                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 11, 2008 Session

              STATE OF TENNESSEE EX REL. BILLIE MARTIN v.
                          GREGORY KALMON

                   Appeal from the Fourth Circuit Court for Knox County
                              No. 67258    Bill Swann, Judge



                   No. E2007-00770-COA-R3-CV - FILED APRIL 23, 2008



This Uniform Interstate Family Support Act (“UIFSA”) case was dismissed by the Trial Court after
it concluded that it lost subject matter jurisdiction to proceed with this case once a voluntary
dismissal was taken in the initiating tribunal in Maryland. The Trial Court concluded that the present
case also must be dismissed because there had been at least two previous voluntary dismissals and
the dismissal by the Maryland tribunal operated to bar the present case pursuant to Tenn. R. Civ. P.
41.01(2). We hold that the Trial Court retained subject matter jurisdiction notwithstanding the
voluntary dismissal of the petition by the initiating tribunal. We further conclude that the present
case is not barred by the provisions of Tenn. R. Civ. P. 41.01(2). Accordingly, the judgment of the
Trial Court is vacated and this cause is remanded for further proceedings consistent with this
Opinion.


                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                       Fourth Circuit Court Vacated; Case Remanded


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.


Robert E. Cooper, Jr., Attorney General and Reporter, and Juan G. Villaseñor, Assistant Attorney
General, Nashville, Tennessee, for the Appellant, State of Tennessee ex rel. Billie Martin.


J. Terry Holland, Knoxville, Tennessee, for the Appellee, Gregory Kalmon.
                                                  OPINION

                                                Background

                This appeal involves whether the Trial Court, with the State of Tennessee being a
responding state pursuant to the UIFSA, retained subject matter jurisdiction to prosecute the current
petition after the initiating state, the State of Maryland, has voluntarily dismissed the petition
pending in that jurisdiction because the mother no longer lives there. If the Trial Court did retain
subject matter jurisdiction, the next issue is whether the petition to establish paternity and child
support is barred pursuant to Tenn. R. Civ. P. 41.01(2) due to the number of prior voluntary
dismissals.

                In October of 1994, the State of Tennessee received a request for enforcement of child
support from the State of Missouri pursuant to the Uniform Reciprocal Enforcement of Support Act
(“URESA”). The State of Tennessee then filed a petition on behalf of Billie Martin (“Mother”) and
sought a determination that Gregory Kalmon (“Father”)1 was the biological father of C.L.M. (“the
Child”), who was born on November 11, 1982. The petition also sought to establish child support
payments. Father responded to the petition, denying that the State of Missouri had jurisdiction to
file the request with the State of Tennessee and further denying that he was the biological father of
the Child. While the petition was pending, a DNA test was taken by the parties and the Child in the
State of Missouri. The results established a 99.52% chance that Father was the Child’s biological
father. Notwithstanding the results of the DNA test, in May of 1997, the State of Missouri
voluntarily dismissed the action pending in that state and then filed a motion to have the Tennessee
case dismissed without prejudice. An order was entered granting that request in June of 1997.

                Although the record on appeal is lacking in many respects, the record does establish
that a paternity and child support action also was filed by the State of Florida. The Florida petition
apparently never was sent to Tennessee pursuant to URESA, and the Florida action was voluntarily
dismissed in 1997.

               In October of 1999, the State of Tennessee received a new request for enforcement
once again seeking to have Father established as C.L.M.’s biological father and to set child support
payments. The State of Tennessee then filed a petition to establish parentage and child support
payments pursuant to the UIFSA.2 The initiating agency for the UIFSA petition was the State of
Maryland. It is this 1999 petition that is at issue in this appeal.

               While the 1999 petition was pending, the Trial Court determined that another DNA
test should be conducted due to irregularities with the procedures utilized with the first test in

        1
           Because two DNA tests conducted throughout the course of these proceedings established that Kalmon was
the biological father of the Child, we will refer to Kalmon as “Father.”

        2
           In 1997, the Tennessee General Assembly repealed the Uniform Reciprocal Enforcement of Support Act and
replaced it with the Uniform Interstate Family Support Act, Tenn. Code Ann. § 36-5-2001, et seq.

