Session October 11, 2017
by Permission from the Court of Appeals Circuit Court for
Montgomery County No. MCCCCVDN130157 Ross H. Hicks, Judge
divorce complaint is filed and served, a statutory injunction
goes into effect prohibiting both parties from changing the
beneficiary on any life insurance policy that names either
party as the beneficiary without the consent of the other
party or a court order. See Tenn. Code Ann. §
36-4-106(d)(2) (2010). Jessica Olson sued her husband, Bryan
Olson, for divorce. A week later, Ms. Olson, while seriously
ill, changed the beneficiary on her life insurance policy
from her husband to her mother. Ms. Olson died a few days
later. Her mother, Rose Coleman, collected the life insurance
benefits. Ms. Coleman sued Mr. Olson for grandparent
visitation under Tennessee Code Annotated section 36-6-306
(2010). Mr. Olson responded that he did not oppose
visitation, and therefore, Ms. Coleman was not entitled to
court-ordered visitation. In addition, Mr. Olson countersued
to recover the life insurance benefits. The trial court
awarded the insurance benefits to the Olsons' child,
finding that Ms. Olson had intended to remove Mr. Olson and
substitute their child as the insurance beneficiary. The
trial court ordered Ms. Coleman to pay the remaining life
insurance funds into the court registry, to account for her
expenditures, and to pay a judgment for expenditures that did
not benefit the child. The trial court also granted Ms.
Coleman's petition for grandparent visitation. The Court
of Appeals reversed, awarding the life insurance benefits to
Mr. Olson based on Ms. Olson's violation of the statutory
injunction and its consideration of Mr. Olson's financial
needs. In addition, the Court of Appeals reversed the trial
court's award of visitation to Ms. Coleman. We hold that
(1) Ms. Olson violated the statutory injunction under
Tennessee Code Annotated section 36-4-106(d)(2) when she
removed Mr. Olson as her life insurance beneficiary; (2) the
Olsons' divorce action abated when Ms. Olson died and the
statutory injunction became ineffective; (3) a trial court,
after the abatement of a divorce action, may remedy a
violation of the statutory injunction after considering the
equities of the parties; (4) the trial court erred by
awarding the life insurance benefits to the Olsons' child
based on the pleadings and the evidence; (5) the Court of
Appeals erred by awarding the life insurance benefits to Mr.
Olson without sufficient evidence of the equities of the
parties; (6) the trial court, on remand, may remedy the
violation of the statutory injunction by awarding all or a
portion of the life insurance benefits to either or both
parties after hearing additional evidence and considering the
equities of the parties; and (7) Ms. Coleman was not entitled
to court-ordered grandparent visitation absent Mr.
Olson's opposition to visitation. We affirm in part and
reverse in part the judgment of the Court of Appeals; we
reverse and vacate the judgment of the trial court and remand
to the trial court for further proceedings.
R. App. P. 11, Appeal by Permission; Judgment of the Court of
Appeals Affirmed in Part and Reversed in Part; Judgment of
the Trial Court Reversed and Vacated; Remanded to the Trial
Christopher J. Pittman and Zachary L. Talbot, Clarksville,
Tennessee, for the appellant, Rose Coleman.
N. Meeks, Clarksville, Tennessee, for the appellee, Bryan
S. Poland, Clarksville, Tennessee, Amicus Curiae and Guardian
Ad Litem for the Minor Child.
G. Lee, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby,
and Roger A. Page, JJ., joined.
G. LEE, JUSTICE
2007, Jessica and Bryan Olson were married and the next year
they had a child. On July 5, 2012, Ms. Olson sued for divorce
in the Montgomery County Chancery Court. When Ms. Olson filed
and served the complaint, a statutory injunction went into
effect prohibiting both parties from changing the beneficiary
on any life insurance policy that named either party as
beneficiary without the other's consent or a court order.
