APPELLATE COURT OPINIONS

The issues in this case are whether the trial court's award of alimony to the wife was excessive because the husband's income may be diminished when he retires from his current employment and whether the trial court's award to wife for her attorney's fees and expenses was erroneous. Upon a finding that the time of the husband's retirement is uncertain and a further finding that the trial court did not abuse its discretion in awarding the wife attorney's fees and expenses, we affirm the judgment of the trial court as rendered and remand.

This case involves a claim for reimbursement against an estate. A trust was established during the decedent's lifetime to pay for her needs. Before the decedent died, her husband paid for her needs, in part to preserve trust property. After her death, the husband filed a claim against the wife's estate seeking reimbursement for his payments for the healthcare and support of the wife. The trial court found that the payments were made to protect the wife's trust property, as well as for the care and support of the wife, and would have been paid by the trustee but for lack of assets, and the wife's estate was the successor-in-interest to the remaining assets of the trust. Consequently, the trial court sustained the husband's claim against the wife's estate. The wife's estate now appeals. We affirm, finding the expenses paid by husband constitute a valid claim against the wife's estate.

Plaintiffs appeal an adverse judgment from the general sessions court to the circuit  court for a trial de novo pursuant to T.C.A. § 27-5-108 (Supp. 2004). On motion of defendant, the circuit court transferred the case to the chancery court because a previous suit filed in the chancery court on the same cause of action was voluntarily dismissed by plaintiff. The chancery court granted defendant’s motion to adopt the findings of the special master filed in the previous chancery court suit and then granted defendant’s motion for summary judgment. Plaintiffs have appealed. We vacate and remand to the circuit court.
 

This case arises out of a petition filed by Appellants to compel the executor of Decedent’s estate to collect certain assets and a petition for declaratory judgment filed by Appellee. The trial court determined that Appellants’ motion in limine to exclude certain evidence based on the parol evidence rule should be denied. Additionally, the trial court denied Appellants’ objection to certain testimony based on the statute of frauds. The trial court further denied Appellants’ objections to exclude testimony based on the Dead Man’s Statute. The trial court determined that Decedent successfully gifted annual $10,000 sums to Appellee in the form of forgiving interest and principal owed by Appellee to Decedent as stated in a promissory note, finding there was clear, cogent, and convincing evidence to rebut the presumption that such transfers were advancements. Further, the court determined that such promissory note called for simple, rather than compound, interest, finding that Appellee owed Decedent’s estate the sum of $64,297.78. Appellants seek review by this Court and, for the following reasons, we affirm.
 

This appeal arises from a dispute between the City of Lebanon Planning Commission and real estate developers regarding approval of a proposed subdivision. The planning commission approved the plans for the first phase of this subdivision but then disapproved the plans for the second and third phases. The developers filed a petition for writ of certiorari in the Chancery Court for Wilson County seeking judicial review of the commission's actions. The trial court granted the writ and determined that the planning commission acted arbitrarily and capriciously by denying approval of the final subdivision plans. We affirm the trial court's decision.

Appellants appeal (1) a jury determination that a rock quarry, an asphalt plant, and trucking activities did not create a nuisance and (2) the allowance of discretionary costs. We affirm.

Plaintiff filed suit asserting that she was the owner by adverse possession of four acres of farmland in Maury County. Defendants, who purchased adjoining property in 2001, assert that they are by deed the true and rightful owners of the disputed parcel. The trial court ruled that Plaintiff was the owner of the property by adverse possession based on a finding that she and her predecessors in interest had possessed the property visibly, exclusively, actually, continuously, openly, and notoriously for twenty years. We affirm.

This appeal involves a boundary line dispute between neighbors. The trial court found in favor of the plaintiffs' boundary line description, and defendants appeal. We affirm the decision of the trial court.

Robert W. O'Neal ("Father") and Sandra K. O'Neal ("Mother") were granted a divorce by the Sumner County Circuit Court in 1986. There were two minor children born of the marriage, and Father was ordered to pay $650 per month in child support. After Mother passed away in June of 1990, the children's maternal grandparents, William and Marjorie Kirkpatrick, were awarded full custody of both children by the Sumner County Chancery Court. In 2001, Marjorie Kirkpatrick ("Petitioner") filed a petition in the Hamilton County Circuit Court seeking to have the previous order requiring Father to pay $650 per month in child support enforced. Petitioner also sought a substantial amount of arrearages. The Hamilton County Circuit Court determined that Father was in arrears a total of $55,063 covering from when Petitioner was awarded custody until June of 2002. Petitioner also was awarded her attorney fees. Father appeals, claiming the original order from the Sumner County Circuit Court requiring him to pay $650 per month in child support had no effect once Mother died. We modify the judgment of the Hamilton County Circuit Court, and affirm as modified.

