RICHARD H. DINKINS, J.
Shortly after the mother of four children was killed in an accident, her husband instituted an action to recover damages for her death; the father of the children moved to intervene in the action and for the court to hold a hearing on whether the husband had abandoned the mother, thereby waiving his right as surviving spouse to participate in the wrongful death action. The trial court did not hold a hearing; rather, it held that the husband was the proper party to pursue the action, allowed the Guardian of the children to represent the interest of the children in the action, and dismissed Father's petition. The surviving spouse, Guardian and tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful death claim; the court granted the petition. Father appeals, contending that the court erred in failing to hold a hearing on the issue of whether the husband was estranged from the mother, in approving the settlement, and in placing the settlement documents under seal. We remand the case for a hearing on whether the husband waived his right as surviving spouse to participate in the wrongful death action and reverse the court's placement of the settlement documents under seal; in all other respects the judgment of the trial court is affirmed.
This appeal arises out of a suit to recover damages for the wrongful death of Roshanda Baugh, mother of four children who were minors at the time of her death ("Mother"). On June 17, 2011, Mother was riding her motorcycle when she was hit and killed by the driver of a UPS vehicle ("Driver"); she died intestate. At the time of the accident, she was married to Latony Baugh. James Denzmore ("Father") is the father of the four children; he was never married to Mother and lived in Illinois at the time of the accident.
Shortly after Mother's death, a proceeding was initiated in Davidson County Juvenile Court by Father, along with Linda King and Marshella Thomas, to have the children declared dependent and neglected. On June 20, 2011, Attorney Rachel Welty was appointed Guardian Ad Litem for the children pursuant to Tenn. Code Ann. § 37-1-150. The dependency and neglect petition was dismissed on August 15, with Father maintaining custody of the children.
Related to the instant proceeding but not at issue on appeal, the record reflects that on June 27, 2011, the Davidson County Probate Court appointed Ms. Welty Administrator ad litem of Mother's estate and Guardian for the children "as it related to their interest in the mother's estate." (Hereinafter, we refer to Ms. Welty as "Guardian.")
Mr. Baugh filed the action which is the subject of this appeal in Davidson County Circuit Court on behalf of himself and the four children on June 20, 2011, asserting that he was "the appropriate person to prosecute the action" for the wrongful death of Mother; he filed an Amended Complaint on June 27. On June 23, Guardian filed a motion to intervene in the wrongful death action; in the motion Guardian asserted, inter alia, the following:
Mr. Baugh filed a response in opposition to the motion to intervene, inter alia, asserting the right as the surviving spouse to prosecute the wrongful death action pursuant to Tenn. Code Ann. § 20-5-106(a). Guardian filed a reply to Mr. Baugh's response, in which she asserted that Mr. Baugh and Mother were estranged at the time of the accident, that he provided no support for the children, and that he had been misappropriating assets since her death, including her last employment paycheck and retirement benefits. Attached to the reply was the affidavit of Linda King, a friend of Mother for twenty years, in which she stated in part pertinent to this appeal:
Father filed a motion to intervene in the wrongful death action on July 1, alleging that he had "parental preference" in representing the interest of the minor children; he filed an Intervening Complaint that same day. In the motion, Father also asserted that, at the time of the accident, Mr. Baugh and Mother had been estranged for two years; that, as father of the children, he "is the presumed custodian and guardian" of them; and that, pursuant to Tenn. R. Civ. P. 17.03, he was empowered to sue on behalf of the children. Mr. Baugh filed a response opposing Father's motion, asserting that Father lacked standing to bring the wrongful death action.
On August 9 Father filed a motion for the court to set an evidentiary hearing on the question of who had standing to pursue the wrongful death claim; the motion was heard on September 9. At the conclusion of the hearing the court stated:
The court did not hold another hearing to determine whether Mr. Baugh in fact had standing to pursue the wrongful death action. Rather, on September 21, 2011, the court entered an Order in which it made findings of fact and conclusions of law as follows:
On October 20 Father filed motions styled "Motion of James Denzmore to Reconsider or for Relief under Rule 59 or Rule 60 With Supporting Authorities To Vacate Order Entered September 21, 2011" and "Motion for Rule 9 Interlocutory Appeal by Permission"; a hearing on both motions was set for November 4. On October 28 Father filed his affidavit in which he states in pertinent part:
UPS, Mr. Baugh, and Guardian pursued mediation and reached a settlement agreement in the wrongful death action on November 18, 2011; they subsequently petitioned the court for approval of the settlement and distribution of proceeds. The petition and order approving the settlement are currently under seal.
The court held a hearing on Father's motion for relief from the September 21 order and for an interlocutory appeal on January 6, 2012; both motions were denied by order entered February 10.
On January 21, 2012, the oldest of the children, Jermeka Denzmore, turned eighteen years old; she joins Father in this appeal as a co-appellant (hereinafter "Appellants"). Appellants articulate the following issues on appeal:
Appellants assert that the court erred in denying Father's motion to hold a hearing on the standing issue and in holding that Father lacked standing. The question of whether Mr. Baugh was estranged from Mother is significant in light of the statutory scheme for prosecuting wrongful death actions, as well as in the allocation of the proceeds of the action.
