                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   APRIL 18, 2007 Session

     TERRIE LYNN HALL HANKINS v. JAMES MICHAEL HANKINS

                   Direct Appeal from the Circuit Court for Shelby County
                       No. CT-007025-03     John R. McCarroll, Judge



                    No. W2006-00232-COA-R3-CV - Filed August 20, 2007


In this case, the plaintiff wife filed for divorce from the defendant husband in December of 2003.
The husband collaterally attacked the validity of the wife’s previous divorce from her second
husband in 1985, asserting that the wife was still married to her second husband. The trial court
bifurcated the proceedings to determine the validity of the parties’ marriage. After the hearings on
this issue, the trial court found that the wife’s efforts at service of process on her second husband
during her second divorce had been insufficient, and ruled that any subsequent marriage was
therefore invalid. After conducting further hearings as to the parties’ property, in its order on
division of assets, the court found that a bank account held jointly by the parties was the sole
property of the husband, and it awarded each party a one-half interest in real property located in
Humphreys County, Tennessee. We affirm in part, reverse in part, and remand for further
proceedings in the circuit court.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                            Reversed in Part and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Stuart B. Breakstone, Kathy Baker Tennison, Memphis, TN, for Appellant

Larry Rice, Memphis, TN, for Appellee
                                             OPINION

                               I. FACTS & PROCEDURAL HISTORY

       This appeal arises from divorce proceedings in which the defendant husband collaterally
attacked a prior divorce decree obtained by the plaintiff wife. Terrie Hankins (“Appellant”) and
James Hankins (“Appellee”) were married in 1996. At the time, Appellant had previously been
married and divorced three times.

        In June of 1975, Appellant, an Alabama resident at the time, married her first husband, Mr.
Fowler. The couple obtained a divorce in Montgomery County, Alabama in November of 1975. In
April of 1976, Ms. Hankins married her second husband, Mr. Baker. The couple had a daughter,
Deliverance, who was born in August of 1977. In 1979, because of physical abuse resulting in
hospitalization seven times in one year, Ms. Hankins left Mr. Baker and moved to Montgomery,
Alabama with Deliverance. She claims that Mr. Baker “kidnapped” Deliverance in March of 1980
and took her to his parents’ home in Alabama. Ms. Hankins regained physical custody of
Deliverance in July of 1980, with the aid of Mr. Baker’s sister. At some point in 1980, Appellant
moved with Deliverance to live with her eventual third husband, Mr. Peal, in Memphis, Tennessee.
In March of 1985, she retained an attorney and filed a complaint for divorce from Mr. Baker in
Memphis circuit court. The complaint alleged that Mr. Baker’s address was “unknown and cannot
be ascertained after diligent search and inquiry”and that the parties separated “on or about 11/15/79.”
Notice of the divorce was published on four occasions from March to April of 1985 in the Daily
News, a Memphis newspaper, by Ms. Hankins’s attorney at the time. The circuit court entered an
order on default judgment in favor of Ms. Hankins in June of 1985. The circuit court entered a final
decree of absolute divorce in August of 1985 based upon Ms. Hankins’s allegations of “cruel and
inhuman treatment or conduct toward Plaintiff as renders cohabitation unsafe and improper,” and
the court granted her exclusive custody of Deliverance. Years later, in 1997, Mr. Baker, who had
remarried, died.

        In June of 1986, Appellant married Mr. Peal, and they lived together in Memphis. She and
Mr. Peal filed a petition for adoption of Deliverance in July of that same year. The couple published
notice of the adoption in Shelby County and in Huntsville, Alabama. The adoption was granted after
no objection was offered by Mr. Baker, Deliverance’s biological father. Ms. Hankins and Mr. Peal
divorced in Memphis in July of 1987.

        Mr. and Ms. Hankins were married on March 15, 1996, after living together for three years.
Throughout the marriage, Appellant was not employed outside of the home. Ms. Hankins filed a
complaint for divorce from Mr. Hankins on December 17, 2003. Mr. Hankins filed an answer and
counter-complaint on December 31, 2003. On March 31, 2004, the trial court ordered Mr. Hankins
to pay pendente lite support on the behalf of Ms. Hankins, in the amount of $4,000 per month, and
to maintain her health, life, and automobile insurance. The court later awarded Ms. Hankins $20,000
to be placed in escrow for the purpose of paying her pretrial expenses.



