Letellier v. Letellier

IN THE COURT OF APPEALS AT NASHVILLE

TERESA B. LETELLIER ) C/A No. 01A01-9903-JV-00157

) DAVIDSON JUVENILE

Petitioner-Appellant ) No. 9819-43919

)

)

v. )

)

FILED

)

STEVEN G. LETELLIER ) September 21, 1999

)

Respondent-Appellee ) Cecil Crowson, Jr.

Appellate Court Clerk

APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY

THE HONORABLE BETTY ADAMS GREEN, JUDGE

Jon S. Jablonski

2400 Crestmoor Road, Suite 321

Nashville, TN 37215

Attorney for Petitioner-Appellant

Gregory D. Smith and Andrea Taylor McKellar

Farris, Warfield & Kanaday, PLC

424 Church Street, Suite 1900

Nashville, TN 37219

Attorneys for Respondent-Appellee

REVERSED AND REMANDED

Houston M. Goddard, Presiding Judge

CONCUR:

FRANKS, J.

SWINEY, J.

O P I N I O N

Goddard, P.J.

1

This is an appeal from the Juvenile Court’s order

transferring this child support case to a Virginia court due to

lack of subject matter jurisdiction. Teresa B. LeTellier,

Petitioner-Appellant, raises the following issues which we

restate:

I. Whether the Juvenile Court had in personam

jurisdiction over Respondent-Appellee to modify

the support order entered by the Superior Court of

the District of Columbia.

II. Whether the Juvenile Court had subject matter

jurisdiction to modify the support order entered

by the Superior Court of the District of Columbia.

Steven G. LeTellier, Respondent-Appellee, raises an

additional issue which we restate:

III. Whether the judge erred in transferring the case

to an unknown tribunal in Virginia.

We find the Juvenile Court possessed personal jurisdiction over

Mr. LeTellier and subject matter jurisdiction to modify the child

support order. We reverse and remand this case to the Juvenile

Court of Davidson County.

The Superior Court of the District of Columbia, Family

Division, Domestic Relations Branch, awarded custody of the

parties’ minor child, Nicholas J. LeTellier, to Ms. LeTellier on

May 22, 1989. In addition, the Superior Court ordered Mr.

LeTellier to pay child support. On July 24, 1997, Ms. LeTellier

filed a petition to modify child support in the Superior Court of

the District of Columbia. The Superior Court dismissed the

petition for lack of subject matter jurisdiction and forum non

conveniens on July 13, 1998. Mr. LeTellier filed a petition to

reduce support on September 17, 1998 in the Juvenile Court of

Arlington County, Virginia. On September 21, 1998, Ms. LeTellier

filed a petition to register the foreign order and to modify the

award of child support in the Juvenile Court of Davidson County,

Tennessee, which was amended on September 29, 1998. The Virginia

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court dismissed Mr. LeTellier’s petition on October 16, 1998 for

lack of in personam jurisdiction over Ms. LeTellier. By order

dated December 31, 1998, Referee Rosenberg dismissed Ms.

LeTellier’s petition because he found the Juvenile Court of

Davidson County, Tennessee lacked subject matter jurisdiction to

modify the support order. Judge Adams affirmed Referee

Rosenberg’s findings upon rehearing on February 23, 1999, but she

ordered the petition be transferred to the appropriate tribunal

in Virginia.

In Personam Jurisdiction

On November 30, 1998, Mr. LeTellier filed a motion to

dismiss in the Juvenile Court of Davidson County for lack of

subject matter jurisdiction. Ms. LeTellier filed a response to

the motion to dismiss. In Mr. LeTellier’s reply to Ms.

LeTellier’s response, Mr. LeTellier contested personal

jurisdiction for the first time in a pleading. Mr. LeTellier

contends that, during the hearing for a continuance, counsel

explained a continuance was needed “since Appellee was planning

to contest personal jurisdiction.” A transcript of the hearing

on Mr. LeTellier’s motion to continue was not provided to this

Court in the appellate record. The Referee did not address the

issue of waiver in his order dismissing Ms. LeTellier’s petition,

but he found the Juvenile Court had personal jurisdiction over

Mr. LeTellier pursuant to Tennessee Code Annotated section 36-5-

2201(6).

