State of Tennessee, ex rel., Betty Ann Torres (Stone) Spurlock v. Cesar G. Torres

05/30/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 3, 2017

STATE OF TENNESSEE EX REL. BETTY ANN TORRES (STONE)

SPURLOCK v. CESAR G. TORRES

Appeal from the Chancery Court for Weakley County

No. 16,089 W. Michael Maloan, Chancellor

No. W2016-01633-COA-R3-CV

In this child support action, the respondent father, who resides in Texas, filed a motion

seeking to vacate the trial court’s previous child support orders, alleging that the court

had no personal jurisdiction over him. The State of Tennessee (“the State”), acting on

behalf of the mother, asserted that the father had consented to the court’s exercise of

personal jurisdiction by previously seeking administrative review of the child support

award. The trial court agreed, determining that its exercise of personal jurisdiction was

proper. The father has appealed. Having determined that the trial court did not have a

proper basis for the exercise of personal jurisdiction over the father, we reverse the trial

court’s adjudication concerning personal jurisdiction. Because the trial court’s prior child

support orders are void, we remand this matter to the trial court for a determination

concerning whether exceptional circumstances exist that would justify denying relief

from the prior void orders.

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

Reversed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.

DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Vanessa Saenz and Justin A. Schober, Nashville, Tennessee, for the appellant, Cesar G.

Torres.

Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant

Attorney General, for the appellee, State of Tennessee ex rel. Betty Ann Torres (Stone)

Spurlock.

OPINION

I. Factual and Procedural Background

In February 2015, the State, acting on behalf of the plaintiff, Betty Ann Torres

(Stone) Spurlock, filed a petition for contempt in the Chancery Court for Weakley

County (“trial court”) against the respondent, Cesar G. Torres, a resident of the State of

Texas. In this petition, the State alleged that Ms. Spurlock was receiving child support

enforcement services pursuant to Tennessee Code Annotated § 71-3-124 and Title IV-D

of the Social Security Act, 42 U.S.C. § 601, et seq., because Ms. Spurlock was

participating in a state-sponsored public assistance program or had made application for

such services. The State further averred that the trial court had entered an order on April

4, 2007, requiring Mr. Torres to pay $200 per month toward a child support arrearage

owed to Ms. Spurlock for the benefit of their four minor children.1 According to the

State, this arrearage totaled $106,297 as of December 31, 2014. The relief requested

included that (1) Mr. Torres be found in contempt; (2) a judgment for such arrearage be

entered against Mr. Torres; (3) an income assignment be entered, requiring Mr. Torres’s

employer to deduct child support payments from his income; and (4) Mr. Torres’s

licenses be revoked. The record reflects that an income withholding order was thereafter

sent to “Multi Framing Incorporated” in Lewisville, Texas.

On July 28, 2015, Mr. Torres’s counsel filed a motion seeking to vacate the trial

court’s earlier child support orders by reason of lack of personal jurisdiction. In this

motion, Mr. Torres entered a special limited appearance without waiving his objection on

jurisdictional grounds. Mr. Torres admitted that he was the father of Ms. Spurlock’s four

children, explaining that he and Ms. Spurlock had been married and living in Texas with

the children in 1998 when Ms. Spurlock suddenly removed the children to the State of

Tennessee without Mr. Torres’s knowledge or consent. Mr. Torres further asserted that

he had traveled to Tennessee on one occasion in 1999 or 2000 in order to find the

children, visiting with them for approximately two hours. According to Mr. Torres, he

remained a resident of the State of Texas and had no other contacts with the State of

Tennessee.

Mr. Torres contended that the instant action was controlled by the Tennessee

Uniform Interstate Family Support Act (“UIFSA”), Tennessee Code Annotated § 36-5-

2001, et seq., because it involved an interstate child support action. According to Mr.

Torres, none of the bases for exercising personal jurisdiction over a nonresident listed in

Tennessee Code Annotated § 36-5-2201 were applicable to allow the trial court to

exercise personal jurisdiction over him. Mr. Torres further argued that even if a

sufficient basis for such exercise of personal jurisdiction did exist, he had never been

1

The trial court had entered more than one prior child support order concerning Mr. Torres.

2

properly served with process. Mr. Torres thus sought relief from the trial court’s prior

child support orders pursuant to Tennessee Rule of Civil Procedure 60.02, asserting that

such prior orders were void. An affidavit was filed in support of his motion.

