Rose Coleman v. Bryan Olson

06/15/2018

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 11, 2017 Session

ROSE COLEMAN v. BRYAN OLSON

Appeal by Permission from the Court of Appeals

Circuit Court for Montgomery County

No. MCCCCVDN130157 Ross H. Hicks, Judge

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No. M2015-00823-SC-R11-CV

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When a 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

1

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.

Tenn. 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 Court

SHARON 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.

Christopher J. Pittman and Zachary L. Talbot, Clarksville, Tennessee, for the appellant,

Rose Coleman.

Travis N. Meeks, Clarksville, Tennessee, for the appellee, Bryan Olson.

Erin S. Poland, Clarksville, Tennessee, Amicus Curiae and Guardian Ad Litem for the

Minor Child.

OPINION

I.

In 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. § 36-4-106(d)(2).1

1

Tennessee Code Annotated section 36-4-106(d)(2) provides in part:

(d) Upon the filing of a petition for divorce or legal separation, and upon personal service

of the complaint and summons on the respondent . . . , the following temporary

injunctions shall be in effect against both parties . . . :

(2) An injunction restraining and enjoining both parties from voluntarily canceling,

modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any

insurance policy, including, but not limited to, life, . . . where such insurance policy . . .

names either of the parties or the children as beneficiaries without the consent of the

2

Four 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.

Two 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.

Less 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.

On 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.2 Mr. Olson argued in

other party or an order of the court. “Modifying” includes any change in beneficiary

status.

Tenn. Code Ann. § 36-4-106 (2010).

2

Mr. Olson amended his counter-petition to sue Ms. Mims, alleging collusion between her and

Ms. Coleman resulting in the change in Ms. Olson’s life insurance beneficiary. Mr. Olson later

voluntarily dismissed Ms. Mims from the case.

3

his pretrial brief that Ms. Olson secretly changed the beneficiary on her life insurance

policy in violation of the statutory injunction.

On November 14 and December 5, 2014, the trial court heard evidence presented

by Ms. Coleman and Mr. Olson.3 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.

In July 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.

Ms. 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

3

The child’s court-appointed guardian ad litem participated, but called no witnesses.

4

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.

Olson’s employer.

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 document.

Janelle 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.

Marcus 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.

Dr. 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 responsive.

Mr. 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

5

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.

Both 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 genuine signature.

Ms. 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.

As to 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.

Mr. 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 intervention.

6

Trial Court’s Ruling

In 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.

The 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 court order.

Based 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. Coleman’s

expenditures for travel and litigation fees and expenses were not appropriate. The trial

court ordered Ms. Coleman to account for her expenditures.

As to grandparent visitation, the trial court awarded Ms. Coleman visitation based

on Ms. Coleman’s close relationship with her grandchild and Ms. Olson’s death, which

created a rebuttable presumption that substantial harm to the child would result from the

cessation of the relationship. The trial court noted that Mr. Olson had allowed and even

sometimes suggested visitation, but doubted that Mr. Olson would allow future visitation

except on his terms. The trial court found that the circumstances and animosity between

the parties would make it difficult if not impossible for the parties to coordinate

reasonable visitation without a court order.

In April 2015, the trial court heard the parties’ post-trial motions and testimony

about Ms. Coleman’s expenditures. Ms. Coleman filed an accounting of her expenditures

7

and deposited $223,093.47 with the court registry.4 The trial court entered an order

finding that Ms. Coleman had received $395,525.15 in life insurance proceeds and

accrued interest. The trial court found that some of Ms. Coleman’s expenditures from the

insurance benefits were inappropriate, including reimbursements to herself for expenses

incurred before Ms. Olson’s death, Ms. Coleman’s legal fees in the juvenile court case,

and travel expenses for visitation under the juvenile court order. The trial court entered a

judgment against Ms. Coleman for $86,880 and ordered her to pay into the court registry

the remaining funds in her savings account for credit toward the judgment. The trial court

also awarded $37,140 in attorney and guardian ad litem fees and expenses from the

insurance proceeds.

