Stephen Leon Kelley v. Kenneth D. Varner

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 25, 2015 Session

STEPHEN LEON KELLEY v. KENNETH D. VARNER, ET AL.

Appeal from the Chancery Court for Hamilton County

No. 14-0442 Pamela A. Fleenor, Chancellor

No. E2015-00165-COA-R3-CV-FILED-NOVEMBER 23, 2015

Stephen Leon Kelley (“Plaintiff”) filed suit seeking, among other things, to have the 1958

divorce decree of Mary Joyce Long Kelley v. Joseph Gordon Kelley, Jr. (“the Divorce

Decree”) set aside so that Plaintiff could be declared one of only two heirs at law of Mary

Joyce Long Kelley (“Deceased”) entitled to inherit by intestacy. The Chancery Court for

Hamilton County (“the Trial Court”) dismissed Plaintiff’s suit pursuant to Tenn. R. Civ.

P. 12.02(6) for failure to state a claim upon which relief can be granted, among other

things. Plaintiff appeals to this Court. We find and hold that Plaintiff’s collateral attack

upon the Divorce Decree cannot be sustained because the Divorce Decree is not void

upon its face. We, therefore, affirm the Trial Court’s order dismissing Plaintiff’s suit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Timothy T. Ishii and Susan B. Evans, Nashville, Tennessee, for the appellant, Stephen

Leon Kelley.

Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the appellees, Mortgage Investors

Group, Noel T. Turner, Jr., and Dianna Jill Turner.

Darren W. Kennedy, Chattanooga, Tennessee, for the appellees, Kenneth D. Varner and

Aliceson Varner.

M. Aaron Spencer and Robert L. Vance, Knoxville, Tennessee, for the appellee,

Vanderbilt Mortgage and Finance, Inc.

OPINION

Background

Deceased married Joseph Gordon Kelley, Jr. in June of 1946. Plaintiff was born

in January of 1948 of the marriage between Deceased and Joseph Gordon Kelley, Jr. In

October of 1958, Deceased filed for divorce in Rhea County, Tennessee. The Circuit

Court for Rhea County entered an order on November 8, 1958, inter alia, declaring

Deceased and Joseph Gordon Kelley, Jr.1 divorced. As pertinent to this appeal, the

Divorce Decree states:

This cause came on to be heard on this the 8th day of November,

1958, during the regular August term, before Hon. C.C. Chattin, Judge,

upon the bill of the complainant, Joyce Kelley, the answer of the defendant,

Joseph Kelley, the proof in the cause, and upon the entire record.

I

From all of which it appeared to the Court from the proof that the

facts as alleged in the bill are true; that the defendant has been guilty of

such cruel and inhuman treatment or conduct toward the complainant as

renders further cohabitation unsafe and it improper for her to further

cohabit with him and be under his dominion and control, as charged.

II

It is, therefore, ordered, adjudged and decreed by the Court that the

bonds of matrimony heretofore subsisting between the complainant and the

defendant be and the same hereby are absolutely and forever dissolved, and

that the complainant be vested henceforth with all the rights and privileges

of an unmarried person.

III

It further appeared to the Court that the parties have one child, have

a parcel of real estate and have household and kitchen furniture and

furnishings, and that they have heretofore entered into mutual settlement

agreement wherein the complainant would have the absolute title to their

1

Joseph Gordon Kelley, Jr. died in December of 1996 a resident of Hamilton County, Tennessee.

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realty and furniture and furnishings, and that the complainant would further

retain and have the custody of their child, with the defendant to pay to her

the sum of $50.00 per month for the support of the child, and such

agreements appearing fair and mutual, they are ratified and confirmed by

the Court, . . . and, further, that all that right, title and interest heretofore

held by the defendant, Joseph Kelley, in and to the household and kitchen

furniture and furnishings of these parties and also in and to that real estate

by them owned and described as the real estate at 21 Polk Circle Ft.

Oglethorpe, Ga., . . . be and hereby is divested out of him and vested in the

complainant Joyce Kelley, hereby vesting in her the entire and absolute title

in fee in and to said personalty and realty as her own alimony.

