               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                August 25, 2015 Session

        STEPHEN LEON KELLEY v. KENNETH D. VARNER, ET AL.

                 Appeal from the Chancery Court for Hamilton County
                   No. 14-0442    Pamela A. Fleenor, Chancellor


            No. E2015-00165-COA-R3-CV-FILED-NOVEMBER 23, 2015


Stephen Leon Kelley (“Plaintiff”) filed suit seeking, among other things, to have the 1958
divorce decree of Mary Joyce Long Kelley v. Joseph Gordon Kelley, Jr. (“the Divorce
Decree”) set aside so that Plaintiff could be declared one of only two heirs at law of Mary
Joyce Long Kelley (“Deceased”) entitled to inherit by intestacy. The Chancery Court for
Hamilton County (“the Trial Court”) dismissed Plaintiff’s suit pursuant to Tenn. R. Civ.
P. 12.02(6) for failure to state a claim upon which relief can be granted, among other
things. Plaintiff appeals to this Court. We find and hold that Plaintiff’s collateral attack
upon the Divorce Decree cannot be sustained because the Divorce Decree is not void
upon its face. We, therefore, affirm the Trial Court’s order dismissing Plaintiff’s suit.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Timothy T. Ishii and Susan B. Evans, Nashville, Tennessee, for the appellant, Stephen
Leon Kelley.

Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the appellees, Mortgage Investors
Group, Noel T. Turner, Jr., and Dianna Jill Turner.

Darren W. Kennedy, Chattanooga, Tennessee, for the appellees, Kenneth D. Varner and
Aliceson Varner.

M. Aaron Spencer and Robert L. Vance, Knoxville, Tennessee, for the appellee,
Vanderbilt Mortgage and Finance, Inc.
                                               OPINION

                                             Background

       Deceased married Joseph Gordon Kelley, Jr. in June of 1946. Plaintiff was born
in January of 1948 of the marriage between Deceased and Joseph Gordon Kelley, Jr. In
October of 1958, Deceased filed for divorce in Rhea County, Tennessee. The Circuit
Court for Rhea County entered an order on November 8, 1958, inter alia, declaring
Deceased and Joseph Gordon Kelley, Jr.1 divorced. As pertinent to this appeal, the
Divorce Decree states:

                This cause came on to be heard on this the 8th day of November,
          1958, during the regular August term, before Hon. C.C. Chattin, Judge,
          upon the bill of the complainant, Joyce Kelley, the answer of the defendant,
          Joseph Kelley, the proof in the cause, and upon the entire record.

                                                     I

                 From all of which it appeared to the Court from the proof that the
          facts as alleged in the bill are true; that the defendant has been guilty of
          such cruel and inhuman treatment or conduct toward the complainant as
          renders further cohabitation unsafe and it improper for her to further
          cohabit with him and be under his dominion and control, as charged.

                                                    II

                 It is, therefore, ordered, adjudged and decreed by the Court that the
          bonds of matrimony heretofore subsisting between the complainant and the
          defendant be and the same hereby are absolutely and forever dissolved, and
          that the complainant be vested henceforth with all the rights and privileges
          of an unmarried person.

                                                    III

                 It further appeared to the Court that the parties have one child, have
          a parcel of real estate and have household and kitchen furniture and
          furnishings, and that they have heretofore entered into mutual settlement
          agreement wherein the complainant would have the absolute title to their

1
    Joseph Gordon Kelley, Jr. died in December of 1996 a resident of Hamilton County, Tennessee.
                                                     2
        realty and furniture and furnishings, and that the complainant would further
        retain and have the custody of their child, with the defendant to pay to her
        the sum of $50.00 per month for the support of the child, and such
        agreements appearing fair and mutual, they are ratified and confirmed by
        the Court, . . . and, further, that all that right, title and interest heretofore
        held by the defendant, Joseph Kelley, in and to the household and kitchen
        furniture and furnishings of these parties and also in and to that real estate
        by them owned and described as the real estate at 21 Polk Circle Ft.
        Oglethorpe, Ga., . . . be and hereby is divested out of him and vested in the
        complainant Joyce Kelley, hereby vesting in her the entire and absolute title
        in fee in and to said personalty and realty as her own alimony.