Court of Appeals’ Ruling

Mr. Olson appealed to the Court of Appeals and raised two issues. First, he argued

that Ms. Olson had violated the injunction imposed by Tennessee Code Annotated

section 36-4-106(d)(2), and therefore, the trial court erred by awarding the life insurance

benefits to his child and not restoring the status quo by awarding him the benefits.

Second, Mr. Olson argued that the trial court erred by awarding Ms. Coleman

grandparent visitation under Tennessee Code Annotated section 36-6-306(a).

Ms. Coleman raised several issues. First, she argued that the trial court erred by

awarding the life insurance proceeds to the Olsons’ child, who was not a party to the

action. Second, Ms. Coleman insisted that the trial court erred by finding that some of her

expenditures from the life insurance proceeds did not benefit the child and by ordering

her to make reimbursement. Third, she argued that the trial court erred by ordering the

seizure of her savings account to satisfy the order for reimbursement. Finally, Ms.

Coleman submitted that the trial court properly awarded her grandparent visitation.

The Court of Appeals focused on the appropriate remedy for a party in a divorce

case who was deprived of certain property after the other party violated the statutory

injunction. Coleman v. Olson, No. M2015-00823-COA-R3-CV, 2016 WL 6135395, at

*14 (Tenn. Ct. App. Oct. 20, 2016). The Court of Appeals adopted the reasoning of the

Vermont Supreme Court’s decision in Aither v. Estate of Aither, 913 A.2d 376 (Vt.

2006), which held that the trial court could remedy the violation of an injunction after the

abatement of a divorce action by considering the equities of the parties. The Court of

Appeals awarded Mr. Olson the life insurance benefits after considering Mr. Olson’s

financial situation following his wife’s death and remanded the case to the trial court for

futher proceedings. In addition, the Court of Appeals reversed the award of visitation to

Ms. Coleman because she failed to prove that Mr. Olson had opposed visitation between

4

This amount included $7,500 in refunded legal fees from Ms. Coleman’s former attorney, Carrie

W. Gasaway, who withdrew from the case.

8

Ms. Olson’s death in July 2012 and the filing of Ms. Coleman’s petition for grandparent

visitation in February 2013.

II.

We granted Ms. Coleman’s Tennessee Rule of Appellate Procedure 11 application

for permission to appeal and review the decisions of the trial court and the Court of

Appeals regarding the distribution of the life insurance proceeds and grandparent

visitation.

The issues in this appeal involve similar standards of review. Issues of statutory

construction present questions of law that we review de novo with no presumption of

correctness. Martin v. Powers, 505 S.W.3d 512, 518 (Tenn. 2016). The primary goal of

statutory interpretation is to carry out legislative intent without expanding or restricting

the intended scope of the statute. State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016)

(citations omitted). In determining legislative intent, we first must look to the text of the

statute and give the words of the statute “their natural and ordinary meaning in the

context in which they appear and in light of the statute’s general purpose.” Mills v.

Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted). When a statute’s

language is clear and unambiguous, we enforce the statute as written; we need not

consider other sources of information. Frazier v. State, 495 S.W.3d 246, 249 (Tenn.

2016). We apply the plain meaning of a statute’s words in normal and accepted usage

without a forced interpretation. Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013). We do

not alter or amend statutes or substitute our policy judgment for that of the Legislature.

Armbrister v. Armbrister, 414 S.W.3d 685, 704 (Tenn. 2013).

We review the trial court’s findings of fact de novo upon the record with a

presumption of correctness unless the preponderance of the evidence is otherwise. Tenn.

R. App. P. 13(d). We defer to the trial court’s determinations of witness credibility

because the trial judge could observe the witnesses’ demeanor and hear in-court

testimony. King v. Anderson Cnty., 419 S.W.3d 232, 245–46 (Tenn. 2013).