By order entered October 30, 2015, the trial court found that a divorce was granted

to Ms. Spurlock on July 26, 1999, following service on Mr. Torres by publication. The

court also determined that the issue of child support was reserved in that order until

personal service could be obtained on Mr. Torres. As the court explained, the State

subsequently filed a petition seeking to set child support in December 2000, finding that

“[t]he court record reflects [Mr. Torres] was personally served in Texas on March 21,

2001.” The court further noted that child support was set by default in the amount of

$796 per month retroactive to August 1, 1999.

The 2015 order further provides that the State thereafter filed a petition for

modification on December 29, 2006. According to the trial court, a “United States Postal

Service Domestic Return Receipt (green card) was signed by ‘Cesar Torres’ on January

25, 2007.” Mr. Torres’s child support obligation was subsequently modified to $673 per

month, with an additional arrearage payment of $200 per month toward an arrearage of

$73,232. The trial court also noted that when the State filed the recent petition for

contempt, Mr. Torres was again purportedly served by mail, as evinced by a “green card”

signed by “Cesar Torrez” on May 27, 2015.

Due to the fact that Ms. Spurlock had not appeared for the hearing, the trial court

continued the matter until Ms. Spurlock could be summoned to court, finding her to be an

indispensible party. The court indicated that a subsequent hearing would be conducted to

determine whether the court maintained personal jurisdiction over Mr. Torres and

whether its prior child support orders were valid, voidable, or void.

The next entry in the record is a February 10, 2016 “Order of Dismissal,”

providing that the State’s petition for contempt was dismissed without prejudice. This

order listed the basis for dismissal as “Respondent is making payments.” On April 11,

2016, Mr. Torres filed a motion seeking a default judgment granting his motion to vacate,

inasmuch as Ms. Spurlock had failed to appear or respond to his earlier motion.

The trial court conducted a hearing with respect to Mr. Torres’s motion to vacate

on June 24, 2016. The court’s subsequent order, entered on July 5, 2016, stated that Ms.

Spurlock was present for the hearing but that no testimony was given. The court’s order

delineated the eight bases for exercising personal jurisdiction over a nonresident

defendant in order to establish a child support award pursuant to Tennessee Code

Annotated § 36-5-2201.2 The court determined that subsection (2), concerning an

2

The trial court correctly applied the version of Tennessee Code Annotated § 36-5-2201 that was in effect

3

individual who submits to the jurisdiction of the court, constituted a proper basis for

asserting personal jurisdiction over Mr. Torres. The court found that Mr. Torres

“requested an administrative review of a child support arrearage on November 19, 2002,”

which was “in effect ‘filing a responsive pleading having the effect of waiving any

contest to personal jurisdiction.’”

The trial court also determined that personal jurisdiction regarding Mr. Torres

could be predicated on subsection (8), which the court described as a “catch all”

provision. In support, the court noted that Mr. Torres was personally served with process

in Texas in 2001, was also served by mail in 2007 and 2015, had visited the children in

Tennessee, and had made some child support payments for the children’s benefit while

they were residing in Tennessee. The court also found that Mr. Torres failed to challenge

jurisdiction “within a reasonable time as required by Rule 60 of the Tennessee Rules of

Civil Procedure.” The court therefore denied Mr. Torres’s motion to vacate the prior

child support orders. Mr. Torres timely appealed.

II. Issues Presented

Mr. Torres presents the following issues for our review, which we have restated

slightly:

1. Whether the trial court erred by determining that a request for

administrative review of a child support arrearage constitutes “filing

a responsive document having the effect of waiving any contest to

personal jurisdiction” pursuant to Tennessee Code Annotated § 36-

5-2201(2).

2. Whether the trial court erred by determining that Mr. Torres had

sufficient contacts with Tennessee to satisfy Tennessee Code

Annotated § 36-5-2201(8).

3. Whether the trial court erred by determining that there was no

factual evidence to overcome the presumption of valid service of

process in 2001 and 2007.

at the time this action was filed. In 2010, the General Assembly repealed and reenacted the Tennessee

Uniform Interstate Family Support Act. See 2010 Tenn. Pub. Acts, Ch. 901 (H.B. 3647). The

subsections at issue in this appeal are now designated as -2201(a)(2) and (a)(8).

4

The State raises a single additional issue, which we have also restated slightly:

4. Whether the trial court properly denied Mr. Torres’s motion seeking

to vacate the prior child support orders.

