                      IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON



MONTEE H. CARRUTHERS JOHNSON,)
                             )
    Plaintiff/Appellant,     )              Shelby Equity No. 104772
                             )
vs.                          )
                             )              Appeal No. 02A01-9603-CH-00061
NATHAN JOHNSON,              )
                             )
    Defendant/Appellee.      )




             APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE




                THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR




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

James V. Ball                        Arthur Mayhall
Memphis, Tennessee                   Harry Scruggs, Jr.
                                     Memphis, Tennessee



                                     REVERSED AND REMANDED



                                     HOLLY KIRBY LILLARD, J.


CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                              OPINION

       This is a divorce case involving an Illinois decree. An Illinois court granted a divorce to the

husband and awarded the marital residence in Tennessee to the husband. The Tennessee trial court

enforced the Illinois court’s award of property, and the wife appeals. Because the Illinois court did

not have personal jurisdiction over the wife, we reverse and remand.

       In May of 1993, Appellant Montee H. Carruthers Johnson (“Wife”) and Appellee Nathan

Johnson (“Husband”) separated.         Husband moved from the marital residence in Memphis,

Tennessee, to Rock Island, Illinois. On December 7, 1993, Husband filed for divorce in Illinois.

Process was served on Wife through the mail. She received process on December 17, and retained

an attorney. Her attorney wrote a letter to Husband’s attorney on January 15, 1994. On January 21,

Wife’s attorney received a fax from Husband’s attorney. This fax stated that Wife had failed to enter

an appearance in the Illinois court within thirty days of Husband’s filing for divorce and that,

consequently, Husband’s attorney would set the matter for entry of judgment. Wife also received

notice, dated January 17, 1994, of a hearing set for January 24, 1994. Wife never appeared in the

Illinois court. The Illinois court entered a Judgment of Dissolution of Marriage on January 24.

Among other things, the Illinois divorce decree awarded Husband the marital residence located at

1748 Valley Boulevard, Memphis, Tennessee. Wife and Husband had lived in the marital residence

for several years prior to the divorce, and Wife was living in it at the time of the divorce.

       In August of 1994, Wife was still living in the marital residence. Husband filed a detainer

action in General Sessions Court in Memphis, Tennessee, in order to remove Wife from the marital

residence. The General Sessions Court ruled in Husband’s favor, ordering Wife to vacate the

premises by September 30, 1994. Wife subsequently filed suit in Chancery Court, seeking an

accounting, damages, a temporary restraining order, and a temporary and permanent injunction

against Husband.

       Husband filed a motion for summary judgment. In response, Wife filed an answer and an

affidavit. In the affidavit, Wife testified that, after she married Husband, they lived in a house which

was hers from a previous marriage.1 The house that later became the marital residence had belonged

to Husband before the marriage, but was encumbered by an outstanding mortgage and was in need

of repair. Wife testified that the house was repaired and expanded. Wife and Husband moved into



       1
           The Illinois court awarded this residence to Wife in the divorce decree.
the marital residence approximately six years after their marriage. According to Wife, both worked

during the marriage, and both incomes paid the marital bills. She testified that the repairs and

additions to the marital residence were financed through two loans in both Husband’s and Wife’s

names as owners of the residence. In order to obtain the loans, Husband and Wife both signed an

affidavit that they were the owners of the marital residence. Wife stated that she believed that

Husband had deeded part of the residence to her, and only after the divorce did she learn that the

marital residence was deeded solely in Husband’s name.

       The trial court granted Husband’s motion for summary judgment. The trial court’s order

provided:

       [T]he Court finds that the Plaintiff [Wife] in this cause and Defendant [Husband] in
       the cause in Illinois had actual acknowledge [sic] of the existence, in accordance to
       her own complaint, of a complaint for divorce, that that matter was pursued to final
       adjudication, that she has slept on her rights and failed to avail herself of any
       remedies that were or still may be available to her under Illinois law proceedings,
       either trial Court level or the Appellate Court level in Illinois.

               Instead she has sought the relief from this Court from a valid final decree.
       She has further admitted to the validity of that decree in that her original complaint
       does not set to ask this Court to not enforce that final decree and hold it as void and
       not to grant full faith and credit. Instead she indicates to the contrary that it is a valid
       final decree and it should be enforced an [sic] is entitled to all full faith and credit for
       the purposes of dissolution of marriage, but she wishes to only seek limited relief
       from this Court.

