# FILED January 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JEANETTE NEAL HALL ) ) Plaintiff/Appell

ant ) Sumner County 42-34 v. ) ) ROY DONAL

D HALL, De

ceased, ) No. 01A01-9805-CH -00263 ANNETTE ELAINE (HALL) ) DENSON, A

dministratrix of est

ate ) of Roy Donald Hall ) ) Defendant/Appellee ) APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE TOM GRAY PRESIDING

RANDLE W. HILL Washington Square Suite 310 222 Second Ave. N

orth Nashville, TN 3 7201 Attorney for Plai

ntiff/Appellant HOWARD M. SKIPWORTH 3353 Union Hill Road Suite C Post Office Box 48 9 Joelton, TN 37080 Attorney for Defendant/Appellee

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL, J. CAIN, J.2 OPINION In th is action, the plaintiff seeks to have declared void a 1979 divorc e decree which ended her m arriage at her r

equest and which was execute d by plaintiff and her attorney. The trial court denied plaintiff’s m

otion for relief f

rom judgment,holding that the allega tions of technical defects in the 1979 decree that would render that order voi d were wi thout merit. We affirm the trial cour t’s ruling. The plaintiff, Jeane

tte Neal Hall, and Roy

Donald Hall, wh

o is now deceased, were marr

ied in 1957. On Janua

ry 2, 1979, Jea

nette H all filed for divorce based on cruel and inh u ma n treatment an

d irreconcilable di

fferences. The case was set

for trial on April 9, 19 79, and witnesses were s ubpoenaed. On May 21, 1979, the

final Order

granting divorce wa

s entered by the

Chancellor of the Chancery Court of Sumner County. That O rder was signed by both parties and their respective attorneys. The divorce decree ordered that the parties would continueto own their real pr operty as tenant

s in common until

it was sold and instructed the part i es to sell the real p roperty within

a reasonable tim

e and to divide the proceeds equally. The decree also ordered thatthe parties each r

eceive one-half of the fur

niture and household goods of the parties. On November 13,

1997 Roy Donald H

all died intestate.On March 13, 1998 Ms. Hall filed a

motion for reli

ef from judg

ment pursuant to

Rule 60.02(3) of the Tennessee Rules of Civil Procedure alleging that the 1979 divorce decree

was void ab i ntio be cause it failed to comply with certain technical statutory requirements

then applicable to div

orces and embodied in Te

nn. Code Ann. § 36-1 Tenn. Code Ann.§ 36-801 provided, in r elevant part: No divorce shall be g

ranted on the ground of irreconcilable dif

ferences unless the

Court shall affirmative

ly find in its decr

ee that the parties

have made adequate and sufficient provision by written agreement fo

r the custody and m

aintenance of any children of that m

arriage and for th

e equitable settlement of a

ny property rights between the parties.

3 801 (1978)
. 1 Sp ecifically, Ms. Hall alleged that the order did not grant her a divorce, but rather, gr

anted a divorce to both parties. Secondly, the plaintiff alleged that the divorce dec ree is defecti

ve becaus e it does not contain an affirmative

finding that the parties had made, by written agreem ent, adequate and sufficient provision for the equi

table settleme

ntof property rig

hts betwe en the m. Ms. Hall asserted that

these requirem

ents were ma

ndatory, and tha

t a decree of divorce granted in c

ontravention of these

provisions is void. The trial court held tha

t these alleged tec

hnical defects in

the 1979 decree did not render that O

rder void, denied th

e motion, and dis

missed the acti

on. The resolution of this ca

se turns on the

proper standard for

determining if

ajudgment is

void ab initio
. The Tennessee S upreme Court r ecently decide

d a

case involving a simila

r attack on a divorc

e de cree in Ge ntry v. Gentry , 924 S.W.2d 678 (Tenn. 1996). I

n its opinion in Gentry , theCourt clearly stated the test for determ

ining whether a ju

dgment is void: Thesecases recognize that wher e th e Court has general jurisdiction of the subject matt