Life Insurance Proceeds

First, we review the decisions of the trial court and the Court of Appeals on who

should receive Ms. Olson’s life insurance benefits: Ms. Coleman, as the named

beneficiary; Mr. Olson, as the Court of Appeals determined; or the Olsons’ child, as the

trial court determined. The differing approaches used by the trial court, the Court of

Appeals, and courts in other jurisdictions reflect the difficulty of this issue.

We begin by considering the trial court’s decision to award the life insurance

funds to the Olsons’ child, to require Ms. Coleman to repay the remaining life insurance

proceeds, and to account for her expenditures. The basis for the trial court’s decision was

9

its finding that there had been “unintentional or accidental undue influence” and that Ms.

Olson “inadvertently” made Ms. Coleman the life insurance beneficiary. No doubt, the

trial court made a sincere effort to solve a difficult problem and to reach a fair decision.

But neither party asked the trial court to award the insurance benefits to the child. Nor did

Mr. Olson ask the trial court to establish a constructive trust as a remedy for Ms. Olson’s

violation of the statutory injunction.

In addition, the trial court’s reliance on “accidental undue influence” was an

inadequate ground to create, in effect, a constructive trust for the child and to order Ms.

Coleman to relinquish the life insurance proceeds. The trial court did not find that Ms.

Coleman had engaged in intentional wrongdoing, fraud, forgery, or other misconduct that

resulted in Ms. Olson changing her life insurance beneficiary. A trial court can impose a

constructive trust

against one who, by fraud, actual or constructive, by duress or abuse of

confidence, by commission of wrong, or by any form of unconscionable

conduct, artifice, concealment, or questionable means, or who in any way

against equity and good conscience, either has obtained or holds the legal

right to property which he ought not, in equity and good conscience, hold

and enjoy.

Cent. Bus Lines, Inc. v. Hamilton Nat’l Bank, 239 S.W.2d 583, 585 (Tenn. Ct. App.

1951). Courts have imposed constructive trusts in four types of cases:

(1) where a person procures the legal title to property in violation of some

duty, express or implied, to the true owner; (2) where the title to property is

obtained by fraud, duress or other inequitable means; (3) where a person

makes use of some relation of influence or confidence to obtain the legal

title upon more advantageous terms than could otherwise have been

obtained; and (4) where a person acquires property with notice that another

is entitled to its benefits.

Roach v. Renfro, 989 S.W.2d 335, 341 (quoting Intersparex Leddin KG v. Al-Haddad,

852 S.W.2d 245, 249 (Tenn. Ct. App. 1992)) (internal citation omitted).

Given the lack of evidence to support the establishment of a construtive trust and

that neither party requested the trial court to award the life insurance proceeds to the

Olsons’ child, the trial court erred in creating what amounted to a constructive trust on

behalf of the child. It follows then that the trial court erred in ordering Ms. Coleman to

pay the remaining funds from the life insurance policy into the court registry, to make an

accounting, and to pay a judgment for some of her expenditures.

10

Next, we turn to the Court of Appeals’ decision to award Mr. Olson the life

insurance benefits based on Ms. Olson’s violation of the statutory injunction under

Tennessee Code Annotated section 36-4-106(d)(2).

Tennessee Code Annotated section 36-4-106(d) provides that when a petition for

divorce or legal separation is filed and served, the following temporary injunction is in

effect against both parties:

(2) An injunction restraining and enjoining both parties from voluntarily

canceling, modifying, terminating, assigning, or allowing to lapse for

nonpayment of premiums, any insurance policy, including, but not limited

to, life . . . where such insurance policy provides coverage to either of the

parties or the children, or that names either of the parties or the children as

beneficiaries without the consent of the other party or an order of the court.

“Modifying” includes any change in beneficiary status.

Tenn. Code Ann. § 36-4-106(d)(2). The statute further provides that the temporary

injunction “shall be in effect against both parties until the final decree of divorce or order

of legal separation is entered, the petition is dismissed, the parties reach agreement, or

until the court modifies or dissolves the injunction.” Id. § 36-4-106(d).

