Atchley v. Atchley

• Decision Date: 21 December 1978
• Citation: 585 S.W.2d 614
• Parties: Kathy Smith ATCHLEY v. Allen E. ATCHLEY. 585 S.W.2d 614
• Court: Tennessee Court of Appeals

Page 614

585 S.W.2d 614

Kathy Smith ATCHLEY v. Allen E. ATCHLEY.

585 S.W.2d 614

Court of Appeals of Tennessee, Eastern Section.

Dec. 21, 1978.

Certiorari Denied by Supreme Court July 30, 1979.

H. R. Silvers, Greeneville, for appellant.

Fred M. Hartman, Greeneville, for appellee.

OPINION

GODDARD, Judge.

This is a suit for divorce which raises significant questions of Res judicata and prior suit pending. On July 18, 1977, Kathy Smith Atchley, Plaintiff-Appellee, filed this suit against Allen E. Atchley, Defendant-Appellant, seeking a divorce and custody of their minor child, Allen Atchley, Jr. In her complaint she alleged that she and her child "are citizens and residents of Greene County, Tennessee, and have been for six months next preceding the filing of this complaint." The Defendant appeared specially to contest jurisdiction by a motion to dismiss on the grounds that, first, there was a prior suit pending in South Carolina, and second, that it was Res judicata that the Plaintiff was a domiciliary of South Carolina, at least through June 17, 1977. The Chancellor initially granted the motion to dismiss until the divorce action which the Defendant had previously filed in Richland County, South Carolina, was concluded. Upon a motion to reconsider the Chancellor, apparently concerned that the Defendant would keep the South Carolina proceeding in abeyance indefinitely, ordered that the Plaintiff would be allowed to pursue her divorce unless the Defendant's South Carolina suit was concluded within 30 days after October 24, 1977. The South Carolina divorce was not promptly concluded, and one day after the 30-day period the Plaintiff was granted a default judgment, awarding her an absolute divorce and custody of the minor child.

It is from that judgment which the Defendant has appealed and assigned error. We shall not undertake to reply to the assignments of error Seriatim, but prefer to go to what we consider the determinative questions. Before doing so, we will outline the circumstances and proceedings which gave rise to this appeal.

The Plaintiff and Defendant were married on December 20, 1974, in Richland County, South Carolina. One child was born of this marriage, Allen Atchley, Jr., who was about 15 months old at the time of the filing of this complaint. The parties resided together in Richland County, South Carolina, until November 17, 1976, when it is undisputed that the Plaintiff left their home and took her baby with her. On March 24, 1977, the Defendant instituted a suit for divorce in Richland County, South Carolina, which the Plaintiff never properly answered. Then, on May 26, 1977, the Defendant filed a civil suit against the Plaintiff in the Richland County Court for the wrongful abduction of his child and prayed that the Court issue an injunction requiring the Plaintiff to return the child to South Carolina until final custody of the child was awarded. The Plaintiff, by a motion to dismiss, appeared specially to contest jurisdiction, alleging by affidavit that she and the child were residents of Greene County, Tennessee, and had been since early January 1977. The South Carolina Court then proceeded by way of injunction to grant the father equal temporary custody of the child prior to the time a divorce and final custody were awarded. The judgment of the Richland County Court was not appealed and became final.

The Plaintiff did not appear in either of the South Carolina actions, except the above-mentioned special appearance to contest jurisdiction which was decided adversely to her. Instead of obeying the South Carolina injunction to return the child and share equal custody, she filed this action for divorce in Greene County, Tennessee, on July 18, 1977. Meanwhile, in South Carolina, the Defendant's original action for divorce and his action for wrongful abduction of the infant were combined in the Richland County Family Court pursuant to the creation of the Family Court System under South Carolina's Judicial Reform Act of 1977. On August 12, 1977, the Richland County Family Court issued a restraining order which purported to restrain Kathy Atchley from prosecuting her divorce action in Greene County, Tennessee, which order she refused to obey.

