                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                         Assigned on Briefs November 7, 2012

        JAMES ROBERT WILKEN v. MARY CHARLOTTE WILKEN

                An Appeal from the Chancery Court for Gibson County
                      No. 19882     George R. Ellis, Chancellor


               No. W2012-00989-COA-R3-CV - Filed December 27, 2012


This appeal involves jurisdiction over a divorce case. The parties lived in Maryland
throughout their 19-year marriage. In 2007 or 2008, the husband left the marital home in
Maryland. Several months later, he moved to Tennessee. About one year after he moved to
Tennessee, the husband filed this complaint for divorce in the trial court below. The wife
filed an answer and a counterclaim for divorce. The trial court conducted the first day of trial
in the matter, and the case was continued. Before the trial resumed, the trial court sua sponte
entered an order dismissing the case for lack of jurisdiction, in personam jurisdiction over
the wife and apparently also lack of subject-matter jurisdiction over the case. The husband
now appeals. We reverse the trial court’s decision and remand for further proceedings.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

James B. Webb and Brandon L. Newman, Trenton, Tennessee, for the Plaintiff/Appellant
James Robert Wilken

Barbara Hobock, Humboldt, Tennessee, for the Defendant/Appellee Mary Charlotte Wilken
(no appellate brief filed)
                                                  OPINION

                                   F ACTS AND P ROCEEDINGS B ELOW

Plaintiff/Appellant James Robert Wilken (“Husband”) and Defendant/Appellee Mary
Charlotte Wilken (“Wife”) were married on May 15, 1993.1 They lived in Maryland for
approximately 19 years, until Husband moved out of the marital home in June 2008. He
never returned to live in Maryland.

Sometime in 2009, Husband moved to Tennessee. He moved into the home of a Tennessee
woman, and has been living in Tennessee since that time. Wife has continued to live in
Maryland.

On September 9, 2010, Husband filed a complaint for divorce in the Chancery Court of
Gibson County, Tennessee, alleging inappropriate marital conduct and irreconcilable
differences. The complaint alleged: “The acts complained of in this Complaint for Divorce
were committed while [Husband] was a bona fide resident of [Tennessee].”

Soon after Husband filed his complaint for divorce, Wife’s attorney filed a notice of
appearance on Wife’s behalf in the trial court. On January 24, 2011, Wife filed an answer
and a counterclaim for divorce. In her answer, Wife denied that the acts described in
Husband’s complaint occurred when Husband was a resident of Tennessee, and she averred
that the acts of which Husband complained in his divorce complaint “were committed while
[Husband] was a bona fide resident of Maryland.” Wife asked the trial court to dismiss
Husband’s complaint, but she asserted a counterclaim for divorce based on irreconcilable
differences, inappropriate marital conduct, and desertion. Wife asserted that Husband had
been a resident of Tennessee for more than six months, that she at all times was a resident
of Maryland, and that “all grounds for divorce arose while the parties were bona fide
residents of Maryland.” Wife’s answer and counterclaim did not challenge the trial court’s
exercise of personal jurisdiction over her, but she instead asked the trial court to adjudicate
the rights of the parties pertaining to the divorce. Discovery ensued.

On April 18, 2012, the trial court conducted the first day of trial in the matter. Both parties
testified about their assets, their debts, and the circumstances of their separation. Wife’s
testimony was brief. She said that the parties lived in Maryland the entire time they were
married until Husband moved out, and that she still lived in the marital residence in
Maryland. At the time of trial, she was working 30 hours per week in retail, earning $11.95



1
    The record does not reveal the state in which the parties were married, but it was not Tennessee.

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per hour. Wife said she had all of the marital debt, and that Husband offered her no financial
support after he left.

Husband testified as well. He said that he moved out of the parties’ Maryland home in 2007
or 2008 because he was depressed and unhappy in the marriage. He explained that he “was
not comfortable at home. I was not happy. I was depressed. I was not supported
emotionally by or mentally by [Wife].” Immediately after he moved out of the marital home,
Husband said, he worked for a trucking company as an over-the-road truck driver. During
that time, he lived by himself in the tractor-trailer truck that he drove for his work. He
received his mail at a post office box in Portland, Oregon. At some point, the trucking
company for whom Husband was working went bankrupt. After that, in approximately 2009,
Husband began working for John R. Reed trucking company. Around that same time,
Husband moved to Tennessee into the home of his girlfriend at the time of trial
(“Girlfriend”), who also worked for John R. Reed trucking company. During his testimony,
Husband was asked, “[Y]ou didn’t even have a residence or dwelling until you moved in
with [Girlfriend]?” He answered, “That is correct.” By the time of trial, Husband had been
living with Girlfriend in Tennessee for two and a half years, and was still living there. He
commented: “My girlfriend and I have a very nice relationship . . . .” At the close of the
testimony, the trial court continued the remainder of the trial until August to give the parties
an opportunity to conduct further discovery.

