       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                                FILED
VICTORIA L. HYMEL,            )                   April 11, 1997
                              )
       Plaintiff/Appellee,    )                Cecil W. Crowson
                              )    Davidson Circuit
                                                Appellate Court
                              )    No. 96D-2426      Clerk
VS.                           )
                              )    Appeal No.
                              )    01A01-9703-CV-00136
LAWRENCE P. HYMEL, JR.,       )
                              )
       Defendant/Appellant.   )



      APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

              THE HONORABLE MURIEL ROBINSON, JUDGE



For the Plaintiff/Appellee:        For the Defendant/Appellant:

Steven M. Moore                    P. Edward Schell
Nashville, Tennessee               Franklin, Tennessee




                  AFFIRMED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                         MEMORANDUM OPINION

       This interlocutory appeal involves parties who have commenced divorce
proceedings in two states. After obtaining a divorce in Louisiana, the husband
filed motions in the Fourth Circuit Court for Davidson County seeking to dismiss
the wife’s pending Tennessee divorce complaint. The trial court determined that
the Louisiana decree was entitled to full faith and credit but decided to proceed
with the wife’s claim for spousal support. The husband, with the trial court’s
permission, seeks this interlocutory appeal to determine whether the trial court has
subject matter jurisdiction over the wife’s claim. We have determined that an
interlocutory appeal is warranted,1 that the trial court’s denial of the husband’s
motion to dismiss for lack of subject matter jurisdiction should be affirmed in
accordance with Tenn. Ct. App. R. 10(b),2 and that the case should be remanded
for further proceedings consistent with this opinion.


       Lawrence P. Hymel, Jr. and Victoria L. Hymel were married in Metarie,
Louisiana in October 1988. Following their separation, Ms. Hymel moved to
Tennessee. On August 6, 1996, Mr. Hymel filed for divorce in the Twenty-Ninth
Judicial District Court of the State of Louisiana, in and for the Parish of St.
Charles. Two weeks later, on August 20, 1996, Ms. Hymel filed for divorce in the
Fourth Circuit Court for Davidson County. On October 17, 1996, the Louisiana
court granted Mr. Hymel a divorce and permitted him to use and occupy the
“community movables” pending the “partition of community at a future date.”


       Mr. Hymel filed two motions to dismiss Ms. Hymel’s Tennessee complaint.
The first motion contested the court’s personal jurisdiction over him. The second
motion asserted that the trial court lacked subject matter jurisdiction because of
the pending Louisiana divorce proceeding. The record contains no indication of

       1
        In accordance with Tenn. R. App. P. 2, we dispense with the requirement of further
briefing and oral argument.
       2
           Tenn. Ct. App. R. 10(b) provides:

               The Court, with the concurrence of all judges participating in the case,
       may affirm, reverse or modify the actions of the trial court by memorandum
       opinion when a formal opinion would have no precedential value. When a case
       is decided by memorandum opinion it shall be designated “MEMORANDUM
       OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in a subsequent unrelated case.

                                               -2-
the trial court’s disposition of the first motion; however, the trial court entered an
order on January 21, 1997, determining that it had jurisdiction to consider Ms.
Hymel’s claim for spousal support. On March 18, 1997, the trial court entered an
order granting Mr. Hymel permission to pursue an interlocutory appeal.


      The concept of subject matter jurisdiction relates to a court’s lawful power
and authority to adjudicate a controversy brought before it. Turpin v. Conner
Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988). It can only be
conferred by the Constitution of Tennessee or by legislative act. Kane v. Kane,
547 S.W.2d 559, 560 (Tenn. 1977). Tenn. Code Ann. § 16-10-108 (1994) clearly
empowers the trial court to hear divorces and related domestic relations disputes.
Likewise, Tenn. Code Ann. § 36-4-104(a) (1996) gives the trial court subject
matter jurisdiction over Ms. Hymel’s spousal support claim in light of the
apparently undisputed fact that she had been a Tennessee resident for six months
preceding the filing of her divorce complaint. Accordingly, we affirm the trial
court’s January 21, 1997 order, denying Mr. Hymel’s motion to dismiss for lack
of subject matter jurisdiction.


      The controlling issues in this case are the ones raised in Mr. Hymel’s first
motion to dismiss - does the trial court have personal jurisdiction over Mr. Hymel
and, if personal jurisdiction exists, should the trial court exercise its jurisdiction
over Ms. Hymel’s claim for spousal support. See Vermillion v. Vermillion, 892
S.W.2d 829, 832 (Tenn. Ct. App. 1994). These issues have apparently not been
addressed directly by the trial court.


      A court cannot order a party in a divorce proceeding to pay spousal support
without first having personal jurisdiction over the party. Terrell v. Terrell, 192
Tenn. 317, 321-22, 241 S.W.2d 411, 413 (1951); Darby v. Darby, 152 Tenn. 287,
291-92, 277 S.W. 894, 896-97 (1925). Unless a non-resident party voluntarily
submits to the court’s authority, personal jurisdiction can be acquired only when
there has been adequate notice and when the non-resident party has sufficient
minimum contacts with the forum state. Miller v. Miller, App. No. 86-248-II,
1987 WL 15143, at *2 (Tenn. Ct. App. Aug. 5, 1987) (no Tenn. R. App. P. 11
application filed).




                                         -3-
      Ms. Hymel has the burden of demonstrating the existence of sufficient
contacts between Mr. Hymel and Tennessee to warrant the assertion of personal
jurisdiction over him. See Roderick v. Roderick, 776 S.W.2d 533, 535 (Tenn. Ct.
App. 1989). Mr. Hymel has submitted an affidavit asserting that he is a life-long
resident of Louisiana, that the parties were married in Louisiana, and that the
parties resided in Louisiana throughout their marriage. His affidavit also states
that he has never resided in Tennessee, that he owns no real estate here, and that
he has not transacted business here. Without more, these facts do not establish
sufficient minimum contacts warranting a Tennessee court’s exercise of personal
jurisdiction over Mr. Hymel. We do not view Mr. Hymel’s agreement concerning
alimony pendente lite as a waiver of his lack of personal jurisdiction defense.


      We affirm the dismissal of Mr. Hymel’s motion to dismiss for lack of
subject matter jurisdiction and remand the case to enable the trial court to
determine whether Mr. Hymel has sufficient contacts with Tennessee to warrant
a Tennessee court’s exercise of personal jurisdiction over him. Should the trial
court find that the requisite contacts are lacking, it should grant Mr. Hymel’s
motion to dismiss for lack of personal jurisdiction. Should the trial court
determine that it has personal jurisdiction over Mr. Hymel, it should then consider
whether it should proceed in light of the prior suit pending in Louisiana. We also
tax the costs of this appeal equally between the parties for which execution, if
necessary, may issue.


                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE

CONCUR:


________________________________
HENRY F. TODD, P.J., M.S.


________________________________
BEN H. CANTRELL, JUDGE




                                       -4-
