# FILED February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, WE STERN SECTION AT NASHVILLE

_______________________________________________________ ) CINDY DOOLEY (BLALO CK) , ) Rutherford County Circuit Court ) No. 33887 Plaintiff/Appellee. ) ) VS. ) C.A. No. 01A01-9704-CV-00174 ) JOHN R. DOOLEY , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Rutherford County at Murfreesboro. Honorable Robert E. Corlew, Chancellor

Thomas D. Frost

, Murfreesboro, Tennessee Attorney fo

r Defendant/App

ellant.
Jim Wiseman , WISEMAN & SCHNEIDER, Murfreesboro, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)1 Father was fined $50.00 for contempt but given no jail time.
2 The petition to domesticate the final decree attached as an exhibit a copy of the de cree and agreement previously filed in the trial court in case number 26466 and incorporated by reference as Exhibit A to the petition. The Father’s unrefuted statement of the facts states that case number 26466 was a previous attempt to domesticate the Indiana decree which was dismissed by the trial court. However, this is not raised as an issue on appeal.

John R. Dooley

(Father) app eals from the ord er of the trial co

urt finding him in contempt of court 1 for nonpay

ment of child sup port pursuant to an Indiana divorce decree terminating his marriage to Cindy Dooley (Blal ock) ( Mother). The order also addresses reimbursement

for medical expenses, pay ment of future med

ical bills, an incr

ease in child suppo

rt,
a wage assignment and an award of attorney ’s fees. Father contends that the trial court’s order should be set aside

because that co

urt did not have pe

rsonal jurisdictio

n over him.

Mother filed in the court b

elow a petitio

n to dome sticate a final decree of divorce entered May 19, 1982 in the Lake Superior Court at Gary , Indiana. 2 The trial court su bsequently entered an order findin

g that the Indiana decree was properly authenticated before that court and entitled to full faith and cr edit in this state. The ord

er further rec

ited that the respo

ndent resides in Minnesota

and the petitioner and minor child in Tennessee. Mother subsequently filed a petition for contempt and Father responded with a motion to dismiss for lack of personal jurisdiction.

Father presents the following issues for our review:

1. Did the trial court err

in determining that the defendant had waivedany

defense of lack of personal jurisdiction when an attorney in the State of Minnesota mailed a letter and a document entitl ed “An swe r” t o th e pl ain tif f’s att orn ey? 2. Did the trial court

err in determining that the receipt by the plaintiff’s attorney of

a letter and a document entitled “Answer” from an attorney in

the State of Minnes

ota constituted a “Filing” pursuant to T.R.C.P. 5? 3. Did the trial court have personal jurisdiction over th e defendant?
Mother contends that Father submitted himself to the jurisdiction of the Tennessee trial court when his attorney in his home state of M

innesota mailed to mother’s attorney in Tennessee
an answer to the petition for contemp t. In our view, this does n ot constit ute a “filin g” of the answerwhich would waive personal jurisdic

tion. Rule 5.06 T.R.C.P. provides as per tinent that:

The filing of pleadings an d otherpapers with the court as required by these rules shall be made by filing them with the clerk of the court, except

that the judge ma

y permit the p

apers to be filed

with the judge, in which

event he or she sh

all note thereon the f

iling date andforthwith transmit

them tothe office of the clerk. The clerk shall endorse upon every plea

ding and other pa

pers filed with

the clerk in an action the date and hour of the filing.

There is no indication in this record that the answer which was mailed to Mother’s attorney was filed. This answer appears in thi s record as an attachment to Mother’s motion for default judgmen

t.

Mother further argue

s that the answer s

hould be consider

ed as fil ed because Ru le 5.05 T.R.C.P. provides that all

papers after the complaint required to be served upon a party shall be filed withthe court either

before service

or within a reason

able time thereafter. She reasons that since the
answer was served on her attorney, Father was then require

d to file the answe

r within a reasona

ble time thereafter. Ho

wever, in revie

wing the cover l

etter which acc

ompanied the answ

er mailed to mother’s attorney, i

t is apparent that it is

an effort to dissu

ade Mother from p

roceeding with

this matter and concludes by saying “[i]f you intend to pursue a ny further

action in this matte

r, please notify me with sufficient advance notice so that I may obtain loca l co un sel to associate o

n this matter, in zealous pursuit of any de fenses an d counter claims av ailable. ” We

are of the opinion that the act of Father’s attorney in Minnesota mailing an answer to Mother’s attorney did not constitute filing as requir

ed by Rule 5.0

6 T.R.C.P.

The record further reve als that, following the filing of a notice of appeal on November 10, 1996, an agreed order was entered amending the or

der appealed f

rom with regard

to payment of arrearagesand attorney’s fees. In addition, on Dec ember 16, 1996, the defendant fi led with the trial court a motion to modify the support provisions of the orde r . An appearance may be made by implication. As stated in Pat t erson v. Rockwell International, 665 S.W.2d 96, 99-100 (Tenn. 1984): “[h]owever, before an appearance will be found by implication, it must be shown from the defendant’s seeking, taking, or agreeing to some step or proceeding in t

he cause benef

icial to himself
or detrimental to the plaintiff other than one contesting only the jurisdiction of the court or by reasonof some act or proceeding recognizing the case as being in court.”