Ms. LeTellier contends the Juvenile Court can assert

jurisdiction over Mr. LeTellier pursuant to Tennessee Code

Annotated section 36-5-2201(2) or (6). Under T.C.A. § 36-5-

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2201(2), a Tennessee court may exercise personal jurisdiction

over a nonresident to establish, enforce, or modify a support

order if the nonresident consents, enters a general appearance,

or files “a responsive document having the effect of waiving any

contest to personal jurisdiction.” Under T.C.A. § 36-5-2201(6),

a basis for jurisdiction over a nonresident is “the individual

engaged in sexual intercourse in this state and the child may

have been conceived by that act of intercourse.” The Referee

found section (6) applicable to this case.

In personam jurisdiction may be waived by a party “if

there is no objection to personal jurisdiction in the first

filing, either a Rule 12 motion or an answer.” Landers v. Jones,

872 S.W.2d 674, 676 (Tenn. 1994). The Tennessee Supreme Court

further explained that “courts should only find a general

appearance that waives a defendant’s right to contest personal

jurisdiction when the defendant has recognized the proper

pendency of the cause by making a motion that goes to the merits

or by filing an answer, without challenging personal

jurisdiction.” Landers, 872 S.W.2d at 677. Tennessee Rule of

Civil Procedure 12.08 provides that the defense of lack of

personal jurisdiction is waived when not presented in a motion or

answer. We find Mr. LeTellier’s motion to dismiss for lack of

subject matter jurisdiction was a general appearance constituting

a waiver of personal jurisdiction because a contest to personal

jurisdiction was not part of his motion to dismiss. See 6 C.J.S.

Appearances § 23 (1975 & Supp. 1999).

Moreover, UIFSA provides an additional basis for

finding personal jurisdiction over Mr. LeTellier. Mr. LeTellier

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engaged in sexual intercourse in Tennessee and the child may have

been conceived in Tennessee. See T.C.A. § 36-5-2201(6). We

affirm the Referee’s finding that the Juvenile Court possessed

personal jurisdiction pursuant to T.C.A. § 36-5-2201(6).

Subject Matter Jurisdiction

The statute governing subject matter jurisdiction of

Tennessee courts over child support orders issued by other states

is within the Uniform Interstate Family Support Act (UIFSA),

codified at T.C.A. §§ 36-5-2001 to -2902. After the child

support order of another state is registered in Tennessee, a

Tennessee court may modify it if:

(1) The following requirements are met:

(i)The child, the individual obligee, and the obligor

do not reside in the issuing state;

(ii) A petitioner who is a nonresident of this state

seeks modification; and

(iii) The respondent is subject to the personal

jurisdiction of the tribunal of this state; or

(2) The child, or a party who is an individual, is

subject to the personal jurisdiction of the tribunal of

this state and all of the parties who are individuals

have filed written consents in the issuing tribunal for

a tribunal of this state to modify the support order

and assume continuing, exclusive jurisdiction over the

order.

T.C.A. § 36-5-2611(a) (1998). If the requirements of the

previous section are not met, another section provides for

subject matter jurisdiction when both parties reside in Tennessee

and the child does not reside in the issuing state. See T.C.A. §

36-5-2613 (1998). Under UIFSA, Tennessee courts only have

subject matter jurisdiction for the very specific situations

previously described.

The facts of this case do not fit within the situations

for which Tennessee courts have subject matter jurisdiction. The

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Petitioner-Appellant, Ms. LeTellier, is a resident of Tennessee.

Under T.C.A. § 36-5-2611(a), the petitioner must be a nonresident

of Tennessee. Under T.C.A. § 36-5-2613, both parties must be

residents of Tennessee. The Respondent-Appellant, Mr. LeTellier

is a resident of Virginia. Therefore, the Juvenile Court did not

have subject matter jurisdiction pursuant to these provisions in

UIFSA to modify the child support order issued by the Superior

Court of the District of Columbia.

