### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 16, 2001 SHARON KAYE OUTTEN v. RUSS ELL CAMPBELL Appeal from the Chancery Court for Sumner County No. 99D-416 Tom E. Gray, Chancellor

No. M2001-00490-COA-R3-CV - Filed May 23, 2002
A Tennessee woman filed a petition in a Tennessee c ourt to establish paternity, naming a Georg ia resident who had minimal contacts with the State of Tennessee. The defenda nt failed to respond, and the court granted the petitioner a def ault judgment, ordering the defenda nt to pay retroa

ctive child support of over $63,000. The defendant’s employ er subsequently be gan withholding money from his pa yc heck purs uant to a w age

assig nmen t. We find that the judgment was void ab initio because the court lacked

personal jurisdiction over the defendant. We also find that the defendant’s subsequent

appear ance in t he Tenne ssee cou

rt f or the pu rpose of objecting to jurisdiction and obtaining a refun d of th e mone y he lost t hrough wage a ssignme nt cannot revive t he void judgmen t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the cour t, in which W IL LI AM C. K OCH , J R
. and W IL LI AM B. C AIN , JJ., joined.
L. G. Burnet

t, Jr., Nash

ville, Te nnessee , for the

appella nt, Russell

Campbell. Paul G. Summers, Attorney Gene ral & Reporter; Stuart

F. Wilson-Patton, Senior Counsel, for the appellee, State of Tennessee, ex rel., Sharon Kay e Outten. OPINION I. J ASON K EIT H R EDDING Jason Keith Redding was born in Savannah, Georgia, on Aug ust 7, 1981. His mother was Sharon Kay Outten, the

petitioner in this case. The space in Jason’s birth certificate for a father’s name was left blank, but

Ms. Outten and Russell Campbell, who was named as the respondent, lived toge therin Georg

ia for a short per iod of time

prior to Jas on’s birth . When Jason w as about s ix weeks ol d, Ms. Outte

n came to Tenness ee to visit

relative s, and did not return to Mr. Camp

bell.-2-

Exceptfor a br

ief visit w hen Jason a

nd his mothe

r came to Georgia in 1983, Mr. Campbe ll didnot hear

from or se

e Jason ag ain until

199 3. In that y

ear, Sha ron Outte n called Russell Cam

pbell in Atlanta, and asked if he wanted to see Jason during Christmas. Mr. Campbell came to Tennessee and stayed with his father . He w as ab le to see the now twelve-y ear-old Jason, and to spend the holidays with him.
In 1994, Ms. Outten filed a p etition in Williamson Cou nty , Tennes see ag ainst Mr. R ussell, under the Uniform Reciprocal Enforcement of Support Act (URE SA). Upon

discover ing that Ms. Outten had moved to Alaska, the trial court dismissed the petition without prejudice.
In 1995, Sharon Outten and Jason were living in Fairbanks, Alaska. Ms. Outten called Mr. Campbell, and said she wanted Jason to stay with him. She put the young ma

n on a plane, and he flew from Alaska to Atlanta, Georgia. Jas on stayed wi th Russell Ca mpbell in A

tlanta fo r six months, until Ms. Outten had a change of heart, and ca lled Mr. Campbell to say she wante d Jason back with her. Airline tickets were mailed to Atlanta, and Jason returne d to Alaska.
Mr. Campbell h ad no further contact with Jason or Ms. Outten again until he was notified that Jason had been killed in a car wreck on April 10, 1999. Mr. Campbell came to Tennessee for the funeral and spent two day s in the state.
II. A P ATERNI TY S UIT On August 2 6, 1999, Sha ron Kay e Outten f

iled a Pet ition to Esta

blis h Pa ternity in the Chancery Court of Sumner County. She

claimed that Russell Campbell was Jason’s natural father, stated tha t she had b een app ointed the administr

ator of Jas on’s esta

te, and r ecited th at, “this petit ion i s bein g fi led so that the Petitioner can ascertain the amount of inher itance, if any , the Resp ondent wi ll be entit led to re ceive f

or (sic) the esta

te o f Jason Keith Redding, and theamount of child support the Respondent was obligated to pay during

the life of Jason Keith Redding.” The Secretary

of State served Mr. Campbell with a summons by ma il and a copy of t

h e petition pursuant

to the L ong-Ar

m Statutes, Tenn. Cod

e. Ann. § 2 0-2-201, et seq. Mr . Campbell did notrespond, so Ms. Outten filed a Mot ion for D efault. The court conducted a hear ing on the petition, and entered an order on January