                                                 -2-
        Mr. Hankins filed a motion to dismiss on January 6, 2005. After taking the deposition of Ms.
Hankins, Mr. Hankins filed a motion to bifurcate the trial, in order to first determine whether the
parties’ marriage was valid. Mr. Hankins alleged that Appellant’s 1985 divorce decree from Mr.
Baker, her second husband, was void for lack of jurisdiction. The trial court granted the motion for
bifurcation and stayed all discovery except for issues at the core of the validity hearing. On March
4, 2005, Mr. Hankins filed a motion for summary judgment, and a statement of material facts in
which he cited the deposition testimony of Ms. Hankins. His summary judgment motion was denied
by the trial court on May 6, 2005, as was his later filed motion to reconsider the ruling. Appellee’s
Rule 9 application for appeal as to this interlocutory order of the trial court was denied by this Court
on August 2, 2005.

        On November 14 and 15, 2005, the trial court held hearings to determine the validity of the
parties’ marriage, based upon Appellee’s attack of Appellant’s divorce from Mr. Baker. In an order
on the validity of marriage entered on November 22, 2005, the trial court concluded that Mr.
Hankins had standing to raise the issue of a previous marriage, still subsisting. The trial court found
that Ms. Hankins had not made a diligent search and inquiry regarding Mr. Baker’s whereabouts
prior to obtaining a divorce from him in 1985. The court further concluded that “the result of the
insufficient notice and unconstitutional lack of due process” was that her divorce from Mr. Baker
was invalid. The trial court found that marriage by estoppel did not apply, and that Ms. Hankins had
knowingly entered into a second marriage in violation of a previous marriage, still subsisting.

        On January 27, 2006, after holding further hearings on the issue of property division, the
court entered an order on the division of assets. The court found that a jointly held bank account was
the sole property of Mr. Hankins, to which Ms. Hankins held no interest. The court ordered that each
party be awarded a one-half interest in real property located in Humphreys County. Although the
parties filed additional pleadings and motions, including motions for contempt, the trial court
dismissed or denied these remaining pleadings and motions by order on February 7, 2007, and stated
that the November 22, 2005 “Order on the Validity of Marriage” and the January 27, 2006 “Order
on Division of Assets” were the final orders in this case. Ms. Hankins filed a timely notice of appeal.

                                       II. ISSUES PRESENTED

       Both parties have presented issues to this Court for consideration on appeal. Ms. Hankins
frames her issues, which we have restated slightly, as follows:

       1.      Whether the trial court erred in allowing Mr. Hankins to collaterally attack the
               validity of the divorce decree that Ms. Hankins obtained in 1985 against her second
               husband, Mr. Baker.

       2.      Whether principles of res judicata precluded the trial court from reconsidering the
               issue of improper service as to the Baker divorce decree.




                                                  -3-
       3.      Whether the trial court erred by failing to require Mr. Hankins to present cogent and
               convincing evidence of the invalidity of the Baker divorce decree.

       4.      Whether, in the alternative, the trial court erred in failing to award Ms. Hankins an
               interest in the jointly held bank account of the parties.

Mr. Hankins offers the following issues for our review:
      1.      Whether the trial court erred in awarding a one-half interest to Ms. Hankins in the
              real property located in Humphreys County, Tennessee.

       2.      Whether the trial court erred when it awarded alimony, in the form of pendente lite
               support, to Ms. Hankins, when the trial court found that the parties were not validly
               married.

Having found two of these issues to be dispositive of this appeal, we affirm in part, reverse in part,
and remand for further proceedings.

