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

Briefs J anuary

29, 2002 JAMES STANLEY

FERGUSON v. KE LLY LEE (CILLEY) FERGUSON Appeal from the Chancery Court for Wayne County No. 10756 Stella Hargrove, Chancellor

No. M2001-01836-COA-R3-CV - Filed Nove mber 1, 2002
Appellan t, an inmate of the Tennessee Department of Corr ection currently

confined at South Central Correctional Center in Clifton, Wayne County, Tennessee, a

ppeals the dismissal by the trial court of his divorc e compla

int. His wif

e is a re sident of

Bristol, Virgini a, and the parties s eparat

ed in Cheatham

County, Tennessee in 1987. The t rial cour t dism issed the c ase f

or la ck of venu e. We affirm with a s ugge stion that t he case be trans ferre d to a cour t having divorce jurisdict ion in Cheatham

County, Tennessee, or

such a court in the county whe

re Appellant resided at the time he was firs t incarc erated

in the Dep artment o f Corrections. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILLIA M B. C AIN , J. , delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., and P ATRIC IA J. C OTT RELL , J., joined.
James Stanley Ferg

uson, Clifton, Tennessee, Pro Se. Kelly L ee (Cilley) F

erguson, Bristol, Virginia, Pro Se.

OPINION Appellan t, James Stanley Ferg

uson, an inmate a t South Central CorrectionalCenter in Wayne Co un ty, Tennessee, filed, pro se, a Complaint for Div orce against Appellee, his wife, Ke lly L ee (Cilley) Fer

guson, in the Chancery

Court for Wayne County , Tennessee on October 25, 2000. He alleged therein that his wife was a resident of Bristol, Virginia and that he was a resident of Way

ne Co un ty, Tenness ee. He f urther a lleged that the p arties were m arried June 2, 1984 in Cheatham Co un ty, Tennessee and that two minor children were born to this union. He alleged that the parties separated in April of

1987 in Cheatham County, Tennessee and relies on irreconcilable differe nces as ground s for this d

ivorce. His wife, also acting pro se, waived service of process and e xecuted a notarized Marital Dissolution Agreement which was filed simultaneously with the complaint. The-2-

trial court, sua sponte , dismissed the complaint for lack of venue under Tennessee Code Annotated section 36-4-105. Appellant challenges the trial court’s dismissal, arguing on appeal that Wayne

County is his “reside nce” asthe term i s used in Te nnessee Code Anno tated se ction 36- 4-105 as f ollows: (a) The bill or petition m aybe filed in the pro

per name of the co mplainan

t, in the chance ryor circuit court or other court having divorc e jurisdiction, in the county where the parties reside at the time of their sepa r at ion, or in which the defendant resides, if a resident of the state; but if the defendant is a nonresident of the state or a convict, then in the county where the applicant resides. Tenn. Code Ann. § 36-4-105(a) (2001). Appellee is a

non-res ident of th

e State of Tennessee. The above statute plainly construed, provides three options. According to subsection (a) Mr. Ferguson’s fi rst option w ould be to f

ile “in the county where

the parties reside at the time of their separation, . . .” This would unqu estionab ly be Cheatha

m County where the parties resided at the time of their separation in 1987. The sec ond alternative would be t

o file in th

e county “in which

the defe ndant re sides, if

a resident of

the state;

. . .” Since the appellee is a non-resident, the third alterna tive pro vide s Appellant’s only other option: “. . . but if the defendant is a nonresident of the state or a convict, then in the county where the applicant resides.” This third alternative would provide for venue in whatever county

Mr. Ferguson “resides.” The Supre

me Court has held that, when the term is used in a statute to describe wher e suit may be broug ht, “residence” means one’s leg al residence or domicile. Wiseman v. Wiseman , 216 Tenn. 701, 710, 393 S.W.2d 892, 896 (l965).
As a preliminary ma

tter, we hold that venue for this divorce action lie s in the county wher e the parties resided at the time of their separation. This Court recently held in Asbert Joseph : Becau se domicile is volitional, a forci ble change in a person’s place of residence ordinar ily does not a

lter the p erson’sd om icile. Restatement (Second) Conflict of Laws § 17 (1971). Accordingly , a prisoner’s domicile remains what it was before his or her i mpris onmen t and d oes no t chan ge to the loc ation of h is or her confine ment. Sullivan v. Freeman , 944 F.2d 334, 337 (7 th Cir. 1991); Ownby v. Cohen , 19 F.Supp. 2d 558, 563 (W.D. Va. 1998); O’Brien v. Schweiker , 563 F.Supp. 301, 302 (E.D. Pa. 1983); Ferguson’s Adm’r v. Ferguson’s Adm’r , 255 Ky. 23 0, 73 S. W. 2d 31 , 3 2 ( Ky. 1934).
As a matter of law, Mr. Joseph’s involuntary presencein Way

ne County

by virtue of his incarceration in the South Central Correctional Facility does not establish that

he is a resident of

Wayne County

for the purpose of Tenn. Code Ann. § 29-8-102. Mr.-3-

Joseph’s petition does not c ontain well-ple aded fa

cts demon strating

that his do micile was Wayne County

when he was first sentenced to the custody of the Department of Corre ction. Accordingly , the trial court properly dismissed the petition on the ground that it did not allege that Mr. Joseph was a resident of Way ne Co un ty prior to h