Deceased and Kenneth D. Varner were married in Walker County, Georgia in

November of 1958. On September 10, 1959, Deceased and Kenneth D. Varner

purchased real property located on Marlow Drive in Chattanooga, Tennessee (“Marlow

Drive Property”). Deceased and Kenneth D. Varner adopted Aliceson Varner in 1968.

In June of 1983, Deceased and Kenneth D. Varner purchased real property located on Old

Dayton Pike in Soddy Daisy, Tennessee (“Old Dayton Pike Property”). Deceased died

intestate on August 15, 2011 as a resident of Hamilton County, Tennessee.

Kenneth D. Varner conveyed one-half of his interest in the Marlow Drive Property

to Aliceson Varner in January of 2012. Kenneth D. Varner conveyed one-half of his

interest in the Old Dayton Pike Property to Aliceson Varner in February of 2012. In June

of 2013, Kenneth D. Varner and Aliceson Varner conveyed their interests in the Marlow

Drive Property to Noel T. Turner, Jr. and Dianna Jill Turner.

In July of 2014, Plaintiff filed the instant suit against Kenneth D. Varner; Aliceson

Darlene Varner; Noel T. Turner, Jr.; Dianna Jill Turner; Mortgage Investors Group; and

Vanderbilt Mortgage and Finance, Inc.2 Plaintiff’s complaint sought declaratory relief

and requested, among other things, to have the 1958 Divorce Decree set aside, to have the

1958 marriage of Mary Joyce Long Kelley and Kenneth Varner declared void, and to

have Plaintiff and Aliceson Varner declared Deceased’s only heirs at law entitled to

inherit by intestacy. Plaintiff attached to his complaint several documents including a

copy of the Rhea County Circuit Court Civil Rule Docket for the 1958 divorce case of

Joyce Kelley v. Joseph Kelley and a copy of the Divorce Decree.3

2

Plaintiff’s complaint alleges that Mortgage Investors Group holds a security interest in the Marlow

Drive Property and that Vanderbilt Mortgage and Finance, Inc. holds a security interest in the Old Dayton

Pike Property.

3

Pursuant to Tenn. R. Civ. P. 10.03: “Whenever a claim or defense is founded upon a written instrument

other than a policy of insurance, a copy of such instrument or the pertinent parts thereof shall be attached

to the pleading as an exhibit [unless the written instrument falls within one of three specific categories not

3

Noel T. Turner, Jr., Dianna Jill Turner, and Mortgage Investors Group filed a

motion to dismiss (“the Motion to Dismiss”) pursuant to Tenn. R. Civ. P. 12.02 for lack

of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

After a hearing, the Trial Court entered its order on December 23, 2014 dismissing

Plaintiff’s suit after finding and holding, inter alia, that pursuant to Tenn. R. Civ. P.

12.02(6) Plaintiff’s complaint failed to state a claim upon which relief can be granted.

Specifically, the December 23, 2014 order found and held:

Plaintiff seeks to have the 1958 divorce Decree set aside due to the

alleged lack of jurisdiction by the Rhea County Circuit Court over the

parties. Applying the law in Hankins to the facts of this case, the alleged

lack of jurisdiction must be found in the record itself. Plaintiff attached to

his Complaint, as Exhibits 5 and 6, the Decree and the Rhea County Rule

Docket. However, this alleged lack of residency does not appear on the

face of the Decree nor on the Rule Docket (Complaint Ex. 5, 6).

In reviewing the record, the Court notes the Decree does affirm the

parties’ settlement agreement wherein [Deceased] was awarded the real

property at 21 Polk Circle, Ft. Oglethorpe, Georgia. However, ownership

of realty in Georgia does not mean the Petitioner resided there. If anything,

it demonstrates that the court was aware some realty was in Georgia yet

still ordered the divorce. At least this fact was not hidden from the court.

The Court finds there is nothing on the face of the Decree that demonstrates

Rhea County’s lack of jurisdiction over the parties to the Decree.

***

Since there is nothing on the face of the Decree to evidence lack of

jurisdiction, there is a conclusive presumption that the Rhea County Circuit

Court had jurisdiction over [Deceased] and or her spouse when it entered

the Decree. Hankins. Every reasonable presumption must be indulged in

favor of Rhea Circuit having jurisdiction.