A few days later, however, on April 23, 2012, the trial court entered an order, sua sponte,
dismissing the case for lack of subject-matter jurisdiction and/or lack of personal jurisdiction.
The trial court determined that the undisputed evidence at trial revealed that, at all relevant
times, the parties lived in Maryland and all of their assets were in Maryland, with the
exception of the personal property Husband took with him when he moved out of the marital
home. The trial court noted that Husband “did not testify to any contact that [Wife] had with
the State of Tennessee.” Given these facts, the trial court held:

       Subject matter jurisdiction relates to the court’s power and authority to
       adjudicate the particular claim. Personal jurisdiction relates to the court’s
       authority over the parties themselves. Issues involving subject matter
       jurisdiction are purely questions of law. A court in Tennessee cannot exercise
       personal jurisdiction over a non-resident party unless the non-resident part[y]
       has sufficient minimum contacts with the State to warrant the exercise of
       personal jurisdiction. The plaintiff has the burden of demonstrating that the
       non-resident party has sufficient minimum contacts with Tennessee to warrant
       the exercise of personal jurisdiction.




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       Tennessee Code Annotated [§] 20-2-222 and 223 set[] out nine conditions
       based upon enduring relationship and conduct when a court can exercise
       personal jurisdiction. None of these conditions were proven by James Robert
       Wilken. . . .

       The court is persuaded that [Wife’s] prayer that Husband’s Complaint for
       Divorce should be dismissed should be granted and costs taxed to [Husband].
       Likewise [Wife’s] counterclaim and any issues not specifically rule[d] on are
       dismissed.

(Citations omitted). Thus, based on Wife’s insufficient contacts with Tennessee, the trial
court concluded that it lacked personal jurisdiction over Wife. The trial court’s order
discussed subject-matter jurisdiction, but it is unclear whether the trial court concluded that
it lacked subject-matter jurisdiction over the lawsuit. At any rate, it dismissed the entire case.
From this order, Husband now appeals. Wife did not file an appellate brief, so we address
the issues based on Husband’s appellate brief and the appellate record.

                                           A NALYSIS

On appeal, Husband argues that the trial court erred in dismissing this lawsuit based on lack
of personal jurisdiction and lack of subject-matter jurisdiction. The trial court’s rulings on
these issues are conclusions of law, which are reviewed de novo on the record, affording the
trial court’s decision no presumption of correctness. See Gordon v. Greenview Hosp., Inc.,
300 S.W.3d 635, 645 (Tenn. 2009) (personal jurisdiction); Northland Ins. Co. v. State, 33
S.W.3d 727, 729 (Tenn. 2000) (subject-matter jurisdiction).

On the issue of personal jurisdiction, Husband argues that Wife consented to personal
jurisdiction by filing a general appearance in the trial court, and by filing an answer and a
counterclaim in which she raised no issue as to personal jurisdiction. Husband argues that
the trial court erred in dismissing the case based on lack of subject-matter jurisdiction
because Tennessee Code Annotated § 36-4-104(a) gives the trial court jurisdiction over the
case if either party has resided in Tennessee for the six months immediately preceding the
filing of the complaint for divorce. That statute provides:

       (a) A divorce may be granted for any of the causes referenced in § 36-4-101
       if the acts complained of were committed while the plaintiff was a bona fide
       resident of this state or if the acts complained of were committed out of this
       state and the plaintiff resided out of the state at the time, if the plaintiff or the
       defendant has resided in this state six (6) months next preceding the filing of
       the complaint.

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Tenn. Code Ann. § 36-4-104(a) (2010). Husband claims that his undisputed testimony at
trial established that he had resided in Tennessee with Girlfriend for at least six months
before he filed his complaint for divorce, and Wife acknowledged this fact in her
counterclaim. Because the six-month residency requirement in Section 36-4-104(a) has been
met, Husband argues, the trial court erred in dismissing the lawsuit based on lack of subject-
matter jurisdiction.

