Posted by: K.O. Herston | February 7, 2013

Dismissal of Humboldt Divorce for Lack of Jurisdiction Reversed: Wilken v. Wilken

Tennessee divorce lawyersFacts: The parties lived in Maryland throughout their 19-year marriage. In 2007 or 2008, Husband left the marital home in Maryland. Several months later, he moved to Tennessee. About one year after he moved to Tennessee, Husband filed for divorce in Tennessee. Wife filed an Answer and a Counterclaim for divorce. The trial court conducted the first day of trial in the matter, and the case was continued. Before the second day of trial resumed, the trial court sua sponte entered an order dismissing the case for lack of jurisdiction, specifically personal jurisdiction over Wife (based on Wife’s insufficient contacts with Tennessee) and also lack of subject matter jurisdiction over the case. Husband appealed.

On Appeal: The Court of Appeals reversed the trial court.

On the issue of personal jurisdiction, Husband argued that Wife consented to personal jurisdiction by filing a general appearance in the trial court, and by filing an Answer and Counterclaim in which she raised no issue as to personal jurisdiction.

Personal jurisdiction refers to the court’s authority to adjudicate the claim as to the person. Personal jurisdiction of non-resident defendants may be obtained by service of process under the Tennessee Long Arm Statute if, and only if, the non-resident defendant has such minimum contacts with this state that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Objections to personal jurisdiction must be raised as a defense in the defendant’s first filing, either in the Answer or in a Motion to Dismiss pursuant to Rule 12 of the Tennessee Rules of Civil Procedure. If the defendant fails to do so and participates in the litigation prior to raising this defense, the objection to personal jurisdiction is waived.

On the question of personal jurisdiction, the Court wrote:

From our review of the record in this case, Wife did not object to the trial court’s exercise of personal jurisdiction in her initial filings with the trial court. To the contrary, she indicated her consent to the trial court’s exertion of personal jurisdiction when her attorney filed a general appearance on her behalf and when she filed an Answer and Counterclaim that did not object to the trial court’s exercise of jurisdiction over her. In her Counterclaim, Wife specifically asked the trial court to adjudicate all of the rights between the parties. Because Wife clearly waived any objection and consented to personal jurisdiction, we reverse the trial court’s holding that it did not have personal jurisdiction over Wife.

Husband further argued the trial court erred in dismissing the case based on lack of subject matter jurisdiction because Tennessee Code Annotated § 36-4-104(a) gives the trial court jurisdiction over the case if either party has resided in Tennessee for the six months immediately preceding the filing of the complaint for divorce.

Subject matter jurisdiction relates to the nature of the cause of action and the relief sought. Subject matter jurisdiction implicates a court’s power to adjudicate a particular type of case or controversy. A court derives its subject matter jurisdiction, either explicitly or by necessary implication, from the Tennessee Constitution or from legislative acts. The parties cannot confer subject matter jurisdiction on a trial court, or on an appellate court, by appearance, plea, consent, silence, or waiver. For this reason, the issue of subject matter jurisdiction may be raised at any time during the proceedings, by the parties or by the court. A court may raise the issue of subject matter jurisdiction sua sponte, even where no party objects.

Tennessee Code Annotated § 36-4-104(a) provides that

[a] divorce may be granted for any of the causes referenced in § 36-4-101 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.

The term “residence” as used in § 36-4-104(a) has been interpreted to mean “domicile.” A person’s domicile is “the place where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel.” To create a domicile in Tennessee, a person must intend to establish a personal home in Tennessee and must act consistently with this intention. To acquire domicile here, the person must also have no present intention or expectation of changing his or her residence to some other state.

To determine whether Tennessee was Husband’s domicile for the six months immediately preceding the filing of his divorce complaint, the courts must consider not only his declarations and conduct but also all other relevant facts and circumstances.

The Court reviewed the evidentiary record and concluded:

At the time of trial, Husband was still employed at [a local] trucking company, [Husband's Girlfriend, with whom he lived] continued to work at the same company, and he had a long-term relationship with Girlfriend that was going well. This indicates an intention to stay with Girlfriend in Tennessee for the foreseeable future, and there is nothing in the record to the contrary. Thus, the evidence in the record at this juncture preponderates in favor of a finding that Husband is domiciled in Tennessee for purposes of determining subject matter jurisdiction pursuant to § 36-4-104(a).

Therefore based on the record before us, we must conclude that the trial court has subject matter jurisdiction over the parties’ divorce proceedings. Finding both in personam jurisdiction and subject matter jurisdiction, we must reverse the trial court’s dismissal of the case.

The case was remanded to the trial court for further proceedings.

Wilken v. Wilken (Tennessee Court of Appeals, Western Section, December 27, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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