                                                      -2-
Missouri. As with the first DNA test, the second DNA test established that Father was the biological
father of C.L.M. The Trial Court eventually entered an order declaring Father to be the biological
father of C.L.M.

                In June of 2000, Father filed a motion to dismiss the 1999 petition pending in
Tennessee. Father claimed that, under both Maryland and Tennessee law, because at least two if not
three paternity and child support actions already had been filed and dismissed, the present claim
could not proceed. Father relied, in part, on the provisions of Tenn. R. Civ. P. 41.01 which provide
as follows:

                Rule 41.01. Voluntary Dismissal – Effect Thereof. – (1) Subject
               to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any
               statute, and except when a motion for summary judgment made by an
               adverse party is pending, the plaintiff shall have the right to take a
               voluntary nonsuit to dismiss an action without prejudice by filing a
               written notice of dismissal at any time before the trial of a cause and
               serving a copy of the notice upon all parties, and if a party has not
               already been served with a summons and complaint, the plaintiff shall
               also serve a copy of the complaint on that party; or by an oral notice
               of dismissal made in open court during the trial of a cause; or in jury
               trials at any time before the jury retires to consider its verdict and
               prior to the ruling of the court sustaining a motion for a directed
               verdict. If a counterclaim has been pleaded by a defendant prior to
               the service upon the defendant of plaintiff’s motion to dismiss, the
               defendant may elect to proceed on such counterclaim in the capacity
               of a plaintiff.

                       (2) Notwithstanding the provisions of the preceding
               paragraph, a notice of dismissal operates as an adjudication upon the
               merits when filed by a plaintiff who has twice dismissed in any court
               an action based on or including the same claim.…

                There were several hearings and rulings on the motion to dismiss. The motion to
dismiss initially was heard by the child support referee, who determined that the motion to dismiss
should be denied. The referee later reversed that ruling and determined that the motion to dismiss
should be granted. On appeal to the Trial Court, the Trial Court reversed the latter ruling by the
referee. According to the Trial Court:

                      Touching upon dismissals, the Court does find that the
               Missouri dismissal and the Tennessee dismissal are one act, and that
               Florida is the second one, if that is relevant, and I’ll come to that in
               a moment. If that is relevant, this whole line of argument that derives
               from the Tennessee Rule of Civil Procedure 41, about a third


                                                 -3-
               dismissal, if that is relevant, then, there are only two dismissals, and
               it’s possible to proceed in Tennessee, even after the two dismissals,
               under our Rules of Civil Procedure. And it is Tennessee law that
               governs this case.

                       Secondly, additionally, and independently, the Court holds
               that this category of litigation presents a parent, seeking to establish
               paternity, with an impossible situation. If the dismissals entered in
               consecutive states, to wit: The mother, seeking to establish paternity,
               commences an action in state one; and then, pursuing her
               employment, moves to state two. State one then dismisses, because
               she’s no longer a resident of the state. If that then happens in state
               two, and she moves to state three and to state four and state five, she
               will be barred under a traditional application. Nonsense. These are
               administrative non-suits.

                                                *   *     *

               It is a ludicrous result that a mother, seeking to establish paternity,
               must stay in one state or, indeed, two states.…

                       Indeed, the overriding interest to be protected here is the
               establishment of paternity or the removal of the onus of the
               suggestion of paternity from someone who has been named as the
               putative father. That is society’s great interest. It is the interest of the
               child, and it is the interest of the birth mother, and, it is the interest of
               the man who has been named.

                While the Tennessee litigation was proceeding, events were unfolding in Maryland
as well. Specifically, Father filed a motion to dismiss in the Maryland court claiming that, under
Maryland law, the previous voluntary dismissals operated as a bar to the litigation from proceeding
in that state. The motion to dismiss was granted and the Maryland case was dismissed. A motion
to set aside the dismissal then was filed and granted. Thus, at that particular point in time, the
Maryland case was still active. Father then filed a motion to reconsider the setting aside of the
dismissal. Following a hearing, the Circuit Court for Hartford, Maryland, filed a Memorandum
Opinion reinstating the previous dismissal of the case. The Maryland court discussed the relevant
case history, including the previous dismissal of the URESA petitions in both Missouri and Florida.
As part of its reasoning for dismissing the case, the Maryland court noted that “the State of
Tennessee is willing to move forward with whatever claim the Plaintiff might have.” The Maryland
court also noted that any connection the litigation might have had to the State of Maryland was