26, 2000, w

hich stated that Russe

ll Campbell was Jason’s natural father, and that he was therefore obligated to pay

child support of $363 per month for 210 months, or $76,23 0 total. Th e court f urther f ound that M

r. Campbe

ll was ent itled to a c

redit in the amount of $12,50 0, repre senting half of th

e proce eds rec eived in Ja son’s wro ngful death case, thereby reducin g his obli gation t o $63,730. Since Mr. Campbell did not appear at the hearing, the court’s order w as based

solely upon the record of the case and upon the arguments and briefs of the petitioner.-3-

In March of 2000, Mr. Campbell received a Notice of Income Assignme

nt, and a portion of his regular pay

check began to be

wit hheld and

forwar ded to the Sumner Cou

nty Chancer y Court. There is nothing in the record to indicate that the order of the Tennessee court was domesticated by a Georg ia court , so it is unc lear how the wag e ass ignment came abou t. In any case, it got Mr. Campbell’ s attentio n, and he hired a Tennesse e attorney to protect his inter

ests. On May 24, 2 000, Mr. Campbell’s attorney f iled a Motion to Set Aside or Dismiss the Default Judgment under Rules 55.02 and 60.02 Tenn. R. Civ. P. The motion recit ed some of the facts we have discussed above, stated that Mr. Campbell never lived in Tennessee and never had any contact s with the pe

titioner i n this state , and dec lared th at the re spondent d id not have the minimum contact s with this state that are required to confer jurisdiction on its courts. See International Shoe v. Washington , 326 U.S. 310 (1945). The respondent asked that the default judgment be set aside, the paternity action dismissed, the wage assignment release d, and that a judgment be rendered for the support withheld from his wages.
At this point, Ms. Outten’s attorney of r ecord withdrew from the case, and the State became involved through

its Title IV-D child support enforcement rights. The Sumner County District Attorney filed a r esponse in oppositio n to Mr . Campbell’s motion, which argued that since Mr. Campbell was s erved with pro cess and did nothing , the cour

t had the r

ight to e nter a de fault judgment agains t him. The r

esponse a lso noted t

hat Mr. Ca

m pbell had never denied paternity of Jason. The trial court ordered the parties to file Memoranda of Law in support of their respective positions. Mr. Campbell’s memorandum discussed in s ome deta il the requirements for personal jurisdiction as set out

by t he United States Supr

eme Court

and the c ourts of th

is state. T he State d id notaddress the question of jurisdiction, but focused on the limited availability of re lief when parties are acting pursuant to Rule 60.02. The court co nsidere d both par ties’ filin gs and positions, and entered a Memorandum and Order on January 19, 200 1. Th e court a pparent ly r ecogn ized that pe

rsonal ju risdictio n was a problemin this case, but stated that ob je ct io ns to la ck of

pe rs on al ju ri sd ic ti on ma y be wa iv ed by a par ty’s c onsent, or by failure to object in a timely way . The court concluded that by failing to act until long after

the default judgment had become final, Mr. Campbell had wa ived any jurisdictional objectio ns to the court’s order, and that he had failed to show good cause f or the court to set aside the default judgment. This appeal followed.
III. P ERSONAL J URIS DICTI ON The Stat e admits that when Ms. Outten filed her petition, the trial court lacked per sona l jurisdiction over Mr. Campbell because his contacts with this state were so tenuous that they did not meet the test f irst announced in the seminal case of International Shoe v. Washington, 326 U.S. 310 (1945). We therefore ne ed not disc uss that c ase in an

y de tail, exce pt to rec ite its core holding, which is central to questions of personal jurisdiction: a state’s courts can asser t personal jurisdiction over-4-

a non-res ident def

endant on ly if the defendant has had

such minimum contacts with the state “such that maintenance of

the suit does not offend traditional notions of fair play and substantial justice.” 32 6 U.S. at 316. See also Isaacson v. Fenton , No. 03A0l-9804-JV-00119 (Tenn. Ct. App. at Knoxville, filed July 30, 1998).
It is well established, however, that personal jurisdiction (unlike subject matter jurisdiction) can be confe

