### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 3, 2002

Session ANN S. WING v. ESTATE OF JAMES E. WI NG, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 96D-1174 Marietta Shipley, Judge

No. M2001-01598-COA-R3-CV - Filed April 14, 2003

The Circuit Court of Davidson County ordered the husba nd involve d in a divor

ce to pay $230 per week in sup port payments to the wife a fter the husband retired from the Metropolitan Government

of Nashville and Davidson County. When the husband r etired he elec ted to receive guaranteed pay

ments for 120 months and designated his daughter as the beneficiary

to receive the pay ments if he died within the 120 month period. The court then modified its prior order to provide that the payments wer

e a division of the husband’s pension from the Metropolitan Government of Nashville and Davidson Count y. After the husband’s untimely death, the court ordered the Metropolitan Government and/or the husband’s daughter w ho had been made thebeneficiary of the pension to m ak e the payme nts. Because we find that the court lacked personal jurisdiction over Metro and the daug

hter, we revers e the cou

rt’s orde r and re mand for further procee dings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM B. C AIN , J. and J.S. D ANIEL , S P . J., joined. Markley Runyon Gi ll, E rin, T ennes see for the ap pella nts E state of Ja mes E. Wing and Kathy Parchman. Karl F. Dean, Daniel

W. Champney, Michael B. B ligh and John L. Kennedy , Nashville, Tennessee fo r t he ap pe ll an t, Me tr op ol it an Go ve rn me nt of Na sh vi ll e a nd Da vi ds on Co un ty. Clark Lee Shaw a nd Ri chard E . Norm an, Nas hvil le, Te nness ee, for appel lee, A nn S. Wing. Paul G. Summers , Attorney General and Reporter; Stuart F. Wilson-Patton, Senior Counsel, for the appellee, State of Tennessee.1 M rs. Wing appeal ed th e fi nal judgmen t of the trial co urt, but the app ellate court di smiss ed the appeal when it learned that Mr. Wing had died in June of 1998. We do not think t he appeal and s ubsequent dismis sal ha s any e ffe ct on the issue of Mr. Wing’s pension. -2- OPINION I. Mr. and Mrs. Wing were divorced by the court on Decembe r 23, 1996. The decree was entered on December 26, 1996 and conta ined the following paragraph: It is FURTH ER ORDERED , ADJUDGED AND DECRE

ED that w ife’s pendente lit e support shall continue until such time as Husband actually enters retirement. Once Husband is retired and receiving no other funds from MetropolitanGovernment of Nashville, Wife’s pendente lite support shall be reduced to $230 per wee k. The court also set another hearing at which all the other issues would be resolved. On June 4, 1997 the court entered a memorandum and order dividing the marital property . The Memorandum recited that “The court originally granted the divorce on Dece mber 23, 1996 to Ms. Wing and awarded Ms. Wing a

limony in the amount of $260 per week until Mr. Wing retired. Thereafter the amount would be $230 per week.” 1 On the same day, Mr . Wing retired and elected to receive a definite amount

in 120 month

ly pay ments. He designated

his daug hter, Ka thy Parchma n, as the p erson to

receiv e the pay

ments in the event of his death within the 120 month period. It is not clear what happened next, but on December 16, 1997 t he court ente red an order responding to Mrs. Wing’s request for various actions. The critical par ts of the order for present purposes are (1) the denial of Mrs. Wing’s motion for one-ha lf of the pension, and (2) the following provision with resp ect to tha

t subject: IT IS FURTHER ORDERED, that the Complainant will receive $230.00 per week, or $996.67 per

month, as her shareof Defendant’s Metropolitan Government Pension Pla

n. This amo

unt repr esents a division of property in lieu of an award of ongoing spousal su

pport to Com

plainant

. Mr. Wing died on June 3, 1998 and a suggestion of death wasfiled with the court on Augu st 5, 1998. On Decemb er 14, 19 98, Mrs. Win g filed a motion under Ten

n. R. Civ. P. 60 to alter the j udgment entere d on Dece

mber 26, 1 996. The m

otion stated that bec ause of o versight, omiss ion , excusable neglect, mistake, or inadvertence the order awarded her alimony instead of a part of Mr.2 The mo tion apparently overl ooked the mod ifi cation made in the December 16 , 1997 order. -3- Wing’s pension as her shareof th e m ar it al pr op er ty. 2 Ms. Parchman, as the personal representative of the esta te of JamesWing, mad

e a limi ted appearance t o contest the jurisd

iction of t he court to grant the Rule 60

relief. Mrs. Wing

then move d to add the Metro politan Go vernmen

t of Nashv

ille and Davidson County (Metro) a nd M s. Parchm a n as part y de fendant s. Both Me

tro and Ms

. Parchman objected to the joinder. The court originally denied the joinder

and subst

ituted Mr. Wing’s e state as t

he party in intere st. The proceedings languished while Mrs. Wing a n d M s. Parchman sought an interlocutory appeal, but the ca se got ba ck on tra ck in 2001 when the

court ag ain substit

uted Mr. Wing’s est

ate for Mr. Wing. On May

16, 2001 the court entered a memorandum opinion and order reciting that the court intended to award part of the pension to Mrs. Wing as a division of property

. Therefore, the court ordered Metro to pay $230 per we ek to Mrs. Wing or, in the alternative, to pay the entire amount to Ms. Parchman who, in turn, wou ld pay the $ 230 per week to Mrs. Wing. The court concluded: “If such a judgment requires the joinder of

either Metro Leg al [sic] or Kathy Parchman, the court will reconsider its denial of joinde r o f parties.” The court followed that observation by ordering the joinder in July of 2001. II. Once the trial court finally e ntered an appealable judgment in this case, a ll the parties ran off in dif ferent direc tions. Ms. Pa rchman insists that