                                    III. STANDARD OF REVIEW

        On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). We review a trial court’s
conclusions of law under a de novo standard upon the record with no presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                          IV. DISCUSSION

                        A. Collateral Attack of the Baker Divorce Decree

       The record before this Court, related to the 1985 Baker divorce at issue, contains Ms.
Hankins’s sworn complaint for divorce, the divorce referee’s answer, proof of publication, an order
on default judgment, and a final decree for divorce entered by the circuit court (“the Baker divorce
decree”). The Baker divorce decree, entered on August 2, 1985, by the Honorable William W.
O’Hearn, provides as follows:



                                 Final Decree of Absolute Divorce


                                                  -4-
                       This cause came on to be heard upon the original Complaint
               for Divorce filed herein by the Plaintiff, TERRIE LYNNE HALL
               BAKER, service upon the Defendant by publication, upon Answer of
               the Divorce Referee, upon judgment by default judgment against the
               Defendant, and upon the testimony in open Court of TERRIE
               LYNNE HALL BAKER, and her two witnesses, Ailene Hall and
               Dianna Craige, from statement of counsel for Plaintiff, and upon the
               entire record in the cause, from all of which it satisfactorily appears
               as follows:
                       It appears to the Court from the testimony adduced in this
               cause that the allegations as set forth in the Complaint for Divorce are
               true and that the Defendant is guilty of such cruel and inhuman
               treatment or conduct toward Plaintiff as renders cohabitation unsafe
               and improper.
                       It is, THEREFORE, ORDERED, ADJUDGED AND
               DECREED by the Court that the Plaintiff, Terrie Lynne Hall Baker,
               is hereby awarded an absolute divorce from the Defendant, Roger
               Glenn Baker, and that the bonds of matrimony heretofore subsisting
               between the parties are hereby dissolved and forever held for naught
               and that the parties hereto be restored to all the rights and privileges
               of unmarried persons.
                       IT IS, FURTHER, ORDERED, ADJUDGED AND
               DECREED BY THE COURT:
                       1. That the Plainitff [sic] be awarded the exclusive care,
               custody and control of the parties [sic] minor child, Deliverance
               Alethia Baker, but the matter of child support is reserved.
                       2. That the costs of this cause shall be assessed against the
               Plaintiff, for all of which let execution issue.

       Mr. Hankins first sought to attack the validity of the Baker divorce decree in his motion to
dismiss filed on January 6, 2005. After taking the deposition of Ms. Hankins, Mr. Hankins filed a
motion to bifurcate the trial, in order to determine the status of the 1996 Hankins marriage, and a
memorandum of law in support of his contention that the Baker divorce decree was void. Appellee
pointed out that, in her divorce complaint from 1985, Ms. Hankins claimed to have been unable to
find Mr. Baker’s residence after a diligent search, and that her attorney had issued service by
publication. In the motion, Mr. Hankins relied exclusively upon the deposition testimony of Ms.
Hankins from January of 2005 to allege the following:

               At the time [1985], Plaintiff knew Mr. Baker and his family were still
               living on their family farm in New Hope, Alabama. (citation
               omitted). She had been to that farm several times and actually knew
               Mr. Baker resided there for a time after their separation. . . . Plaintiff



                                                  -5-
               did not attempt to find Mr. Baker and in fact was purposefully hiding
               from him. (citation omitted).

The trial court allowed Mr. Hankins to amend his counter-complaint in order to seek an annulment
of his marriage to Ms. Hankins, based upon a prior, existing marriage to Mr. Baker.

       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, 279 S.W.2d 71, 75 (Tenn. 1995) (quoting Jordan v. Jordan, 239 S.W. 423, 445
(Tenn. 1922)). As this principle is applied to the case at bar, we find it apparent that Appellee’s
attack on the validity of the Baker divorce decree is clearly to be considered collateral, rather than
direct, in nature. Mr. Hankins even acknowledged that it was a collateral attack in his memorandum
of law accompanying the motion to bifurcate filed with the trial court on January 21, 2005, because
“the purpose of attacking [the decree was] for an independent purpose and contemplate[d] some
other relief or result other than simply setting aside the [Baker] Final Decree of Divorce.”

         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 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, 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, 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 (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.


                                                 -6-
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 (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).

        We find that the 1985 Baker divorce decree is not void on its face for lack of jurisdiction.
In her sworn complaint, Ms. Hankins stated that the address of Mr. Baker was unknown and could
not be ascertained after diligent search and inquiry. The proof of publication in the record shows that
notice of the divorce was published in the The Daily News on March 12, 19, 26, and April 2, 1985.
In the decree, the trial court explicitly stated its finding that service had been effected upon Mr.
Baker by publication. Despite his contentions otherwise, this finding was not subject to collateral
attack by Mr. Hankins. See Henson, 1989 Tenn. App. LEXIS 480, at *6.