rred by express or implied consent. Davis v. Mitchell , 178 S.W.2d 889 (1944). In other words, a defendant can

voluntar ily c hoose to waive a

court’s lack of p ersonal

jurisdict ion over h im. In this case , the tria

l court ru led that b y f

ailing to respond t o Ms. Outten’s petition in a t im el y wa y, Mr. Campbell implicitly waived his objec ti ons to lack of pers onal juris diction. M r. Campbe

ll challen ged the

trial cou rt’s ruli ng on ap

peal, and the State

conced es the point. The State admits that when a court enterta ins a plea ding ag ainst

a defendant who does not have sufficie

nt minimal c ontacts with the state in which that court sits, the defendant is not required to respond. He may e

ither enter

a limited (or “special”) appearanc e for the purpose of challenging personal jurisdiction, or he may ignore the proceedings, risk a default judgment, and

then c halle nge that judgment on jurisdictional grounds in a collateral proceeding. Although thi s may be a r isky course, it is more or less what Mr. Campbell has done. Sinc e the State admits that the trial court’s order of January 26, 2000 is voi d for lack o f personal jurisdiction, it bases its entire argument on appeal on Mr. Campbell’s motion of May 24, 2000. The appellee notes that the motion contained a plea for positive re lief, i.e. for return of t

h e money withheld from his paycheck. The appellee contends that by inc l uding such a plea, Mr. Campbell was voluntarily submitting himself to the jurisdiction of the Tenne ssee court, and waiving any jurisdictional defects in the State’s case.
We do not see it that way. U nder former rules of pleading, the distinction between a defendant’s general appeara nce in court for the purpose of defending acase on the merits, and a socalledspecial appearance, in which a defendant appears for

the sole purpose of contesting the court’s jurisdiction over him, created a trap for the unwary. Unde

r those rules, the inclusion of any claim, defense, or plea for relief that was dee med to go t o the merits of a case could turn a special appearance

into a general appeara

nce, and thus a voluntary

waiver of the defendant’s jurisdictional argume nt. Our Supreme Court

adopted a new approach, in keeping with the modern trend against such hyper-technical rules in the case of Landers v. Jones , 872 S.W.2d 674 (Tenn. 1994), which stated that the c ourts “.

. . should only find a g eneral

appear ance tha t waives a defenda nt's rig ht to contest personal jurisdiction when the defendant has recognized the proper pendency of the cause by ma

king a motion that goes to the merits or by filing an answer , withoutchallenging personal jurisdiction. To the extent that prior judicial decisions can be read as requiring

otherwise, they a

re overruled.”-5-

872 S.W.2d at 677 Perhaps more impor

tantly , any

judgmen t a court render s again st

a defendant

over whom the co urt does not have personal jurisdiction is not merely voidable, but void. Topham v. L.L.B

. C orporation , 493 S.W.2d 46 1 (Tenn. 1973); Hamm v. Hamm , 204 S.W.2d 113 (Tenn. Ct. App

. 1947). A void judgment

cannot be revived, even when the passag e of time has rendered it final in accordance with the Rules of Civil Procedure. Further, a void judg

ment is, by

definition, one that has no legal force or ef fect (Black’s Law Di ct io na ry, 4 th Ed., 1957) . In th is case, however , an admit tedly void judg ment did ha

ve an ef fect in the real world when it resulted in money being withheld from Mr. Campbell’s pay check. When the defendant asked the court to undo the results o f its illegal judgment, it does not comport with our “traditional notions of

fair pl ay or substa ntial justic e” to dee

m this requ est to be a

waiver o f his objections to the judgment’s illegality

. Final ly, we must state that our ruling does not prevent the appellee f rom pursuing the question of paternity a

nd support through other channels, such as the Uniform I nterstat e Family Su pport Act, Ten n. Code. A

nn. § 36-5 -2201, e

t seq., wh ich was e nacted t o deal wit h question s o f support be

tween pa rties in di ffere

nt states. IV. The judgmen

t of the tr ial cour t is rever sed. Re mand this c ause to the Chancery Court of Sumner County for further

proceedings consistent with this opinion. Tax the costs on appeal to the State of Tennessee.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.