Kelley v. Varner

• Decision Date: 23 November 2015
• Docket Number: No. E2015-00165-COA-R3-CV,E2015-00165-COA-R3-CV
• Court: Tennessee Court of Appeals
• Parties: STEPHEN LEON KELLEY v. KENNETH D. VARNER, ET AL.

STEPHEN LEON KELLEY
v.
KENNETH D. VARNER, ET AL.

No. E2015-00165-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

August 25, 2015 Session
NOVEMBER 23, 2015

Appeal from the Chancery Court for Hamilton County
No. 14-0442
Pamela A. Fleenor, Chancellor

Stephen Leon Kelley ("Plaintiff") filed suit seeking, among other things, to have the 1958 divorce decree of Mary Joyce Long Kelley v. Joseph Gordon Kelley, Jr. ("the Divorce Decree") set aside so that Plaintiff could be declared one of only two heirs at law of Mary Joyce Long Kelley ("Deceased") entitled to inherit by intestacy. The Chancery Court for Hamilton County ("the Trial Court") dismissed Plaintiff's suit pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted, among other things. Plaintiff appeals to this Court. We find and hold that Plaintiff's collateral attack upon the Divorce Decree cannot be sustained because the Divorce Decree is not void upon its face. We, therefore, affirm the Trial Court's order dismissing Plaintiff's suit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Timothy T. Ishii and Susan B. Evans, Nashville, Tennessee, for the appellant, Stephen Leon Kelley.

Arnold A. Stulce, Jr., Chattanooga, Tennessee, for the appellees, Mortgage Investors Group, Noel T. Turner, Jr., and Dianna Jill Turner.

Darren W. Kennedy, Chattanooga, Tennessee, for the appellees, Kenneth D. Varner and Aliceson Varner.

M. Aaron Spencer and Robert L. Vance, Knoxville, Tennessee, for the appellee, Vanderbilt Mortgage and Finance, Inc.

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OPINION

Background

Deceased married Joseph Gordon Kelley, Jr. in June of 1946. Plaintiff was born in January of 1948 of the marriage between Deceased and Joseph Gordon Kelley, Jr. In October of 1958, Deceased filed for divorce in Rhea County, Tennessee. The Circuit Court for Rhea County entered an order on November 8, 1958, inter alia, declaring Deceased and Joseph Gordon Kelley, Jr.¹ divorced. As pertinent to this appeal, the Divorce Decree states:

This cause came on to be heard on this the 8th day of November, 1958, during the regular August term, before Hon. C.C. Chattin, Judge, upon the bill of the complainant, Joyce Kelley, the answer of the defendant, Joseph Kelley, the proof in the cause, and upon the entire record.

I
From all of which it appeared to the Court from the proof that the facts as alleged in the bill are true; that the defendant has been guilty of such cruel and inhuman treatment or conduct toward the complainant as renders further cohabitation unsafe and it improper for her to further cohabit with him and be under his dominion and control, as charged.

II
It is, therefore, ordered, adjudged and decreed by the Court that the bonds of matrimony heretofore subsisting between the complainant and the defendant be and the same hereby are absolutely and forever dissolved, and that the complainant be vested henceforth with all the rights and privileges of an unmarried person.

III
It further appeared to the Court that the parties have one child, have a parcel of real estate and have household and kitchen furniture and furnishings, and that they have heretofore entered into mutual settlement agreement wherein the complainant would have the absolute title to their

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realty and furniture and furnishings, and that the complainant would further retain and have the custody of their child, with the defendant to pay to her the sum of $50.00 per month for the support of the child, and such agreements appearing fair and mutual, they are ratified and confirmed by the Court, . . . and, further, that all that right, title and interest heretofore held by the defendant, Joseph Kelley, in and to the household and kitchen furniture and furnishings of these parties and also in and to that real estate by them owned and described as the real estate at 21 Polk Circle Ft. Oglethorpe, Ga., . . . be and hereby is divested out of him and vested in the complainant Joyce Kelley, hereby vesting in her the entire and absolute title in fee in and to said personalty and realty as her own alimony.

Deceased and Kenneth D. Varner were married in Walker County, Georgia in November of 1958. On September 10, 1959, Deceased and Kenneth D. Varner purchased real property located on Marlow Drive in Chattanooga, Tennessee ("Marlow Drive Property"). Deceased and Kenneth D. Varner adopted Aliceson Varner in 1968. In June of 1983, Deceased and Kenneth D. Varner purchased real property located on Old Dayton Pike in Soddy Daisy, Tennessee ("Old Dayton Pike Property"). Deceased died intestate on August 15, 2011 as a resident of Hamilton County, Tennessee.

Kenneth D. Varner conveyed one-half of his interest in the Marlow Drive Property to Aliceson Varner in January of 2012. Kenneth D. Varner conveyed one-half of his interest in the Old Dayton Pike Property to Aliceson Varner in February of 2012. In June of 2013, Kenneth D. Varner and Aliceson Varner conveyed their interests in the Marlow Drive Property to Noel T. Turner, Jr. and Dianna Jill Turner.

In July of 2014, Plaintiff filed the instant suit against Kenneth D. Varner; Aliceson Darlene Varner; Noel T. Turner, Jr.; Dianna Jill Turner; Mortgage Investors Group; and Vanderbilt Mortgage and Finance, Inc.² Plaintiff's complaint sought declaratory relief and requested, among other things, to have the 1958 Divorce Decree set aside, to have the 1958 marriage of Mary Joyce Long Kelley and Kenneth Varner declared void, and to have Plaintiff and Aliceson Varner declared Deceased's only heirs at law entitled to inherit by intestacy. Plaintiff attached to his complaint several documents including a copy of the Rhea County Circuit Court Civil Rule Docket for the 1958 divorce case of Joyce Kelley v. Joseph Kelley and a copy of the Divorce Decree.³

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Noel T. Turner, Jr., Dianna Jill Turner, and Mortgage Investors Group filed a motion to...