                                                    -4-
“tenuous” given that Father had never lived in Maryland and Mother had lived in Maryland for only
a few months in the preceding seven years.3

               After the State of Maryland dismissed the petition pending in that state, Father filed
a renewed motion to dismiss the current petition pending in Tennessee. Father essentially raised two
arguments. First, he claimed that because Maryland, the initiating state, had dismissed the petition,
Tennessee, as the responding state, lost jurisdiction over the claim. Second, Father argued that there
had been a total of at least three, if not four, voluntary dismissals and, pursuant to Tenn. R. Civ. P.
41.01(2), the present petition must be dismissed.

                A hearing was conducted on Father’s renewed motion to dismiss and the referee
granted the motion. The referee reasoned that due to the latest dismissal of the Maryland petition,
there now had been three voluntary dismissals and Tenn. R. Civ. P. 41.01(2) mandated dismissal.
The referee also determined that Tennessee, as a responding state pursuant to the UIFSA, lost its
jurisdiction once the initiating state entered a voluntary dismissal. On appeal to the Trial Court, the
Trial Court confirmed the referee’s recommendations and findings. This appeal followed.

                 The State raises several issues. The State argues that the Trial Court erred when it
confirmed the referee’s recommendation to dismiss this case based on: (1) there being a lack of
subject matter jurisdiction once Maryland, the initiating state, voluntarily dismissed the UIFSA
petition; and (2) there being three prior voluntary dismissals resulting in prosecution of this case
being prohibited by Tenn. R. Civ. P. 41.01(2). As a third issue, the State claims the Trial Court erred
by not requiring Father to pay retroactive child support dating back to the Child’s birth. Father
asserts that the Trial Court got everything right and this appeal is frivolous.

                                                     Discussion

                The first two issues raised by the State involve questions of law. With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                 We first will address the State’s claim that the Trial Court erred when it determined
that it lost subject matter jurisdiction to proceed with this case once the companion proceeding was
voluntarily dismissed by the initiating tribunal in Maryland.

              In State ex rel. McPeek v. Long, No. E2005-01670-COA-R3-CV, 2006 WL 1163077
(Tenn. Ct. App. Apr. 28, 2006), no appl. perm. appeal filed, we observed:

         3
           W hile Tenn. R. Civ. P. 41.01(2) allows two previous voluntary dismissals before the third voluntary dismissal
is considered “an adjudication on the merits,” Maryland only allows one previous voluntary dismissal. The Maryland
court quoted Maryland Rule 2-506(c) which provides that a “notice of dismissal operates as an adjudication upon the
merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States
an action based on or including the same claim.”

                                                          -5-
                         The concept of jurisdiction involves a court’s authority to
                 adjudicate a particular controversy. See Kane v. Kane, 547 S.W.2d
                 559, 560 (Tenn. 1977). In order to acquire jurisdiction, a court must
                 have jurisdiction not only over the parties but also over the subject
                 matter of the proceeding. The concept of subject matter jurisdiction
                 concerns a particular court’s authority to hear a particular type of
                 case. See Meighan v. U.S. Sprint Comm. Co., 924 S.W.2d 632, 639
                 (Tenn. 1996); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d
                 296, 297 (Tenn. 1988). It relates to the nature of the cause of action
                 and the relief sought, see Landers v. Jones, 872 S.W.2d 674, 675
                 (Tenn. 1994), and can only be conferred by the Constitution of
                 Tennessee or by statute. See Kane v. Kane, 547 S.W.2d at 560;
                 Brown v. Brown, 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501
                 (1955).

McPeek, 2006 WL 1163077, at *1-2 (quoting State ex rel. Whitehead v. Thompson, No. 01A01-
9511-CH-00538, 1997 WL 749465, at *2 (Tenn. Ct. App. Dec. 5, 1997)).

