Gentry v. Gentry

• Decision Date: 24 June 1996
• Citation: 924 S.W.2d 678
• Parties: Lois Hawkins GENTRY, Plaintiff and Counter-Defendant/Appellant, v. S. Trabon GENTRY, Executor of the Estate of Donnie Ray Gentry, Defendant and Counter-Plaintiff, and Marcus Todd Gentry and Judy Eades, As Natural Guardian of Robert Jeffrey Gentry, Defendants and Counter-Plaintiffs/Appellees.
• Court: Tennessee Supreme Court

Page 678

924 S.W.2d 678

Lois Hawkins GENTRY, Plaintiff and Counter-Defendant/Appellant, v. S. Trabon GENTRY, Executor of the Estate of Donnie Ray Gentry, Defendant and Counter-Plaintiff and Marcus Todd Gentry and Judy Eades, As Natural Guardian of Robert Jeffrey Gentry, Defendants and Counter-Plaintiffs/Appellees.

Supreme Court of Tennessee at Knoxville.

June 24, 1996.

O. Michael Carter, Terry McGhehey, Lusk, Carter and McGhehey, Chattanooga, W. Neil Thomas, III, Schumacker & Thompson, P.C., Chattanooga, for Plaintiff and Counter-Defendant/Appellant.

Mitchell Aaron Byrd, Chattanooga, for Defendants and Counter-Plaintiffs/Appellees.

OPINION

REID, Justice.

This case presents for review the decision of the Court of Appeals that the judgment granting a divorce to the parents of a child under 18 years of age on the ground of irreconcilable differences was void ab initio because the complaint had not been on file for 90 days when the judgment was entered. This Court finds that the judgment is not subject to collateral attack by the heirs of the deceased husband, and, therefore, the decision of the Court of Appeals is reversed.

The facts that relate to the disputed issue are not controverted. The decedent, Donnie Ray Gentry, and Judy Eades Gentry are the parents of two children, Marcus Todd Gentry and Robert Jeffrey Gentry. On August 4, 1985, when Marcus Todd Gentry was 14, Judy Eades Gentry filed suit for divorce. Seventy-three days after the filing date, on October 18, 1985, judgment was entered granting the parties a divorce on the ground of irreconcilable differences. ¹ All requirements of Tenn.Code Ann. § 36-4-103 were complied with, except the 90 day waiting period. ²

Subsequent to the 1985 divorce, Donnie Ray Gentry and Carolyn Yvonne Enlow contracted a marriage. Thereafter, they were granted a divorce. Subsequently, on July 31, 1991, Donnie Ray Gentry and the plaintiff, Lois Hawkins Gentry, contracted a marriage.

On June 13, 1992, Donnie Ray Gentry died. By his last will and testament, he devised all his property to Marcus Todd Gentry and Robert Jeffrey Gentry. After the will was probated, Lois Hawkins Gentry filed pleadings asserting a surviving spouse's elective share of the decedent's estate pursuant to Tenn.Code Ann. § 31-4-101 (Supp.1995). The executor responded with the claim that Lois Hawkins Gentry was not the surviving spouse of Donnie Ray Gentry. That assertion was based upon the contention that the decree granting Donnie Ray Gentry and Judy Eades Gentry a divorce was void because it was entered prior to the expiration of 90 days from the date the complaint was filed, in violation of Tenn.Code Ann. § 36-4-103(c).

The trial court found that entry of the judgment prior to the expiration of the 90 day waiting period did not render the judgment void, that the marriage between Donnie Ray Gentry and Lois Hawkins Gentry was valid, and, therefore, Lois Hawkins Gentry was the decedent's surviving spouse.

The Court of Appeals reversed. That court found that the judgment granting the divorce was void, and, therefore, was subject to collateral attack on behalf of the children of that marriage.

Validity of the Divorce Decree

The first issue for decision is whether the judgment awarding the decedent and Judy Eades Gentry a divorce was void. Resolution of that issue lies in the distinction between a void judgment, which is subject to collateral attack and a voidable judgment, which is not subject to collateral attack. ³ The distinction is stated by that most respected authority on chancery procedure, Gibson's Suits in Chancery, as follows:

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.

All 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.

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

Tested by the standard for a void judgment, the divorce decree in this case is not subject to collateral attack. The court obviously had general jurisdiction of the subject matter, a suit for divorce; the decree awarding the divorce was not outside the pleadings, it was the specific relief sought; and, the court had jurisdiction of the parties, both of whom appeared in person and by pleadings. The conclusion that Section 36-4-103(c) mandates that a complaint for divorce be on file 90 days before being heard, does not mean necessarily that a decree entered upon a hearing held less than 90 days subsequent to the filing is void. Failure to comply with the 90 day requirement does not render the decree "wholly outside of the pleadings." Gibson's Suits in Chancery, § 228 at 219. Since the decree is not void, it is either voidable or valid, Gibson's Suits in Chancery § 193 at 194, and, in either event, cannot be reversed through a collateral attack by the children of the parties to the divorce suit.

The few Tennessee cases involving similar attacks on divorce decrees support this conclusion that a divorce decree is void and subject to collateral attack only where the trial court lacks general jurisdiction of the subject matter, rules on an issue wholly outside of the pleadings, or lacks jurisdiction over the party complaining. In Page v. Turcott, 179 Tenn. 491, 167 S.W.2d 350 (1943), the issue was whether the judgment was void because it decided a matter outside of the pleadings. In that case, heirs challenged the deceased's marriage on the ground that a prior divorce was void because the complaint did not set forth with reasonable certainty facts which would show that the claims of abandonment and non-support were willful, and because the appointment of the special judge granting the divorce was not in conformity with the statute. The Court concluded that "the allegations of [the] petition were sufficient to confer jurisdiction." The Court also found that nothing "on the record show[ed] that the election of the Special Judge was not in all respects in conformity to the governing statutes." The Court concluded, "[w]hile it is true that the minute entry recites a conclusion only, this recital precludes collateral attack." Id., 167 S.W.2d at 354.

In the case of Brown v. Brown, 198 Tenn. 600, 281 S.W.2d 492 (1955), which the Court of Appeals relied upon, the Court held that an award of alimony to the defendant was void and, therefore, subject to collateral attack. The judgment was found to be void because the applicable statute provided that a wife was not entitled to alimony when a husband was granted the divorce. That decision provides no support for the attack upon the divorce decree in this case. Here, the court had the authority to grant a divorce on the ground of irreconcilable differences, even though it exercised that power prematurely. As stated in Brown,

A distinction must be made in this regard between the mere erroneous exercise of a power granted, and the usurpation of a power where none exists.

Id. 281 S.W.2d at 499.

In Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955), the issue was whether the court had jurisdiction of the complainant in the divorce case. The petitioner alleged that the judgment was void because her ward, the original complainant, had been adjudged insane, and, therefore, the court had no jurisdiction of the party complaining or the cause of action. The petitioner sought a declaration that the decree granting her ward a divorce from the decedent husband was void, that the subsequent marriage of the decedent was void, and that the ward was entitled to homestead and dower in the decedent's property. On appeal, this Court affirmed...