III. Standard of Review

Mr. Torres sought to vacate the trial court’s prior orders pursuant to Tennessee

Rule of Civil Procedure 60.02(3), arguing that the orders were void for lack of personal

jurisdiction. See Hood v. Jenkins, 432 S.W.3d 814, 825 (Tenn. 2013) (“[A] void

judgment is one that is invalid on its face because the issuing court either lacked subject

matter or personal jurisdiction over the proceedings, or the judgment itself was outside of

the pleadings.”).3 As our Supreme Court has explained regarding the proper standard of

review with respect to a denial of relief pursuant to Tennessee Rule of Civil Procedure

60.02(3):

In general, we review a trial court’s ruling on a request for relief

from a final judgment under Rule 60.02 of the Tennessee Rules of Civil

Procedure (“Tennessee Rule 60.02”) pursuant to the abuse of discretion

standard. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012)

(citing Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). We have not

previously considered whether this standard applies to a trial court’s ruling

on a motion alleging that a judgment is void for lack of jurisdiction under

Tennessee Rule 60.02(3). Nevertheless, we have previously held that

“[w]hether a trial court has subject matter jurisdiction over a case is a

question of law that we review de novo with no presumption of

correctness.” Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114,

122 (Tenn. 2013) (citing Word v. Metro Air Servs., Inc., 377 S.W.3d 671,

674 (Tenn. 2012)). Moreover “[a] decision regarding the exercise of

personal jurisdiction over a defendant involves a question of law” to which

de novo review applies, Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635,

645 (Tenn. 2009), and de novo review also applies when we are

interpreting the Tennessee Rules of Civil Procedure, Thomas v. Oldfield,

279 S.W.3d 259, 261 (Tenn. 2009).

Furthermore, when interpreting our own rules of civil procedure, we

consult and are guided by the interpretation that has been applied to

3

“Nevertheless, a judgment of a court of general jurisdiction is presumed to be valid and will be held void

only when ‘its invalidity is disclosed by the face of that judgment, or in the record of the case in which

that judgment was rendered.’” Turner v. Turner, 473 S.W.3d 257, 270 (Tenn. 2015) (quoting Giles v.

State ex rel. Giles, 235 S.W.2d 24, 28 (Tenn. 1950)).

5

comparable federal rules of procedure. Id. at 261-62; see also Williamson

Cnty. v. Twin Lawn Dev. Co., 498 S.W.2d 317, 320 (Tenn. 1973) (“[O]ur

Rules having been taken from the Federal Rules of Civil Procedure, and the

object of our virtual adoption of the federal rules being to have similar rules

of procedure in state trial courts and federal district courts, it is proper that

we look to the interpretation of the comparable Federal Rule.”).

Rule 60(b)(4) of the Federal Rules of Civil Procedure (“Federal Rule

60(b)(4)”) is comparable, indeed, identical to Tennessee Rule 60.02(3).

Federal courts apply de novo review when considering a district court’s

ruling on a Federal Rule 60(b)(4) motion. See Cent. Vermont Pub. Serv.

Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir. 2003) (“Almost every Circuit

has adopted de novo review of [Federal] Rule 60(b)(4) motions, and we

know of no Circuit that defers to the district court on a [Federal] Rule

60(b)(4) ruling.” (citing Vinten v. Jeantot Marine Alliances, S.A., 191 F.

Supp. 2d 642, 649-50 & nn. 12-13 (D.S.C. 2002) (collecting cases));

Jackson v. FIE Corp., 302 F.3d 515, 522 (5th Cir. 2002) (“[W]e review

Rule 60(b)(4) challenges [to a void judgment] de novo “because it is ‘a per

se abuse of discretion for a district court to deny a motion to vacate a void

judgment.’” (quoting Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.

1998)); Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (stating that

de novo review applies to a federal district court’s ruling on a motion for

relief from a void judgment based on Rule 60(b)(4) of the Federal Rules of

Civil Procedure “‘because the question of the validity of a judgment is a

legal one.’” (quoting Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469

(9th Cir. 1995))). We agree with the rationale of these decisions and will

apply de novo review, with no presumption of correctness, when reviewing

a trial court’s ruling on a Tennessee Rule 60.02(3) motion to set aside a

judgment as void. Any factual findings a trial court makes shall be

reviewed de novo, with a presumption of correctness, unless the evidence

preponderates otherwise. Tenn. R. App. P. 13(d).

Turner v. Turner, 473 S.W.3d 257, 268-69 (Tenn. 2015).

IV. Personal Jurisdiction Pursuant to Tennessee Code Annotated § 36-5-2201

It is undisputed that Mr. Torres is a resident of the State of Texas. Therefore, the

parties concede that this action is controlled by the Tennessee Uniform Interstate Family

Support Act, Tennessee Code Annotated § 36-5-2001, et seq., because it involves an

interstate child support action. According to Mr. Torres’s argument, the trial court’s prior

child support orders are void because none of the bases for exercising personal

6

jurisdiction over a nonresident listed in Tennessee Code Annotated § 36-5-2201 were

applicable in this matter to permit the trial court to exercise personal jurisdiction over

him.

