In Re K.A.S. ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned January 24, 2005
IN RE K.A.S.
Appeal from the General Sessions Court for Wilson County
No. 8383 Robert P. Hamilton, Judge
No. M2004-02180-COA-R9-CV - Filed January 27, 2005
This Tenn. R. App. P. 9 interlocutory appeal concerns a father’s efforts to set aside a default
judgment granting custody of his daughter to the child’s maternal grandparents. The grandparents
asserted in their petition for custody that the father’s whereabouts were unknown and they therefore
served their petition on the father by publication in a Lebanon, Tennessee newspaper. Two and one-
half years later, the father filed a motion to set aside the custody order asserting that service by
publication was insufficient because the grandparents knew or should have known he was residing
in Greensboro, North Carolina at the time they filed their petition for custody. We have determined
that the default judgment is void for lack of personal jurisdiction and we thus reverse the trial court’s
order denying the father’s motion to set aside.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the General Sessions Court
Reversed
WILLIAM C. KOCH , JR., P.J., M.S., WILLIAM B. CAIN , and PATRICIA J. COTTRELL, JJ., delivered the
opinion of the court.
Melanie R. Bean, Lebanon, Tennessee, for the appellant, William Andrew Surratt.
Stephen Walker Pate, Murfreesboro, Tennessee, for the appellees, Lee Allen, Gail Allen, and Jordan
Ashley Surratt.
MEMORANDUM OPINION1
This application for permission to appeal arises out of the trial court’s denial of a father’s
motion to set aside a default judgment and final order of custody for lack of proper service. The trial
1
Tenn. Ct. App. R. 10 provides:
The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
the actions of the trial court by memorandum opinion when a formal opinion would have no
precedential value. W hen a case is decided by memorandum opinion, it shall be designated
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
court granted the father permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the
trial court that an interlocutory appeal will avoid irreparable harm to the parties and prevent needless,
expensive and protracted litigation. Accordingly, we grant the father’s application for permission
to appeal. Moreover, because the application and the answer fully set forth the parties’ positions and
the material facts, we dispense with further briefing and oral argument and proceed to the merits of
the appeal in order to avoid further delay.2
I.
K.A.S. was born on October 1, 1999. At the time of the birth, K.A.S.’s parents were
separated, and the father was living in Clayton, North Carolina. The parents divorced eight months
later in June of 2000. Pursuant to their marital dissolution agreement, the mother received full
custody of K.A.S. The father was living in Nebraska at the time of the divorce, but he moved to
Greensboro, North Carolina later that summer. He remained in Greensboro, at the same address, for
between one and one-half and two years. After a brief stay with his mother in 2002, he moved to
Apex, North Carolina in December of 2002, where he currently resides with his new wife.
In October of 2000, the mother filed a petition for child support listing the father’s full
address in Greensboro. When the mother traveled to Greensboro for a hearing on the petition, the
grandmother accompanied her. The mother was awarded child support which the father paid by
wage assignment. The mother turned the payments over to the grandparents until the grandparents
filed their own petition for child support in December of 2001.
On September 12, 2001, the maternal grandparents filed a petition for custody alleging that
the father was not a resident of Tennessee and that the addresses of both parents were unknown and
could not be ascertained by diligent inquiry. Notice by publication was made to the defendants in
The Lebanon Democrat, a newspaper published in Wilson County, Tennessee. At that time, the
father was still residing in Greensboro, North Carolina, but no notice of the petition was sent to him.
When neither parent filed an answer, the trial court entered a default order against both parents on
October 17, 2001. A final order of custody granting full custody of K.A.S. to the maternal
grandparents was entered on the same date. On December 10, 2001, less than two months later, the
grandparents filed a petition for child support listing both the father’s home address and the address
of his employer. The father had no knowledge of the custody order or the grandparents’ petition for
custody until sometime in 2002.
On February 19, 2002, the mother filed a motion to set aside the final custody order. The trial
court determined that the grandparents had knowledge of the mother’s whereabouts at the time the
default judgment was entered and set aside the final order of custody on March 25, 2002. Temporary
custody remained with the grandparents.
2
Pursuant to Tenn. R. App. P. 2, we suspend the application of Tenn. R. App. P. 24-26 and 29, and find oral
argument to be unnecessary pursuant to Tenn. R. App. P. 35(c). See Hammock v. Sumner Co., No.
01A01-9710-CV-00600, 1997 W L 749461 (Tenn. Ct. App. 1997).
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On June 27, 2003, the father filed a petition for visitation and for custody. The petition did
not, however, challenge the validity of the October 17, 2001 final order of custody. Two subsequent
amended petitions for visitation and custody likewise failed to challenge the custody order. On April
30, 2004, the father filed a motion to set aside the final order of custody asserting for the first time
that he was not properly served with the grandparents’ petition for custody.
