IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 3, 2002 Session

ANN S. WING v. ESTATE OF JAMES E. WING, 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 husband involved in a divorce to pay $230

per week in support payments to the wife after the husband retired from the Metropolitan

Government of Nashville and Davidson County. When the husband retired he elected to receive

guaranteed payments for 120 months and designated his daughter as the beneficiary to receive the

payments if he died within the 120 month period. The court then modified its prior order to provide

that the payments were a division of the husband’s pension from the Metropolitan Government of

Nashville and Davidson County. After the husband’s untimely death, the court ordered the

Metropolitan Government and/or the husband’s daughter who had been made the beneficiary of the

pension to make the payments. Because we find that the court lacked personal jurisdiction over

Metro and the daughter, we reverse the court’s order and remand for further proceedings.

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

Reversed and Remanded

BEN H.CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B.CAIN,J. and

J.S. DANIEL, SP. J., joined.

Markley Runyon Gill, Erin, Tennessee for the appellants Estate of James E. Wing and Kathy

Parchman.

Karl F. Dean, Daniel W. Champney, Michael B. Bligh and John L. Kennedy, Nashville, Tennessee

for the appellant, Metropolitan Government of Nashville and Davidson County.

Clark Lee Shaw and Richard E. Norman, Nashville, Tennessee, for appellee, Ann S. Wing.

Paul G. Summers, Attorney General and Reporter; Stuart F. Wilson-Patton, Senior Counsel, for the

appellee, State of Tennessee.
1Mrs. Wing appealed the final judgment of the trial court, but the appellate court dismissed the appeal when

it learned that Mr. Wing had died in June of 1998. We do not think the appeal and subsequent dismissal has any effect

on the issue of Mr. Wing’s pension.

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OPINION

I.

Mr. and Mrs. Wing were divorced by the court on December 23, 1996. The decree was

entered on December 26, 1996 and contained the following paragraph:

ItisFURTHER ORDERED, ADJUDGED AND DECREED that wife’s pendentelite

support shall continue until such time as Husband actually enters retirement. Once

Husband is retired and receiving no other funds from Metropolitan Government of

Nashville, Wife’s pendente lite support shall be reduced to $230 per week.

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 December 23, 1996 to Ms. Wing and

awarded Ms. Wing alimony 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 monthly

payments. He designated his daughter, Kathy Parchman, as the person to receive the payments in

the event of his death within the 120 month period.

It is not clear what happened next, but on December 16, 1997 the court entered an order

responding to Mrs. Wing’s request for various actions. The critical parts of the order for present

purposes are (1) the denial of Mrs. Wing’s motion for one-half of the pension, and (2) the following

provision with respect to that subject:

IT IS FURTHER ORDERED, that the Complainant will receive $230.00 per

week, or $996.67 per month, as her share of Defendant’s Metropolitan Government

Pension Plan. This amount represents a division of property in lieu of an award of

ongoing spousal support to Complainant.

Mr. Wing died on June 3, 1998 and a suggestion of death was filed with the court on August

5, 1998.

On December 14, 1998, Mrs. Wing filed a motion under Tenn. R. Civ. P. 60 to alter the

judgment entered on December 26, 1996. The motion stated that because of oversight, omission,

excusable neglect, mistake, or inadvertence the order awarded her alimony instead of a part of Mr.
2

The motion apparently overlooked the modification made in the December 16, 1997 order.

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Wing’s pension as her share of the marital property.2

 Ms. Parchman, as the personal representative

of the estate of James Wing, made a limited appearance to contest the jurisdiction of the court to

grant the Rule 60 relief. Mrs. Wing then moved to add the Metropolitan Government of Nashville

and Davidson County (Metro) and Ms. Parchman as party defendants. Both Metro and Ms.

Parchman objected to the joinder. The court originally denied the joinder and substituted Mr.

Wing’s estate as the party in interest.