As our Supreme Court has explained with regard to personal jurisdiction:

The lawful authority of a court to adjudicate a controversy brought

before it depends upon that court having jurisdiction of the subject matter

and jurisdiction of the parties. Landers v. Jones, 872 S.W.2d 674, 675

(Tenn. 1994); Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Brown v.

Brown, 155 Tenn. 530, 296 S.W. 356, 358 (1927). Subject matter

jurisdiction refers to the power of a court to adjudicate the particular

category or type of case brought before it. Estate of Brown, 402 S.W.3d

193, 198-99 (Tenn. 2013); Chapman v. DaVita, Inc., 380 S.W.3d 710, 712

(Tenn. 2012); Word [v. Metro Air Servs., Inc.], 377 S.W.3d [671,] 674

[(Tenn. 2012)]. Personal jurisdiction refers to the power of a court over the

parties to the controversy to render a binding judgment. Landers, 872

S.W.2d at 675. The concepts of subject matter jurisdiction and personal

jurisdiction are fundamentally different. Ins. Corp. of Ireland v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-03, 102 S.Ct. 2099,

72 L.Ed.2d 492 (1982); Landers, 872 S.W.2d at 675. Subject matter

jurisdiction confines judicial power to the boundaries drawn in

constitutional and statutory provisions. Ins. Corp. of Ireland, 456 U.S. at

702, 102 S.Ct. 2099; Word, 377 S.W.3d at 674; Northland Ins. Co. v. State,

33 S.W.3d 727, 729 (Tenn. 2000).

***

By contrast, personal jurisdiction recognizes and protects an

individual liberty interest that flows from the Due Process Clause and

requires that maintenance of the suit “not offend ‘traditional notions of fair

play and substantial justice.’” Ins. Corp. of Ireland, 456 U.S. at 702, 102

S.Ct. 2099 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66

S.Ct. 154, 90 L.Ed. 95 (1945)). “It represents a restriction on judicial

power not as a matter of sovereignty, but as a matter of individual liberty.”

Id. at 703, 102 S.Ct. 2099. Because the requirement of personal

jurisdiction functions to protect an individual right, it can, like other such

rights, be waived. Id.; Landers, 872 S.W.2d at 675.

Turner, 473 S.W.3d at 269-70.

7

Regarding interstate child support actions and personal jurisdiction, Tennessee

Code Annotated § 36-5-2201 (2001) provides:

In a proceeding to establish, enforce, or modify a support order or to

determine parentage, a tribunal of this state may exercise personal

jurisdiction over a nonresident individual or the individual’s

guardian or conservator if:

(1) The individual is personally served with notice within this state;

(2) The individual submits to the jurisdiction of this state by consent,

by entering a general appearance, or by filing a responsive document

having the effect of waiving any contest to personal jurisdiction;

(3) The individual resided with the child in this state;

(4) The individual resided in this state and provided prenatal

expenses or support for the child;

(5) The child resides in this state as a result of the acts or directives

of the individual;

(6) The individual engaged in sexual intercourse in this state and the

child may have been conceived by that act of intercourse;

(7) The individual asserted parentage in the putative father registry

maintained in this state by the department of children’s services; or

(8) There is any other basis consistent with the constitutions of this

state and the United States for the exercise of personal jurisdiction.

The trial court determined that two of the above-listed bases, subsection (2) and

subsection (8), would be applicable for it to exercise personal jurisdiction over Mr.

Torres. We will address each of these subsections in turn.

A. Tennessee Code Annotated § 36-5-2201(2)

Tennessee Code Annotated § 36-5-2201(2) states that personal jurisdiction may be

exercised over a nonresident when the “individual submits to the jurisdiction of this state

by consent in a record, by entering a general appearance, or by filing a responsive

document having the effect of waiving any contest to personal jurisdiction.” It is

8

undisputed that Mr. Torres has neither entered a general appearance in this matter nor

consented to the trial court’s jurisdiction in a record. The court instead found that Mr.