       As held by our Supreme Court in Hamm v. Hamm, 204 S.W.2d 113, 117 (Tenn. 1947):

               The view entertained by the weight of authority is that the marital
               status or relation is itself a res in the sense that a proceedings
               affecting it alone is a proceeding in rem or quasi in rem where
               substituted service by publication is sufficient to answer the
               requirement of due process . . . . This is the view of the courts in this
               jurisdiction.

(citations omitted). Mr. Hankins cites Baggett v. Baggett, 541 S.W.2d 407 (Tenn. 1976), and Young
v. Young, Nos. 02A01-9506-GS-00133, 3469, 1996 WL 544383 (Tenn. Ct. App. Sept. 25, 1996),
appeal denied, concurring in results only (Tenn. Feb. 3, 1997), in support of his contention that the
publication attempted in 1985 did not satisfy due process requirements for notice to nonresident
defendants in divorce actions. Baggett and Young are distinguishable because, in both of those
decisions, the parties challenging the validity of a divorce were defendants in the divorce actions at
issue. Conversely, the case sub judice involves a stranger to the Baker divorce, Mr. Hankins, who
challenged the validity of the decree in order to assert his own counterclaim. As a brief aside, we
express doubt as to whether Mr. Hankins, a stranger to the Baker divorce proceedings, had standing
to allege violations of Mr. Baker’s constitutional rights in those proceedings, particularly when it is


                                                 -7-
clear from the record that Mr. Baker himself never sought to do so and even subsequently remarried
prior to his death in 1997. We find the following language persuasive, in an opinion from the United
States Court of Appeals for the District of Columbia involving a factually similar situation where
a husband sought to annul his marriage based upon his wife’s allegedly invalid Tennessee divorce:

                The reasons supporting the view first stated have no application when
                the challenge to the jurisdiction is made on the ground that the notice
                given to the defendant was lacking in due process. Such an attack
                does not reach down to the fundamental authority of the court to deal
                with the subject matter of the suit. It affects rather the personal
                protections which it is required to give to the defendant, such as
                affording him a reasonable opportunity to appear and be heard. That
                is a matter which primarily, if not perhaps exclusively, concerns him,
                rather than strangers to the suit.

Saul v. Saul, 122 F.2d 64, 70 (D.C. Cir. 1941) (emphasis added).
        Regardless, and without expressly deciding the issue of standing, we find Baggett and Young
otherwise distinguishable from the case at bar. Most notably as to the present case, those decisions
held that publication is an insufficient means of process for a nonresident defendant whose address
is actually known or easily ascertainable after inquiry. See Young, 1996 WL 544383, at *3 (citing
Love v. First Nat’l Bank, 646 S.W.2d 163, 165 (Tenn. Ct. App. 1982)); Baggett, 541 S.W.2d at 411
(citing Schroeder v. City of New York, 371 U.S. 208, 83 S. Ct. 279, 282, 9 L. Ed. 2d 255 (1962)).
Again, Ms. Hankins stated in the Baker divorce complaint that Mr. Baker’s address was unknown
and could not be ascertained after diligent inquiry. Nothing appears on the face of the record of the
Baker divorce decree to indicate that this statement was false at the time it was offered. As such, the
Baker court’s finding in the decree that service was effective through publication was not subject to
collateral attack by Mr. Hankins. See Henson, 1989 Tenn. App. LEXIS 480, at *6.

        Mr. Hankins sought to invalidate the 1985 Baker divorce based upon Ms. Hankins’s
responses to questioning at a deposition occurring nearly twenty years later, in which she allegedly
conceded that she had not conducted a diligent inquiry as to the last known address of Mr. Baker
prior to publication of notice of the divorce in 1985. The court below held hearings on the validity
of the Hankins marriage at which Ms. Hankins was submitted to further similar questioning in this
regard, and the trial court relied upon this testimony, along with her deposition responses, to find that
the Baker divorce decree was void. Viewing the record from the Baker divorce proceedings, we find
that the trial court’s allowance of a collateral attack by Mr. Hankins on the issue of jurisdiction was
in contravention of the law as set forth in Gentry, 924 S.W.2d at 680, as his basis for such attack
was, in fact, parol proof, and not a facially void decree.