                The UIFSA is comprehensive legislation aimed at establishing paternity and child
support payments when parents live is different states. Our reading of the UIFSA convinces us that
the relationship between the initiating tribunal and the responding tribunal is not as intertwined as
claimed by Father. In reaching this conclusion, we note that the role of the initiating state under the
UIFSA is, in large part, ministerial. The Comments to Official Text4 for Tenn. Code Ann. § 36-5-
2304 (2005) specifically acknowledge that under the UIFSA, “the role of the initiating tribunal
clearly consists of the ministerial function of forwarding the documents.” In addition, the UIFSA
acknowledges that there may be times when the initiating tribunal will be bypassed altogether. The
Comments to Official Text for Tenn. Code Ann. § 36-5-2101 (2005) provide, in pertinent part, as
follows:

                         Subsections (7) and (8) define “initiating State” and “initiating
                 tribunal” similarly to RURESA § 2(d). It is important to note,
                 however, that UIFSA permits the direct filing of an interstate action
                 in the responding State without an initial filing in an initiating
                 tribunal. Thus, in addition to the traditional resort to a local


        4
          In Letellier v. Letellier, 40 S.W .3d 490, at 493 n.2 (Tenn. 2001), our Supreme Court explained the “very
persuasive” effect to be given the Official Comments to the UIFSA as follows:

                 W e give substantial deference to the “Comments to Official Text” contained
                 throughout UIFSA. “The official comments, while not binding, are very persuasive
                 in interpreting the statute to which they apply.” Smith v. First Union Nat'l Bank,
                 958 S.W.2d 113, 116 (Tenn. Ct. App. 1997).




                                                        -6-
               “initiating tribunal,” a petitioner in one State may seek to establish a
               support order in a second State by either filing in the responding
               [S]tate's tribunal or by directly seeking the assistance of the support
               enforcement agency in the second State.

                                              *   *     *

                        The definitions of “responding State” and “responding
               tribunal” in Subsections (16) and (17) accommodate the direct filing
               of a petition under UIFSA without the intervention of an initiating
               tribunal. Both definitions acknowledge the possibility that there may
               be a responding State or tribunal in a situation where there is no
               initiating State or tribunal.

                Tenn. Code Ann. § 36-5-2203 (2005) provides that a tribunal in Tennessee may serve
as an initiating tribunal to forward proceedings to another state, or as a responding tribunal for
actions initiated in another state. The Comments to Official Text again acknowledge that:

               Under UIFSA a tribunal may serve as a responding tribunal even
               when there is no initiating tribunal in another State. This
               accommodates the direct filing of an action in a responding tribunal
               by a nonresident.

              In State ex rel. Irwin v. Mabalot, No. M2004-00614-COA-R3-CV, 2005 WL 3416293
(Tenn. Ct. App. Dec. 13, 2005), no appl. perm. appeal filed, this Court observed:

                       The primary rule of statutory construction is “to ascertain and
               give effect to the intention and purpose of the legislature.”
               LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000).
               Courts must do so without unduly restricting or expanding a statute
               beyond its intended scope. In re C.K.G., C.A.G., & C.L.C., 173
               S.W.3d 714, 721-22 (Tenn. 2005). To determine legislative intent,
               one must look to the natural and ordinary meaning of the language
               used in the statute itself. We must examine any provision within the
               context of the entire statute and in light of its over-arching purpose
               and the goals it serves. State v. Flemming, 19 S.W.3d 195, 197
               (Tenn. 2000); Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996);
               T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d
               861, 867 (Tenn. Ct. App. 2002). The statute should be read “without
               any forced or subtle construction which would extend or limit its
               meaning.” National Gas Distributors, Inc. v. State, 804 S.W.2d 66,
               67 (Tenn. 1991). Statutes relating to the same subject matter or



                                                  -7-
               having a common purpose are to be construed together. In re C.K.G.,
               C.A.G., & C.L.G., 173 S.W.3d at 722.