Torres “requested an administrative review of a child support arrearage on November 19,

2002,” which was “in effect ‘filing a responsive pleading having the effect of waiving

any contest to personal jurisdiction.’” Such request for administrative review, if it was in

written form, does not appear in the appellate record.4

In his affidavit filed with the trial court, Mr. Torres admitted that he received a

letter from the State via regular mail in approximately 2002 or 2003, informing him that

he owed child support in Tennessee. Mr. Torres explained that he consulted an attorney

in Texas at that time, who told him that the matter would have to be dealt with in

Tennessee. Mr. Torres further stated that he did not hire the Texas attorney because the

attorney informed Mr. Torres that he could do nothing to help. In his appellate brief, Mr.

Torres professes no knowledge of a request for administrative review referenced in the

trial court’s final order. Mr. Torres argues that assuming such a document does exist, it

would not constitute “a responsive document having the effect of waiving any contest to

personal jurisdiction.” See Tenn. Code Ann. § 36-5-2201(2).

The official comments to Tennessee Code Annotated § 36-5-2201 provide:

“Subsection (2) expresses the principle that a nonresident party concedes personal

jurisdiction by seeking affirmative relief or by submitting to the jurisdiction by answering

or entering an appearance.” Furthermore, this Court has construed this statutory

subsection as follows:

The statute is consistent with the general rule that a party who makes

a general appearance and does not object to the court’s personal jurisdiction

will be deemed to have waived the party’s objection. Tennessee Dep’t. of

Human Serv’s v. Daniel, 659 S.W.2d 625, 626 (Tenn. Ct. App. 1983).

General appearances consist of acts from which it can reasonably be

inferred that the party recognizes and submits itself to the jurisdiction of the

court. Patterson v. Rockwell Int’l, 665 S.W.2d 96, 99-100 (Tenn. 1984). A

general appearance may be made by the filing of pleadings or orally in open

court. Any appearance that contests the merits of the complaint without

raising the jurisdictional defense is deemed to be a general appearance.

P.E.K. v. J.M., 52 S.W.3d 653 (Tenn. Ct. App. 2001).

4

In its brief, the State contends that this request for review was in the form of a letter from a Texas

attorney. On March 10, 2017, the State filed a motion with this Court requesting supplementation of the

record with its pretrial brief and attachments, which purportedly included a copy of this letter. The

State’s motion was denied on March 14, 2017, because the motion did not comply with the requirements

of Tennessee Rule of Appellate Procedure 22. The State filed no further motions.

9

In re J.B.W., No. M2007-02541-COA-R9-CV, 2007 WL 4562885, at *2 (Tenn. Ct. App.

Dec. 27, 2007). See Cliburn v. Bergeron, No. M2001-03157-COA-R3-CV, 2002 WL

31890868, at *12 (Tenn. Ct. App. Dec. 31, 2002) (explaining that a nonresident parent

who filed motions in the Tennessee court seeking affirmative relief submitted himself to

the jurisdiction of the Tennessee trial court and waived any objection to lack of personal

jurisdiction); see, e.g., Dooley v. Dooley, 980 S.W.2d 369, 372 (Tenn. Ct. App. 1998)

(“Father’s action in this [pre-UIFSA] 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.”).

Assuming, arguendo, that Mr. Torres sent a letter or some type of document to the

State seeking administrative review of his child support obligation, such a request would

not be sufficient to constitute an answer or appearance permitting the trial court to

exercise personal jurisdiction in this matter. According to the record before this Court,

Mr. Torres filed no pleadings in this case prior to his motion to vacate, wherein he

explicitly reserved his jurisdictional objection. A letter or other document sent to the

State that was not intended to be filed with the trial court would not constitute the filing

of a pleading sufficient to waive the issue of personal jurisdiction. See Dooley, 980

S.W.2d at 371 (explaining that the nonresident parent’s attorney’s act of mailing a letter

and an answer to the resident parent’s attorney did not constitute a waiver of personal

jurisdiction issue because the answer was never filed with the court).

Furthermore, as our Supreme Court has explained concerning entry of an

appearance:

It is recognized that an appearance may be expressly made by formal

written or oral declaration, or record entry, to the effect that the defendant

appears, or it may be implied from some act done with the intention of

appearing and submitting to the court’s jurisdiction. However, 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. An express appearance

may be made by filing with the clerk a written direction to enter the

appearance of the defendant, by formal record entry, oral announcement in

open court, acceptance of service by the defendant’s attorney, or by filing

in the cause a paper which either waives service of process or which both

waives service of process and recites the entry of an appearance. These

examples are not exhaustive but merely suggestive of the many means of

making an appearance.

10

On the other hand, although an act of a defendant may have some

relation to the cause, it does not constitute a general appearance, if it in no

way recognizes that the cause is properly pending or that the court has

jurisdiction, and no affirmative action is sought from the court. Thus, it has

been held that the making of a written request by a defendant to suspend

legal proceedings did not constitute an appearance.