er and jurisdiction

over the parties,

and wher e the Court ’s decree of divorce is not “ whol l y outside of the pleadings,” a divorce decree will not be deemed void. It follows that absent such a prima facie void decree, a flaw in procedur

e will not render a

decree void. Id . at 681.2 At oral argum ent, plaintiff ar

gued that Gentry

is not controlling in this situation because Gentry involved a collatera

l attack while the i

nstant case is a direct a

ttack upon the prior j udgment. Plaintiff is corr ect in characterizing t

his claim as a d

irect attack since

this action “is br

ought for the very purpose of impeaching or overturning a judgment.” Gentry at 680 n.3, (quoting Jordan v. Jordan , 145 Tenn. 378, 454, 239 S.W. 423, 445 (1922), quoting Turner v. Bell

, 198 Tenn. 232, 279 S.W.2d 71, 75 (1955). However, the type of proc

eeding in which a cha

llenge to the validity

of a judgment is raised is not determinat ive of whether the judg ment is void, voidable , or valid. Rather, as the Co

urt in Gentry

explained, the opposite analysis applies. If a judgment is void, it may be attacked collaterally as well as directly. However, a merely voidable judgment may only be attacked di rectly. Gibson’s at § 228. The instant action i

nvolves a claim that the prior judgm ent is void, as did Gentry . The Suprem

e Court’s holding r

egarding the standar

d for determin

ing whether a judgm

ent is void is applicabl

e to the instant attac

k on the prior judgment. 4 The Court relied up on the fo llowi ng ex cerpt from Gibson's Suits in Chancery : The Chan ce ry Court is a Su perior Court of gene

ral Equity jurisdiction,and all of its decrees are presumed to be valid, and this presumption

is conclusive against collateral attac k , unless it affirmative

ly appears, on the f

ace of the record itsel

f: (1) that the Courthad no g eneral jurisdiction of the subject matt

er of the litigation; or (2) that the d ecree itself is wholly outside of the pleadings, and no binding consent thereto is sho wn in the record; or (3) tha t the Co urt had no juri sdicti on of th e party c omplaining, in perso n or by representat ion of interest; in w

hich case it is void only as to such party, or his privies. A decree is absolutely void if it appears on the f ace of the r ecord itself either that the Cour

t had no general jur

isdiction of

the subject matter, or that the

decree is wholly

outside of the

pleadings, and no consent thereto appears. A decree is void as to any person show

n by the record itself

not to have been before t he Court in person, o

r by representation. A decree not p rima facie void is valid a nd binding, until it is either(1) reversed by the Supreme Court, or by the Court of Appeals; or (2) is se t aside on a complaint fil ed to impeach it. William H. Inman, Gibson's Suits in Chanc ery § 228 at 219-20 (7 th ed. 1988). Thus, under Gentry , 2 Plaintiff could sust ain her attack

on the May 1979 Order only by showin

g that the Court lack

ed jurisdiction

of the subject matter

or the parties or tha

t the Ord er was wholl y outside th e pleading s. Plainti ff’s positionis that the trial court had no jurisdiction to award the 1979 div orce3 In Gentry , the failure to c omply with t

he statutory wa

iting period was discussed in the c

ontext of whether th

e decree was “

wholly outside the pleadings”, the Court having found that the trial court had “obviously had general jurisdiction of the subject matter, a suit for divorce.” 5 because the Court did not follow

certain statutory

requirements

which Plaintiff characterizes as mandatory. Plaintiff asserts that the trial court in 1979 failed to “affirm atively find in its decree that the parties hav e made adequat

e and sufficient provis ion by written agreement ... for the equitable se ttlement of any property rights between the parties” as then re quired by Tenn.Code Ann. § 36- 801. Consequently, the Plaintiff arg ues, theCourt was without j urisdiction to grant a divorce on the

ground of irreconci

lable differences. In Gentry , the divorce decree under attack had been entered upon a hearing heldfewer than ninety

(90) days afte

r the filing of the c

omplaint, even

though the applicable

statute required th

at “bills for di

vorce on the

ground of

irreconcilable differences must hav e been on file ... at lea st ninety (90) da

ys before being heard...” Tenn. Code Ann. § 36-4-103(c) (1991). The Supreme Court viewed the failure to observe the statuto ry ninety (