As the trial court correctly observed, in order to adjudicate a claim, a court must possess both
personal jurisdiction and subject-matter jurisdiction. Landers v. Jones, 872 S.W.2d 674, 675
(Tenn. 1994). As the trial court also observed, the concepts of personal jurisdiction and
subject-matter jurisdiction are distinct. Personal jurisdiction refers to the court’s authority
to adjudicate the claim as to the person. Id. “Personal jurisdiction of non-resident
defendants may be obtained by service of process under the Tennessee Long Arm Statute .
. . 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.”’ Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); J.I. Case
Corp. v. Williams, 832 S.W.2d 530, 531 (Tenn. 1992)). Objections to personal jurisdiction
must be raised as a defense in the defendant’s first filing, either in the answer or in a motion
to dismiss pursuant to Rule 12 of the Tennessee Rules of Procedure. If the defendant fails
to do so and participates in the litigation prior to raising this defense, the objection to
personal jurisdiction is waived. Id.

Subject-matter jurisdiction, on the other hand, relates to the nature of the cause of action and
the relief sought. Id. Subject-matter jurisdiction implicates a court’s power to adjudicate a
particular type of case or controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004).
A court derives its subject-matter jurisdiction, either explicitly or by necessary implication,
from the Tennessee Constitution or from legislative acts. See, e.g., Meighan v. U.S. Sprint
Commc’ns Co., 924 S.W.2d 632, 639 (Tenn.1996). The parties cannot confer subject-matter
jurisdiction on a trial court, or on an appellate court, by appearance, plea, consent, silence,
or waiver. State ex rel. Dep’t. of Soc. Servs. v. Wright, 736 S.W.2d 84, 85 n.2 (Tenn. 1987).

For this reason, the issue of subject-matter jurisdiction may be raised at any time during the
proceedings, by the parties or by the court.                McQuade v. McQuade, No.
M2010-00069-COA-R3-CV, 2010 WL 4940386, at *4 (Tenn. Ct. App. Nov. 30, 2010). A
court may raise the issue of subject-matter jurisdiction sua sponte, even where no party
objects. See Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998); McQuade, 2010 WL 4940386,
at *4; In re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct. App. 2008); see Tenn. R. App.
P. 13(b).




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From our review of the record in this case, Wife did not object to the trial court’s exercise
of personal jurisdiction in her initial filings with the trial court. To the contrary, she
indicated her consent to the trial court’s exertion of personal jurisdiction when her attorney
filed a general appearance on her behalf and when she filed an answer and counterclaim that
did not object to the trial court’s exercise of jurisdiction over her. In her counterclaim, Wife
specifically asked the trial court to adjudicate all of the rights between the parties. Because
Wife clearly waived any objection and consented to personal jurisdiction, we reverse the trial
court’s holding that it did not have personal jurisdiction over Wife.

The trial court’s order discussed subject-matter jurisdiction, but it is not entirely clear
whether the dismissal of the parties’ divorce was also based on lack of subject-matter
jurisdiction, or whether it was based only on lack of in personam jurisdiction. Regardless,
because the trial court must have subject-matter jurisdiction in order to adjudicate the parties’
divorce, we will address the issue.

As we have indicated, “[s]ubject matter jurisdiction differs fundamentally from personal
jurisdiction in that the latter can be conferred by express or implied consent,” while subject-
matter jurisdiction cannot be conferred “by appearance, plea, consent, silence, or waiver.”
Landers, 872 S.W.2d at 675. So, for subject-matter jurisdiction, waiver is not an issue. We
look only at whether there is a legislative or constitutional basis for the trial court’s exercise
of jurisdiction over the parties’ divorce.

Husband argues that the trial court had subject-matter jurisdiction over this divorce case
based on Section 36-4-104(a). Once the six-month statutory residency requirement is met,
he contends, the Tennessee court has subject-matter jurisdiction to hear the divorce. See
Conley v. Conley, 181 S.W.3d 692, 695-96 (Tenn. Ct. App. 2005); Kljajic v. Kljajic, No.
M2002-01294-COA-CV, 2003 WL 21954189, at *1 (Tenn. Ct. App. Aug. 15, 2003);
Sanders v. Sanders, No. M2001-02694-COA-R3-CV, 2003 WL 21004628, at *1 (Tenn. Ct.
App. May 6, 2003).

The substantive law governing divorce in Tennessee is entirely statutory, so “a trial court’s
subject matter jurisdiction over a particular divorce action must be based upon the applicable
divorce statutes.” Barnett v. Barnett, No. 01A01-9605-CH-00228, 1998 WL 787043, at *3
(Tenn. Ct. App. Nov. 13, 1998). In this case, “the issue of whether the [trial] court had
jurisdiction to hear and grant a divorce is governed by Tenn. Code Ann. § 36-4-104,” quoted
above. Conley, 181 S.W.3d at 695.

