Knobler v. Knobler

• Citation: 697 S.W.2d 583
• Parties: Linda R. KNOBLER, Plaintiff-Appellee, v. Donald G. KNOBLER, Defendant-Appellee, v. THIRD NATIONAL BANK IN NASHVILLE, Defendant-Appellant. 697 S.W.2d 583
• Decision Date: 06 March 1985
• Court: Court of Appeals of Tennessee

Page 583

697 S.W.2d 583

Linda R. KNOBLER, Plaintiff-Appellee, v. Donald G. KNOBLER, Defendant-Appellee, v. THIRD NATIONAL BANK IN NASHVILLE, Defendant-Appellant.

697 S.W.2d 583

Court of Appeals of Tennessee,

Middle Section.

March 6, 1985.

Application for Permission to Appeal

Denied May 6, 1985.

Carol L. McCoy, Nashville, for plaintiff-appellee.

H. William Scott, III, Nashville, pro se.

Richard Dance, Nashville, for defendant-appellant.

OPINION

GODDARD, Judge.

In this controversy which arose ancillary to a divorce proceeding, Third National Bank, a judgment creditor of the husband, Don Knobler, contends that because it has no offices or places of business in Williamson County, the Chancery Court for Williamson County, the forum where the divorce was tried and granted, did not have jurisdiction over its person, and even if so could not exercise authority over property located in Davidson County. It further contends that if it is mistaken as to both propositions the Court could not divest and vest property in Davidson County so as to impair its judgment lien.

The case was filed by Mrs. Knobler against Mr. Knobler on December 11, 1980. At that time the parties owned a number of parcels of property, some in Williamson County and two that are the subject of this controversy in Davidson--one known as the Belle Forest property owned by the parties as tenants by the entirety, and another on Lealand Lane owned solely by Mr. Knobler. Other facts pertinent to resolution of this appeal will be stated chronologically:

1. July 15, 1981. Divorce granted. Resolution of property, alimony and child support reserved.

2. October 15, 1981. Powers of attorney granting the parties' respective counsel the right to sell the Davidson County property, which is described in the instruments with particularity, recorded in the Register's Office for Davidson County.

3. December 23, 1981. Order by the Chancery Court for Williamson County directing real estate be sold.

4. August 6, 1982. Judgment rendered in favor of Third National Bank against Mr. Knobler in the Chancery Court for Davidson County.

5. August 13, 1982. Judgment against Mr. Knobler recorded in the Register's Office for Davidson County.

6. November 18, 1982. Complaint for discovery in aid of collection of judgment filed against Mr. and Mrs. Knobler in the Chancery Court for Davidson County bearing the same docket number as the original case of Third National Bank against Mr. Knobler.

7. December 30, 1982. Order by the Chancery Court for Williamson County vesting title of Davidson County property in the Clerk & Master of the Chancery Court for Williamson County.

8. February 4, 1983. Order entered in the Chancery Court for Davidson County directing that questions relative to the validity of the Bank's lien be determined by the Chancery Court for Williamson County.

9. March 25, 1983. Petition to approve sales contract as to Belle Forest property making Bank a party by show-cause order of the same date.

10. April 20, 1983. Agreed order approving sale of Belle Forest property and in effect transferring Bank's lien to the proceeds.

11. December 1, 1983. Petition to approve sales contract as to Lealand Lane property. Show-cause order issued to Bank on the same date.

12. December 14, 1983. Order approving sale of Lealand Lane property and transferring Bank's lien to any interest of Mr. Knobler in the proceeds of the sale.

13. August 22, 1984. Final order entered determining that Mr. Knobler was not entitled to share in the proceeds of the sales, and consequently Third National Bank had no claim therein and awarding Mrs. Knobler the monies held in the Clerk & Master subject to certain payments to be made, including an attorney fee of $5000 each to attorneys representing Mr. Knobler and Mrs. Knobler.

We turn now to the issues on appeal. Unquestionably, the Trial Court had jurisdiction of the divorce proceedings because both Mr. and Mrs. Knobler were citizens of Williamson County at the time the divorce action was filed. By virtue of T.C.A. 36-4-121 the Court trying the divorce case is empowered to "equitably divide, distribute or assign the marital property" and "to effectuate its decree by divesting and re-investing title to such and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties."

