Kane v. Kane

• Decision Date: 07 March 1977
• Citation: 547 S.W.2d 559
• Parties: Judy KANE (Higgason), Appellant, v. Samuel Thomas KANE, Appellee. 547 S.W.2d 559
• Court: Tennessee Supreme Court

Page 559

547 S.W.2d 559

Judy KANE (Higgason), Appellant, v. Samuel Thomas KANE, Appellee.

547 S.W.2d 559

Supreme Court of Tennessee.

March 7, 1977.

Charles L. Hendrix, Nashville, for appellant.

W. B. Hogan, Nashville, for appellee.

OPINION

BROCK, Justice.

This is a proceeding in the Circuit Court for Davidson County in which appellant seeks to acquire custody of her daughter from her former husband, the appellee.

The parties were divorced in 1964 by decree of the General Sessions Court of Robertson County which also awarded custody of their child to the mother, appellant. Although the parties were residents of Davidson County and their separation occurred in that county, the divorce action was filed in Robertson County. Thereafter, in 1971, application was made to the General Sessions Court of Robertson County for a modification of its decree and the father, appellee, was awarded custody of the child. We conclude from the record that still other proceedings involving the same issues between these parties have been brought before the same court. Now, however, appellant, being dissatisfied with the latest decree of that court, seeks to overturn it by resort to the Circuit Court for Davidson County. The trial judge has repelled her attempt, holding that the parties are bound by the proceedings and decrees of the General Sessions Court of Robertson County which has continuing jurisdiction over the issues asserted by appellant in this action. We are in complete agreement with that conclusion.

A court in which an action for divorce is brought and which renders a decree respecting the care, custody and support of minor children continues to have jurisdiction of such matters until the children reach majority. T.C.A. § 36-828; Morrissey v. Morrissey, 214 Tenn. 112, 377 S.W.2d 944 (1964). Furthermore, this jurisdiction is exclusive. Sutton v. Sutton, 220 Tenn. 410, 417 S.W.2d 786 (1967).

However, appellant seeks to avoid the effect of this rule by asserting that the General Sessions Court of Robertson County never acquired "jurisdiction." She bases her argument upon T.C.A. § 36-804 which provides:

"Venue of Action. The bill or petition may be filed . . . in the county where the parties reside at the time of their separation, or in which the defendant resides, if a resident of the state; but if a nonresident or a convict, then in the county where the applicant resides.

"Any divorce granted prior to May 4, 1967 will not be deemed void solely on the ground that the parties to the divorce action were residents of a county or counties other than the county in which said divorce decree was entered."

Since the parties did not reside in Robertson County when their separation occurred and the defendant in the divorce action did not reside in that county, she argues that the first paragraph of the statute, above-quoted, precluded the court in Robertson County from acquiring jurisdiction. Even if she were correct in this insistence, it would appear that the second paragraph of the statute has cured the defect.

But, she is not correct. She confuses venue with jurisdiction. Venue is the personal privilege of a defendant to be sued in particular counties; it may be waived and is waived by a defendant who defends upon the merits...