Ms. LeTellier argues Tennessee Code Annotated sections

36-5-2611 and 36-5-2613 do not apply to this case because these

sections are excluded pursuant to Tennessee Code Annotated

section 36-5-2202. When personal jurisdiction is asserted over a

nonresident pursuant to T.C.A. § 36-5-2201, the other provisions

of UIFSA do not apply because they are specifically excluded by

T.C.A. § 36-5-2202. Ms. LeTellier contends the Juvenile Court

can assert jurisdiction over Mr. LeTellier pursuant to T.C.A. §

36-5-2201(2) or (6).

When excluding the other sections of UIFSA which confer

subject matter jurisdiction on a Tennessee court to modify the

support order of another state, T.C.A. § 36-5-2202 states “the

tribunal shall apply the procedural and substantive law of this

state.” There is substantive law, prior to the enactment of

UIFSA, which supports the finding of subject matter jurisdiction

of a Tennessee court to modify a child support order of another

state. In some cases, Tennessee courts have found subject matter

jurisdiction to modify support orders of other states when the

child or one of the parties is a resident of Tennessee and

Tennessee has in personam jurisdiction over the obligor. See

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Parker v. Parker, 497 S.W.2d 572 (Tenn. 1973) (holding

modification of child support order appropriate when Georgia

resident filed petition against Tennessee resident who was no

longer amenable to process of Georgia court); Hood v. Munsey, an

unreported opinion of this Court, filed in Knoxville on August

13, 1993 (holding modification allowed under the Uniform

Enforcement of Foreign Judgments Act, T.C.A. §§ 26-6-101 to -

107); Gilbert v. Gilbert, an unreported opinion of this Court,

filed in Knoxville on December 15, 1988 (“it is the general rule

followed in Parker that where a court adopts as its own, a decree

of a sister state, it assumes jurisdiction for the purposes of

alimony and child support, the power to modify the foreign decree

indirectly”). This case law supports the finding of subject

matter jurisdiction to modify the child support order of the

Superior Court of the District of Columbia.

In addition to Tennessee case law supporting the

finding of subject matter jurisdiction, there is a federal

statute which places subject matter jurisdiction in state courts

for modification of child support orders of other states. The

Full Faith and Credit for Child Support Orders Act (FFCCSOA)

provides:

A court of a State may make a modification of a child

support order issued by a court of another State if--

(1) the court has jurisdiction to make such a child

support order pursuant to (i); and

(2)(A) the court of the other State no longer has

continuing, exclusive jurisdiction of the child support

order because that State no longer is the child’s State

or the residence of any individual contestant; or

(B) each individual contestant has filed a written

consent with the State of continuing, exclusive

jurisdiction for a court of another State to modify the

order and assume continuing, exclusive jurisdiction

over the order.

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28 U.S.C.A. § 1738(B)(e) (1998). Under section (i), if neither

of the parties nor the child resides in the issuing state, the

party seeking modification must register the order in a State

with jurisdiction over the nonmovant for the purpose of

modification. 28 U.S.C.A. § 1738(B)(i) (1998).

Under the FFCCSOA, the Juvenile Court of Davidson

County possesses subject matter jurisdiction to modify the child

support order in this case. The Juvenile Court possesses

“jurisdiction over the nonmovant” as required by 28 U.S.C.A. §

1738(B)(I). The District of Columbia is no longer the residence

of the parties or the child. Therefore, the District of Columbia

no longer has continuing, exclusive jurisdiction over the child

support order.

There is a conflict between the federal law, FFCCSOA,

and the state law, UIFSA. Federal law preempts state law when

there is a conflict. See Brown v. Brown, 847 S.W.2d 496, 499

(Tenn. 1993). Although Tennessee law, UIFSA, fails to place

subject matter jurisdiction in the Juvenile Court of Davidson

County under these circumstances, the federal law, FFCCSOA,

places subject matter jurisdiction in the Juvenile Court of

Davidson County to modify the support order in this case.

In light of our disposition of Ms. LeTellier’s issues,

it is unnecessary to address the issue raised by Mr. LeTellier.

For the foregoing reasons the judgment of the Juvenile

Court is reversed and the cause remanded. Costs of this appeal

are adjudged against Mr. LeTellier.

8

Houston M. Goddard, P.J.

CONCUR:

Herschel P. Franks, J.

D. Michael Swiney, J.

9