                        As our Supreme Court has said, “[w]e must seek a reasonable
               construction in light of the purposes, objectives, and spirit of the
               statute based on good sound reasoning.” Scott v. Ashland Healthcare
               Center, Inc., 49 S.W.3d 281, 286 (Tenn. 2001), citing State v. Turner,
               913 S.W.2d 158, 160 (Tenn. 1995). Courts must look to a statute’s
               language, subject matter, objective or purpose, and the wrong it seeks
               to remedy or prevent. In re C.K.G., C.A.G., & C.L.G., 173 S.W.3d at
               722. Courts are also instructed to “give effect to every word, phrase,
               clause and sentence of the act in order to carry out the legislative
               intent.” Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975);
               In re Estate of Dobbins, 987 S.W.2d 30, 34 (Tenn. Ct. App. 1998).
               Courts must presume that the General Assembly selected these words
               deliberately, Tenn. Manufactured Housing Ass’n. v. Metropolitan
               Gov’t., 798 S.W.2d 254, 257 (Tenn. App. 1990), and that the use of
               these words conveys some intent and carries meaning and purpose.
               State v. Levandowski, 955 S.W.2d 603, 606 (Tenn. 1997); Tennessee
               Growers, Inc. v. King, 682 S.W.2d 203, 205 (Tenn. 1984).

Mabalot, 2005 WL 3416293, at *6.

                 Since the UIFSA specifically contemplates that an action to establish paternity and
child support can be filed directly in the responding state, it necessarily follows that the responding
state’s subject matter jurisdiction is not dependent upon whether an action also was filed in the
initiating state. If an action in the responding state was totally dependent on whether there also was
an action pending in the initiating state, as Father claims, this would negate the provisions of the
UIFSA which allow actions to be filed directly in the responding state. It is clear that the State of
Tennessee had both personal jurisdiction over Father and subject matter jurisdiction over the
proceedings when this case was initiated in Tennessee. This result is not changed simply because
the initiating state later deemed it appropriate under the procedural laws of that state to dismiss the
petition that was pending in that venue. We hold that the Trial Court did not lose subject matter
jurisdiction simply because the initiating state voluntarily dismissed the action pending in that state.
As a practical matter, when the Maryland proceeding was dismissed, the State of Tennessee had to
decide whether it wanted to continue to pursue the action against Father. The State of Tennessee
certainly could have decided to dismiss its case, but we hold that it was not required to do so as the
Trial Court retained subject matter jurisdiction.

                The next issue is whether the present action is barred pursuant to Tenn. R. Civ. P.
41.01(2). As set forth previously, Tenn. R. Civ. P. 41.01(2) provides that “a notice of dismissal
operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any
court an action based on or including the same claim.”


                                                  -8-
                When Father’s initial motion to dismiss was denied by the Trial Court, the Trial Court
reasoned that in situations where a petition to establish paternity and child support is dismissed in
both the initiating state and the responding state, the dismissals should collectively count as one
dismissal for purposes of Tenn. R. Civ. P. 41.01(2). We agree with the Trial Court’s analysis and
conclude that the 1997 dismissals of both the Missouri and Tennessee petitions should be deemed
as one dismissal for purposes of Rule 41.01(2). The 1997 dismissal of the Florida petition would
count as a second dismissal.

                 The question thus becomes whether the dismissal of the petition in Maryland counts
as a third voluntary dismissal. We conclude that in order for there to have been a third dismissal,
the petitions would have had to have been dismissed in both Maryland and Tennessee. Again, we
note that the role of the initiating state is in large part ministerial. The substantive petition is the
petition filed in the responding state. We hold that unless and until the present petition pending in
Tennessee has been voluntarily dismissed, there is no third dismissal for purposes of Tenn. R. Civ.
P. 41.01(2). This result is entirely consistent with the purposes behind the UIFSA. To hold
otherwise would result in premature final dismissals of many UIFSA child support actions because
dismissals by the initiating and responding tribunals would be counted as “two” dismissals for
purposes of Rule 41.01(2) and similar rules in other states.

                The State’s final issue is its claim that Father should be required to pay child support
retroactive to the date of the Child’s birth. Because the Trial Court never reached this issue given
its disposition of the two issues discussed above, we remand this case to the Trial Court for
resolution of this issue and any other issues that may arise from our holdings discussed above.

                Given our resolution of the first two issues, we obviously reject Father’s argument
that the State’s appeal is frivolous.

                                             Conclusion

               The judgment of the Trial Court is vacated and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion and for collection of the cost below.
Costs on appeal are taxed to the Appellee, Gregory Kalmon.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                  -9-