***

Plaintiff’s averments rely on matters outside of the Rhea County Circuit

Court record. Because this is a collateral attack on the Decree, this Court is

precluded from reviewing matters outside the Rhea County record.

applicable in the instant case]. Every exhibit so attached or referred to . . . shall be a part of the pleading

for all purposes.” Tenn. R. Civ. P. 10.03.

4

Plaintiff necessarily cannot prevail in this matter without parol evidence,

yet this Court is barred from considering that very evidence. Thus,

Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

Plaintiff appeals the dismissal of his suit to this Court.

Discussion

Although not stated exactly as such Plaintiff raises one issue on appeal: whether

the Trial Court erred in granting the Motion to Dismiss. With regard to motions to

dismiss our Supreme Court has instructed:

A motion to dismiss a complaint for failure to state a claim for which

relief may be granted tests the legal sufficiency of the plaintiff=s complaint.

Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens

v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002).

The motion requires the court to review the complaint alone. Highwoods

Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).

Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the

alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area

Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the

complaint is totally lacking in clarity and specificity, Dobbs v. Guenther,

846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass

Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the

relevant and material factual allegations in the complaint but asserts that no

cause of action arises from these facts. Brown v. Tennessee Title Loans,

Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of

Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court’s

dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe

the complaint liberally in favor of the plaintiff by taking all factual

allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356

S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil

Procedure ' 5-6(g), at 5-111 (3d ed. 2009). We review the trial court’s

legal conclusions regarding the adequacy of the complaint de novo without

a presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d at

895; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700.

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012).

5

In order for Plaintiff to be declared one of only two heirs entitled to inherit by

intestacy from Deceased, Plaintiff first must obtain an order setting aside the Divorce

Decree, a judgment entered more than 55 years ago in a case between two parties both of

whom died prior to the filing of the complaint in the instant case. Plaintiff’s complaint

sought to have the Divorce Decree declared “void ipso facto for lack of jurisdiction of the

parties in that matter pursuant to Tenn. Code Ann. § 36-803 (1958) Residence

requirements.” Plaintiff alleged in his complaint that Deceased, who was the petitioner in

the divorce case, was a resident of Georgia and had not resided in Tennessee for the

requisite period of time prior to filing for divorce, and therefore, the Rhea County Circuit

Court did not have jurisdiction of the parties because the residency requirements were not

satisfied.

This Court has discussed an attempt to overturn a previous judgment for lack of

jurisdiction stating:

The Supreme Court of Tennessee has held:

If an action or proceeding is brought for the very purpose of

impeaching or overturning a judgment, it is a direct attack on

it. . . . On the other hand, if the action or proceeding has an

independent purpose and contemplates some other relief or

result, although the overturning of the judgment may be

important, or even necessary to its success, then the attack

upon the judgment is collateral.

Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71, 75 (Tenn. 1995) (quoting

Jordan v. Jordan, 145 Tenn. 378, 239 S.W. 423, 445 (Tenn. 1922)).

***

On collateral attack upon a judgment or decree of a court of general

jurisdiction by parties or privies thereto, the rule is that such judgment or

decree cannot be questioned except for want of authority over the matters

adjudicated upon; and this want of authority must be found in the record

itself. J.B. Wilkins v. M.C. McCorkle, 112 Tenn. 688, 707-08, 80 S.W. 834,

838 (Tenn. 1904). In the absence of anything in the record to impeach the

right of such a court to determine the question involved, there is a

conclusive presumption that it had such right. Id. (citing Reinhardt v.

Nealis, 101 Tenn. 169, 172-73, 46 S.W. 446, 447 (Tenn. 1898)). This rule

presupposes, of course, that the court has acquired jurisdiction of the

persons appearing to be parties to the cause. Id. This fact must also be

6

determined from the face of the record, and in conducting such examination

every reasonable presumption will be indulged in favor of the jurisdiction.

Id. (citing Robertson v. Winchester, 85 Tenn. 171, 183-86, 1 S.W. 781,

785-86 (Tenn. 1886); Hopper v. Fisher, 39 Tenn. 253, 2 Head 253, 254

(Tenn. 1858)). The evidence on which the court acted cannot be looked to.

Id. If the bill or other pleading makes a case, and the court in its judgment

or decree assumes the case to have been established, that is sufficient. Id.

(citing Kindell v. Titus, 56 Tenn. 727, 9 Heisk. 727 (Tenn. 1872); Pope v.