See Tenn. Code Ann. §
days after filing for divorce, Ms. Olson became ill and was
treated in the emergency room of a local hospital. The next
day, Ms. Olson returned to the emergency room and then went
to Vanderbilt University Medical Center where she was
diagnosed with Stevens-Johnson syndrome, a serious and
painful skin condition.
days later, on July 12, 2012, Ms. Olson signed a document
that changed the beneficiary of her life insurance policy
from Mr. Olson to Ms. Coleman and named the Olsons' minor
child as the contingent beneficiary. Two of Ms. Olson's
friends, Jenny Mims and Jessica Steventon, were in Ms.
Olson's hospital room when she signed the document. Ms.
Mims notarized Ms. Olson's signature and sent the
document to Ms. Olson's employer. One week later, on July
19, 2012, Ms. Olson died. As the beneficiary of the life
insurance policy, Ms. Coleman collected nearly $400, 000.
than a week after her daughter's death, Ms. Coleman filed
a petition in the Montgomery County Juvenile Court against
Mr. Olson, alleging that her grandchild was dependent and
neglected. She sought either custody or grandparent
visitation under Tennessee Code Annotated section 36-6-306.
The next month, the juvenile court granted Ms. Coleman four
weeks of visitation. Later, the juvenile court granted Ms.
Coleman four more weeks of visitation. In late January 2013,
Mr. Olson filed a petition in the Montgomery County Circuit
Court challenging the juvenile court's jurisdiction to
award grandparent visitation under Tennessee Code Annotated
section 36-6-306 and the juvenile court's decision to
grant visitation without hearing evidence. The circuit court
denied the petition. On February 12, 2013, the juvenile court
dismissed Ms. Coleman's case without prejudice, based on
her notice of voluntary nonsuit.
February 12, 2013, the same day the juvenile court dismissed
her case, Ms. Coleman filed a petition in the Montgomery
County Circuit Court for grandparent visitation under
Tennessee Code Annotated section 36-6-306. Ms. Coleman
alleged that based on her significant relationship with her
grandchild and Ms. Olson's death, the Olsons' child
would be substantially harmed if his relationship with Ms.
Coleman ended. Mr. Olson answered, stating that he did not
oppose Ms. Coleman's visitation, and therefore, she was
not entitled to court-ordered visitation under Tennessee Code
Annotated section 36-6-306. Mr. Olson countersued Ms. Coleman
for the life insurance benefits, alleging fraud, forgery,
conversion, and undue influence. Mr. Olson argued in his
pretrial brief that Ms. Olson secretly changed the
beneficiary on her life insurance policy in violation of the
November 14 and December 5, 2014, the trial court heard
evidence presented by Ms. Coleman and Mr.
Olson. Ms. Coleman, who lived in Massachusetts,
testified that she and her daughter and grandchild had a good
relationship, visited often, and talked almost daily. In late
June 2012, Ms. Coleman traveled to Tennessee because of
problems between her daughter and Mr. Olson. During that
time, Ms. Olson discussed filing for a divorce and changing
the beneficiary of her life insurance policy.
2012, Ms. Coleman returned to Tennessee when Ms. Olson became
ill. On July 12, 2012, while Ms. Olson was hospitalized, Ms.
Coleman, at her daughter's request, prepared a
handwritten change of beneficiary document that removed Mr.
Olson as the beneficiary and named Ms. Coleman as the primary
beneficiary and the Olsons' child as the contingent
beneficiary. Ms. Coleman testified that she did not know
about the statutory injunction, but understood that Ms. Olson
wanted Ms. Coleman to be the administrator of the insurance
funds for the benefit of the child. According to Ms. Coleman,
Ms. Olson read and signed the change of beneficiary document
in the presence of Ms. Coleman, Ms. Mims, and Ms. Steventon.
Ms. Coleman explained that when Ms. Olson signed the
document, she was intubated, responsive, awake, and able to
see. Ms. Olson communicated by writing, pointing, and
texting, and she had no questions about what she was signing.
Ms. Coleman denied signing Ms. Olson's name on the
document or that she or anyone else pressured Ms. Olson to
change her insurance beneficiary. Ms. Coleman also denied
that she agreed with Ms. Mims and Ms. Steventon to lie about
Ms. Olson's signature.
Mims testified that Ms. Olson and her child came to live with
her and her husband on July 8, 2012. Two days later, Ms. Mims
took Ms. Olson to a local emergency room and then went with
her to Vanderbilt University Medical Center. According to Ms.