Tenn. Code Ann. § 20-5-106(c), which became effective on May 30, 2011, states:
The only evidence in the record regarding this issue are Ms. King's and Father's affidavits. Ms. King states that Mr. Baugh and Mother had been separated for more than two years, and that Mr. Baugh had not supported Mother or her children during their marriage. Father states that Mr. Baugh had abandoned Mother and "refused and/or neglected" to provide for her. These statements provide evidence of abandonment within the meaning of the statute, thus raising the presumption that Mr. Baugh abandoned Mother and, as a consequence, waived his right as surviving spouse to prosecute the wrongful death action and share in the proceeds.
The court should have held a hearing on the question of Mr. Baugh's possible estrangement and allowed Father, as well as others, the opportunity to participate and present evidence on this issue. Counsel for Guardian's statement at the September 9 hearing that Guardian "doesn't have personal knowledge of the length of the estrangement" is not a substitute for a hearing on this matter. The Guardian was able to secure the affidavit of Ms. King and we assume that Ms. King was available and willing to assist in providing information relevant to this inquiry at a hearing called for that purpose. The resolution of this question directly impacts the recovery of the children; it is in their best interest, as well as in accord with the statute, for the court to determine whether Mr. Baugh waived his right to prosecute the action and participate in the distribution of proceeds. Accordingly, we reverse the judgment of the trial court denying Father's motion for a hearing on this issue and remand the case for hearing. Approval of the Settlement
Appellants next contend that the court erred in approving the settlement because they were not given notice of the settlement or its terms or of the fact that it was being presented to the court for approval. We do not agree that, under the facts of this case, any failure to notify Father of the fact of settlement and the application to have it approved by the court is reversible error.
We review a trial court's approval of the settlement under the abuse of discretion standard; the settlement will be upheld unless the trial court "applies an incorrect legal standard, or reaches a decision that is against logic or reasoning[.]" Denver Area Meat Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584, 590 (Tenn. Ct. App. 2006) (citing Cummings v. Patterson, 388 S.W.2d 157, 167 (Tenn. Ct. App. 1964)); Id. (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).
As an initial matter, we note that Father's assertion of his parental rights is predicated upon his representation that he is the natural father of the children. While Father's parentage of the children is not an issue in this appeal, there is no indication in this record that he has legitimated the children or that he is entitled to the presumption of parentage at Tenn. Code Ann. § 36-2-304(a)(4).
Having been duly appointed, Guardian was vested with the authority pursuant to Tenn. R. Civ. P. Rule 17.03, to "sue or defend on behalf of" the minor children; she then participated in the mediation which led to the settlement and appeared before the court when the settlement was approved. We have reviewed the petition to approve the settlement and order approving it and, subject to the results of the hearing on remand and the concerns set forth below, affirm the trial court's approval of the settlement.
Appellants lastly contend that the court erred when it ordered that the settlement be kept confidential and placed under seal.
The rule that judicial proceedings, including judicial records, are presumptively open is well established in the Constitution of Tennessee and case law. In In re NHC — Nashville Fire Litig., 293 S.W.3d 547 (Tenn. Ct. App. 2008), this court discussed at length the guarantee at Article I, Section 17 of the Tennessee Constitution that the "courts shall be open":
In re NHC, 293 S.W.3d at 560. In Huskey, the court discussed the "qualified right of the public, founded in common law and the First Amendment to the United States Constitution, to attend judicial proceedings and to examine the documents generated in those proceedings." Huskey, 982 S.W.2d at 362 (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1966).
In weighing the presumption of openness against a protective order providing that certain documents relating to a nursing home fire could be filed under seal, the court in In re NHC noted that the reasons for sealing judicial records must be "compelling", with the burden for demonstrating the compelling reason placed on the party seeking to prevent public access to the records. In re NHC, 293 S.W.3d at 567. Consistent with this policy, Rule 7.02 of the rules of the Twentieth Judicial District states: "[a]ll papers, documents and files shall be available for public inspection except as specifically exempted by court order or statute." The rule requires that a motion be filed seeking an order of exemption, and that the motion must "contain sufficient facts to overcome the presumption in favor of disclosure."
The record before us contains no motion to have the settlement documents sealed and the court did not enter a separate order stating the reason for sealing the settlement; as a consequence, we have no basis upon which to determine that the reason for sealing the records was compelling. Under the record before us, the trial court abused its discretion in ordering the documents sealed. Accordingly, we reverse the trial court's action of placing the settlement documents under seal, without prejudice to the filing of a motion in compliance with the applicable law and rule.
For the foregoing reasons, the judgment is reversed in part and affirmed in part; the case is remanded for a hearing in accordance with this opinion.
The record of the Juvenile Court proceeding is not before us and we do not know if and in what manner this may have been addressed by that court.
Gann v. Burton, 511 S.W.2d 244, 246-47 (Tenn. 1974).
