                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 16, 2001 Session

           RICHARD JOHN JOLLY v. LYNETTE SUZANNE JOLLY

                     Appeal from the Chancery Court for McNairy County
                        No. 7471     Martha B. Brasfield, Chancellor


                      No. W2001-00159-COA-R3-CV - Filed July 19, 2002


This is a divorce case regarding the distribution of marital property. The wife moved from
Tennessee to Kansas with the parties’ four minor children and later filed a petition for divorce. The
Kansas court awarded the wife a divorce, custody of the children, and child support but found that
it did not have jurisdiction to order a division of the parties’ marital property located in Tennessee.
Thereafter, the wife filed this action in Tennessee seeking a division of the parties’ marital property
in Tennessee. The trial court ordered that the Tennessee property be sold and that the husband’s
share of the sale proceeds be reduced by the amount of unpaid child support. On appeal, the husband
argues, inter alia, that the trial court erred in recognizing the Kansas divorce decree. We affirm,
finding that the Kansas decree was entitled to full faith and credit and that the trial court did not err
in dividing the parties’ marital property in Tennessee.

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

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and
DAVID R. FARMER , J., joined.

Richard John Jolly, Bethel Springs, Tennessee, Pro Se.

Ken Seaton, Selmer, Tennessee, for the Appellee, Lynette Suzanne Jolly.

                                              OPINION

       Plaintiff/Appellant Richard Jolly, a.k.a. Yericho Y. Yisrael, (“Husband”) and
Defendant/Appellee Lynette Jolly, a.k.a. Lynette Suzanne Yisrael, (“Wife”) were married in Illinois
in 1974. In 1982, the couple moved to a 75 acre farm in Bethel Springs, McNairy County,
Tennessee. During the course of the marriage, the couple had four children.

         In April 1998, Wife moved with the four children to Kansas. In May 1999, Wife then filed
a petition for divorce in the District Court, Johnson County, Kansas (“Kansas district court”). In her
petition for divorce, Wife also sought a division of the marital property, sole custody of the minor
children, and child support. The Kansas district court awarded temporary custody to Wife and
ordered Husband to pay $1296 per month in child support during the pendency of the divorce
proceedings. Subsequently, Husband filed an answer as well as a motion to dismiss for lack of
jurisdiction with the Kansas district court. Husband then filed his own petition for divorce in the
County Chancery Court of McNairy County, Tennessee (“Tennessee chancery court”), seeking
primary custody of the children and possession of the family’s Tennessee home. Husband’s petition
asserted that Tennessee was the “home state” of the children and that Wife had abducted the children
when she moved to Kansas in 1998. Wife responded to Husband’s Tennessee petition by filing an
answer and counter-complaint informing the Tennessee chancery court of the Kansas divorce
proceedings and seeking an equitable division of the parties’ marital property.

        The Kansas district court denied Husband’s motion to dismiss for lack of jurisdiction as to
child custody, visitation, and child support; however, the Kansas court granted Husband’s motion
as to the parties’ marital property in Tennessee. Husband then filed a motion to dismiss his
Tennessee divorce petition, asserting that the case was being tried in Kansas. The Tennessee
chancery court did not rule on this motion.

        Husband did not attend the hearing in Kansas on Wife’s divorce petition. The Kansas district
court entered a judgment and decree of divorce granting Wife an absolute divorce and awarding her
sole custody of the four minor children with visitation solely in her discretion. The decree further
stated:

       Pursuant to the Temporary Orders signed in this case on May 13, 1999, there is a
       child support arrearage in the amount of $16,848, and Petitioner shall have a
       judgment against the Respondent for that amount.

       The Respondent was a resident of the state of Tennessee, and now states that he
       resides in Mississippi. The judgments and orders issued herein are intended as final
       judgments and orders, which can be registered in Tennessee, Mississippi or any other
       jurisdiction.

The Kansas court awarded Wife monthly child support in the amount of $1359 per month,
commencing July 1, 2000. The Kansas court also ordered Husband to pay $500 in discovery-related
sanctions. Husband did not appeal these orders.

        On September 1, 2000, Wife filed a motion with the Tennessee chancery court to set a trial
for the remaining issue, division of the parties’ marital property. Wife’s motion stated that “the
proceedings in Kansas divorcing the parties have ended and a certified copy of the Decree entered
in that matter has been filed in this matter.” The Tennessee chancery court set the matter for trial
on December 4, 2000. On October 19, 2000, Husband filed a motion with the Tennessee chancery
court seeking a pre-trial hearing and a postponement of the trial until the pretrial hearing. Husband
next filed with the Tennessee chancery court a motion to vacate the Kansas district court’s decree,
and stating that “should there have been or should there be in the future any attempt to register the


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Kansas Child Custody, Support, and Visitation orders in Tennessee that [he] does contest those
orders and moves that they be vacated.”

        The matter was heard by the Tennessee chancery court on December 4, 2000. As with the
proceedings in Kansas, Husband was not present for this hearing. The only evidence presented at
the hearing was Wife’s testimony. The Tennessee chancery court entered an order dated December
21, 2000, finding that Wife “has been awarded a divorce in the District Court of Johnson County,
Kansas and it is now proper to equitably divide the parties’ real property, which is located in
McNairy County, Tennessee.” The Tennessee court ordered that the Tennessee property be sold at
auction and that Wife recover $26,000 from the net proceeds, representing separate property she used
to purchase the property and make improvements. The remaining proceeds were ordered to be
divided equally between Husband and Wife, with Husband’s share reduced by the amount of any
unpaid child support at the time of sale, including the arrearage assessed by the Kansas district court,
plus the $500 in sanctions ordered by the Kansas court. From this order, Husband now appeals.