        Additionally, the trial court presiding over the Baker divorce clearly had subject matter
jurisdiction over those proceedings. Subject matter jurisdiction to grant the divorce is based on the
location of the res or status of the marriage. JANET L. RICHARDS, RICHARDS ON TENNESSEE FAMILY



                                                  -8-
LAW , § 6-2(b)(1) (2d ed. 2004). The res is found where either of the parties is domiciled. Id. (citing
Williams v. North Carolina, 317 U.S. 287 (1942)). Tenn. Code Ann. § 36-4-104(a) provides:

                  A divorce may be granted for any of the aforementioned causes if the
                  acts complained of were committed while the plaintiff was a bona
                  fide resident of this state or if the acts complained of were committed
                  out of this state and the plaintiff resided out of the state at the time,
                  if the plaintiff or the defendant has resided in this state six (6) months
                  next preceding the filing of the complaint.

(emphasis added). Residence as used in divorce statutes is treated as the domicile. Brown v. Brown,
150 Tenn. 89, 261 S.W. 959 (Tenn. 1923). The first paragraph of Ms. Hankins’s sworn complaint
stated that she had been a resident of Shelby County, Tennessee, for more than six months prior to
filing the complaint. As nothing affirmatively appears on the face of the record to contradict a
finding of subject matter jurisdiction, and Mr. Hankins does not dispute that Ms. Hankins had lived
in Tennessee for several years prior to filing for divorce from Mr. Baker, we find that the Baker
decree was similarly not void for want of subject matter jurisdiction.

        Furthermore, the Baker divorce decree did not rule on an issue wholly outside the pleadings.
Ms. Hankins sought an absolute divorce based upon cruel and inhuman treatment or conduct by Mr.
Baker, and she sought custody of the couple’s minor daughter, Deliverance. The trial court presiding
over the Baker divorce specifically granted her that relief in its decree.

                                              B. Property Division

        Having found that the trial court erred by permitting Mr. Hankins to collaterally attack the
Baker divorce decree, and that it erred in finding the Hankins marriage to be void ab initio, we turn
to address the subsequent proceedings affecting the parties’ property interests. The trial court held
additional hearings in order to reach a decision as to equitable division of the assets of Mr. and Ms.
Hankins. The court determined that Falk v. Falk, No. M2003-02134-COA-R3-CV, 2005 Tenn.
App. LEXIS 34 (Tenn. Ct. App. Jan. 21, 2005), was instructive on the issue of property division for
litigants whose marriage was found to be void from its inception. In Falk, the trial court found that
the wife had not obtained a valid divorce from a previous husband before marrying her current
husband, granted the parties a divorce pursuant to Tenn. Code Ann. § 36-4-101(2) (2001), and
applied marital property distribution principles in ordering an equitable division of the parties’ house
and personal property.1 Id. at *16-23. On appeal, we agreed with the trial court’s finding that the


         1
                  In Falk, the wife’s previous divorce in California had not become final until three months after she
remarried in Tennessee in 1995. 2005 Tenn. App. LEXIS 34, at *2. “On the front page of the California divorce
judgment . . . was a warning statement set off in a box that read as follows: ‘W ARNING: NEITHER PARTY MAY
REMARRY UNTIL THE EFFECTIVE DATE OF TERMINATION OF MARITAL STATUS AS SHOW N IN THIS
BOX.’” Id. at *3, n. 1. After the previous divorce had become final, the wife had made no attempt to validly solemnize
the subsequent marriage. Id. at *11. In 2003, wife filed a complaint for divorce in which she acknowledged that she
                                                                                                         (continued...)

