                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE

                      LENDEL L. CONLEY v. JO ANN CONLEY

                 Appeal from the General Sessions Court for Bledsoe County
                         No. 1082     Howard L. Upchurch, Judge



                     No. E2004-01309-COA-R3-CV - FILED MAY 9, 2005


CHARLES D. SUSANO , JR., concurring.

        I write separately to further address the trial court’s judgment with respect to the
jurisdictional issue raised by Wife.

         I agree with the majority’s observation that, when the parties filed competing affidavits which
were later considered by the trial court, Wife’s motion was converted into one for summary
judgment. See Tenn. R. Civ. P. 12.03. It is arguable, as the majority found, that the trial court chose
to hold an “evidentiary hearing on the matter.” The trial court appears to have accepted all of the
affidavits as true, even though they contain competing facts and assertions as to where Husband was
domiciled (1) when he filed his complaint for divorce, and (2) during the period of time preceding
that filing. It should be noted that the parties entered into a stipulation, which the trial court also
considered.

        I agree with the majority that the evidence does not preponderate against the trial court’s
decision to deny Wife’s motion to dismiss. However, I suppose the trial court’s disposition of
Wife’s motion could be construed as a judgment made on the issue of whether Wife was entitled to
summary judgment on her defense of lack of subject matter jurisdiction. Even if we view the trial
court’s decision as one denying summary judgment on the jurisdictional defense because of the
existence of genuine issues of material fact, such an interpretation is of no particular benefit to Wife.
This is because the record does not reflect that Wife aggressively sought to pursue this defense by
putting on evidence to support it at the divorce hearing. Thus, regardless of whether the trial court’s
pre-divorce hearing was, as found by the majority, an evidentiary hearing, or simply a decision to
deny summary judgment because of conflicting factual assertions, the record before us does not show
that Wife is entitled to relief from us with respect to her lack of jurisdiction defense.
      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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