### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 29, 2001 Session
DENISE B. FRA ZIER v. ROBERT G. FRAZIER
Direct Appeal from the Chancery Court for Knox County No. 136528-3 Hon. Sharon Bell, Chancellor

FILED OCTOBER 15, 2001

No. E2000-02929-COA-R3-CV

Appellant asked the Court

to void portions of the marital settlement agreement incorporated in the parties’ Divorce Decree in the State of Illinois. The Trial Court re fu sed and granted appellee summary ju dgment. W

e affir m.

Tenn. R. App.P.3 Appeal as of Right ; Judgment

of the Cha

ncery Court Affi rmed.

H ERSCHEL P ICKENS F RANKS , J., deliv ered the opinion of

the cour t, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.

J udy Pinkst on McCar

thy and De

nnis McCar

thy, Knoxv

ille, Ten nessee, for Appe

llant, De nise B. Frazier.

Wanda G. Sobiesk

i, Diane M . Messer

and Nane

tte J. Landen, Knoxville, Tennessee, for Appellee, Robert G. Frazier.

OPINION

This action is essentially a collateral attack on a divorce decreeand marital settlement agreem ent, seeking to vo id certa in provisio ns in the ma

rital set tlement a greeme nt incorp orated i n the divorce decree.

The parties were divorced in Illinois in June of 1995. The m arital sett lement agre ement was a

pproved by the Court, and provided for a division of marital property, spousal support and maintenance, child support and visitation for two minor children. Nochoice o f law-2-

provision or sever ability cl ause wa s contain ed in the d ocument.
When the settlement was negotiated, the parties were aware that the husband had the opportuni ty for stock option plans offered by his employer. In the final decree, one provisions stated that for purp oses of c alculati ng husban d’s mainte nance p ayments to

wife, his stock

options wo uld be included

in deter mining his gr

oss income . Howeve

r, the pr ovision fo

r child su p port paym

ents required that the h usband wo

uld pay $1 ,164.00 pe

r month, ba sed upon h

is income of

$8,750.00 per month, plus 25 % of h is other net income. The agreement stated: “For calc ulating this additional 25%, net income shall not include inve stment income from his Schwab One account or the like, reimbursedbusiness e

xpenses, use of a c ompany au tomobile, s ale of options including options for stock in Greg’s past, future, or present employer, and inter est on bank accounts.” The provision further stated that i n the event 25% of the husband’s net income excee ds $50,000.00 per year, he shall only be required to pay $4,166.00 per month, for a maximum of $50,000.00 per calendar year

.

Final judgment was entered reciting that “said agreement was entered into freely and voluntar ily between the parties hereto, it is not unconscionable and it rec eives the a ppr oval of the Court and is incorporated and made a part here of.”

Later, both parties relocated to Tennessee and the Illinois j udgment was domesticated in Knox County, Tennessee, on December 11, 1998 at the instance of the wife.

This action wa s instit

uted in September 1999, chal lenging that portion of the marriage settlement

agreem ent pert aining to th

e defini tion of hus band’s ne t income f or purpos es o f calcula

tin g child support pa

yment. Spe cifically, her c ause of a ctio n asks th e Court to find that excluding husband’s stock options from the calculation for child support payments an d cappin g the total payment at a maximum of $50,000.00 per year, is void.

The husband moved for summary judgment, asserting the wife’s claim was barred by re s judicata

and that she was judicially estopped from challenging the terms of the judgmen t which she previously relied on in both Ill inois and Tennessee courts. Summary judgment was granted and this appeal ensued.

Judgments obtained

in sist er s tates ar

e valid a nd enfor ceable when pro

perly domesticated in the courts of this State. The domesticated judgment has the same legal effect as one originating in Tenness ee, and is governed by the same law regarding finality of judgments, subject to collateral attack for grounds set forth in Tenn. R. Civ. P., Rule 60.02, assuming the original j udgment is vali d. See Tenn. Code Ann. §26-6-104(c). The final judgments of sister states ar e presumedconclusive and va lid . A party seeking to undermine the validity of a foreign judgment carries “a ster

n and hea vy burde n” to show

that it shou

ld be deni ed the fu ll faith and credit afforded by Article

4, Section

1 of the U

nited State s Constitutio n. Two li mit ed exce ptions to the

full fait h and credit princ iple are where it can be shown that the re ndering court lacked personal or subject matter jurisdiction. Biogen Distrib., Inc., v. Tanner , 842 S.W.2d 253, 256 (Tenn. Ct. App. 1992). However, factual inquiries into other underlying legal issues adjudicated by a fore ign c ourt are-3-

improper. Benham v. Fisher , 650 S.W.2d 759, 760 (Tenn. Ct. App. 1983). Also see, Williams v. North Carolina , 325 U.S. 2 26, 232 (1 945) (div orce de crees o f foreig n st ate are conclusive adjudication of all issues except jurisdictional facts, such as domicile).

To mount a suc cessful

c ol lateral

attack u pon the fi nal decr

ee of div orce en

tered in Illinois, it must be shown that Illinois lacked jurisdiction, as determined by Illinois law. Four Seasons Gardening & Landscaping, Inc., v. Crouch , 688 S.W.2d 439, 432 (Tenn. App. 1984). Conversely, if Illinois determined that it had jurisdiction over the issue, then Tennessee must respect that finding. Id.