                                                         -9-
marriage was invalid, and found no abuse of discretion in its granting a divorce based upon bigamy.
Id. at *10-13. However, we reversed the trial court’s order of property division, explaining:

                          It is well recognized that in a traditional divorce setting, trial
                  courts have broad discretion in fashioning an equitable division of the
                  marital estate, and appellate courts give great weight to a trial court’s
                  division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372
                  (Tenn. Ct. App. 1996). Such decisions regarding the division of the
                  marital estate will be presumed correct unless the evidence
                  preponderates otherwise or unless they are based on an error of law.
                  Id. Tennessee, as a “dual property” state, distinguishes between
                  “marital” and “separate” property in the context of a divorce
                  proceeding. Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn. Ct. App.
                  2002) (citing Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App.
                  1988)). Only “marital property” is subject to equitable division by the
                  courts. Id. at 12-13. Therefore, the trial court must make a threshold
                  determination of whether certain property is “marital” or “separate.”
                  Id. at 13. However, because “marital property” is a legal fiction
                  created by statute, see Tenn. Code Ann. § 36-4-121(b) (2001), “the
                  concept has no real meaning outside of the realm of marital
                  dissolution.” In re Hohenberg, 174 B.R. 487, 493 (Bankr. W.D.
                  Tenn. 1994). Thus, “marital property” is only considered in the
                  context of an equitable division of property resulting from the
                  dissolution of a valid marriage. Arms v. Stanton, 43 S.W.3d 510, 513
                  (Tenn. Ct. App. 2000); see also JANET L. RICHARDS, RICHARDS ON
                  TENNESSEE FAMILY LAW § 3-6 (2d ed. 2004). Therefore, we conclude
                  that a valid marriage is a foundational threshold to any analysis
                  regarding the equitable division of marital property.

                           It appears from our research that there is but one case from
                  this state that directly addresses the consequences of property being
                  transferred or acquired during a bigamous marriage and the interest
                  in that property of the parties to the marriage. Arms v. Stanton, 43
                  S.W.3d 510 (Tenn. Ct. App. 2000). In Arms, this Court was faced
                  with a somewhat similar situation as the one presently before this
                  Court. Id. In that case, Mr. Arms entered into a bigamous marriage
                  with Tammy Lou Arms while he was still married to one Ms.
                  McCord. Id. at 511. During his “marriage” to Tammy Lou, Mr. Arms
                  purchased real property in Tennessee and subsequently conveyed by
                  quitclaim deed all of his interest in the real property to Tammy Lou.


                            1
                             (...continued)
had remarried prior to the finalization of the California divorce. Id. at *6.

                                                          -10-
                  Id. Several years later, Tammy Lou filed for divorce, and, during the
                  pendency of the divorce, conveyed the property to one Mr. Stanton
                  for $ 50,000.00. Id. After Mr. Arms learned of the transaction, he
                  brought a third-party action against Mr. Stanton, claiming a marital
                  interest in the real property and seeking fifty percent (50%) of the fair
                  market value of the real property. Id. On appeal, this Court held that
                  Mr. Arms could not claim a “marital interest” in the property because
                  the parties were not legally married and, without a valid marriage, the
                  real property could not be considered “marital” property. Id. at 513.
                                                     ...
                          Therefore, in light of the foregoing authorities, we conclude
                  that where the marriage is void from its inception, as in this case,
                  Mrs. Falk may not rely on the doctrine of marital property to claim an
                  interest in property titled in Mr. Falk’s name. Arms, 43 S.W.3d at
                  513. Thus, we conclude that it was error for the trial court to have
                  made an equitable division of the parties’ “marital” property.

Id. We went on to state:
             Because the parties were not validly married, the rules of equitable
             distribution in the context of section 36-4-121 do not apply. Instead,
             the parties should be restored, insofar as it is possible, to the positions
             they held prior to the invalid marriage. Property titled in each party’s
             individual name should be granted to the titled party. However, with
             regard to jointly owned property, should the trial court find joint title
             to certain property or be unable to determine how the property is
             titled, the court should make an equitable division of the parties’
             respective rights in such property, without resort to the factors
             applicable to “marital property.”

Id. at 23.
        As we have already determined that the parties’ marriage was valid, and not void from its
inception, we find Falk to be inapplicable to the case at bar. We find that the trial court erred in
applying the standards for property division as elicited in Falk in its order of property division
between Mr. and Ms. Hankins. Accordingly, we reverse the judgment of the trial court as to division
of property,2 and we remand to the trial court for further proceedings as to the parties’ respective
claims for divorce, to the extent necessary, as well as further proceedings regarding distribution of
the parties’ property according to martial property equitable distribution principles, utilizing the
factors set forth at Tenn. Code Ann. § 36-4-121.