The chancery court reversed the Assessment Appeals Commission and held that Youth Programs, a charitable organization, is entitled to a property tax exemption on real property in Shelby County used in conjunction with the FedEx/St. Jude Classic golf tournament. The trial court determined the disputed property is used exclusively for a charitable purpose and that an unusable area is used constructively and is likewise exempt. The Shelby County Assessor of Property and the State appeal. We affirm.
 

Lydia Ann Bishop Watkins ("Wife") filed for divorce from William C. Watkins, Jr., ("Husband") after thirty-five years of marriage. The Trial Court awarded Wife a divorce and distributed the marital property. The Trial Court also concluded that Wife was not economically disadvantaged and refused to award her any alimony. The Trial Court ordered each party to be responsible for his or her attorney fees. Wife appeals claiming the Trial Court's distribution of the marital property was inequitable, the Trial Court erred by not awarding her alimony in futuro, and the Trial Court erred by not requiring Husband to pay her attorney's fees. We affirm the judgment of the Trial Court.

Plaintiff-Appellant instituted a detainer action in general sessions court seekingpossession of property owned by Plaintiff-Appellant. From an adverse judgment in general sessions court, Plaintiff-Appellant appealed to the circuit court for a trial de novo. Defendant-Appellee filed a counter-claim in circuit court, alternatively requesting that if she is forced to vacate the premises, she should be awarded damages for improvements made to the premises. The trial court entered judgment for possession to the Defendant-Appellee. Plaintiff-Appellant appeals. We reverse.

This is an appeal of the trial court's order terminating the mother's parental rights to her six children. The mother, who had appeared at earlier hearings, did not appear at the termination hearing. A motion for default judgment was neither filed nor served on the mother. The trial court granted a default judgment based upon the mother's failure to appear at the termination hearing. We find that the mother's failure to appear did not constitute grounds for a default judgment in this case. We find that the State did not comply with Rule 55 of the Tennessee Rules of Civil Procedure. The judgment of the trial court is vacated and the cause is remanded.

This case involves a custody dispute between the parents of one daughter. Mother lives in Belgium, and Father, the primary residential custodian, currently lives in Lewis County, Tennessee, although he has also lived with his daughter in Hawaii, Oregon, and Washington State at various times since the parties' separation in 1998. Father has refused to allow most of Mother's visitation since the divorce became final, has interfered with communication between Mother and Daughter, and has convinced Daughter to falsely accuse her maternal grandfather and stepfather of sexual abuse. The trial court found that these occurrences amounted to a material change in circumstances and found that it would be in the best interest of Daughter to make Mother her primary residential custodian and to allow Daughter to move to Belgium with Mother. We affirm the trial court.

This case presents the issue of whether the trial court properly dismissed the Plaintiffs' action where there was an identical lawsuit, filed prior to this Circuit Court action, pending in General Sessions Court. We hold that the trial court correctly dismissed this case for lack of subject matter jurisdiction under the doctrine of prior suit pending.

Laurie Ann Searcy sought, by post-divorce Petition, a modification of the child custody and visitation privileges provided by the divorce decree. The trial court held that no change of circumstances had occurred “with a negative impact upon the child” and denied modification. We hold that the trial court applied an improper standard for determining the change of circumstances issue. We hold, however, that no change of circumstances has occurred under Cranston v. Combs, 106 S.W.3d 641 (Tenn. 2003) and Tennessee Code Annotated section 36-6-101(a)(2)(B) and affirm the judgment of the trial court.

This is a child support action. The trial court awarded Mother retroactive child support, set base child support, and ordered Father to make monthly payments into educational and future child support trust funds. The trial court also ordered father to pay private elementary and high school tuition, provide health insurance, and maintain life insurance. The trial court awarded Mother’s reasonable attorney’s fees. We affirm as modified and remand.
 

I agree with the majority’s analysis in this case, except for its conclusion regarding whether Mother presented evidence demonstrating a need for child support based on income amounts in excess of $10,000 per month, for both the retroactive and prospective child support. Moreover, an upward deviation is warranted by Father’s failure to exercise visitation.