A defendant makes a general appearance, thus consenting to the jurisdiction of the court over his

person, by acting in a manner inconsistent with the claim of absence of jurisdiction. Tennessee Dept. of Human Services v. Daniel, 659 S.W.2d 625 (Tenn. App. 1983). In re Grosfelt , 718 S.W.2d 670 (Tenn. App. 1986), an att orney appe

aring on behalf

of the defendant stated to the court that he wished to reserve the d efen dant’s right to e ither submit to blood t

est in a paternity action or object

on the grounds that the court lacked personal jurisdiction. The juvenile court granted the defendant until Janu ary 26, 1984 to either submit to blood test or contest the court’s personal jurisdiction. As of that date, defendant had filed no objection or motion asserting

any defen

se as to personal jur isd ict ion , bu t ha d, t hro ugh h is a tto rney, made formal arrangements with the petitioner’s attorney regarding the taking

of a blood test. On that date, both parties through their respective counsel agreed to a continuance in order that

the blood test may be completed. After the tests were obtained, defendant filed a motion to transfer the case to circuit or chancery court for a jury trial on the issue of paternity, but subsequently withdrew this demand for a jury

trial and reques

ted the case be remanded to the

juvenile court, w

hereupon the ca

se was so remande

d. The court said:

Tennesseecourts have said that the making or resisting of any motion, or the mak ing of any agreement with the plaintiff or her attorney relative to

any proceeding in a

cause, or any other act in the cause, between the filing of the complaint and rendition of the final decree, whereby pe

ndency of t

he suit is recogn

ized, either expre

ssly orby implication, will, if there is record evidence of the f act , constitute a general and unlimited appearance, unless limited by express declaration or

by necessary implication. Akers v. Gillentine, 33 Tenn.App. 212, 231 S.W.2d 372 (1950). An appearance by implication mu st be shown by reason of some act or proceeding recognizing the case as b eing i n court, or from the defendant’s seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to the pl aintiff other than one contesting only the jurisdiction of the court. Patterson v. Rockwe ll International , 665 S.W.2d 96 (Tenn. 1984).
Grosfelt , 718 S.W.2d at 672. The court held that it w

as cle ar from the rec ord that defendant had acted inconsistently

with his claim

of absence of jurisdiction and had made a general appearance by his actions, thereby waiving any objections as to the serviceof process or personal jurisdiction. Id
.

In Byrd v. Callaghan , 1990 WL 143809 ( Tenn.App. Oct 3, 1 990) the court, inreferringto Grosfelt , said: “The significant words in our view are, ‘if there is record evidence of the fact.’ In the case at bar, had an order been entered gran

ting additional tim

e within which to file an answer, even though no service had bee n had we believe t

he case would ha

ve come within

the rule above enunciated, . . .”

A valid judgm ent imposi ng a personal obligation or duty in favor of a plaintiff may be entered only by

a court having jurisdiction over the person of the defendant. Kulko v. Superior Court of California , 436 U.S. 84 (1978) . A defendant who has p roper ly raised the question of personal jurisdiction has no alternative, after beingoverruled, exce pt to answer and de

fend or risk the entry of judgment by defa ult. Tennessee State Bd. of Educ. v. Cobb , 557 S.W.2d 276 (Tenn. 1977). However, we conclude that Father’s action in this case in entering into an agreed order , coupledwith filing a motion seeking to modify the suppor t provisions of the trial court’s order constitutes an appearance. We believe that his actions are inconsistent with his claim of absence of jurisdiction. Clearly

his motion to modify the support payments sou

ght relief bene

ficial to himself and det rim ent al t o th e op pos ing p art y.

Father further argue s that he was not subjec t to servic e of process through the longarm statute due to a lack of minimum contacts with this ju

risdiction as set f

orth in an affidavit which he filed in this cause in support of his motion to dismiss. However, in view of our ruling that he had submitted himself to

this jurisdiction by an

appearance, w

e do not find it nece

ssary to add

ress this argument. It results tha

t we affirm the jud

gment of the tria

l court. Costs of this appeal ar e taxed to Joh n R. Doo ley a nd h is s uret y, fo r wh ich exe cut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)