“Res judicata is an absolute bar to a subsequent suit between the same parties on the
samecause of

action, and it concludes such parties not only as to all matters that were actually put at issue and dete

rmined, b ut also all

matters which might have been put at issue and determined.” Coastcom, Inc., v. Cruzen , 981 S.W.2d 179, 181 (Tenn. Ct. App. 1998).

Full faith and credit principles mandate that res judicata be applie d in the fo

rum state to the full extent that they applied in the rendering state, including question s of subject matter jurisdiction. Durfee v. Duke , 375 U.S. 106, 111 (1963). The wife’s position that she did not

actually litigate th e jurisdictional issu e in the Illinois divo rce is un tenable . Illinois has cited with approval the Restatem

ent (Sec ond) of Ju dgments §12, at 120, that even if subject matter jurisdiction has not be en raised and determined, a final judgment should “ordinarily be trea ted as wholly valid if the controve rsy has been litigated in any other respect , pursuant to the doctrine of claim preclusion.” See, In Re: Marriage of Fields , 681 N.E.2d 166, 172 (Ill. Ct. App. 1997).

Under Illinois law, the Illinois courts have determined that jurisdictional questions needbe addressed by a p articula r type or class of cases, n ot neces sarily by a specif ic litigan t. “Jurisdiction of the sub

ject matt er does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdict ion of the class of cases to which the

particu lar cas e belongs.” People v. Western Tire Auto Stores, Inc. , 207 N.E.2d 474, 476 (Ill. 1965). The Court applied this rule in a

div orce ca se wher

ein the tr ial cour t did not ad

here to a statutory mandate requiring bifurcation of contested cases. Respondent argued tha t this error deprive d the court of subject matter jurisdiction, but the Court of Appeals disagreed:

Where the subject matter of the litigation is within the general jurisdiction of the trial court, the claim

of want of jurisdiction by reason of the existence of irregularities, or exceptional o r specia

l circums tances, or beca

use the c ourt had n o jurisdic tion to render the particular judgment or order cannot bemade for the first time on ap

peal.

In Re: Marriage of Jerome , 625 N.E.2d 1195, 1206 (Ill. Ct. App. 1995). Accord: In Re: Marriage of Fields , 681 N.E.2d 166 (Ill. Ct. App. 1997).

The Illinois Supreme Court discussed the legal disti nction between a void versus voidable judgment in In re: Marriage of Mitche ll , 692 N.E.2d 281 (1998). In Mitchell , a litigant1 We are of the opinion that the marriage settlement agreement approve d by the Illinois Court under Illinois was valid as between the parties. See Slagel v. Wesse ls , 732 N.E.2d 720 (Ill. Ct. App. 2000); In re: Marriage of Freesen , 655 N.E.2d 1144 (Ill. Ct. App. 1995); Illinois De pt. of Publi c Aid
v. Flight , 675 N.E. 2d 985 (Ill. Ct. App. 1 997); Gay v. Dunlap , 664 N.E.2d 88 (Ill. Ct

. App. 1995); In re: Marriage of

Pihaly , 627 N.E. 2d 1297 (I ll. Ct. App. 1994); In re: Marriage of Stegbauer , 404 N.E.2d 1140 (Ill . Ct. App. 1980 ); In re: Marriage of McBride , 519 N.E.2d 1095 (Ill. Ct. App. 1988); and In re: Marriage of Miller , 595 N.E.2d 1349, 1351 (Ill. Ct. App. 1992).

-4- challenged

a child support order, contending that the lower court lost its jurisdiction because its order expressed the child support award in terms of a percentag e of income, rather than an exact dollar amount as requi red by the applica ble statute. T

he Supre me Court a

greed th at this was error by the trial court, but held that “[o]nce a court has acquired jurisdiction, an order will not be rende red void merely because of an error or improprie ty in the issuing court’s determination of t he law.” Id. at 284. The Mitchell

court ac knowledg ed that a

judgment ma

y be atta cked co llatera

lly as void

if there is a t otal lac k of jurisdiction, but since subject matter jurisdiction existed as to the dissolution procee dings, t he ch ild support determination, although erroneous, was merely voidable, not void. Id. at 283-284. To hold otherwise, the Court reasoned, would open a floodgate of litigation on final decree s.
Te nnessee la w is in accord with Mitchell

. Res judic ata will protect the sanctity of
a final judgment, whether “the Decree wa s based upon good law or upon bad law. If no appeal wa s taken theref

rom, it may not now

be attac ked bec ause of s ome defe ct in the p roceed ings. Tha t is what the doctrine of res judic

ata is all about.” Kolker v. Gelb , 600 S.W.2d 728, 730 (Tenn . Ct. App. 1980). Accord: Spruce v. Spruce, 2 S.W.3d 192 (Tenn. Ct. App. 1998).

Assuming arguendo , 1 that in the present case the Court erred by failing to make the written findings f

or its dev iation fr

om the sta tutory child su pport guidelines, by permitting husband’s stock options to be exclu ded from his income calculation, or by capping the total amount at $50,000.00, these defects cannot be considered a s revoking the Court’s jurisdiction. This is a mere failur e of proc edural fidelity, at most an erroneous ruling. The wife’s position is contrary to the strong policy favoring the finality of judgments, even those made in error, once the time for direct appeal is passed.

For the foregoing reasons, we affirm the judgm ent of the Trial Court and remand, with the cost of the appeal assessed to Denise B. Frazier.

_________________________ H ERSCHEL P ICKENS F RANKS , J.-5-