           Deceased and Kenneth D. Varner were married in Walker County, Georgia in
November of 1958. On September 10, 1959, Deceased and Kenneth D. Varner
purchased real property located on Marlow Drive in Chattanooga, Tennessee (“Marlow
Drive Property”). Deceased and Kenneth D. Varner adopted Aliceson Varner in 1968.
In June of 1983, Deceased and Kenneth D. Varner purchased real property located on Old
Dayton Pike in Soddy Daisy, Tennessee (“Old Dayton Pike Property”). Deceased died
intestate on August 15, 2011 as a resident of Hamilton County, Tennessee.

       Kenneth D. Varner conveyed one-half of his interest in the Marlow Drive Property
to Aliceson Varner in January of 2012. Kenneth D. Varner conveyed one-half of his
interest in the Old Dayton Pike Property to Aliceson Varner in February of 2012. In June
of 2013, Kenneth D. Varner and Aliceson Varner conveyed their interests in the Marlow
Drive Property to Noel T. Turner, Jr. and Dianna Jill Turner.

       In July of 2014, Plaintiff filed the instant suit against Kenneth D. Varner; Aliceson
Darlene Varner; Noel T. Turner, Jr.; Dianna Jill Turner; Mortgage Investors Group; and
Vanderbilt Mortgage and Finance, Inc.2 Plaintiff’s complaint sought declaratory relief
and requested, among other things, to have the 1958 Divorce Decree set aside, to have the
1958 marriage of Mary Joyce Long Kelley and Kenneth Varner declared void, and to
have Plaintiff and Aliceson Varner declared Deceased’s only heirs at law entitled to
inherit by intestacy. Plaintiff attached to his complaint several documents including a
copy of the Rhea County Circuit Court Civil Rule Docket for the 1958 divorce case of
Joyce Kelley v. Joseph Kelley and a copy of the Divorce Decree.3

2
  Plaintiff’s complaint alleges that Mortgage Investors Group holds a security interest in the Marlow
Drive Property and that Vanderbilt Mortgage and Finance, Inc. holds a security interest in the Old Dayton
Pike Property.
3
  Pursuant to Tenn. R. Civ. P. 10.03: “Whenever a claim or defense is founded upon a written instrument
other than a policy of insurance, a copy of such instrument or the pertinent parts thereof shall be attached
to the pleading as an exhibit [unless the written instrument falls within one of three specific categories not
                                                       3
       Noel T. Turner, Jr., Dianna Jill Turner, and Mortgage Investors Group filed a
motion to dismiss (“the Motion to Dismiss”) pursuant to Tenn. R. Civ. P. 12.02 for lack
of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
After a hearing, the Trial Court entered its order on December 23, 2014 dismissing
Plaintiff’s suit after finding and holding, inter alia, that pursuant to Tenn. R. Civ. P.
12.02(6) Plaintiff’s complaint failed to state a claim upon which relief can be granted.
Specifically, the December 23, 2014 order found and held:

               Plaintiff seeks to have the 1958 divorce Decree set aside due to the
        alleged lack of jurisdiction by the Rhea County Circuit Court over the
        parties. Applying the law in Hankins to the facts of this case, the alleged
        lack of jurisdiction must be found in the record itself. Plaintiff attached to
        his Complaint, as Exhibits 5 and 6, the Decree and the Rhea County Rule
        Docket. However, this alleged lack of residency does not appear on the
        face of the Decree nor on the Rule Docket (Complaint Ex. 5, 6).

                In reviewing the record, the Court notes the Decree does affirm the
        parties’ settlement agreement wherein [Deceased] was awarded the real
        property at 21 Polk Circle, Ft. Oglethorpe, Georgia. However, ownership
        of realty in Georgia does not mean the Petitioner resided there. If anything,
        it demonstrates that the court was aware some realty was in Georgia yet
        still ordered the divorce. At least this fact was not hidden from the court.
        The Court finds there is nothing on the face of the Decree that demonstrates
        Rhea County’s lack of jurisdiction over the parties to the Decree.

                                                    ***

                Since there is nothing on the face of the Decree to evidence lack of
        jurisdiction, there is a conclusive presumption that the Rhea County Circuit
        Court had jurisdiction over [Deceased] and or her spouse when it entered
        the Decree. Hankins. Every reasonable presumption must be indulged in
        favor of Rhea Circuit having jurisdiction.

