            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE

JEANETTE NEAL HALL                   )
                                                  FILED
                                     )             January 22, 1999
      Plaintiff/Appellant            )   Sumner County 42-34
v.                                   )            Cecil W. Crowson
                                     )           Appellate Court Clerk
ROY DONALD HALL, Deceased,           )   No. 01A01-9805-CH-00263
ANNETTE ELAINE (HALL)                )
DENSON, Administratrix of estate     )
of Roy Donald Hall                   )
                                     )
      Defendant/Appellee             )

     APPEAL FROM THE CHANCERY COURT OF SUMNER COUNTY
                  AT GALLATIN, TENNESSEE

               THE HONORABLE TOM GRAY PRESIDING



RANDLE W. HILL
Washington Square
Suite 310
222 Second Ave. North
Nashville, TN 37201
      Attorney for Plaintiff/Appellant

HOWARD M. SKIPWORTH
3353 Union Hill Road
Suite C
Post Office Box 489
Joelton, TN 37080
      Attorney for Defendant/Appellee



                     AFFIRMED AND REMANDED


                                         PATRICIA J. COTTRELL,
                                         JUDGE
CONCUR:

CANTRELL, J.
CAIN, J.
                                    OPINION

      In this action, the plaintiff seeks to have declared void a 1979 divorce

decree which ended her marriage at her request and which was executed by

plaintiff and her attorney. The trial court denied plaintiff’s motion for relief from

judgment, holding that the allegations of technical defects in the 1979 decree that

would render that order void were without merit. We affirm the trial court’s

ruling.

      The plaintiff, Jeanette Neal Hall, and Roy Donald Hall, who is now

deceased, were married in 1957. On January 2, 1979, Jeanette Hall filed for

divorce based on cruel and inhuman treatment and irreconcilable differences.

The case was set for trial on April 9, 1979, and witnesses were subpoenaed. On

May 21, 1979, the final Order granting divorce was entered by the Chancellor of

the Chancery Court of Sumner County. That Order was signed by both parties

and their respective attorneys. The divorce decree ordered that the parties would

continue to own their real property as tenants in common until it was sold and

instructed the parties to sell the real property within a reasonable time and to

divide the proceeds equally. The decree also ordered that the parties each receive

one-half of the furniture and household goods of the parties.

      On November 13, 1997 Roy Donald Hall died intestate. On March 13,

1998 Ms. Hall filed a motion for relief from judgment pursuant to Rule 60.02(3)

of the Tennessee Rules of Civil Procedure alleging that the 1979 divorce decree

was void ab intio because it failed to comply with certain technical statutory

requirements then applicable to divorces and embodied in Tenn. Code Ann. § 36-




                                         2
801 (1978).1 Specifically, Ms. Hall alleged that the order did not grant her a

divorce, but rather, granted a divorce to both parties. Secondly, the plaintiff

alleged that the divorce decree is defective because it does not contain an

affirmative finding that the parties had made, by written agreement, adequate and

sufficient provision for the equitable settlement of property rights between them.

Ms. Hall asserted that these requirements were mandatory, and that a decree of

divorce granted in contravention of these provisions is void.

      The trial court held that these alleged technical defects in the 1979 decree

did not render that Order void, denied the motion, and dismissed the action.

      The resolution of this case turns on the proper standard for determining if

a judgment is void ab initio. The Tennessee Supreme Court recently decided a

case involving a similar attack on a divorce decree in Gentry v. Gentry, 924

S.W.2d 678 (Tenn. 1996). In its opinion in Gentry, the Court clearly stated the

test for determining whether a judgment is void:

              These cases recognize that where the Court has
              general jurisdiction of the subject matter and
              jurisdiction over the parties, and where the Court’s
              decree of divorce is not “wholly outside of the
              pleadings,” a divorce decree will not be deemed void.
              It follows that absent such a prima facie void decree,
              a flaw in procedure will not render a decree void.

Id. at 681.


      1
          Tenn. Code Ann. § 36-801 provided, in relevant part:

              No divorce shall be granted on the ground of
              irreconcilable differences unless the Court shall
              affirmatively find in its decree that the parties have
              made adequate and sufficient provision by written
              agreement for the custody and maintenance of any
              children of that marriage and for the equitable
              settlement of any property rights between the
              parties.



                                         3
     The Court relied upon the following excerpt from Gibson's Suits in
Chancery:

      The Chancery Court is a Superior Court of general Equity
      jurisdiction, and all of its decrees are presumed to be valid, and this
      presumption is conclusive against collateral attack, unless it
      affirmatively appears, on the face of the record itself: (1) that the
      Court had no general jurisdiction of the subject matter of the
      litigation; or (2) that the decree itself is wholly outside of the
      pleadings, and no binding consent thereto is shown in the record;
      or (3) that the Court had no jurisdiction of the party complaining,
      in person or by representation of interest; in which case it is void
      only as to such party, or his privies.

       A decree is absolutely void if it appears on the face of the record
      itself either that the Court had no general jurisdiction of the subject
      matter, or that the decree is wholly outside of the pleadings, and no
      consent thereto appears. A decree is void as to any person shown by
      the record itself not to have been before the Court in person, or by
      representation. A decree not prima facie void is valid and binding,
      until it is either (1) reversed by the Supreme Court, or by the Court
      of Appeals; or (2) is set aside on a complaint filed to impeach it.

William H. Inman, Gibson's Suits in Chancery § 228 at 219-20 (7th ed. 1988).