The statutory injunction went into effect when Ms. Olson filed and served the

divorce complaint. A week later, while in the hospital, Ms. Olson changed her life

insurance beneficiary from Mr. Olson to Ms. Coleman. Ms. Olson violated the statutory

injunction when she removed Mr. Olson as beneficiary. Upon Ms. Olson’s death a few

days later, the divorce action abated and the injunction was no longer effective.

Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008) (“It is a well-settled principle

of law that a pending divorce action, being purely personal in nature, abates upon the

death of one of the parties.”).5

So the issue is – may Mr. Olson recover the life insurance proceeds from Ms.

Coleman in this separate action based on Ms. Olson’s violation of the statutory injunction

in the Olsons’ divorce case that has now abated? This is an issue of first impression in

Tennessee. Courts in other states have different views on whether a trial court may

provide an equitable remedy for the violation of an injunction after the abatement of a

divorce action due to the death of a party. See Aither v. Estate of Aither, 913 A.2d 376,

379 (Vt. 2006); Nw. Mut. Life Ins. Co. v. Hahn, 713 N.W.2d 709, 712 (Iowa Ct. App.

2006) (acknowledging split in authority).

5

See also Owens v. Sims, 43 Tenn. (3 Cold.) 544, 548–49 (1866); Swan v. Harrison, 42 Tenn. (2

Cold.) 534, 536–40 (1865).

11

In Aither, the Vermont Supreme Court considered a similar case where a husband

removed his wife as the beneficiary on his life insurance policy in violation of an

injunction that barred him from disposing of any marital asset while the divorce was

pending. 913 A.2d at 377. The husband died before the divorce action was concluded and

his wife asked the trial court to enforce the injunction. She argued that the trial court had

the authority to enforce its order through its contempt authority and equitable principles.

The trial court decided that it could not enforce the order because the divorce action had

abated upon the husband’s death. The Vermont Supreme Court reversed, holding that the

trial court had the equitable power to award the life insurance proceeds to the wife. Id. at

378. The Vermont Supreme Court, in rejecting a rigid application of the abatement rule,

explained that although the death of one party to a divorce abates the divorce action, a

“mechanistic application” of the abatement rule “would frustrate the larger purpose of

ensuring that courts have the power to enforce their own valid orders to avoid unjust

results.” At the same time, the Aither court noted that a per se rule voiding transfers in

violation of an injunction would not be desirable. Id. at 379–80. Therefore, the Vermont

Supreme Court adopted a flexible approach that would allow the trial court to remedy the

violation of the injunctive order, after a divorce action had abated, by considering the

equities of the parties. See also Hahn, 713 N.W.2d at 712 (concluding that a court may

set aside a change in beneficiary of a life insurance policy made in violation of a

temporary injunction); American Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 924

(Minn. Ct. App. 1995) (holding that equitable considerations control in determining

ownership of policy proceeds when a change in beneficiary was made in violation of a

temporary restraining order); Standard Ins. Co. v. Schwalbe, 755 P.2d 802, 806 (Wash.

1988) (holding that the death of a party did not deprive the trial court of equity

jurisdiction to set aside a change in beneficiary done in violation of a preliminary

injunction); Wilharms v. Wilharms, 287 N.W.2d 779, 784 (Wis. 1980) (stating that based

on equitable principles, a constructive trust may be imposed on life insurance proceeds

after a change in beneficiary in violation of a temporary restraining order). But see Ex

parte Thomas, 54 So. 3d 356, 361 (Ala. 2010) (concluding that an interlocutory order in a

divorce action may not be enforced after the death of one of the parties because

abatement of that action divests the trial court of subject-matter jurisdiction); Estate of

Hackler v. Hackler, 602 S.E.2d 426, 436 (Va. Ct. App. 2004) (finding no equitable

remedy available after divorce case abated upon the death of one of the parties because

the court no longer had jurisdiction over the parties’ property).