        2
                To the extent that this order dealt with the final allocation of funds awarded for the support of Ms.
Hankins throughout the proceedings, we affirm those aspects of the January 27, 2006 order, as explained in the next
section.

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                                     C. Pendente Lite Support

         Finally, Mr. Hankins alleges error with the trial court’s award of pendente lite support to Ms.
Hankins, or otherwise on her behalf, throughout the proceedings. After Ms. Hankins filed for
divorce in December of 2003, the parties consented to an order on temporary support by which Mr.
Hankins agreed to pay Ms. Hankins $4,000 per month during the pendency of the litigation. Mr.
Hankins also agreed to maintain health, life, and automobile insurance on Appellant’s behalf during
this period. The court also awarded Ms. Hankins additional funds for the payment of her pretrial
expenses. Appellee’s sole argument against these awards is that Ms. Hankins was not entitled to
alimony because the marriage was found to have been invalid. Mr. Hankins correctly cites Falk,
2005 Tenn. App. LEXIS 34, at *18-19, for this Court’s acknowledgment of our Supreme Court’s
holding in Pewitt v. Pewitt, 240 S.W.2d 521, 526 (Tenn. 1951), that “an alimony obligation cannot
be based upon a void marriage because any right to alimony is premised first on the duty of support
that arises from the marital relation.”

       In its January 27, 2006, order on division of assets, the trial court ruled in relevant part:

               6.      Defendant is not entitled to a judgment awarding
                       reimbursement of any funds expended on behalf of Plaintiff
                       including but not limited to attorney fees, pendente lite
                       alimony, litigation expenses, or other funds the Court ordered
                       him to pay to Plaintiff or for Plaintiff’s benefit.

               7.      Defendant is not awarded reimbursement for the Twenty
                       Thousand Dollard ($20,000.00) Plaintiff withdrew from the
                       Union Planter’s Bank Account ending 4223.
                                                ...
               9.      The Accounting provided by Stuart Breakstone, Attorney for
                       Plaintiff, is acceptable to the Court as an accurate
                       representation of the Pre-Trial Expenses awarded to Plaintiff
                       and the expenses paid out of same.

               10.     The remaining Pre-Trial Expenses’ balance of Nineteen
                       Thousand One Hundred Thirty-Eight Dollars and Thirty Cents
                       ($19,138.30) shall be reimbursed to Defendant.

               11.     Defendant shall be responsible for any outstanding Court
                       Costs.

In Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006), our Supreme Court provided the
following standard of review to be utilized by an appellate court when examining a trial court’s
award of alimony:



                                                 -12-
               Trial courts have broad discretion in awarding spousal support.
               Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004).
               “Accordingly, ‘[a]ppellate courts are generally disinclined to
               second-guess a trial judge’s spousal support decision unless it is not
               supported by the evidence or is contrary to the public policies
               reflected in the applicable statutes.’” Bogan v. Bogan, 60 S.W.3d
               721, 727 (Tenn. 2001) (quoting Kinard v. Kinard, 986 S.W.2d 220,
               234 (Tenn. Ct. App. 1998)). The role of an appellate court in
               reviewing an award of spousal support is to determine whether the
               trial court applied the correct legal standard and reached a decision
               that is not clearly unreasonable. Id. at 733. Thus, this Court gives
               awards of alimony an abuse of discretion review. See Bratton, 136
               S.W.3d at 605.

Because the Baker divorce decree was not subject to collateral attack in this case, the parties’
marriage was valid. Mr. Hankins has failed to otherwise allege or submit proof that the trial court
abused its discretion in its award of alimony to Ms. Hankins during the divorce proceedings below.
Therefore, we find Appellee’s argument on this issue to be without merit, and the alimony award
as defined by the trial court in its order on January 27, 2006, is affirmed.

       The remaining issues offered by the parties for our consideration are hereby pretermitted.


                                         V. CONCLUSION

       For the foregoing reasons, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion. Costs are assessed against Appellee, James Michael
Hankins, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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