FILED

February 20, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT NASHVILLE

_______________________________________________________

)

CINDY DOOLEY (BLALOCK), ) Rutherford County Circuit Court

) No. 33887

 Plaintiff/Appellee. )

)

VS. ) C.A. No. 01A01-9704-CV-00174

)

JOHN R. DOOLEY, )

)

 Defendant/Appellant. )

)

______________________________________________________________________________

From the Circuit Court of Rutherford County at Murfreesboro.

Honorable Robert E. Corlew, Chancellor

Thomas D. Frost, Murfreesboro, Tennessee

Attorney for Defendant/Appellant.

Jim Wiseman, WISEMAN & SCHNEIDER, Murfreesboro, Tennessee

Attorney for Plaintiff/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)

HIGHERS, J.: (Concurs)
1Father was fined $50.00 for contempt but given no jail time.

2The petition to domesticate the final decree attached as an exhibit a copy of the decree

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) appeals from the order of the trial court finding him in

contempt of court1

 for nonpayment of child support pursuant to an Indiana divorce decree

terminating his marriage to Cindy Dooley (Blalock) (Mother). The order also addresses

reimbursement for medical expenses, payment of future medical bills, an increase in child support,

a wage assignment and an award of attorney’s fees. Father contends that the trial court’s order

should be set aside because that court did not have personal jurisdiction over him.

Mother filed in the court below a petition to domesticate a final decree of divorce

entered May 19, 1982 in the Lake Superior Court at Gary, Indiana.2 The trial court subsequently

entered an order finding that the Indiana decree was properly authenticated before that court and

entitled to full faith and credit in this state. The order further recited that the respondent 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

waived any defense of lack of personal jurisdiction when an attorney

in the State of Minnesota mailed a letter and a document entitled

“Answer” to the plaintiff’s attorney?

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 Minnesota constituted a “Filing” pursuant

to T.R.C.P. 5?

3. Did the trial court have personal jurisdiction over the

defendant?

Mother contends that Father submitted himself to the jurisdiction of the Tennessee

trial court when his attorney in his home state of Minnesota mailed to mother’s attorney in Tennessee

an answer to the petition for contempt. In our view, this does not constitute a “filing” of the answer
which would waive personal jurisdiction. Rule 5.06 T.R.C.P. provides as pertinent that:

The filing of pleadings and other papers with the court as

required by these rules shall be made by filing them with the clerk of

the court, except that the judge may permit the papers to be filed with

the judge, in which event he or she shall note thereon the filing date

and forthwith transmit them to the office of the clerk. The clerk shall

endorse upon every pleading and other papers 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 this record as an attachment to Mother’s motion for

default judgment.

Mother further argues that the answer should be considered as filed becauseRule 5.05

T.R.C.P. provides that all papers after the complaint required to be served upon a party shall be filed

with the court either before service or within a reasonable time thereafter. She reasons that since the

answer was served on her attorney, Father was then required to file the answer within a reasonable

time thereafter. However, in reviewing the cover letter which accompanied the answer mailed to

mother’s attorney, it is apparent that it is an effort to dissuade Mother from proceeding with this

matter and concludes by saying “[i]f you intend to pursue any further action in this matter, please

notify me with sufficient advance notice so that I may obtain local counsel to associate on this

matter, in zealous pursuit of any defenses and counterclaims available.” 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 required by Rule 5.06 T.R.C.P.

The record further revealsthat, following the filing of a notice of appeal on November

10, 1996, an agreed order was entered amending the order appealed from with regard to payment of

arrearages and attorney’s fees. In addition, on December 16, 1996, the defendant filed with the trial

court a motion to modify the support provisions of the order. An appearance may be made by

implication. As stated in Patterson 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 the cause beneficial to himself

or detrimental to the plaintiff other than one contesting only the jurisdiction of the court or by reason
of 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 attorney appearing on behalf of the defendant stated to the

court that he wished to reserve the defendant’s right to either submit to blood test in a paternity

action or object on the grounds that the court lacked personal jurisdiction. The juvenile court granted

the defendant until January 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 defense as to

personal jurisdiction, but had, through his attorney, 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 requested the case

be remanded to the juvenile court, whereupon the case was so remanded. The court said:

Tennessee courts have said that the making or resisting of any

motion, or the making 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 pendency of the suit is recognized, either expressly

or by implication, will, if there is record evidence of the fact,

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 must be shown by reason of some act or proceeding

recognizing the case as being in 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 plaintiff other than one

contesting only the jurisdiction of the court. Patterson v. Rockwell

International, 665 S.W.2d 96 (Tenn. 1984).

Grosfelt, 718 S.W.2d at 672. The court held that it was clear from the record 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 service of process or personal jurisdiction. Id.

In Byrd v. Callaghan, 1990 WL 143809 (Tenn.App. Oct 3, 1990) the court, in
referring to 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 granting additional time within which to file an

answer, even though no service had been had we believe the case would have come within the rule

above enunciated, . . .” 

A valid judgment imposing 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 properly raised the question of

personal jurisdiction has no alternative, after being overruled, except to answer and defend or risk

the entry of judgment by default. 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,

coupled with filing a motion seeking to modify the support 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 sought relief beneficial to himself

and detrimental to the opposing party.

Father further argues that he was not subject to service of process through the longarm statute due to a lack of minimum contacts with this jurisdiction as set forth 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, we do not find it necessary to address this

argument. It results that we affirm the judgment of the trial court. Costs of this appeal are taxed to

John R. Dooley and his surety, for which execution may issue if necessary.

____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

HIGHERS, J. (Concurs)