We agree with the Court of Appeals that a divorce action abates upon the death of

a party, but a trial court should have the authority to consider the equities of the parties

and remedy the violation of a statutory injunction. This approach is consistent with the

policy expressed in Tennessee Code Annotated section 36-4-106(d)(2) that the injunction

“shall be in effect against both parties until the final decree of divorce or order of legal

separation is entered, the petition is dismissed, the parties reach agreement, or until the

court modifies or dissolves the injunction.” Simply put, a trial court should have the

authority to “right a wrong” and remedy an injustice based on equitable considerations

12

when a party violates a statutory injunction and later dies while the divorce action is

pending.

Yet we disagree with the Court of Appeals’ holding that the parties’ equities

favored a return of the life insurance proceeds to Mr. Olson. This is the first time we have

considered this issue, and we are adopting a new approach that allows a court to consider

the equities of the parties and provide an equitable remedy for a violation of the statutory

injunction. Understandably, the parties did not anticipate the need to offer proof so that

the trial court could consider an equitable remedy. Mr. Olson testified briefly about the

marital assets and liabilities. Ms. Coleman offered no evidence regarding the equities,

and the trial court made no findings of fact on this issue. As a result, there was

insufficient evidence in the record for the Court of Appeals to make a determination

about the equities of the parties. On remand, the trial court may hear additional evidence

and consider the equities of the parties in determining whether either or both parties

should receive all or a portion of the life insurance benefits.

Grandparent Visitation

A dispute over visitation between a parent and a grandparent raises a conflict

between the parent’s constitutional right to make decisions about the care and custody of

the child and the grandparent’s right to visitation under Tennessee Code Annotated

section 36-6-306. See Smallwood v. Mann, 205 S.W.3d 358, 362–63 (Tenn. 2006). The

right of a parent to raise a child is a fundamental liberty interest protected by the

Fourteenth Amendment to the United States Constitution and article I, section 8 of the

Tennessee Constitution. Hawk v. Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993) (quoting

Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Davis v. Davis, 842 S.W.2d 588, 598–600

(Tenn. 1992)). Parents’ rights to the care and custody of their children without undue

government interference is “among the oldest of the judicially recognized liberty interests

protected by the due process clauses of the federal and state constitutions.” Lovlace v.

Copley, 418 S.W.3d 1, 30 (Tenn. 2013) (citing Troxel v. Granville, 530 U.S. 57, 65

(2000)); see also State ex rel. Bethell v. Kilvington, 45 S.W. 433, 435 (Tenn. 1898)

(“Ordinarily, the parent is entitled to the custody, companionship, and care of the child,

and should not be deprived thereof except by due process of law.”). Parents have a

privacy interest that protects them from unwarranted state intervention in parental

decision-making and prohibits the court from imposing its subjective notion of what is in

the “best interests of the child.” Hawk, 855 S.W.2d at 579–80.

Yet the state may interfere with these rights when there is a compelling state

interest. Smallwood, 205 S.W.3d at 362–63 (citing Nash-Putnam v. McCloud, 921

S.W.2d 170, 174 (Tenn. 1996)). The state has a role of parens patriae and a duty to

protect minors, and the state may intervene in parental decision-making when necessary

to prevent substantial harm to the child. In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct.

App. 1983) (citing State Dept. of Human Servs. v. Northern, 563 S.W.2d 197 (Tenn. Ct.

13

App. 1978)); see also Hawk, 855 S.W.2d at 581 (holding that “neither the legislature nor

a court may properly intervene in parenting decisions absent significant harm to the child

from those decisions”). The substantial harm requirement protects parents from

unwarranted state interference in the parenting process. Hawk, 855 S.W.2d at 580.

Absent substantial harm to the child, a trial court lacks a sufficiently compelling

justification for interfering with the parents’ privacy rights by ordering grandparent

visitation. Id. at 582. In initial proceedings to determine grandparent visitation, parents

have the presumption of superior parental rights. Lovlace, 418 S.W.3d at 30.