As previously noted, the Chancellor below dismissed the Plaintiff's action; then, on a motion to reconsider stayed the action for 30 days, giving the Defendant an opportunity to conclude his prior divorce suit in South Carolina. On November 25, 1977, the Chancellor gave the Plaintiff a default judgment for absolute divorce and custody of the child when the Defendant failed to conclude his divorce within the prescribed time. Thereafter, on January 27, 1978, the Defendant was granted a divorce and custody of the child in the South Carolina action. The Defendant therefore complains that the above action of the Chancellor does not give Res judicata effect to the South Carolina determination of the Plaintiff's residency, and that the suit should have been permanently dismissed because of the prior suit pending in South Carolina.

We are of the opinion that the first issue for consideration is whether Tennessee must give full faith and credit to the June 23, 1977, South Carolina determination that the Plaintiff's residency and domicile was South Carolina and not Tennessee. Article IV, Section I of the United States Constitution requires that the judicial proceedings in each state shall be given full faith and credit in the courts of every other state. This constitutional provision requires that the common-law doctrine of Res judicata be applied in one state to a judgment rendered in another state to the same extent that it applied in the state of its rendition. We quote with approval from 47 Am.Jur.2d, Judgments § 1226:

The effect of the full faith and credit clause of the United States Constitution, and of the Act of Congress implementing it, is to make the local common-law doctrine of res judicata a part of the national jurisprudence and operative throughout the federal system, by requiring that the doctrine of res judicata be applied in one state to a judgment rendered in another state to the same extent as it is applied in the state of its rendition. Hence, the doctrine of res judicata may be applied to a judgment rendered in one state where the action in the second state involves the same subject matter and cause of action, or the same issues determined in the former action. In the former case, the judgment rendered in the one state operates to bar further prosecution of the same cause of action in another state; in the latter case, it operates to bar a second determination of the same issues in another state. In the latter respect, it has been specifically held that the collateral estoppel division of res judicata is included within the full faith and credit mandate.

If full faith and credit applied then Tennessee must give Res judicata effect to the judgment of June 23, 1977. Res judicata, of course, includes the principle of collateral estoppel which requires that any issue actually litigated and determined in the suit to which Res judicata applies may not be re-litigated in a later action. Booth v. Kirk, 53 Tenn.App. 139, 381 S.W.2d 312 (1963); Cline v. Cline, 37 Tenn.App. 696, 270 S.W.2d 499 (1954).

The present scenario of divorce and custody proceedings being instituted in separate jurisdictions by estranged spouses is quite common. 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. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). In Hamm v. Hamm, 30 Tenn.App. 122, 204 S.W.2d 113 (1947), this Court, citing Williams v. North Carolina, supra, recognized that the courts of one state could decline to recognize a decree of divorce rendered in another state where, contrary to the findings of the latter state, the courts of the former state find that the plaintiff in the divorce suit had not acquired a domicile in the divorce forum. However, Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct. 3, 6, 83 L.Ed. 26 (1938), held that where the parties to a divorce proceeding both appear and the issue of domicile is specifically contested another state or federal court must give full faith and credit to that determination. The Supreme Court said:

As to petitioner's domicil for divorce and his standing to invoke jurisdiction of the Virginia court, its finding that he was a bona fide resident of that State for the required time is binding upon respondent in the courts of the District. She may not say that he was not entitled to sue for divorce in the state court, for she appeared there and by plea put in issue his allegation as to domicil, introduced evidence to show it false, took exceptions to the commissioner's report, and sought to have the court sustain them and uphold her plea. Plainly, the determination of the decree upon that point is effective for all purposes in this litigation. Baldwin v. Traveling Men's Ass'n, 283 U.S. 522, 525, 526, 51 S.Ct. 517, 518, 75 L.Ed. 1244.

The rule of law established in Davis, supra, is affirmed in Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951) and Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948).

Finally, in Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186 (1963), the Court summarized the rule:

However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court's jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit even as to questions of jurisdiction when the second court's inquiry discloses that those questions have been fully and fairly litigated...