The first portion of the statute authorizes the trial court to exercise jurisdiction over the case
“if the acts complained of were committed while the plaintiff was a bona fide resident of
[Tennessee].” Tenn. Code Ann. § 36-4-104(a). In his divorce complaint, Husband asserted

                                               -6-
that the acts about which he complained were committed while he was a resident of
Tennessee. The evidence in the record, however, does not bear out this assertion. Husband
testified that he was “unhappy” with Wife when he moved out of the marital home in
Maryland; he did not describe any specific acts that contributed to his decision to file for
divorce, particularly none that occurred after he moved to Tennessee. Husband testified
specifically that he did not leave Wife based on an affair with Girlfriend. Thus, the record
contains no evidence indicating that any acts about which Husband complained occurred in
Tennessee. Consequently, based on the record before us at this juncture in the proceedings,
we conclude that this prong of Section 36-4-104(a) is not a basis for finding subject-matter
jurisdiction.

The second portion of the statute provides that, if the acts complained of in the divorce
petition were committed outside of Tennessee during a time when the plaintiff was not a
resident of Tennessee, the trial court still has jurisdiction over the matter “if the plaintiff or
the defendant has resided in this state six (6) months next preceding the filing of the
complaint.” Tenn. Code Ann. § 36-4-104(a). The six-month residency requirement was
“intended to assure that Tennessee has a sufficient relationship with the parties and their
marriage to make it reasonable for the courts of this state to affect the parties’ marital status.”
Conley, 181 S.W.3d at 696 (quoting Barnett, 1998 WL 787043, at *3).

The term “residence” as used in Section 36-4-104(a) has been interpreted to mean
“domicile.” Id.; see Wiseman v. Wiseman, 393 S.W.2d 892, 895-96 (Tenn. 1965). A
person’s domicile is “the place where a person has his principal home and place of enjoyment
of his fortunes; which he does not expect to leave, except for a purpose; from which when
absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel.”
Wiseman, 393 S.W.2d at 894 (internal quotations omitted), quoted in Conley, 181 S.W.3d
at 696. To create a domicile in Tennessee, a person must intend to establish a personal home
in Tennessee and must act consistently with this intention. Barnett, 1998 WL 787043, at *3.
“To acquire domicile here, the person must also have no present intention or expectation of
changing his or her residence to some other state.” Id. To determine whether Tennessee was
Husband’s domicile for the six months immediately preceding the filing of his divorce
complaint, we consider “not only [his] declarations and conduct but also all other relevant
facts and circumstances.” Id. at *4.

Although the issue of subject-matter jurisdiction is a question of law, the question of
Husband’s domicile is a fact issue that must be established by a preponderance of the
evidence. Id. Where domicile is contested, “the person claiming domicile in a particular
state must establish his or her claim by a preponderance of the evidence.” Ordinarily, the
issue of domicile is a factual finding by the trial court, reviewed on appeal under a Rule 13(d)
standard, presuming the trial court’s finding to be correct unless the evidence preponderates

                                                -7-
otherwise. In this case, the trial court made no express findings regarding Husband’s
domicile. Therefore, we must conduct an independent review of the record to determine
where the preponderance of the evidence lies. See Kendrick v. Shoemake, 90 S.W.3d 566,
570 (Tenn. 2002).

The only evidence submitted at trial on this issue was Husband’s testimony. He stated that,
at the time of trial in April 2012, he had been living in Tennessee with Girlfriend for two and
a half years. From this undisputed testimony, it appears that Husband moved to Tennessee
in approximately October 2009. Husband filed his complaint for divorce on September 9,
2010, at a time when it appears he had been living in Tennessee for almost one year.

As noted above, the evidence on “domicile” must also demonstrate an intent to make
Tennessee Husband’s home. Wiseman, 393 S.W.2d at 894. Again, the only evidence in the
record on this issue is Husband’s testimony at trial. At the time of trial, Husband was still
employed at John R. Reed trucking company, Girlfriend continued to work at the same
company, and he had a long-term relationship with Girlfriend that was going well. This
indicates an intention to stay with Girlfriend in Tennessee for the foreseeable future, and
there is nothing in the record to the contrary. Thus, the evidence in the record at this juncture
preponderates in favor of a finding that Husband is domiciled in Tennessee for purposes of
determining subject-matter jurisdiction pursuant to Section 36-4-104(a).

Therefore based on the record before us, we must conclude that the trial court has subject-
matter jurisdiction over the parties’ divorce proceedings. Finding both in personam
jurisdiction and subject-matter jurisdiction, we must reverse the trial court’s dismissal of the
case.

                                         C ONCLUSION

The decision of the trial court is reversed and the cause is remanded for further proceedings.
Costs on appeal are to be taxed to Defendant/Appellee Mary Charlotte Wilken, for which
execution may issue, if necessary.


                                                     _________________________________
                                                     HOLLY M. KIRBY, JUDGE




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