Drafting Error Leads to Reversal of Damage Award in Lewisburg, TN Divorce: Kanka v. Kanka

Facts: Wife filed for divorce after 24 years of marriage. Her divorce complaint included a spousal tort claim for damages related to domestic abuse, specifically assault, battery, and intentional infliction of emotional distress.

In a separate action brought by the Tennessee Department of Children’s Services, their 16-year-old daughter was dependent and neglected because of Husband’s domestic abuse. Husband was prohibited from having any contact with his daughter and was ordered to complete a series of steps before seeking to resume contact with her.

Tennessee parental alienationWife testified to examples of Husband’s violent behavior, including breaking dishes, shoving, shouting insults, and shaking his fist in her face. Once, Husband “head butted” their daughter, and when Wife intervened, Husband punched her hard enough to break a rib.

A psychological examiner diagnosed both Wife and their daughter with chronic adjustment disorder with depression and anxiety.

On the tort claim, the trial court found that Husband committed assault, battery, and intentional infliction of emotional distress. As compensatory damages, the trial court ordered Husband to reimburse Wife for the cost of counseling and awarded Wife $10,000 for her pain and suffering and another $10,000 for their daughter’s pain and suffering.

Husband appealed.

On AppealThe Court of Appeals affirmed in part and reversed in part.

Generally, when a child suffers personal injuries, two causes of action arise. While the child’s parent may recover for loss of the child’s services and medical expenses, any action to recover for pain and suffering belongs to the child. Because minors cannot sue in their own name, parents must sue on their behalf as provided by Tennessee’s procedural rules.

Pain and suffering awards compensate the plaintiff for the physical and mental discomfort caused by an injury and include the plaintiff’s mental and emotional responses to the pain, such as anguish, distress, fear, humiliation, grief, shame, or worry.

The Court of Appeals reversed the award of damages to the daughter because Wife violated the procedural rules:

We find no indication in this record [] that Wife brought suit both in her own name and on behalf of her daughter. The tort allegations in the complaint are limited to Wife’s claims for personal injuries. Under these circumstances, the court erred in awarding Wife an additional $10,000 for dollars pain and suffering.

While the remainder of the trial court’s award was affirmed, the $10,000 awarded to their daughter was reversed.

Kanka v. Kanka (Tennessee Court of Appeals, Middle Section, January 25, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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