              This Court finds that her dispute was proper in Illinois and that her remedies
       should be, if not already exhausted, either have been or presently are, in Illinois.
       Tennessee has no jurisdiction over this matter and the Motion for Summary
       Judgment should be granted.

Wife now appeals the trial court’s order as to the Tennessee marital residence. There is no dispute

as to the validity of the portion of the Illinois order granting Husband a divorce.

       On appeal, Wife seeks a determination of whether Illinois has jurisdiction over the marital

residence in Tennessee and whether Tennessee should give full faith and credit to the part of the

Illinois divorce decree awarding that marital residence to Husband.

       A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. Byrd v. Hall, 847 S.W.2d 208, 211

(Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that


                                                    2
party, and discard all countervailing evidence. Id. at 210-11. Summary judgment is only

appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only

one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law

are involved, there is no presumption of correctness regarding a trial court's grant of summary

judgment. Id. Therefore, our review of the trial court’s grant of summary judgment is de novo on

the record before this Court. Id.

       Wife argues that the instant case is controlled by Burton v. Burton, 52 Tenn. App. 484, 376

S.W.2d 504 (1963). In Burton, this Court noted that “[t]he case of Toncray v. Toncray fixed the

public policy of the State of Tennessee as limiting the right of a wife to recover alimony from a

husband who had obtained a divorce on constructive service in another State to cases where

Tennessee is or was the matrimonial domicile of the parties, and we do not feel justified in departing

from the public policy so established.” Id. at 510, 376 S.W.2d at 516; see also Toncray v. Toncray,

123 Tenn. 476, 131 S.W. 977 (1910). Wife argues that if a party obtains a divorce in another

jurisdiction through constructive service, and Tennessee was the matrimonial domicile, then the

party remaining in Tennessee may adjudicate in Tennessee matters related to marital property rights,

even if those issues were addressed by the foreign decree. It must be noted however, that Burton

involved a situation in which the foreign decree was based on constructive notice. In this case,

Husband served Wife personally through the mail, and Wife admittedly had actual notice of the

Illinois divorce proceedings. However, we must examine the jurisdiction of the Illinois court to

adjudicate the disposition of the marital residence in Tennessee.

       A court cannot adjudicate a non-resident’s property rights in another state without having

in personam jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct.

154, 158, 90 L. Ed. 95 (1945); Baggett v. Baggett, 541 S.W.2d 407, 409-10 (Tenn. 1976);

Fernandez v. Fernandez, No. 85-194-II, 1986 WL 6842, at *2 (Tenn. App. June 18, 1986).

Therefore, a court cannot, in a divorce decree, distribute the marital property of a non-resident party

if that property is outside the state and the state does not have personal jurisdiction over that party.

See Clouse v. Clouse, 185 Tenn. 666, 670-76, 207 S.W.2d 576, 578-80 (1948); Cory v. Olmstead,

154 Tenn. 513, 516-17, 290 S.W. 31, 32 (1926); Gilliland v. Stanley, No. 3258, 1997 WL 180587,

at *2 (Tenn. App. Apr. 16, 1997). In order for a state to have personal jurisdiction over a non-

resident party, the state must achieve service of process and must also have minimum contacts with


                                                   3
the individual. See International Shoe, 326 U.S. at 316, 66 S. Ct. at 158; Masada Investment Corp.

v. Allen, 697 S.W.2d 332, 334 (Tenn. 1985). Generally, these contacts must be such that the party

“should reasonably anticipate being haled into court” in that state. World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980); Masada, 697 S.W.2d

at 334. Therefore, in this case, if Illinois had not established personal jurisdiction over Wife, this

Court is not required to give full faith and credit to that part of the Illinois decree which is void for

lack of personal jurisdiction. See Tenn. Code Ann. §§ 26-6-101 et seq. (1980); Four Seasons

Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 443-46 (Tenn. App. 1984).