When Ms. Coleman filed the petition for grandparent visitation, Tennessee Code

Annotated section 36-6-306 provided in part:

(a) Any of the following circumstances, when presented in a petition for

grandparent visitation to the circuit, chancery, general sessions courts with

domestic relations jurisdiction, or juvenile court in matters involving

children born out of wedlock . . . necessitates a hearing if such grandparent

visitation is opposed by the custodial parent or parents . . .:

(1) The father or mother of an unmarried minor child is deceased;6

...

(b)(1) In considering a petition for grandparent visitation, the court shall

first determine the presence of a danger of substantial harm to the child.

Such finding of substantial harm may be based upon cessation of the

6

The other enumerated circumstances that require a hearing under Tennessee Code Annotated

section 36-6-306(a) are

(2) The child’s father or mother are divorced, legally separated, or were never married to

each other;

(3) The child’s father or mother has been missing for not less than six (6) months;

(4) The court of another state has ordered grandparent visitation;

(5) The child resided in the home of the grandparent for a period of twelve (12) months

or more and was subsequently removed from the home by the parent or parents . . .; or

(6) The child and the grandparent maintained a significant existing relationship for a

period of twelve (12) months or more immediately preceding severance of the

relationship, this relationship was severed by the parent or parents for reasons other than

abuse or presence of a danger of substantial harm to the child, and severance of this

relationship is likely to occasion substantial emotional harm to the child.

Tenn. Code Ann. § 36-6-306(a)(2)–(6).

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relationship between an unmarried minor child and the child’s grandparent

if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the

grandparent that loss of the relationship is likely to occasion severe

emotional harm to the child;

...

(C) The child had a significant existing relationship with the grandparent

and loss of the relationship presents the danger of other direct and

substantial harm to the child.

...

(4) For the purposes of this section, if the child’s parent is deceased and the

grandparent seeking visitation is the parent of that deceased parent, there

shall be a rebuttable presumption of substantial harm to the child based

upon the cessation of the relationship between the child and grandparent.

(c) Upon an initial finding of danger of substantial harm to the child, the

court shall then determine whether grandparent visitation would be in the

best interests of the child based upon the factors in § 36-6-307. Upon such

determination, reasonable visitation may be ordered.

Tenn. Code Ann. § 36-6-306 (2010).

The trial court granted Ms. Coleman’s petition for grandparent visitation after

finding that her grandchild was at risk of substantial harm if their relationship ended

based on the death of the child’s mother and the child’s close relationship with Ms.

Coleman. These circumstances created a rebuttable presumption of substantial harm

under Tennessee Code Annotated section 36-6-306(b)(4). The trial court explained that it

doubted “Mr. Olson’s willingness to allow visitation in the future except on his terms and

other conditions that he would impose” and because the “animosity between the parties

would make it difficult, if not impossible, for them to coordinate reasonable visitation . . .

absent a Court Order.”

The trial court made detailed findings of fact, and the evidence does not

preponderate against those findings. Now, we must determine whether the trial court’s

finding of the likelihood of future parental opposition constitutes parental opposition as

required by Tennessee Code Annotated section 36-6-306(a). The critical words of the

statute provide: “Any of the following circumstances, when presented in a petition for

grandparent visitation . . . necessitates a hearing if such grandparent visitation is opposed

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by the custodial parent or parents . . . .” Tenn. Code Ann. § 36-6-306(a) (emphasis

added).

We conclude that the Legislature’s use of the words, “is opposed by,” means

actual existing opposition—not likely future opposition. Had the Legislature intended for

evidence of anticipated or likely parental opposition to support an award of grandparent

visitation, it could have so indicated by using the words “if such grandparent visitation is

opposed or likely will be opposed by the custodial parent.” The Legislature chose not to

do so; we are not free to alter or amend the statute. Based on the plain meaning of

Tennessee Code Annotated section 36-6-306(a), a petitioning grandparent must establish

that the custodial parent opposes grandparent visitation.