Harrison, 84 Tenn. 82, 92-93 (Tenn. 1885)).

When the jurisdiction of a court depends upon the existence of a

certain fact and the record shows that the court has found that fact, that

determination is not subject to collateral attack in another court of this state.

Henson v. Henson, Shelby Equity No. 23, 1989 Tenn. App. LEXIS 480, at

*6, 1989 WL 75960 (Tenn. Ct. App. July 11, 1989). The first judgment,

even if in point of fact rendered without the requisite jurisdiction, must

stand until reversed on appeal. Id. (citing State ex rel. Holbrook v. Bomar,

211 Tenn. 243, 247, 364 S.W.2d 887, 989 (Tenn. 1963)). In a suit seeking

to have a previous judgment declared void for lack of jurisdiction, the

evidence on which the prior court acted cannot be looked to, nor can the

correctness of the conclusion reached from that evidence be investigated by

another inferior court in order to declare the decree thus made valid or void.

Id. at *7, 364 S.W.2d 887 (citing Reindhardt, 101 Tenn. at 174, 46 S.W. at

477)).

In Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996), the

Tennessee Supreme Court most recently discussed collateral attacks on

divorce decrees. The Court noted that “[t]he few Tennessee cases

involving similar attacks on divorce decrees support this conclusion that a

divorce decree is void and subject to attack only where the trial court lacks

general jurisdiction of the subject matter, rules on an issue wholly outside

the pleadings, or lacks jurisdiction over the party complaining.” Id. The

Court cited GIBSON’S SUITS IN CHANCERY § 228 at 219-20 (7th

ed.1988) for the statement that “[a]ll decrees not thus appearing on their

face to be void are absolutely proof against collateral attack, and no parol

proof is admissible on such an attack to show any defect in the proceedings,

or in the decree.” Id. (emphasis added).

Hankins v. Hankins, No. W2006-00232-COA-R3-CV, 2007 WL 2351171, at **4-

5 (Tenn. Ct. App. Aug. 20, 2007), Rule 11 appl. perm. appeal denied Feb. 4, 2008.

7

The Trial Court correctly held that Plaintiff’s attack on the Divorce Decree is

collateral as Plaintiff is seeking a result other than simply having the Divorce Decree

declared void, i.e., to be declared one of only two heirs of Deceased. Plaintiff cannot

prevail, however, unless the Divorce Decree is held to be void.

Plaintiff argues in his brief on appeal, in essence, that the Trial Court erred

because it did not take the factual allegations in Plaintiff’s complaint as true but rather

weighed the “evidence.” Plaintiff is mistaken. Even if all of the factual allegations in

Plaintiff’s complaint are taken as true, the Divorce Decree is not void upon the face of the

record in the divorce action. The Rhea County Circuit Court determined, at least

implicitly, that it had jurisdiction over the parties in that case when it entered the Divorce

Decree. The Rhea County Circuit Court in its judgment found that “the facts as alleged

in the bill are true . . .” meaning that jurisdiction of the parties was established and, as

discussed in Hankins v. Hankins, “that is sufficient.” Id. at *5. The Trial Court correctly

recognized that it could not look to the evidence the Rhea County Circuit Court

considered when making its determination about jurisdiction. Nor could the Trial Court

second guess the correctness of the Rhea County Circuit Court’s determination regarding

jurisdiction. The evidence which Plaintiff alleges shows lack of jurisdiction does not

appear on the face of the record in the divorce case, “and no parol proof is admissible on

such an attack to show any defect in the proceedings, or in the decree.” Id. Therefore,

even if the Rhea County Circuit Court did lack jurisdiction, and we in no way suggest

that it did, the Divorce Decree “must stand until reversed on appeal” as the lack of

jurisdiction does not appear on the face of the record. Id.

Even construing the complaint liberally in favor of Plaintiff by taking all factual

allegations in the complaint as true, as we must at this stage of the proceedings, we, as

did the Trial Court, hold that Plaintiff’s claim that the Divorce Decree is void fails

because no cause of action arises from these facts. As such, we find no error in the Trial

Court’s dismissal of Plaintiff’s suit for failure to state a claim upon which relief can be

granted.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellant, Stephen Leon Kelley, and his surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

8