We conclude that the facts in this case failed to furnish any basis for

finding that the defendant appeared in this action prior to entry of the

default judgment. The letter written by Mr. Lemmon [the defendant’s

representative] to the attorney for the plaintiff accompanied by a return of

the summons and copy of the complaint served upon the defendant was not

a recognition by the defendant that it was properly in the jurisdiction of the

court but amounted to a rejection of the suit.

Patterson v. Rockwell Int’l, 665 S.W.2d 96, 99-100 (Tenn. 1984) (internal citations

omitted). Inasmuch as Mr. Torres has not entered a general appearance in this matter and

also has not filed a “responsive document having the effect of waiving any contest to

personal jurisdiction,” see Tenn. Code Ann. § 36-5-2201(2), we determine that the trial

court’s reliance on subsection (2) as a basis for exercising personal jurisdiction over Mr.

Torres was in error.

B. Tennessee Code Annotated § 36-5-2201(8)

The trial court also determined that subsection (8) constitued a proper basis for the

court’s exercise of personal jurisdiction over Mr. Torres. See Tenn. Code Ann. § 36-5-

2201 (8) (2001) (“There is any other basis consistent with the constitutions of this state

and the United States for the exercise of personal jurisdiction.”). The court found as

factual support for this determination that: (1) Mr. Torres was personally served with

process in 2001 in Texas, (2) Mr. Torres signed receipts for service by registered mail in

2007 and 2015, (3) Mr. Torres visited the children in Tennessee, and (4) Mr. Torres made

some child support payments for the benefit of the children while they were living in

Tennessee.

The official comments to Tennessee Code Annotated § 36-5-2201 provide:

[S]ubsection (8) tracks the broad, catch-all provisions found in many state

statutes, including California, Civ. P. Code § 410.10 (1973); New York,

[New York Family Court Act § 154], and Texas, [Texas Family Code §

102.011]. Note, however, that the California provision, standing alone, was

11

found to be inadequate to sustain a child support order under the facts

presented in Kulko v. Superior Court of California for San Francisco, 436

U.S. 84 (1978).

In Kulko v. Superior Court of Cal. in & for City & Cty. of San Francisco, 436 U.S.

84, 94 (1978), the United States Supreme Court held that the father, who was a resident

of New York, had not “purposefully availed himself” of the benefits of California law by

agreeing to allow his minor child to reside in California with her mother. Inasmuch as

the father’s only other contacts with California included two short visits prior to the child

support dispute, the High Court determined that exercise of personal jurisdiction by the

California courts over the father would violate the Due Process Clause of the Fourteenth

Amendment. Id. The Court noted that it was of no consequence that the father’s

expenses in New York had arguably been diminished or that his acquiescence in the

child’s residing in California caused an “effect” in that state. Id. at 95.

The Kulko Court also discredited the argument that California had “substantial

interests in protecting the welfare of its minor residents” and in facilitating child support

actions on their behalf. Id. at 100. Although the Court recited that the father had been

paying child support to the mother in California, the Court apparently found this

circumstance to be inconsequential, inasmuch as this fact was not discussed in the

Court’s personal jurisdiction analysis. Rather, because it was the mother who had chosen

to move to California, the Court ruled:

“[t]he unilateral activity of those who claim some relationship with a

nonresident defendant cannot satisfy the requirement of contact with the

forum State. . . . [I]t is essential in each case that there be some act by

which the defendant purposefully avails [him]self of the privilege of

conducting activities within the forum State . . . .”

Kulko, 436 U.S. at 93-94 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

Upon a review of the record, we determine the trial court’s reliance on subsection

(8) of the statute as a means to exercise personal jurisdiction over Mr. Torres based upon

the facts of this case to be in error. As the Tennessee Supreme Court has explained with

respect to personal jurisdiction and due process:

The authority of courts to exercise personal jurisdiction over

nonresident defendants is circumscribed by the Due Process Clause of the

Fourteenth Amendment. When the issue of personal jurisdiction arises, due

process obligates the courts to ascertain whether it is “fair and substantially

just to both parties to have the case tried in the state where the plaintiff has

12

chosen to bring the action.” Masada Inv. Corp. v. Allen, 697 S.W.2d [332,]

335 [(Tenn. 1985)] (quoting Shelby Mut. Ins. Co. v. Moore, 645 S.W.2d

[242,] 246 [(Tenn. Ct. App. 1981)]); see also Davis Kidd Booksellers, Inc.

v. Day-Impex, Ltd., 832 S.W.2d [572,] 575 [(Tenn. Ct. App. 1992)]; 16

James Wm. Moore, Moore’s Federal Practice § 108.41[1], at 108-47 (3d

ed. 2009) (hereinafter “16 Moore’s Federal Practice ”).