        In order to determine whether Illinois had personal jurisdiction over Wife, it is necessary to

look to the jurisdictional statutes of that state. See Fordjour v. Fordjour, Shelby Equity No. 54,

1986 WL 5037, at *4 (Tenn. App. Apr. 29, 1986); Four Seasons Gardening, 688 S.W.2d at 444.

The applicable Illinois statute is 735 Illinois Compiled Statutes § 5/2-209 (1997), which provides,

in pertinent part:

        (a) Any person, whether or not a citizen or resident of this State, who in person or
        through an agent does any of the acts hereinafter enumerated, thereby submits such
        person, and, if an individual, his or her personal representative, to the jurisdiction of
        the courts of this State as to any cause of action arising from the doing of any of such
        acts:

                (1) The transaction of any business within this State;
                (2) The commission of a tortious act within this State;
                (3) The ownership, use, or possession of any real estate situated in this State;
                (4) Contracting to insure any person, property or risk located within this
        State at the time of contracting;
                (5) With respect to actions of dissolution of marriage, declaration of
        invalidity of marriage and legal separation, the maintenance in this State of a
        matrimonial domicile at the time this cause of action arose or the commission in
        this State of any act giving rise to the cause of action;
                (6) With respect to actions brought under the Illinois Parentage Act of 1984,
        as now or hereafter amended, the performance of an act of sexual intercourse within
        this State during the possible period of conception;
                (7) The making or performance of any contract or promise substantially
        connected with this State;
                (8) The performance of sexual intercourse within this State which is claimed
        to have resulted in the conception of a child who resides in this State;
                (9) The failure to support a child, spouse or former spouse who has continued
        to reside in this State since the person either formerly resided with them in this State
        or directed them to reside in this State;
                (10) The acquisition of ownership, possession or control of any asset or thing
        of value present within this State when ownership, possession or control was
        acquired;
                (11) The breach of any fiduciary duty within this State;
                (12) The performance of duties as a director or officer of a corporation
        organized under the laws of this State or having its principal place of business within
        this State;
                (13) The ownership of an interest in any trust administered within this State;


                                                   4
        or
                (14) The exercise of powers granted under the authority of this State as a
        fiduciary.

                (b) A court may exercise jurisdiction in any action arising within or without
        this State against any person who:

                (1) Is a natural person present within this State when served;
                (2) Is a natural person domiciled or resident within this State when the cause
        of action arose, the action was commenced, or process was served;
                (3) Is a corporation organized under the laws of this State; or
                (4) Is a natural person or corporation doing business within this State.

               (c) A court may also exercise jurisdiction on any other basis now or hereafter
        permitted by the Illinois Constitution and the Constitution of the United States.

(emphasis added). Under this statute, it is apparent that the Illinois court did not have personal

jurisdiction over Wife. Other than having her attorney write a letter to Husband’s attorney, Wife had

no contact with Illinois. She put in no appearance in the divorce suit, not even to answer the

complaint. The marital domicile was not located in Illinois, and Wife never committed in Illinois

any of the acts which led to the divorce.

        We must therefore conclude that the Illinois court did not have personal jurisdiction over

Wife in order to distribute marital property in Tennessee in which Wife had an interest.

Consequently, Tennessee courts are not required to give full faith and credit to the Illinois court’s

award of the marital residence to Husband. Wife’s affidavit raises genuine issues of material fact

regarding her property interest in the marital residence and the propriety of the Illinois court’s award

of that property to Husband. Therefore, we reverse the trial court’s grant of summary judgment and

remand for further proceedings.

        We note that Tennessee has long recognized that a foreign divorce decree can be given full

faith and credit to the extent that it dissolves a marital relationship without giving full comity to that

part of the decree which violates the constitutional rights of one of the parties. See Baggett, 541

S.W.2d at 409-10; Burton, 52 Tenn. App. at 504-11, 376 S.W.2d at 514-17; Toncray, 123 Tenn. at

481-92, 131 S.W. at 978-80. Thus, on remand, the validity of the underlying divorce need not be

addressed, only the issues raised by Wife regarding the marital property in Tennessee.




                                                    5
       The decision of the trial court is reversed, and this matter is remanded for further proceedings

consistent with this Opinion. Costs are adjudged against Appellee, for which execution may issue

if necessary.




                                      HOLLY KIRBY LILLARD, J.


CONCUR:



ALAN E. HIGHERS, J.




DAVID R. FARMER, J.




                                                  6