The Bank contends that the authority of the Chancery Court is limited by T.C.A. 16-11-114, which provides in pertinent part as follows:

16-11-114. Venue of suits.--The local jurisdiction of the court of chancery is also subject to the following rules:

....

(2) All bills filed in any court seeking to divest or clear the title to land, or to enforce the specific execution of contracts relating to realty, or to foreclose a mortgage or deed of trust by a sale of personal property or realty, shall be filed in the county in which the land, or a material part of it, lies, or in which the deed or mortgage is registered.

There are, however, statutory exceptions to the foregoing. In partitions cases it is permissible to file a suit in a county where one tract lies and have a sale for partition of that tract as well as another tract lying in a different county. This procedure is authorized under T.C.A. 29-27-107. ¹

It seems to us, given the remedial nature of the statute authorizing division of property, it was intended by the Legislature that the Court, after determining the various rights of the parties be clothed with the authority to enforce his determination by appropriate orders as to the title of property irrespective of where located in Tennessee. Indeed, counsel for the Bank in oral argument did not seriously contend that if its interest were not involved the Court did not have jurisdiction of the property located in Davidson County.

We think it follows that if the Court has the authority to make a determination regarding a division of the parties' property, including that located in Davidson County, he has authority to determine the respective interest of the parties when adverse claims such as those by the Bank are asserted. This necessarily implies personal jurisdiction over the Bank, requiring it to justify its claim.

In summary, we hold that under the language of T.C.A. 36-4-121, the Court had authority to exercise personal jurisdiction over the Bank and subject-matter jurisdiction over the real estate located in Davidson County.

As to the final point, counsel for Mrs. Knobler insisted, and the Trial Court held, that upon filing of the divorce proceedings all property owned by the parties became in custodia legis and was not subject to attachment, execution or a judgment lien. With all deference to counsel and the Trial Court we cannot agree.

As a general rule this doctrine contemplates property being taken into custody by a judicial official pursuant to a writ of the court. In First National Bank of Formoso v. Livingood, 109 P. 987, 988 (1910), the Supreme Court of Kansas said this:

The money in question in this case was unquestionably in the custody of the law, and the officer who had the custody thereof was subject to the orders of the court. 3 A. & E. Encycl. of L. 183. 2 Words and Phrases Judicially Defined, 1801, says: "A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ. The officer holding such a thing cannot, after he has made his return of the writ, release it on his own motion to any one claiming title to the thing. Its status as to third parties is fixed by his return, and can be changed only by order of court. Money received by a trustee in bankruptcy from the sale of property which he has received in his official capacity, under the orders of the bankruptcy court, is in custodia legis. McFarland Carriage Co. v. Solanes, (C.C.) 108 Fed. 532, 536." See, also, 4 Cyc. 808, 809.

Other courts have spoken of the doctrine in a similar vein. For example: The District Court of Appeals in California in Van Orden v. Golden West Credit & Adjustment Co., 122 Cal.App. 132, 9 P.2d 572, 576 (1932):

It is the rule that property in the custody of the law is not subject to garnishment or execution except by statutory authority (13 Cal.Jur., Garnishment, Sec. 5, p. 5; 15 Cal.Jur., Levy and Seizure, Sec. 20, p. 1011); but in order to constitute custodia legis the property must have been lawfully taken pursuant to legal authority (28 Cor.Jur., Garnishment, p. 67).

The Supreme Court of Missouri in Troll v. City of St. Louis, 168 S.W. 167, 178 (1914):

Custodia legis involves the actual domination over some objective thing by the court. It may be corporeal or incorporeal, but it is not a controversy, a question, or an inquiry. Rothschild v. Harsbrouck (C.C.) 65 Fed. loc. cit. 286 et seq.

Custodia legis is defined to be:

"That custody only which an officer has the right to assume over property by virtue of legal process." 12 Cyc. p. 1025.

It would include attached property or property actually held by a replevin writ, or property actually held by a receiver as a hand of the court, or property actually held by a general administrator and actually a part of the estate.

"Whenever property is lawfully taken by virtue of legal process it is in the custody of the court and not otherwise." Id., note 43.

Our Supreme Court is also in accord. In Massey v. Holmes, 189 Tenn. 677, 680; 227 S.W.2d 25, 26 (1950), the Court said the following:

The authors of American Jurisprudence state the rule and the reasons therefore as follows:

"The general rule is...