                                                    ***

        Plaintiff’s averments rely on matters outside of the Rhea County Circuit
        Court record. Because this is a collateral attack on the Decree, this Court is
        precluded from reviewing matters outside the Rhea County record.

applicable in the instant case]. Every exhibit so attached or referred to . . . shall be a part of the pleading
for all purposes.” Tenn. R. Civ. P. 10.03.
                                                      4
       Plaintiff necessarily cannot prevail in this matter without parol evidence,
       yet this Court is barred from considering that very evidence. Thus,
       Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

Plaintiff appeals the dismissal of his suit to this Court.

                                          Discussion

       Although not stated exactly as such Plaintiff raises one issue on appeal: whether
the Trial Court erred in granting the Motion to Dismiss. With regard to motions to
dismiss our Supreme Court has instructed:

              A motion to dismiss a complaint for failure to state a claim for which
       relief may be granted tests the legal sufficiency of the plaintiff=s complaint.
       Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens
       v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002).
       The motion requires the court to review the complaint alone. Highwoods
       Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).
       Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the
       alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area
       Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the
       complaint is totally lacking in clarity and specificity, Dobbs v. Guenther,
       846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass
       Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

              A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the
       relevant and material factual allegations in the complaint but asserts that no
       cause of action arises from these facts. Brown v. Tennessee Title Loans,
       Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of
       Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court’s
       dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe
       the complaint liberally in favor of the plaintiff by taking all factual
       allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356
       S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346
       S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil
       Procedure ' 5-6(g), at 5-111 (3d ed. 2009). We review the trial court’s
       legal conclusions regarding the adequacy of the complaint de novo without
       a presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d at
       895; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700.

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012).
                                               5
        In order for Plaintiff to be declared one of only two heirs entitled to inherit by
intestacy from Deceased, Plaintiff first must obtain an order setting aside the Divorce
Decree, a judgment entered more than 55 years ago in a case between two parties both of
whom died prior to the filing of the complaint in the instant case. Plaintiff’s complaint
sought to have the Divorce Decree declared “void ipso facto for lack of jurisdiction of the
parties in that matter pursuant to Tenn. Code Ann. § 36-803 (1958) Residence
requirements.” Plaintiff alleged in his complaint that Deceased, who was the petitioner in
the divorce case, was a resident of Georgia and had not resided in Tennessee for the
requisite period of time prior to filing for divorce, and therefore, the Rhea County Circuit
Court did not have jurisdiction of the parties because the residency requirements were not
satisfied.

        This Court has discussed an attempt to overturn a previous judgment for lack of
jurisdiction stating:

       The Supreme Court of Tennessee has held:

              If an action or proceeding is brought for the very purpose of
              impeaching or overturning a judgment, it is a direct attack on
              it. . . . On the other hand, if the action or proceeding has an
              independent purpose and contemplates some other relief or
              result, although the overturning of the judgment may be
              important, or even necessary to its success, then the attack
              upon the judgment is collateral.

       Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71, 75 (Tenn. 1995) (quoting
       Jordan v. Jordan, 145 Tenn. 378, 239 S.W. 423, 445 (Tenn. 1922)).

                                           ***

               On collateral attack upon a judgment or decree of a court of general
       jurisdiction by parties or privies thereto, the rule is that such judgment or
       decree cannot be questioned except for want of authority over the matters
       adjudicated upon; and this want of authority must be found in the record
       itself. J.B. Wilkins v. M.C. McCorkle, 112 Tenn. 688, 707-08, 80 S.W. 834,
       838 (Tenn. 1904). In the absence of anything in the record to impeach the
       right of such a court to determine the question involved, there is a
       conclusive presumption that it had such right. Id. (citing Reinhardt v.
       Nealis, 101 Tenn. 169, 172-73, 46 S.W. 446, 447 (Tenn. 1898)). This rule
       presupposes, of course, that the court has acquired jurisdiction of the
       persons appearing to be parties to the cause. Id. This fact must also be
                                             6
      determined from the face of the record, and in conducting such examination
      every reasonable presumption will be indulged in favor of the jurisdiction.
      Id. (citing Robertson v. Winchester, 85 Tenn. 171, 183-86, 1 S.W. 781,
      785-86 (Tenn. 1886); Hopper v. Fisher, 39 Tenn. 253, 2 Head 253, 254
      (Tenn. 1858)). The evidence on which the court acted cannot be looked to.
      Id. If the bill or other pleading makes a case, and the court in its judgment
      or decree assumes the case to have been established, that is sufficient. Id.
      (citing Kindell v. Titus, 56 Tenn. 727, 9 Heisk. 727 (Tenn. 1872); Pope v.
      Harrison, 84 Tenn. 82, 92-93 (Tenn. 1885)).