        Husband raises numerous issues on appeal, including various challenges to the Kansas
decree. However, we find that the only issues which the Tennessee chancery court had jurisdiction
to decide, and the only issues this Court has jurisdiction to address on appeal, were those arising
from the distribution of the parties’ Tennessee marital property.1 All other issues raised by Husband
are without merit.

        Husband argues first that the Tennessee chancery court erred in failing to grant Husband’s
motion to dismiss his Tennessee petition for divorce. Subject to certain limitations, a plaintiff has
“the right to take a voluntary nonsuit to dismiss an action. . .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.” Tenn. R.
Civ. P. 41.01(1). However, Husband’s right to take a nonsuit is subject to Wife’s right to proceed
on her counterclaim. See id. Under these circumstances, the Tennessee chancery court did not err
in proceeding to trial on the issue presented in Wife’s counterclaim, that is, the division of the
marital property.

        Husband next argues that the Tennessee chancery court denied him his constitutionally
protected right to a trial by jury. In his motion seeking a continuance of the trial in Tennessee,
Husband states: “Plaintiff moves the court for a trial by jury on the matters of child custody and child
support.” These issues had been decided by the Kansas district court and were not properly before
the Tennessee chancery court. Therefore, Husband’s argument that he was entitled to a jury trial on
these issues is without merit.

       Husband also argues on appeal that the Tennessee chancery court erred in declining to grant
his motion for a continuance of the trial in Tennessee. The granting or denial of a continuance is

         1
            At the tim e the case was heard by the chancery cou rt, Wife was residing with the parties’ children in Kansas
and Hu sban d w as residing in Mississippi. Therefo re, the o nly conn ection Ten nesse e had with the parties w as their
ma rital property located in M cNairy C oun ty.

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within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of
an abuse of that discretion. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). The
Tennessee chancery court found that Husband “has demonstrated by the filing of the Motion for
Continuance and by his previous actions that he will make every effort to delay this matter.
[Husband] has had ample time to obtain counsel and this matter was set for hearing on this date upon
previous Motion by [Wife] with proper Notice to the [Husband].” The Tennessee chancery court
clearly acted within its discretion in denying Husband’s motion for a continuance.

         Husband next argues on appeal that the Kansas decree was not entitled to full faith and credit
and, therefore, should not have been relied on by the Tennessee chancery court in ordering a division
of the marital property located in Tennessee. Husband essentially challenges the jurisdiction of the
Kansas district court. See Atchley v. Atchley, 585 S.W.2d 614, 617 (Tenn. Ct. App. 1978) (“Article
IV, Section I does not require a state to give full faith and credit to a judgment which is void for lack
of jurisdiction.”). Under Kansas law, all that is required for a court to exercise jurisdiction in a
divorce proceeding is that the petitioner be an actual resident of the state “for 60 days immediately
preceding the filing of the petition,” See Kan. Stat. Ann. § 60-1603(a) (LEXIS through 1999 Sess.),
and that the respondent be provided with service of process either personally or by publication. See
Lillis v. Lillis, 563 P.2d 492, 494 (Kan. Ct. App. 1977). See also Johnson v. Muelberger, 340 U.S.
581, 585 (1951) (holding that “domicile of one party to a divorce creates an adequate relationship
with the state to justify its exercise of power over the marital relationship”). Wife clearly met the
residency requirement and Husband does not dispute that he received service of process. Under
these circumstances, Husband has failed to show that the Kansas court did not have jurisdiction over
the divorce petition and that the Kansas divorce decree should not be given full faith and credit by
the courts of Tennessee. Johnson, 340 U.S. at 587 (finding that a state must give full faith and
credit to an out-of-state divorce decree where the party collaterally attacking the decree was
personally served or entered a personal appearance in the out-of-state proceeding).

        Husband argues that the Tennessee chancery court was required to first register the Kansas
decree and to provide him with notice and an opportunity to contest its validity before ordering a
division of the parties’ marital property in Tennessee and reducing his share of the proceeds from
the sale of the property by the amount of his child support arrearage. See Tenn. Code Ann. §§ 26-6-
104 to 26-6-105 (2000) (providing for notice and the opportunity to contest the execution or
enforcement of a foreign judgment); Tenn. Code Ann. § 36-5-2606 (Supp. 2000) (providing for
notice and an opportunity to contest the validity or enforcement of a foreign child support order).

        However, in this case, the Kansas decree was not “enforced” by the Tennessee chancery
court. Tennessee Code Annotated § 36-4-121(c) (Supp. 2000) provides that the trial court shall
consider “all relevant factors” in making an equitable division of marital property and the trial court
is afforded wide discretion in this regard. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct.
App. 1991). The trial court’s discretion to consider any relevant factors would include any unpaid
child support, regardless of whether the support was ordered by a court of another state. The record
indicates that Husband was given the opportunity to participate in the property division proceedings
but instead repeatedly tried to delay any final resolution and did not appear at the hearing in

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Tennessee. Under these circumstances, we find that the Tennessee chancery court did not err in its
division of the parties’ marital property in Tennessee.

        The decision of the trial court is affirmed. Costs are taxed to the appellant, Richard John
Jolly, and his surety, for which execution may issue if necessary.




                                             ___________________________________
                                             HOLLY KIRBY LILLARD, JUDGE




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