         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      September 21, 2004

            STATE OF TENNESSEE v. FREDDIE WILLIAM LEWIS

                     Appeal from the Criminal Court for Sumner County
                          No. 778-2033 Jane Wheatcraft, Judge



                  No. M2004-00210-CCA-R3-CD - Filed December 21, 2004


The appellee, Freddie William Lewis, was indicted for custodial interference after allegations arose
that he moved his child to another state in violation of a juvenile court order. The appellee filed a
motion to dismiss the indictment, arguing that a default judgment taken against him in juvenile court
on the paternity petition, which later formed the basis for the indictment, was void. The trial court
dismissed the indictment after a hearing. The State appeals, arguing that the trial court erred in
dismissing the indictment. We determine that the trial court erred in dismissing the indictment
because the default judgment was not void, but merely voidable. Accordingly, we reverse the
judgment of the trial court, reinstate the indictment and remand the case for trial

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Reversed and
                                        Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and Steve Strain, Assistant District Attorney
General, for the appellant, State of Tennessee.

David A. Doyle, District Public Defender and Mike Anderson, Assistant Public Defender, Gallatin,
Tennessee, for the appellee, Freddie William Lewis.


                                            OPINION

                                        Factual Background

       On March 27, 2003, the State filed a petition in the Sumner County Juvenile Court on behalf
of Heidi Bradley to establish inter alia paternity against the appellee. The petition instructed the
appellee to bring proof of income and appear before the juvenile court on April 21, 2003 at 9:00 a.m.
The petition also stated, “If you fail to do so [appear], a default judgment may be taken against you
for the relief demanded.” The appellee was personally served by a law enforcement officer on April
4, 2003. The appellee failed to appear in response to the petition. As a result, the Sumner County
Juvenile Court entered default judgment against the appellee, finding him to be the father of the
child, setting child support and placing the child in the mother’s custody.

        Sometime in August, the appellee apparently moved the child to another state in violation
of the order of the Sumner County Juvenile Court. As a direct result, the appellee was indicted for
custodial interference. In response to the indictment, the appellee filed a motion to dismiss the
indictment pursuant to Tennessee Rule of Criminal Procedure 12(b). In support of his motion, the
appellee argued that the default judgment was entered prior to the expiration of the thirty-day
response period required in Tennessee Code Annotated section 36-2-308(c) and that, as a result, the
order was “invalid and not entitled to the force of law.”

        After a hearing, the trial court determined that the juvenile court had both subject matter and
personal jurisdiction but that the judgment was void because the thirty-day period had not expired
prior to the entry of the default judgment. The trial court determined that the juvenile court order
violated due process and, as a result, dismissed the indictment.

       The State filed a timely notice of appeal, arguing that the trial court erred in dismissing the
indictment.

                                              Analysis

        On appeal, the State argues that the trial court committed reversible error by dismissing the
indictment based on its finding that the default judgment entered in the juvenile court was void.
Specifically, the State argues that because the Sumner County Juvenile Court had both subject matter
jurisdiction over the issues and personal jurisdiction over the parties, that the order is valid on its
face and is not subject to collateral attack. The appellee argues that the juvenile court did not have
jurisdiction to grant the default judgment prior to the expiration of the thirty-day time period in
Tennessee Code Annotated section 36-2-308(c) and that the judgment from the juvenile court is
therefore void and requires dismissal of the indictment.

        According to Tennessee Code Annotated section 36-2-308(c), which governs paternity
actions:

       Upon proper motion, default judgement shall be entered against the defendant upon
       showing of service of process on the defendant where the defendant has failed to
       answer or make an appearance within thirty (30) days of service of process.

Tenn. Code Ann. § 36-2-308(c). In the case herein, the hearing was indeed scheduled less than thirty
days after service of process. In dismissing the indictment on the basis that the default judgment was
entered in violation of Tennessee Code Annotated section 36-6-308(c), the trial court stated:


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       But I have a real question about - - - - I think it’s a due process violation when the
       judgment went down before the 30 days. And, General, you might be right that its
       voidable, but this man - - - - I think its void, and I think its void because it violated
       due process.

        A void judgment “is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
In other words, to be found void, a judgment must have been rendered by a court lacking jurisdiction
over the subject matter or the parties or acting in some other manner inconsistent with the
requirements of due process. Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W .2d 611, 613
(Tenn. Ct. App. 1979). In New York Casualty Co. v. Lawson, 24 S.W.2d 881 (Tenn. 1930), our
Supreme Court defined a void judgment as:

       [O]ne which shows upon the face of the record a want of jurisdiction in the court
       assuming to render the judgment, which want of jurisdiction may be either of the
       person, or of the subject-matter generally, or of the particular question attempted to
       be decided or the relief assumed to be given.

24 S.W.2d at 883. A court cannot validly adjudicate upon a subject matter which does not fall within
its province as defined and limited by law. See Chickamauga Trust Co. v. Lonas, 201 S.W. 777
(Tenn. 1917). A void judgment cannot be enforced. Further, “judgments or decrees which have
been declared to be void bind nobody, bar nobody, are nullities, and justify no act done thereafter.”
Hinton v. Robinson, 364 S.W.2d 97, 99 (Tenn. 1962).