90) day waiting period

as a “flaw i

n procedure” which

would not render the

decree void. 3 Id . at 681. The alleged deficiencies of the decree entered in this case on May

21, 1979 are, at most, proce

dural fla ws. It appears to this Court

that, after hea

ring the plaintif f’s motion, the tri al court implic

itly, and corr

ectly, dete

rm ined that the Order complied with the language of Tenn. Code Ann. § 36-801. The trial court foundthat “the part

ies, on the

9 th day of April, 1979, m ade an equitable settlement

of property rights betwe en the m a nd that by signing the Order submi tted t o the Chancellor for entry, they

made writte

n agreement a

s to any property rights between them.” To the extent that it can be argued that the May 1979 Order does not comply with the statute bec a use it does not include t he6

words “the parties ha

ve made adequa

te and sufficient pr

ovision by written agreement

for the equitable settlement of any property rights ...”, where the Order

on its face reflects an agreed distribu tion of property, such a deficiency is, at most, a procedural flaw und er Gentry , and does not render the Order void ab initio
. Plaintiff ’s arguments that Tenn. Code Ann.§ 36-801 is mandatory rather th an permissive ar

e unavailing, or, m

ore properly,

irrelevant, in vie

w of the Supre me Court’s opinion in Gentry wherein the Court

concluded that failu

re to observe the statut ory mandate did not render th e judgment void. Id . at 680. Plaintiff ’s claims regar

ding the invalidity

of the judgment because the trial courtappeared to have gr anted the divorce to b

oth parties, rathe

r than to one of them, also must fail.

This argument

was raised in the t

rial court as “

not the properprocedure at that time.” In neither the tr ial court nor this Court has Plaintiff relied upon any statute. In any event, Plaintiff sued for divorce, and a divorce was granted. Plaintiff has failed to show that the

divorce decree or

dering thatthe parties “a

re divorced” was not within the Court’s jur

isdiction or

wholly outside the pleadings. In this Court, Plaintiff

has raised as an issue the statutory provision which prohibits granting of a divorce on the grounds of irreconcilable differences when t here has been a contest or denial. It appear

s that this issue was n

otraised i n Plaintiff ’s Motion for Relief f rom Judgmen

t and not considered by

the trial court. Howev er, the trial court herein specifically found, “the parti es, attorney, an d witnesses appeared on the 9 th day of April, 197 9 for tria

l and an announced settlement

was made

to the Court.” As noted above, the May, 1979 Order granting divorce was signed by both parties and their attorne ys . Although the7

trial court made no c

onclusion of law regarding this issue, the trial cour t’s findings of fact dispose

of the claim.Even if Mr. Ha ll originally contested the divorce, he later withd rew that contest and ag reed to the May, 1979 Order. To prevail on her motion the plaintiff wou

ld have to show that the trial courtlacked subject matter jurisdiction, lacked personal jurisdiction or entered
an order which is com

pletely beyond the scop

e of the pleadings . No i ssue of personal jurisdiction has been raised. The trial court clearly had subject matter jurisdic tion over suits for divorc e. The divorce de

cree, agreed to

by plaintif

f , granted the divorce plaintiff sought and or dered distribution of

the property. It
was neither wholly outsid e the pleadings nor

in excess of

the court’s jurisdic

tion. Therefore, on the basis of Gentry and the portions of Gibson’s adopted therein,
we concur with the trial court and find that Ms. Hall has not carried her burden. Acc ordingly, the decree awar ding Jeanette Hall and Roy Donald Hall a divorce is not void. The judgment of the trial is affirmed, and the ca se is remanded to the trial courtfor any further pr oceedings which migh

t arise. Costs are taxed to Jeanette Hal l for which execution may issue.

_______________________________ PATRICIA J. COTTRELL, JUDGE
CONCUR:

___________________________ BEN H. CANTRELL, P

RESIDING JUDGE, M.S.

___________________________ WILLIAM B. CAIN, JUDGE