Ms. Coleman could have proven parental opposition by presenting evidence of

actual or constructive denial of visitation. Constructive denial occurs when the custodial

parent limits or restricts the frequency or conditions of visitation so that it is the same as a

denial of visitation. Lovlace, 418 S.W.3d at 21 (quoting Huls v. Alford, No.

M2008-00408-COA-R3-CV, 2008 WL 4682219, at *8 (Tenn. Ct. App. Oct. 22, 2008)).

A grandparent cannot rely on Tennessee Code Annotated section 36-6-306 to seek more

or different visitation without a finding that the custodial parent actually or effectively

opposed visitation. Huls, 2008 WL 4682219, at *8. Unless there is evidence of parental

opposition to visitation, a trial court cannot consider whether the child is at substantial

risk of harm under Tennessee Code Annotated section 36-6-306(b) or whether visitation

would be in the child’s best interest under subsection (c).

Ms. Coleman needed to show that Mr. Olson opposed visitation between the

occurrence of the qualifying circumstance and the filing of the petition for visitation. Ms.

Coleman’s petition for grandparent visitation failed to allege the threshold requirement of

parental opposition to visitation between the death of the child’s mother on July 19, 2012,

and the filing of the petition on February 12, 2013. Instead, Ms. Coleman alleged that she

had exercised frequent visitation with the child since the child’s birth up to the time she

filed her petition for visitation. Ms. Coleman’s allegations focused on her close

relationship with her grandchild and the death of Ms. Olson and omitted any allegation

that Mr. Olson denied her visitation.

The provisions of Tennessee Code Annotated section 36-6-306 for grandparent

visitation are only triggered when there is parental opposition to grandparent visitation.

Ms. Coleman did not prove parental opposition, and the trial court did not find parental

opposition. The trial court’s award of grandparent visitation was based on the likelihood

of parental opposition and was well-intentioned given the trial court’s assessment of the

parties’ contentious relationship. Yet Tennessee Code Annotated section 36-6-306

requires evidence of parental opposition, rather than evidence of the likelihood of future

parental opposition, to grandparent visitation.

16

Ms. Coleman makes several arguments. First, she contends that she proved

parental opposition by showing evidence of inability to cooperate. According to Ms.

Coleman, the trial court’s finding that cooperation over visitation is a “practical

impossibility” is enough to comply with Tennessee Code Annotated section 36-6-306.

We disagree. Tennessee Code Annotated section 36-6-306 requires evidence that the

custodial parent opposes grandparent visitation, which means opposition existing when

the petition is filed, not opposition likely to occur in the future.

Second, Ms. Coleman contends that there was evidence of parental opposition or

only token visitation between Ms. Olson’s death in July 2012, and the filing of the

grandparent visitation petition in February 2013. Yet Ms. Coleman failed to allege or

prove denial of visitation or token visitation, and the trial court did not make these

findings of fact. Ms. Coleman relies on her testimony that Mr. Olson denied her visitation

in August 2012 when he sent her a text message saying “[t]here’s a complication with

you taking [the child] on Friday.” This single indication of a “complication” does not

amount to opposition to visitation. There was also evidence that the day after Ms. Olson

died, Mr. Olson texted Ms. Coleman and told her he was not trying to keep the child from

her and offered to let her see the child. He also added, “I really want to work with you on

this if you would just talk to me, I’m willing to do what I can for you []either of you.”

The July 2012 juvenile court order reflected Mr. Olson’s agreement for Ms. Coleman to

have visitation at her home in Massachusetts for three weeks in August 2012. In February

2013, Mr. Olson sent a text message to Ms. Coleman asking if she would like to see the

child before she returned home and when she wanted visitation in June 2013. Ms.

Coleman responded that she was no longer in town and Mr. Olson needed to

communicate through his lawyer to her lawyer. In short, Ms. Coleman did not prove

parental opposition or token visitation.