is incarceration.
In the matter of Asbert Joseph , M1999-02795-COA-R3-CV, 2002 WL 773187 at *3 (Tenn. Ct. App. Apr. 30, 2002) (appl i cation to appeal d enied wit h recomm endation that opinio n be publis hed - - Se pt. 30, 2002). Likewise, in the case at bar, Mr. Ferg uson has not demonstrated that he was a res ident of Wayne County , Tennes see whe n he was f

irst inca rcera ted in the Departm ent of Cor

rection s. As a result, venue lies in the third alte rnative in the count

y in which Mr. Ferguson last r esided be fore his incarceration. The Supreme Court of Tennessee has held:
Venue is the personal pr i vilege of a def endant to be sued in

particular coun

ties; it may be wa

ived and is waived by a

defendant

who defends upon the merits without first interposing an objection to improper venue. Jurisdiction is lawful authority of a court to adjudicate a controversy

brought before it; jurisdiction of the subject matter is conferred by

the constituti on and sta

tutes, jurisdiction of the parties is acquired by service of process. See Corby v. Matthe ws , Tenn., 541 S.W.2d 789 (1976). Cl ea rl y, T.C.A. § 36-804 me rely deals wit h venue o f divorc e action s; it is so designated

in the code, “ Venue

of Action - -” (underscoring added); and it has been so inter pre ted many times by

this Court, Williams v. W illiams , 193 Tenn. 133, 244 S.W.2d 995 ( 1951); Ivey v. Ivey , 212 Tenn. 640, 371 S.W.2d 448 (1963). There is nothing

in this rec ord to indicate th at the defendant in the original divorce suit objected to the bringing of the action in Rober tson C ounty; thus, the right of venue was waived.
Kane v. Kane , 547 S.W.2d 559, 560 (Tenn. 1977). Despite the “grave reserva tions” of Chief Justice Henry e xpressed in his dissent in Maples v. State , 565 S.W.2d 202, 209 (Tenn. 1978), the waiver rule of Kane is still the law in Tennessee.
In the case at bar, Kelly

Lee Fer guson, by filing

a sworn Marital Dissolution Agreement and voluntar ily submitting her rights to the Chancery Court of Wayne County , has effectively waived any objection to venue under Kane an d i ts pr og en y. S uc h, ho we ve r, do es no t e nd th e i nq ui ry. This Court has held that

the part ies cann ot, by

waiver o f imprope

r venue, compel a

court, not otherwis e ves ted wit h ve nue , t o en ter tai n t hei r su it . In Taylor v. Taylor , 903 S.W.2d 30 7 (Tenn. Ct. App. 1995), two residents of Sumner County, Te nnessee attempted

to file their suit for divor ce in-4-

the Cir cuit Court of Davidson County, with both parties waiving all objections to ven ue. Th e Davidson County Circuit Court refused to ac ce pt th e c as e a nd tr an sfer re d i t t o S um ne r C ou nt y. On appeal, this Court held:

Plaintiff cites Kane v. Kane , Tenn. 1977, 547 S. W. 2d 559, wherein the Supreme Court held that the parties who failed to ob ject to the entry of a

divorce decreein a county other than the county of their re sidence were estopped to thereafter question the validity of the decr ee or proceedings supplemental thereto. The Court didpoint out that the provisions of T.C.A. §36-804 (now § 36-4-105) were waivable because they

related to venue and not jurisdiction. Nothing is found in the cited opinion to entitle parties to choose the county and court in which to seek a divorce or to hold a trial court in error for

declinin g to act upon a suit filed in the wrong venue.

. . . . The authorities do not hold that, whenever theparties waive improper venue, the court must entertain the suit and enter the requested dec ree. This Court approves the statement in the order of theDavidson County Trial Court that :

. . . It is thepractice of this court not to render judgments on litigation from siste

r countie s in order

to avoid the appearance of forum shopping and impro

priety relative to the Fourth Ci

rcuit Cour

t. Furthe r, the case load for Davidson County does not warrant re ce iving matters from surrounding counties where jurisdiction and ve nu e i s c le ar ly i n t ha t c ou nt y. Even though no statutory a uthority is found for the orde r of transfe r t o Sumner County , it would be

most unre asonable

to vacat e the Sumne

r County decree because of an unauthorized transfer where neither party is shown

to have ob

jected to the acc eptance

of the suit by

the Sumner

County Trial Cour

t. 903 S.W.2d 307, 308 (Tenn. Ct. App. 1995) (applica tion for per m. to appe al denie d by Supreme Court July 3, 1995).
As Appellant has not established his residence to bein Wayne County , Tennessee under the criteri a set f orth in Asbe rt Joseph , Wayne County is as much a stranger to this law suit for venue purposes as Davidson County was in Taylor . The Chancery Cour t of Wayne County cannot be compelledto acce

pt venue in this cas e any

more tha n th e Circuit Cou rt of Davidson County was compelled to accept venue in the Taylor case. Regar dless of the residence of either party , it is clear under Tenn essee Code Annotated section 36-4-105 that venue in this case would be properly vested in a court having divorce jurisdiction in Cheatham County, since such is the county in which the par

ties resided at the time of their separation.-5-

The judgment of

the trial court is affirmed

and the case is remanded to the trial court without prejudice to the rig

hts of Mr. Ferguson to see k transf er of thiscase to a

court h a ving divorce jurisdiction in CheathamCounty or a court having divorce jurisdiction in the county in which Mr. Ferguson resides under the c riteria set forth in Asbert Joseph

. Costs of thi s cause a

re asse ssed ag ainst Appe

llant.

___________________________________ WILL IAM B. CAI

N, JUDGE