The Plaintiff, an inmate, filed suit alleging that he was unlawfully deprived his right to practice his religion and that certain of his religious tapes were confiscated and he was denied the right to congregate and worship in accordance with his faith. Defendants filed a motion for summary judgment supported by an affidavit and Plaintiff responded with his own affidavit. Having determined that there are disputed issues of material fact, we reverse.
 

This case involves premises liability. At her apartment complex, the plaintiff tripped and fell on the metal edging of a limestone gravel walkway and sustained injuries to her elbow. The plaintiff sued the owner of the apartment complex, alleging premises liability, and also sued the company that put in the metal landscape edging. The defendants filed a motion for summary judgment. The motion was granted. We affirm, finding that the plaintiff did not establish that defendants violated the duty of reasonable care.

This appeal concerns a pyramid sales scheme involving the sale of unregistered investment contracts. After discovering that their contracts were worthless, four purchasers filed separate actions against the person who sold them the contracts. These cases were consolidated for trial in the Chancery Court for Davidson County. Following a bench trial, the trial court determined that the seller had breached his personal guarantee contract with two of the buyers and had violated the Tennessee Securities Act of 1980 by selling unregistered investment contracts to all the purchasers. Accordingly, the court awarded the four purchasers judgments totaling $99,450.00, as well as $44,979.50 for attorney's fees and legal expenses. The seller asserts on this appeal that the Tennessee Securities Act claims were filed after the statute of limitations had expired and that the doctrines of waiver and estoppel prevent the purchasers from asserting these claims. In addition, he insists that the court erred by permitting the purchasers to amend their complaints one week before trial to add their Tennessee Securities Act claims. He also takes issue with the trial court's decision to award the purchasers their attorney's fees. We affirm the judgments.

Plaintiff/Appellant, an unsuccessful candidate for mayor of The City of Memphis, brought “Complaint for Election Contest” against Defendant/Appellee, Shelby County Election Commission and Tennessee Division of Elections. Plaintiff/Appellant filed Motion to Compel Discovery and for Continuance, asserting that Defendant/Appellee had withheld information crucial to Plaintiff/Appellant’s case. The trial court denied Plaintiff/Appellant’s Motion and dismissed Plaintiff’s action pursuant to Tenn. R. Civ. P. 41.02(2). We affirm.

This is an appeal contesting the award of discretionary costs by the Trial Court. We affirm.

This appeal involves the parental relationship between a three-year-old child and her biological father. Shortly after the child's birth in Ohio, her mother placed her for adoption with relatives residing in Tennessee. These relatives filed a petition in the Chancery Court for Rutherford County seeking to terminate the biological father's parental rights and to adopt the child. The biological father thereafter filed a petition to establish parentage. Following a bench trial, the trial court established the child's parentage and determined that the biological father had not abandoned the child. Accordingly, the trial court denied the adoptive parents' petition to terminate the biological father's parental rights and to adopt the child. Because it had reserved ruling on the custody and visitation arrangements, the trial court granted the adoptive parent's application for an interlocutory appeal pursuant to Tenn. R. App. P. 9. We concur that an interlocutory appeal is warranted in this case. We also concur with the trial court's conclusion that the adoptive parents failed to prove by clear and convincing evidence that the biological father abandoned his daughter.

This parental termination case presents the Court with two issues: (1) whether a case manager can testify regarding facts about which she has no personal knowledge but which are documented in a case file not made an exhibit, and (2) whether the guardian ad litem of a minor child can testify as a witness. At the trial of this case, the State of Tennessee, Department of Children's Services presented only two witnesses: the case manager who had only been working on the file for six months and the child's guardian ad litem. The case manager had no firsthand knowledge of the facts except what she had read in the case file which was not present at the trial and not introduced into evidence. The defendant objected on the basis of hearsay and the trial court allowed the case manager to testify under the business records exception to the hearsay rule. The guardian ad litem testified concerning her investigation into the matter over the Defendant's objection. We hold that the case manager's testimony was hearsay and was not admissible under the business records exception to the hearsay rule. We hold that the guardian ad litem's testimony was not admissible pursuant to Tennessee Supreme Court Rule 40 which forbids such testimony. Because of the exclusion of the testimony of these witnesses, the trial court should have granted Defendant's motion for a directed verdict. Accordingly, we vacate the judgment of the trial court and remand to the Juvenile Court for Sevier County for a new trial.