      Thus, under Gentry, 2 Plaintiff could sustain her attack on the May 1979

Order only by showing that the Court lacked jurisdiction of the subject matter or

the parties or that the Order was wholly outside the pleadings. Plaintiff’s

position is that the trial court had no jurisdiction to award the 1979 divorce



      2
         At oral argument, plaintiff argued that Gentry is not controlling in
this situation because Gentry involved a collateral attack while the instant
case is a direct attack upon the prior judgment. Plaintiff is correct in
characterizing this claim as a direct attack since this action “is brought for the
very purpose of impeaching or overturning a judgment.” Gentry at 680 n.3,
(quoting Jordan v. Jordan, 145 Tenn. 378, 454, 239 S.W. 423, 445 (1922),
quoting Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71, 75 (1955). However,
the type of proceeding in which a challenge to the validity of a judgment is
raised is not determinative of whether the judgment is void, voidable, or valid.
Rather, as the Court in Gentry explained, the opposite analysis applies. If a
judgment is void, it may be attacked collaterally as well as directly. However,
a merely voidable judgment may only be attacked directly. Gibson’s at § 228.
The instant action involves a claim that the prior judgment is void, as did
Gentry. The Supreme Court’s holding regarding the standard for determining
whether a judgment is void is applicable to the instant attack on the prior
judgment.
                                        4
because the Court did not follow certain statutory requirements which Plaintiff

characterizes as mandatory. Plaintiff asserts that the trial court in 1979 failed to

“affirmatively find in its decree that the parties have made adequate and

sufficient provision by written agreement ... for the equitable settlement of any

property rights between the parties” as then required by Tenn. Code Ann. § 36-

801. Consequently, the Plaintiff argues, the Court was without jurisdiction to

grant a divorce on the ground of irreconcilable differences.

      In Gentry, the divorce decree under attack had been entered upon a hearing

held fewer than ninety (90) days after the filing of the complaint, even though the

applicable statute required that “bills for divorce on the ground of irreconcilable

differences must have been on file ... at least ninety (90) days before being

heard...” Tenn. Code Ann. § 36-4-103(c) (1991). The Supreme Court viewed

the failure to observe the statutory ninety (90) day waiting period as a “flaw in

procedure” which would not render the decree void.3 Id. at 681.

      The alleged deficiencies of the decree entered in this case on May 21, 1979

are, at most, procedural flaws. It appears to this Court that, after hearing the

plaintiff’s motion, the trial court implicitly, and correctly, determined that the

Order complied with the language of Tenn. Code Ann. § 36-801. The trial court

found that “the parties, on the 9th day of April, 1979, made an equitable

settlement of property rights between them and that by signing the Order

submitted to the Chancellor for entry, they made written agreement as to any

property rights between them.” To the extent that it can be argued that the May

1979 Order does not comply with the statute because it does not include the


      3
         In Gentry, the failure to comply with the statutory waiting period
was discussed in the context of whether the decree was “wholly outside the
pleadings”, the Court having found that the trial court had “obviously had
general jurisdiction of the subject matter, a suit for divorce.”
                                         5
words “the parties have made adequate and sufficient provision by written

agreement for the equitable settlement of any property rights ...”, where the Order

on its face reflects an agreed distribution of property, such a deficiency is, at

most, a procedural flaw under Gentry, and does not render the Order void ab

initio.

          Plaintiff’s arguments that Tenn. Code Ann. § 36-801 is mandatory rather

than permissive are unavailing, or, more properly, irrelevant, in view of the

Supreme Court’s opinion in Gentry wherein the Court concluded that failure to

observe the statutory mandate did not render the judgment void. Id. at 680.

          Plaintiff’s claims regarding the invalidity of the judgment because the trial

court appeared to have granted the divorce to both parties, rather than to one of

them, also must fail. This argument was raised in the trial court as “not the

proper procedure at that time.” In neither the trial court nor this Court has

Plaintiff relied upon any statute. In any event, Plaintiff sued for divorce, and a

divorce was granted. Plaintiff has failed to show that the divorce decree ordering

that the parties “are divorced” was not within the Court’s jurisdiction or wholly

outside the pleadings.

          In this Court, Plaintiff has raised as an issue the statutory provision which

prohibits granting of a divorce on the grounds of irreconcilable differences when

there has been a contest or denial. It appears that this issue was not raised in

Plaintiff’s Motion for Relief from Judgment and not considered by the trial court.

However, the trial court herein specifically found, “the parties, attorney, and

witnesses appeared on the 9th day of April, 1979 for trial and an announced

settlement was made to the Court.” As noted above, the May, 1979 Order

granting divorce was signed by both parties and their attorneys. Although the



                                            6
trial court made no conclusion of law regarding this issue, the trial court’s

findings of fact dispose of the claim. Even if Mr. Hall originally contested the

divorce, he later withdrew that contest and agreed to the May, 1979 Order.

      To prevail on her motion the plaintiff would have to show that the trial

court lacked subject matter jurisdiction, lacked personal jurisdiction or entered

an order which is completely beyond the scope of the pleadings. No issue of

personal jurisdiction has been raised. The trial court clearly had subject matter

jurisdiction over suits for divorce. The divorce decree, agreed to by plaintiff,

granted the divorce plaintiff sought and ordered distribution of the property. It

was neither wholly outside the pleadings nor in excess of the court’s jurisdiction.

Therefore, on the basis of Gentry and the portions of Gibson’s adopted therein,

we concur with the trial court and find that Ms. Hall has not carried her burden.

      Accordingly, the decree awarding Jeanette Hall and Roy Donald Hall a

divorce is not void. The judgment of the trial is affirmed, and the case is

remanded to the trial court for any further proceedings which might arise. Costs

are taxed to Jeanette Hall for which execution may issue.



                                        _______________________________
                                        PATRICIA J. COTTRELL, JUDGE


CONCUR:


___________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.


___________________________
WILLIAM B. CAIN, JUDGE




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