Hankins v. Hankins, No. W2006-00232-COA-R3-CV (Tenn. App. 8/20/2007)
| Decision Date | 20 August 2007 |
| Docket Number | No. W2006-00232-COA-R3-CV.,W2006-00232-COA-R3-CV. |
| Parties | TERRIE LYNN HALL HANKINS v. JAMES MICHAEL HANKINS. |
| Court | Tennessee Court of Appeals |
Stuart B. Breakstone, Kathy Baker Tennison, Memphis, TN, for Appellant.
Larry Rice, Memphis, TN, for Appellee.
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.
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.
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.
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. 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.
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)).
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
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...
To continue reading
Request your trial