Mrs. Wing

waited to o long to r

evive the case agains tMr. Wing’s estate. Metro asserts that the court committed reversible error by o rdering it to pay the pension to someone other than the named beneficiary . Mrs. Wing attacks Tenn. Code Ann. § 26-2-105 as unconstitutional. The Attorney General responds that the constitutionality of the statute c annot be r

aised on a ppeal since it wasnot raise d in the tri al court

. It is not clea

r to us wha

t Mr. Wing ’s estate

has to do w ith th is co nt ro ve rs y. It is tr ue that Mr s. Wing filed a claim with the estate asserting that she was e ntitled to a portion of

the pension and the probate court transferred that claim to the circuit court

for dispo sition. Bu

t since a pension f rom a Tennessee municipa

lity is exempt from execution, Tenn. Code Ann. § 26-2-105, the pensionis not an asset of the estate. Tenn. Code Ann. § 30-2-305. Therefore, the whole revivor issue is much ado about noth ing. As we view t

his case, the issues can be boiled down to two fairly simple inquiries: (1) Is the trial court’s May 16, 2001 or der requiring Ms. Parchman and/or Metro to take spe cific actions void because of the court’s lack of jurisdiction over either of them? and (2) Can the court order Metro to pay part of

the pe nsio n to M rs. W ing?-4- A. Jurisdiction over the person of the defendant must be obtained before the court ha s the power to bind the defendant by

an in personam order. Young v. Kittrell , 833 S.W.2d 505 (Tenn. Ct. App. 1992). Personal jurisdiction is obtained by the service of process or by

the voluntary appe arance of the party in the prog

ress of the cause. Dickson v. Simpson , 113 S.W.2d 1190 (Tenn. 193 8). Both Ms. Parchman and Metro objected to being made pa rties and the court or

i ginally sustained the objection. But without any further processbeing se

rved, the court ordered them to take steps necessa ryto see tha

t Mr s. Wing received p art of the pension. We

think the c ourt’s or

der is voi d because of a lack of jurisdiction over Metro or Ms. Par chman. Whatwas the effect of the court’s subsequ ent joinder of Metro and Ms. Parchman? The general rule is tha

t a void judgment cannot be cured by subsequent proceedings. See 46 Am. Jur. 2d Judgmen ts § 32. “When the trial court does not have jurisdiction over the person of the appellant at the time of the entry of

the . . . judgment, the lack of jurisdiction could not then be cured by proof of service that was introduced after the entry

of the judgment.” Global Truck & Equipment, Inc. v. Plaschinski , 683 S.W.2d 766, 769 ( Tex. App. 1 984); see also Tr oup County

Board v. Public Finance Corp. , 136 S.E.2d 509 (Ga. Ct. Ap p. 1964) . We co nclud e, the refore , that the su bsequ ent pr oceedi ngs had no ef fect on t he invali d judgme

nt. B. The General Assembly

has decreed that a pension from the state or a ny subdivision or municipa lity thereo f shal l be ex empt f

rom ex ecuti on, at tachm ent, o r garni shmen t – ex cept fo r a wage assignment

for support issued under Tenn. Code Ann. § 36-5-501. See Tenn. Code Ann. § 26-2-105. The Nashville Metropolitan Code has a similar provision. See Section 3.08.180 Metropolitan Code of La ws. In its original form Tenn. Code Ann. § 26-2-105 ex empted pe nsion plan s from all

execution s, attachme nts or garnishments. See Coke v. Coke , 560 S.W.2d 6 31 (Tenn . Ct. App. 1977). Therefore, pensions could not b e reached to collect alimony. Id. In 1988 the Genera l Assembly provided that the pension could be reached to provide “support . . . under § 36- 5-501.” That remains the o nly exception, however; therefore, the pension cannot be assigned to a s po us e a s a di vi si on of pr op er ty. So, even with jurisdiction over Metro it would be an error to order Metro to divide the pe nsion. That is not to say that a pension or retire ment benefit is not a p art of the ma ri ta l p ro pe rt y. See Tenn. Code Ann. § 36-4-121. Theref ore, whe re one of the part ies to a divorce has a pension that accrued during the marr

iage, t he court s are ha

rd press ed to make

an equita bledivision of

the prope rty where the other

assets a re limited . But one

way to divide a pension is to order the recipient to pay part of it to the other spouse. See Boyd v. Boyd , No. 02A01-9210-CH-00294, 1993 WL 8379 (Tenn. Ct. App. Jan. 20, 1993). That is ap parentl y what the trial court intended to do in this case, but as we have noted, the order c annot bind Ms. Parch

man beca use she w as not a pa

rty to it. On remand, after-5-

Ms. Parchman is served or enters an appea rance, she is entitled to be he ar d on the question of wheth er the c ourt c an legal ly order h er to m ake th e payment s to M s. Wi ng. III. Fi na ll y, we agr ee with the Attorney Ge neral that we cannot reach the c onstitutionality of Tenn. Code Ann. § 26-2-105 since it was not raised in the court below and the Attorney General was notnotified in accor

dance w ith Tenn. R

. Civ. P. 24.04. See Lawrence v. Stanfor d , 655 S.W.2d 927 (Tenn. 1983). The court’sorder a

ttempting to bind Ms. Pa

rchman a nd Metro i s rever sed and Me tro is hereby dismissed a s a party . The c ause is remanded to the Circuit Court of Davidson County for furth er proc eedin gs. Tax the co sts o n appe al to M rs. W ing.

_________________________________________ BEN H. CA

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