Third, Ms. Coleman argues that she had exercised “generous unsupervised

visitation” but, except for the July 2012 agreed order for visitation in juvenile court, all

her visitation was under a court order. This argument conflicts with Ms. Coleman’s

previous argument that she had been denied visitation. And Tennessee Code Annotated

section 36-6-306 requires opposition to visitation and makes no exception for

court-ordered visitation. Mr. Olson did not oppose visitation before Ms. Coleman filed

the juvenile court petition, and he agreed to three weeks of visitation after the petition

was filed. The juvenile court’s order granting additional and continuing visitation without

evidence of opposition does not constitute evidence that Mr. Olson opposed visitation.

Next, Ms. Coleman argues that her juvenile court petition and Mr. Olson’s petition

to the circuit court challenging the juvenile court’s award of visitation are evidence of

Mr. Olson’s opposition to visitation. This argument ignores the fact that Ms. Coleman’s

juvenile court petition did not allege that Mr. Olson denied visitation during the four-day

period between Ms. Olson’s death on July 19, 2012, and the filing of the petition on July

23, 2012. Simply put, there is no evidence that Ms. Coleman had to file the juvenile court

17

petition for custody or visitation only days after her daughter’s death. Ms. Coleman

admitted that she likely contributed to the discord between the parties by filing the

juvenile court petition. Ms. Coleman admitted that after she filed the juvenile court

petition, Mr. Olson agreed that she could have three weeks of visitation. Mr. Olson’s text

messages to Ms. Coleman support his contention that he did not oppose visitation. Mr.

Olson’s challenge of the juvenile court order was based, in part, on the juvenile court’s

lack of authority under Tennesee Code Annotated section 36-6-306 to adjudicate a

grandparent visitation case where the child is not born out of wedlock and on the juvenile

court’s additional grant of visitation in September and November 2012 without hearing

any evidence.

Finally, Ms. Coleman contends that the acrimony between her and Mr. Olson and

his mistreatment of Ms. Olson supports the conclusion that future cooperation between

the parties about visitation would be impossible. Citing the dissenting opinion in Uselton

v. Walton, No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *19 (Tenn. Ct. App.

June 21, 2013) (Highers, J., dissenting), Ms. Coleman argues that we should consider

evidence of post-petition opposition to visitation. Again, these arguments fail because

Tennessee Code Annotated section 36-6-306 requires evidence of parental opposition

when the petition is filed and requires evidence of existing opposition, not future

opposition.

In short, Ms. Coleman failed to allege and prove parental opposition to visitation.

We agree with the Court of Appeals that the trial court erred by awarding Ms. Coleman

grandparent visitation under Tennessee Code Annotated section 36-6-306 absent

evidence of parental opposition.

III.

In summary, we hold that Ms. Olson violated the statutory injunction imposed by

Tennessee Code Annotated section 36-4-106(d)(2) when she removed Mr. Olson as her

life insurance beneficiary. The Olsons’ divorce action abated when Ms. Olson died and

the statutory injunction became ineffective. A trial court, after the abatement of a divorce

action, may remedy a violation of the statutory injunction by considering the equities of

the parties. Here, the trial court erred by awarding the life insurance benefits to the

Olsons’ child based on the pleadings and evidence in the case. The Court of Appeals

erred by awarding the life insurance benefits to Mr. Olson absent sufficient evidence of

the equities of the parties. On remand, the trial court, after hearing additional evidence

and considering the equities of the parties, may remedy the violation of the statutory

injunction by awarding all or a portion of the life insurance proceeds to either or both

parties. In addition, Ms. Coleman was not entitled to court-ordered grandparent visitation

absent Mr. Olson’s opposition to visitation.

18

We affirm in part and reverse in part the judgment of the Court of Appeals, and we

reverse and vacate the judgment of the trial court and remand to the trial court for further

proceedings consistent with this opinion. We tax the costs of this appeal equally between

Rose Coleman and Bryan Olson, for which execution may issue if necessary.

___________________________

SHARON G. LEE, JUSTICE

19