Tennessee courts have generally held that the due process

requirements of the Constitution of Tennessee are co-extensive with those

of the United States Constitution. Gallaher v. Elam, 104 S.W.3d 455, 463

(Tenn. 2003); Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994). We have

also drawn helpful guidance from the decisions of the federal courts,

particularly the United States Supreme Court, with regard to the application

of due process principles to the exercise of personal jurisdiction over the

nonresident defendants. . . .

Approximately sixty years ago, the United States Supreme Court

noted that personal jurisdiction could be exercised over a nonresident

defendant only if the defendant has “certain minimum contacts with [the

forum state] such that the maintenance of the suit does not offend

‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting

Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940));

see also J.I. Case Corp. v. Williams, 832 S.W.2d 530, 531-32 (Tenn. 1992).

This is a two-part test which requires evaluating whether the requisite

minimum contacts are present and whether the exercise of jurisdiction is

fair. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174,

85 L.Ed.2d 528 (1985); Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd.,

832 S.W.2d at 575.

The defendant’s contacts with the forum state need not be physical,

and the court will primarily examine the quantity of the contacts, their

nature and quality, and the relationship between the contacts and the cause

of action. Masada Inv. Corp. v. Allen, 697 S.W.2d at 334. As part of its

evaluation of the reasonableness of exercising jurisdiction, the court “must

consider the burden on the defendant, the interests of the forum State, and

the plaintiff’s interest in obtaining relief. It must also weigh in its

determination ‘the interstate judicial system’s interest in obtaining the most

efficient resolution of controversies[,] and the shared interest of the several

States in furthering fundamental substantive social policies.’” Asahi Metal

Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94

13

L.Ed.2d 92 (1987) (quoting World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Federal and state courts now recognize two varieties of personal

jurisdiction—specific jurisdiction and general jurisdiction. The United

States Supreme Court first distinguished between specific and general

jurisdiction in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). This Court followed suit in

1992 in J.I. Case Corp. v. Williams, 832 S.W.2d at 532.

Specific jurisdiction may be asserted when the plaintiff’s cause of

action arises from or is related to the nonresident defendant’s activities in or

contacts with the forum state. To invoke specific jurisdiction, a plaintiff

must show (1) that the nonresident defendant has purposely established

significant contact with the forum state and (2) that the plaintiff’s cause of

action arises out of or is related to these activities or contacts. Burger King

Corp. v. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174. The nonresident

defendant’s contacts with the forum state must be sufficient to enable a

court to conclude that the defendant “should reasonably anticipate being

haled into court [in the forum state].” Lindsey v. Trinity Commc’ns, Inc.,

275 S.W.3d 411, 418 (Tenn. 2009) (quoting World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. at 297, 100 S.Ct. 559). If the plaintiff can make that

showing, the defendant will have the burden of showing that the exercise of

specific jurisdiction would be unfair. Burger King Corp. v. Rudzewicz, 471

U.S. at 477, 105 S.Ct. 2174; 16 Moore’s Federal Practice §§ 108.42[1], at

108-54, 108.42[6], at 108-77.

Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 646-48 (Tenn. 2009).

In the case at bar, the only contact that Mr. Torres had with Tennessee was his

single two-hour visit to Tennessee to locate the children in 1999 or 2000. This one visit,

standing alone, is clearly insufficient to establish minimum contacts with Tennessee. See

Isaacson v. Fenton, No. 03A01-9804-JV-00119, 1998 WL 429654, at *4 (Tenn. Ct. App.

July 30, 1998) (“[T]he respondent’s one short visit to Tennessee, standing alone, does not

satisfy the constitutional requirement of minimum contacts.”). Otherwise, Mr. Torres

resided in Texas and did not “purposefully avail himself” of the benefits of Tennessee

law in any manner. See Kulko, 436 U.S. at 93-94. Unlike the father in Kulko, Mr. Torres

claims that he did not agree to allow the parties’ children to move to Tennessee. The fact

that Mr. Torres might have paid child support to Ms. Spurlock that she received in

Tennessee is inconsequential, as is any argument by the State that it has an interest in

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facilitating a child support action on the children’s behalf. Id. at 93-94, 100. Although

the children have been living in Tennessee with Ms. Spurlock for many years,

“[t]he unilateral activity of those who claim some relationship with a

nonresident defendant cannot satisfy the requirement of contact with the

forum State. . . . [I]t is essential in each case that there be some act by

which the defendant purposefully avails [him]self of the privilege of

conducting activities within the forum State . . . .”