        In the case herein, neither party disputes the fact that the Sumner County Juvenile Court had
subject matter jurisdiction to determine the paternity and custody orders that were the subject of the
petition herein. Jurisdiction over paternity matters is provided for in Tennessee Code Annotated
section 36-2-307, which provides that the:

       [J]uvenile court or any trial court with general jurisdiction shall have jurisdiction of
       an action brought under this chapter; provided, that, in any county having a
       population not less than eight hundred twenty-five thousand (825,000) nor more than
       eight hundred thirty thousand (830,000) according to the 1990 federal census or any
       subsequent federal census, only the juvenile court shall have jurisdiction of an action
       brought under this chapter.

Tenn. Code Ann. § 36-2-307. Additionally, neither party disputes that the court retained personal
jurisdiction over the appellee as the court with subject matter jurisdiction in a paternity action has
“statewide jurisdiction over the parties involved in the case.” Id.

       We acknowledge that the default judgment was entered prior to the expiration of the thirty-
day period in Tennessee Code Annotated 36-2-308(c). However, procedural errors do not
necessarily render a judgment void. In Cumberland Bank. v. Smith, 43 S.W.3d 908 (Tenn. Ct. App.


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2000), a default judgment was entered prior to the expiration of the thirty-day notice requirement
specified in Tennessee Rule of Civil Procedure 55.01, but the court concluded that the judgment was
not void and therefore not subject to collateral attack because:

        [A] judgment is not subject to collateral attack for mere errors or irregularities
        committed by the court in the exercise of its jurisdiction. Errors other than lack of
        jurisdiction render the judgment merely voidable and a voidable judgment can only
        be challenged on direct appeal.

Id. at 910.

        In State v. Branch, No. E2001-00711-CCA-R3-CD, 2001 WL 1565500 (Tenn. Crim. App.
at Knoxville, Dec. 10, 2001), the defendant argued that a default judgment declaring him to be a
habitual motor vehicle offender was void because the default judgment was obtained without
complying with Rules 5, 12, 55 and 58 of the Tennessee Rules of Civil Procedure. The facts in
Branch revealed that a petition was filed requesting that the defendant be declared a motor vehicle
habitual offender. Accompanying the petition was a “show cause” order, directing the defendant to
appear less than thirty days later, to show cause as to why he should not be found a habitual offender.
A copy of the petition and order was served on the defendant a mere one week prior to the hearing.
The defendant failed to appear at the hearing and a default judgment was entered finding the
defendant to be a motor vehicle habitual offender. Almost six years later, the defendant filed a
motion to set aside the default judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil
Procedure. The trial court dismissed the motion as untimely and this Court affirmed. In so doing,
we noted that:

        [V]arious procedural errors . . . occurred in the process of obtaining the judgment by
        default. First, the trial court erred by ordering the Appellant to appear on April 11,
        1995, which was less than thirty days from the date he was served. Tennessee Code
        Annotated § 55-10-608(a) and (b) provides:

               (a) Upon the filing of the petition, the court shall make an order
               directing the individual (defendant) named therein to appear before
               the court to show cause why the defendant should not be barred from
               operating a motor vehicle on the highways of this state.
               (b) The order of the court shall specify a time certain, not earlier than
               thirty (30) days after the date of service of the petition and order, at
               which the defendant shall first appear before the court.

Branch, 2001 WL 1565500, at *3. Ultimately, this Court determined that the defendant’s failure to
file the motion to set aside the judgment within a “reasonable time” as required by Rule 60.02 of the
Tennessee Rules of Civil Procedure was fatal to his case. Id. at *4. However, in so doing, we noted
that the judgment was not void despite those procedural flaws that occurred prior to the entry of the
default judgment. Id.


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        Applying the analysis in Branch to the case herein, we determine that the failure to comply
with the thirty-day period in Tennessee Code Annotated section 36-2-308(c) did not render the
judgment of the trial court void, but merely voidable. The trial court had subject matter jurisdiction
over the issues and personal jurisdiction over the parties. The proper procedure to challenge the
paternity judgment would have been to attack the judgment in the juvenile court via a motion to set
aside the judgment in accordance with Rule 34, Tennessee Rules of Juvenile Procedure. Further,
the appellee was charged with custodial interference under Tennessee Code Annotated section 39-
13-306 which does not necessarily require, by its terms, a non-voidable juvenile court order.1 Thus,
we hold that the juvenile court order was merely voidable and that the trial court erred in dismissing
the indictment in a collateral proceeding based on the juvenile court judgment.


                                                     Conclusion

        For the foregoing reasons, we reverse the judgment of the trial court granting the appellee’s
motion to dismiss the indictment, reinstate the indictment charging the appellee with custodial
interference and remand the case for trial.




                                                                 ___________________________________
                                                                 JERRY L. SMITH, JUDGE




         1
           Tennessee Code Annotated section 39-13-306 was amended in July of 2004. The new version of the statute
makes it illegal to “[r]emove the child from this state knowing that the removal violates a child custody determination
as defined in § 36-6-205(3), the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent
judgment or court order regarding the custody or care of such child.” Tenn. Code Ann. § 39-13-306 (Supp. 2004). The
definition of child custody determination includes “a judgment, decree, or other order of a court providing for the legal
custody, physical custody, or visitation with respect to a child” and includes a permanent, temporary, initial, and
modification order. Tenn. Code Ann. § 36-6-205(3). The appellee in the case herein was indicted under the previous
version of the statute which merely required the appellee to “knowingly detain or move the child . . . from the vicinity
where the child . . . is found when the person knows that the . . . moving of the child . . . violates a temporary or
permanent judgment or court order regarding the child’s . . . custody or care.” Tenn. Code Ann. § 39-13-306 (2003).



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