleged
that Hazelwood had lived with the Defendant Amber Carter
(Carter) as though they were husband and wife for three years
prior to his death. Hazelwood did not have any children. His
biological parents were Frankie Dalton and Virginia Neel.
After his birth Hazelwood was adopted by his maternal
grandparents, Cecil and Imogene Boone. Both of these
individuals predeceased Hazelwood.
was appointed as the representative of Hazelwood's
estate. The annuity fund filed its complaint simply to avoid
the risk of paying the wrong individual. The two other
potential claimants, Virginia Neel and Frankie Dalton, were
served (Docket Entries 8 and 9) on January 13, 2018. Neither
of these Defendants filed any response and the Clerk entered
default against both of them on March 26, 2018 (Docket Entry
Carter filed a motion for entry of default judgment on April
9, 2018 (Docket Entry 17). In her motion Carter provided an
affidavit stating that she lived with Hazelwood from
approximately December 2014 until his death on August 18,
2017, as husband and wife at a home they purchased together
in Lindside, West Virginia. She also provided Exhibit A, a
letter of administration, appointing her as the Administratix
CTA of Hazelwood's estate, along with a holographic will
stating that “If I die, I want Amber Carter to have
everything I have” dated 8-15-2017. The will was
offered for probate and duly admitted to probate on September
an abundance of caution the undersigned allowed any party to
file objections to the motion for entry of default (Docket
Entry 19). Subsequently, a letter was received from Virginia
L. Neel (Neel) who requested that Carter not be paid from the
annuity fund, claiming that she was a surviving parent and
that Carter did not live with her son for a period of three
attached to her letter (Docket Entry 23, p. ID 57) a
certificate of birth for Eric Dale Boone. Neither the
attached documents or her letter shed any light on the
subsequent adoption or how Eric Dale Boone, listed in the
certificate of birth, became Eric Hazelwood. Likewise, she
provides no real reason why she did not respond to the
complaint or to the motion for default.
Defendant Carter further points out that Neel is not at this
time the legal parent of Mr. Hazelwood, having been adopted
by Cecil and Imogene Boone.
the annuity fund plan set forth at Docket Entry 1, p. ID 2,
the order of succession is (a) a surviving spouse; or if none
(b) his surviving children, in equal shares; or if none (c)
his surviving parents, in equal shares; or if none (d) his
surviving brothers and sisters in equal shares, or if none
(e) his estate, in that order of priority.
not appear that West Virginia recognizes common law
marriages, except where the parties resided while living
together in a state that recognizes such marriages. See
Griffis v. Griffis, 202 W.Va. 203 ( S.Ct. App. 1998).
However, even if there was no common law marriage it would
appear that Carter has provided evidence that she is the
beneficiary of the decedent's will.
has not provided admissible evidence that she is the mother
of Hazelwood, or if he was adopted, if she has any remaining
rights superior to his adopting parents who appear to be
the fact that default has been entered against Neel and
Dalton, the remaining beneficiary is Carter and she is
entitled to judgment ...