Id. at 93-94 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

Furthermore, the fact that Mr. Torres may have been served with process in Texas

is also of no consequence because Mr. Torres did not have sufficient minimum contacts

with Tennessee such that he could be subjected to personal jurisdiction. See Landers v.

Jones, 872 S.W.2d 674, 675 (Tenn. 1994) (quoting Int’l Shoe Co. v. Washington, 326

U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)) (“Personal jurisdiction of non-

resident defendants may be obtained by service of process . . . if, and only if, the non-

resident defendant has such minimum contacts with this state that maintenance of the suit

does not offend ‘traditional notions of fair play and substantial justice.’”); Masada Inv.

Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn. 1985) (“In determining whether or not a state

can assert long-arm jurisdiction, due process requires that a non-resident defendant be

subjected to a judgment in personam only if he has minimum contacts with the forum . . .

.”). We therefore determine that the trial court erred in relying on Tennessee Code

Annotated § 36-5-2201(8) as a basis for exercising personal jurisdiction over Mr. Torres.

We also determine that Mr. Torres’s issue concerning whether the service of process

upon him was valid is pretermitted as moot.5 We conclude that the trial court’s prior

orders of child support were void for lack of personal jurisdiction.

V. Exceptional Circumstances

The State argues that even if the trial court lacked personal jurisdiction over Mr.

Torres so as to render its prior child support orders void, the court was nonetheless

justified in denying Mr. Torres’s motion to vacate due to the existence of exceptional

circumstances. In Turner, our Supreme Court explained that “relief from a void

judgment may be denied if certain exceptional circumstances exist.” See Turner, 473

5

We note that although the trial court determined that Mr. Torres failed to challenge personal jurisdiction

within a reasonable time, our Supreme Court has explained that “void judgments may be attacked at any

time” and that the “reasonable time filing requirements thus may not be applied to bar motions seeking

relief from void judgments pursuant to Tennessee Rule [of Civil Procedure] 60.02(3).” See Turner, 473

S.W.3d at 279.

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S.W.3d at 279. The Court, relying on Restatement (Second) of Judgments § 66 (1982),

determined that such exceptional circumstances could be shown when:

(1) The party seeking relief, after having had actual notice of the judgment,

manifested an intention to treat the judgment as valid; and

(2) Granting the relief would impair another person’s substantial interest of

reliance on the judgment.

Turner, 473 S.W.3d at 280. Although the trial court acknowledged at the hearing on Mr.

Torres’s motion that the presence of exceptional circumstances could justify denying

relief from a void judgment pursuant to Turner, the court did not expressly determine in

its subsequent order whether such circumstances existed in this case.6

By determining that Mr. Torres’s motion to vacate should be overruled and the

trial court’s previous child support orders held valid, the trial court did not reach the issue

of whether exceptional circumstances existed so as to justify denying relief from a void

judgment. Because the trial court made no ruling regarding whether such exceptional

circumstances existed in this case, we must remand this matter to the court for such

determination following a hearing. See Turner, 473 S.W.3d at 282. As stated in Turner,

upon remand, the court will need to determine whether (1) after receiving actual notice of

the prior orders, Mr. Torres manifested an intention to treat those orders as valid and (2)

whether vacating those orders would impair Ms. Spurlock’s substantial interest of

reliance on the orders. See id. at 282-83. The hearing on remand will afford the parties

an opportunity to be heard and to present proof relevant to any exceptional

circumstances.

VI. Conclusion

For the foregoing reasons, we reverse the trial court’s determination that it

maintained a valid basis for exercising personal jurisdiction over Mr. Torres. We

conclude that the trial court’s prior child support orders are void for lack of personal

jurisdiction. We remand this matter to the trial court for a determination concerning

whether exceptional circumstances exist that would justify denying relief from the prior

void orders. Costs on appeal are taxed to the appellee, State of Tennessee ex rel. Betty

Ann Torres (Stone) Spurlock.

6

In its earlier October 30, 2015 order, the trial court indicated that if it subsequently determined the prior

child support orders to be void, it would consider “whether there are exceptional circumstances to deny

relief to the defendant in accordance with the recent Tennessee Supreme Court decision in Turner v.

Turner, No. W2013-01833-SC-R11-CV, filed October 21, 2015.”

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_________________________________

THOMAS R. FRIERSON, II, JUDGE

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