              When the jurisdiction of a court depends upon the existence of a
      certain fact and the record shows that the court has found that fact, that
      determination is not subject to collateral attack in another court of this state.
      Henson v. Henson, Shelby Equity No. 23, 1989 Tenn. App. LEXIS 480, at
      *6, 1989 WL 75960 (Tenn. Ct. App. July 11, 1989). The first judgment,
      even if in point of fact rendered without the requisite jurisdiction, must
      stand until reversed on appeal. Id. (citing State ex rel. Holbrook v. Bomar,
      211 Tenn. 243, 247, 364 S.W.2d 887, 989 (Tenn. 1963)). In a suit seeking
      to have a previous judgment declared void for lack of jurisdiction, the
      evidence on which the prior court acted cannot be looked to, nor can the
      correctness of the conclusion reached from that evidence be investigated by
      another inferior court in order to declare the decree thus made valid or void.
      Id. at *7, 364 S.W.2d 887 (citing Reindhardt, 101 Tenn. at 174, 46 S.W. at
      477)).

              In Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996), the
      Tennessee Supreme Court most recently discussed collateral attacks on
      divorce decrees. The Court noted that “[t]he few Tennessee cases
      involving similar attacks on divorce decrees support this conclusion that a
      divorce decree is void and subject to attack only where the trial court lacks
      general jurisdiction of the subject matter, rules on an issue wholly outside
      the pleadings, or lacks jurisdiction over the party complaining.” Id. The
      Court cited GIBSON’S SUITS IN CHANCERY § 228 at 219-20 (7th
      ed.1988) for the statement that “[a]ll decrees not thus appearing on their
      face to be void are absolutely proof against collateral attack, and no parol
      proof is admissible on such an attack to show any defect in the proceedings,
      or in the decree.” Id. (emphasis added).

Hankins v. Hankins, No. W2006-00232-COA-R3-CV, 2007 WL 2351171, at **4-
5 (Tenn. Ct. App. Aug. 20, 2007), Rule 11 appl. perm. appeal denied Feb. 4, 2008.

                                             7
       The Trial Court correctly held that Plaintiff’s attack on the Divorce Decree is
collateral as Plaintiff is seeking a result other than simply having the Divorce Decree
declared void, i.e., to be declared one of only two heirs of Deceased. Plaintiff cannot
prevail, however, unless the Divorce Decree is held to be void.

        Plaintiff argues in his brief on appeal, in essence, that the Trial Court erred
because it did not take the factual allegations in Plaintiff’s complaint as true but rather
weighed the “evidence.” Plaintiff is mistaken. Even if all of the factual allegations in
Plaintiff’s complaint are taken as true, the Divorce Decree is not void upon the face of the
record in the divorce action. The Rhea County Circuit Court determined, at least
implicitly, that it had jurisdiction over the parties in that case when it entered the Divorce
Decree. The Rhea County Circuit Court in its judgment found that “the facts as alleged
in the bill are true . . .” meaning that jurisdiction of the parties was established and, as
discussed in Hankins v. Hankins, “that is sufficient.” Id. at *5. The Trial Court correctly
recognized that it could not look to the evidence the Rhea County Circuit Court
considered when making its determination about jurisdiction. Nor could the Trial Court
second guess the correctness of the Rhea County Circuit Court’s determination regarding
jurisdiction. The evidence which Plaintiff alleges shows lack of jurisdiction does not
appear on the face of the record in the divorce case, “and no parol proof is admissible on
such an attack to show any defect in the proceedings, or in the decree.” Id. Therefore,
even if the Rhea County Circuit Court did lack jurisdiction, and we in no way suggest
that it did, the Divorce Decree “must stand until reversed on appeal” as the lack of
jurisdiction does not appear on the face of the record. Id.

       Even construing the complaint liberally in favor of Plaintiff by taking all factual
allegations in the complaint as true, as we must at this stage of the proceedings, we, as
did the Trial Court, hold that Plaintiff’s claim that the Divorce Decree is void fails
because no cause of action arises from these facts. As such, we find no error in the Trial
Court’s dismissal of Plaintiff’s suit for failure to state a claim upon which relief can be
granted.

                                        Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Stephen Leon Kelley, and his surety.



                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE
                                              8