The proceedings languished while Mrs. Wing and Ms. Parchman sought an interlocutory

appeal, but the case got back on track in 2001 when the court again substituted Mr. Wing’s estate

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 week to Mrs. Wing or, in the alternative, to pay the entire

amount to Ms. Parchman who, in turn, would pay the $230 per week to Mrs. Wing. The court

concluded: “If such a judgment requires the joinder of either Metro Legal [sic] or Kathy Parchman,

the court will reconsider its denial of joinder of parties.” The court followed that observation by

ordering the joinder in July of 2001.

II.

Once the trial court finally entered an appealable judgment in this case, all the parties ran off

in different directions. Ms. Parchman insists that Mrs. Wing waited too long to revive the case

against Mr. Wing’s estate. Metro asserts that the court committed reversible error by ordering 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 cannot be raised on appeal since it was not raised in the trial court.

It is not clear to us what Mr. Wing’s estate has to do with this controversy. It is true that Mrs.

Wing filed a claim with the estate asserting that she was entitled to a portion of the pension and the

probate court transferred that claim to the circuit court for disposition. But since a pension from a

Tennessee municipality is exempt from execution, Tenn. Code Ann. § 26-2-105, the pension is not

an asset of the estate. Tenn. Code Ann. § 30-2-305. Therefore, the whole revivor issue is much ado

about nothing.

As we view this case, the issues can be boiled down to two fairly simple inquiries: (1) Is the

trial court’s May 16, 2001 order requiring Ms. Parchman and/or Metro to take specific 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 pension to Mrs. Wing?
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A.

Jurisdiction over the person of the defendant must be obtained before the court has 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 appearance of

the party in the progress of the cause. Dickson v. Simpson, 113 S.W.2d 1190 (Tenn. 1938). Both

Ms. Parchman and Metro objected to being made parties and the court originally sustained the

objection. But without any further process being served, the court ordered them to take steps

necessary to see that Mrs. Wing received part of the pension. We think the court’s order is void

because of a lack of jurisdiction over Metro or Ms. Parchman. 

What was the effect of the court’s subsequent joinder of Metro and Ms. Parchman? The

general rule is that a void judgment cannot be cured by subsequent proceedings. See 46 Am. Jur.

2d Judgments § 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. 1984); see also Troup County Board v. Public Finance

Corp., 136 S.E.2d 509 (Ga. Ct. App. 1964). We conclude, therefore, that the subsequent proceedings

had no effect on the invalid judgment.

B.

The General Assembly has decreed that a pension from the state or any subdivision or

municipality thereof shall be exempt from execution, attachment, or garnishment – except for 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 Laws.

In its original form Tenn. Code Ann. § 26-2-105 exempted pension plans from all executions,

attachments or garnishments. See Coke v. Coke, 560 S.W.2d 631 (Tenn. Ct. App. 1977). Therefore,

pensions could not be reached to collect alimony. Id. In 1988 the General Assembly provided that

the pension could be reached to provide “support . . . under § 36-5-501.” That remains the only

exception, however; therefore, the pension cannot be assigned to a spouse as a division of property.

So, even with jurisdiction over Metro it would be an error to order Metro to divide the pension.

That is not to say that a pension or retirement benefit is not a part of the marital property.

See Tenn. Code Ann. § 36-4-121. Therefore, where one of the parties to a divorce has a pension that

accrued during the marriage, the courts are hard pressed to make an equitable division of the property

where the other assets are 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 apparently what the trial court intended to do in this case, but as we

have noted, the order cannot bind Ms. Parchman because she was not a party to it. On remand, after
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Ms. Parchman is served or enters an appearance, she is entitled to be heard on the question of

whether the court can legally order her to make the payments to Ms. Wing.

III.

Finally, we agree with the Attorney General that we cannot reach the constitutionality of

Tenn. Code Ann. § 26-2-105 since it was not raised in the court below and the Attorney General was

not notified in accordance with Tenn. R. Civ. P. 24.04. See Lawrence v. Stanford, 655 S.W.2d 927

(Tenn. 1983).

The court’s order attempting to bind Ms. Parchman and Metro is reversed and Metro is

hereby dismissed as a party. The cause is remanded to the Circuit Court of Davidson County for

further proceedings. Tax the costs on appeal to Mrs. Wing.

_________________________________________ 

BEN H. CANTRELL, PRESIDING JUDGE, M.S.