Opearting Engineers Local No. 147 Annuity Fund v. Carter et al

Filing 26

REPORT AND RECOMMENDATION: For the reasons stated below, the Magistrate Judge recommends that the motion for default against the Defendants Virginia Neel and Frankie Dalton be granted and that the Court enter an order directing the Operating Engin eers Local 147 Annuity Fund to pay the benefits due from the death of Eric Hazelwood to the sole remaining Defendant, Amber Carter. The Magistrate Judge further recommends that no attorneys fees be awarded to anyone in this case. Signed by Magistrate Judge Joe Brown on 5/29/18. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
OPERATING ENGINEERS LOCAL 147
ANNUITY FUND,
Plaintiff
v.
AMBER CARTER, et al.,
Defendants
TO:

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)
)
)
)
)
)
)
)
)

No. 3:17-1611
Chief Judge Crenshaw/Brown

THE HONORABLE WAVERLY D. CRENSHAW, JR.
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the motion for default against the Defendants
Virginia Neel and Frankie Dalton be granted and that the Court
enter an order directing the Operating Engineers Local 147 Annuity
Fund to pay the benefits due from the death of Eric Hazelwood to
the sole remaining Defendant, Amber Carter. The Magistrate Judge
further recommends that no attorneys’ fees be awarded to anyone in
this case.
BACKGROUND
The complaint (Docket Entry 1) succinctly states the
issues presented in the case and no one has disputed its factual
allegations. The annuitant, Eric Hazelwood (Hazelwood) died in 2017
and did not designate a beneficiary. It was alleged that Hazelwood
had lived with the Defendant Amber Carter (Carter) as though they
were husband and wife for three years prior to his death. Hazelwood
did not have any children. His biological parents were Frankie

Dalton and Virginia Neel. After his birth Hazelwood was adopted by
his maternal grandparents, Cecil and Imogene Boone. Both of these
individuals predeceased Hazelwood.
Carter was appointed as the representative of Hazelwood’s
estate. The annuity fund filed its complaint simply to avoid the
risk of paying the wrong individual. The two other potential
claimants, Virginia Neel and Frankie Dalton, were served (Docket
Entries 8 and 9) on January 13, 2018. Neither of these Defendants
filed any response and the Clerk entered default against both of
them on March 26, 2018 (Docket Entry 16).
Subsequently, Carter filed a motion for entry of default
judgment on April 9, 2018 (Docket Entry 17). In her motion Carter
provided an affidavit stating that she lived with Hazelwood from
approximately December 2014 until his death on August 18, 2017, as
husband and wife at a home they purchased together in Lindside,
West

Virginia.

administration,

She

also

appointing

provided
her

as

Exhibit
the

A,

a

letter

Administratix

CTA

of
of

Hazelwood’s estate, along with a holographic will stating that “If
I die, I want Amber Carter to have everything I have” dated 8-152017. The will was offered for probate and duly admitted to probate
on September 12, 2017.
Out of an abundance of caution the undersigned allowed
any party to file objections to the motion for entry of default
(Docket

Entry

19).

Subsequently,

a

letter

was

received

from

Virginia L. Neel (Neel) who requested that Carter not be paid from

2

the annuity fund, claiming that she was a surviving parent and that
Carter did not live with her son for a period of three years.
She attached to her letter (Docket Entry 23, p. ID 57) a
certificate of birth for Eric Dale Boone. Neither the attached
documents or her letter shed any light on the subsequent adoption
or how Eric Dale Boone, listed in the certificate of birth, became
Eric Hazelwood. Likewise, she provides no real reason why she did
not respond to the complaint or to the motion for default.
The Defendant Carter further points out that Neel is not
at this time the legal parent of Mr. Hazelwood, having been adopted
by Cecil and Imogene Boone.
Under the annuity fund plan set forth at Docket Entry 1,
p. ID 2, the order of succession is (a) a surviving spouse; or if
none (b) his surviving children, in equal shares; or if none (c)
his

surviving

parents,

in

equal

shares;

or

if

none

(d)

his

surviving brothers and sisters in equal shares, or if none (e) his
estate, in that order of priority.
It does not appear that West Virginia recognizes common
law marriages, except where the parties resided while living
together in a state that recognizes such marriages. See Griffis v.
Griffis, 202 W.Va. 203 (S. Ct. App. 1998). However, even if there
was no common law marriage it would appear that Carter has provided
evidence that she is the beneficiary of the decedent’s will.1

1

The posture of this case could certainly have been clearer had
proof of the adoption and the death of the adoptive parents been set
forth in greater detail. One thing that has been established is the will

3

Neel has not provided admissible evidence that she is the
mother of Hazelwood, or if he was adopted, if she has any remaining
rights superior to his adopting parents who appear to be deceased.
Given the fact that default has been entered against Neel
and Dalton, the remaining beneficiary is Carter and she is entitled
to judgment allowing the annuity to pay her the proceeds.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that a default judgment be awarded to Carter, and
accordingly, the annuity directed to pay her the proceeds of the
annuity and that no attorneys’ fees be awarded to any party.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 29th day of May, 2018.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
of the deceased, which leaves everything to Carter.

4