Mims, Ms. Olson could communicate, speak, answer questions,
and understand what was going on. Ms. Mims visited Ms. Olson
at the hospital almost every day, and when they exchanged
text messages, Ms. Olson's responses were appropriate.
Ms. Mims understood that Ms. Olson wanted to change her life
insurance beneficiary for the benefit of her child. On July
12, 2012, Ms. Mims received information from Ms. Olson's
employer about how Ms. Olson could change her life insurance
beneficiary. Ms. Mims and Ms. Steventon were in Ms.
Olson's hospital room when Ms. Coleman handwrote the
change of beneficiary document, and they watched Ms. Olson
sign the document. Ms. Mims testified that Ms. Olson made Ms.
Coleman the beneficiary because Ms. Olson was concerned that
if she named her child as beneficiary, Mr. Olson would
receive the funds. Ms. Olson was conscious and her eyes were
open when she signed the document. Ms. Mims believed that Ms.
Olson signed the change of beneficiary document of her own
free will. Ms. Mims denied that she conspired with Ms.
Coleman or that she pressured Ms. Olson to sign the document.
Ms. Mims notarized the signed document and faxed it to Ms.
Steventon testified by deposition that she went with Ms. Mims
to Vanderbilt University Medical Center to visit Ms. Olson
and to witness her signing the change of beneficiary
document. Ms. Steventon, Ms. Mims, and Ms. Coleman discussed
the information that should be included in the document. Ms.
Steventon saw Ms. Coleman handwrite the document, and she saw
Ms. Olson sign it. Ms. Olson communicated with them by
writing and nodding her head. Ms. Steventon saw no one
threaten Ms. Olson, and she saw no one pressure or direct Ms.
Olson to sign the document. She believed that Ms. Olson knew
what she was doing and that she voluntarily signed the
Kascht, the regional manager for Ms. Olson's employer and
her supervisor, testified by deposition that in the month
before Ms. Olson's death, Ms. Olson told her she was
divorcing her husband and needed to get her financial matters
in order. The day Ms. Olson went into the hospital, Ms.
Kascht called Ms. Olson and explained how to change the
beneficiary of her life insurance policy. Ms. Kascht
testified that Ms. Olson's responses were appropriate,
and she had no concerns about Ms. Olson's ability to
understand what was happening.
Johnson, Ms. Olson's friend and coworker, testified that
Ms. Olson, before going to the hospital, was upset and talked
to him about finding a new apartment, refinancing loans,
changing her 401(k), and removing Mr. Olson's name from
"everything." On July 9, 2012, Ms. Olson told Mr.
Johnson that she was sick and would not be at work. On July
12, 2012, Mr. Johnson gave Ms. Kascht the change of
beneficiary paperwork that Ms. Mims had faxed to him. Mr.
Johnson was familiar with Ms. Coleman because she had visited
Ms. Olson at work. He had no reason to believe that Ms.
Coleman threatened or pressured Ms. Olson into signing the
change of beneficiary document.
Todd W. Rice, a pulmonary and critical care physician at
Vanderbilt University Medical Center, testified by deposition
that he treated Ms. Olson and diagnosed her with
Stevens-Johnson syndrome. According to his notes from July
12, 2012, Dr. Rice saw Ms. Olson in the intensive care unit
during morning rounds and four or five times throughout the
day. Her face was red and swollen, she could open her eyes
some, and she had sloughing or peeling of the top layer of
the eye. Ms. Olson was medicated and intubated, but awake and
Olson testified that he tried to visit and call Ms. Olson in
the hospital but could not see or speak with her. Mr. Olson
also attempted to contact Ms. Coleman, but she did not
respond. Mr. Olson did not know that Ms. Olson had changed
her life insurance beneficiary until after he opened her
estate. He believed that someone had forged Ms. Olson's
signature on the change of beneficiary document. Mr. Olson
testified that after Ms. Olson's death, he had marital
assets worth $15, 000 and marital debts totaling $230, 000.
parties called handwriting experts to testify about Ms.
Olson's signature on the change of beneficiary document.
Ms. Coleman's expert, Thomas Vastrick, a forensic
document examiner certified by the American Board of Forensic
Document Examiners, testified that it was highly probable
that the person who signed the change of beneficiary document
was the same person who wrote Ms. Olson's known
signatures. Mr. Olson's expert witness, Marty Pearce, a
forensic document examiner certified by the Institute of
Graphological Science, testified that the signature on the
change of beneficiary document was not Ms. Olson's
Coleman testified that she received $393, 000 in life
insurance benefits. From these funds, she established a $50,
000 college fund and bought items for her grandchild. Ms.
Coleman also paid Ms. Olson's funeral expenses, travel
expenses for herself and her grandchild, and attorney's
fees, leaving a balance of $292, 488 in life insurance
proceeds. She denied spending the money on herself.
grandparent visitation, Ms. Coleman explained that she
believed ending her relationship with her grandchild would
harm the child and that court intervention was necessary for
her to continue the relationship. Ms. Coleman stated that her
relationship with the child had strengthened after she spent
more time with the child under the juvenile court's order
of visitation. Although Mr. Olson allowed Ms. Coleman to have
visitation after she dismissed her juvenile court petition,
Ms. Coleman testified that she and Mr. Olson did not care for
each other and that their communications were unpleasant. Ms.
Coleman said that Mr. Olson gave her a "hard time"
about visitation, denied her visitation, restricted her
visitation, and sometimes did not allow her to talk with the
child on the phone. Ms. Coleman admitted that Mr. Olson had
restricted her visitation after she did not tell him about
her plans to take the child to Disney World. Ms. Coleman
attributed the hostility between her and Mr. Olson to their
contentious litigation and the marital problems between her
daughter and Mr. Olson.
Olson confirmed the mutual animosity between the parties and
explained that Ms. Coleman had never liked him or approved of
his marriage to Ms. Olson. He agreed that his child had a
significant relationship with Ms. Coleman and that it was in
the child's best interest to continue to visit with her.
Mr. Olson stated that he had not opposed visitation and had
tried to facilitate a relationship between Ms. Coleman and
the child. Ms. Coleman, however, had insisted on scheduling
visitation through their attorneys and the court system and
failed to communicate her desired visitation dates. Mr. Olson
testified that he would ensure that Ms. Coleman continued to
have a significant relationship with the child without court
February 2015, the trial court denied Mr. Olson's
counterclaim for the life insurance benefits and granted Ms.
Coleman's petition for grandparent visitation. The trial
court awarded the life insurance benefits to the Olsons'
child, finding that Ms. Olson had changed her life insurance
beneficiary because of "unintentional or accidental
undue influence." In reaching this decision, the trial
court first found that Ms. Olson had signed the change of
beneficiary document; although she was suffering from a
serious illness, Ms. Olson's mental capacity "was
not diminished to the point that she was unable to make
decisions." The trial court concluded that Ms. Olson had
intended to change her beneficiary from Mr. Olson to her
child to ensure that her child benefitted from the insurance
proceeds and determined that whether Ms. Olson's action
was "intentional or not, the change of beneficiary form
did not accomplish what Ms. Olson intended" because she
"inadvertently" made Ms. Coleman the beneficiary.
The trial court found no evidence of fraud or forgery.
trial court also found that the purpose of the statutory
injunction in Tennessee Code Annotated section 36-4-106(d)(2)
was to maintain the status quo until the trial court
finalized the divorce. As a result, the child's interests
were "equitably vested in the enforcement of the Order
despite the change of beneficiary to Ms. Coleman." The
trial court concluded that Ms. Olson had violated the
conditions of the injunction, but her conduct was not
"contemptuous" or an intentional defiance of a
on these findings, the trial court invoked its "inherent
equity power to right a wrong and do what is in the best
interests of the minor child" and awarded the life
insurance benefits to the Olsons' child. The trial court
also ordered Ms. Coleman to deposit the remaining funds into
the court registry for the use and benefit of the child. The
trial court found that Ms. Olson's funeral expenses,
necessities for the child, and the child's $50, 000
college fund were appropriate expenditures but that Ms.