The trial court found that the father had no reasonable excuse for waiting until April 2004
to attempt to set aside the custody order, and that the grandparents reasonably believed that the
father’s whereabouts were unknown when they filed their petition. Accordingly, the trial court
denied the father’s motion to set aside. Nevertheless, the trial court granted the father permission
to appeal pursuant to Tenn. R. App. P. 9 in order to prevent irreparable injury to the father and to
prevent needless, expensive and protracted litigation. The father then filed his application for an
interlocutory appeal in this court, and we subsequently directed the grandparents to file an answer.
II.
Service of process is not a mere technicality. It has constitutional dimensions. In re Z.J.S.,
No. M2002-02235-COA-R3-JV, 2003 WL 21266854 at *6, (Tenn. Ct. App. June 3, 2003) (No Tenn.
R. App. P. 11 application filed). Due process requires plaintiffs to give defendants notice that is
reasonably calculated, under all the circumstances, to inform the defendants of the pending action.
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S. Ct. 2706, 2711 (1983); McClellan
v. Board of Regents, 921 S.W.2d 684, 688 (Tenn.1996); Karr v. Gibson, No.
01A01-9605-CH-00220, 1998 WL 57536, at *2 (Tenn. Ct. App. Feb. 13, 1998) (No Tenn. R. App.
P. 11 application filed). “The means employed must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish it.” Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657 (1950).
“[N]otice by publication is not enough with respect to a person whose name and address are
known or very easily ascertainable and whose legally protected interests are directly affected by the
proceedings in question.” Schroeder v. City of New York, 371 U.S. 208, 212-13, 83 S. Ct. 279, 282
(1962). Notice by publication must be supplemented by notice mailed to the last known available
address or by personal service. Mennonite Bd. of Missions v. Adams, 462 U.S. at 798, 103 S. Ct. at
2711; Sunburst Bank v. Patterson, 971 S.W.2d 1, 5 (Tenn. Ct. App.1997).
The grandparents admit they knew that the father was living in Greensboro, North Carolina
when they filed their petition for custody. The mother’s petition for child support filed in October
2000 contained the father’s full address in Greensboro, and the grandmother had traveled with the
mother to Greensboro, North Carolina for a court appearance related to that petition. The father’s
child support payments, which the mother was turning over to the grandparents, were being paid by
wage assignment through the father’s employer. The grandparents’ own petition for child support,
filed less than two months after the default judgment was entered, listed both the father’s home
address and the address of his employer. The petition stated that both addresses had been confirmed
as of July, 2001.
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It is unlikely the grandparents could not by reasonable efforts discover the father’s address
to notify him of their petition for custody when they were able to discover his address for the purpose
of collecting child support immediately after the default judgment was entered. We also note the
trial court’s prior finding that the grandparents had knowledge of the whereabouts of the mother at
the time the default judgment was entered, despite their sworn assertions to the contrary. Under
these circumstances, notice by publication should have been supplemented by mailing notice of the
suit to the father’s last known address in Greensboro, North Carolina. Service by publication in a
Lebanon, Tennessee newspaper could not have been reasonably calculated to provide the father with
notice of the proceeding.
A judgment against a defendant who is not before the court either by proper service of
process or by the entry of an appearance is void. Overby v. Overby, 224 Tenn. 523, 525, 457 S.W.2d
851, 852 (1970); Rooney v. Callins, 62 Tenn. App. 105, 124, 459 S.W.2d 430, 438 (1970); Johnson
v. McKinney, 32 Tenn. App. 484, 492, 222 S.W.2d 879, 883 (1949). The grandparents argue,
however, that the father delayed an unreasonable amount of time after learning of the default
judgment before seeking to set it aside. While the reasonable time requirement of Tenn. R. Civ. P.
60 may apply to judgments that are not prima facie void and require action to impeach them, a
judgment entered without jurisdiction over a party is absolutely void, and no action is required to
render it void. Gentry v. Gentry, 942 S.W.2d 678, 680 (Tenn. 1996). A prima facie void judgment
may be attacked at any time and is unenforceable. State ex rel. Ragsdale v. Sandefur, 215 Tenn. 690,
389 S.W.2d 266, 271 (Tenn.1965); Miller v. Morelock, 185 Tenn. 466, 470, 206 S.W.2d 427, 429
(Tenn.1947); Team Design v. Gottlieb, 104 S.W.3d 512, 525 (Tenn. Ct. App. 2002). Such a
judgment cannot be revived, either by the passage of time or by subsequent proceedings. Outten v.
Campbell, No. M2001-00490-COA-R3-CV, 2002 WL 1042181 at *4 (Tenn. Ct. App. May 23,
2002) (No Tenn. R. App. P. 11 application filed); 46 Am. Jur. 2d Judgments § 32. Accordingly, the
default judgment and final order of custody must be set aside.
III.
The trial court’s order denying the father’s motion to set aside the final custody order is
reversed and the case is remanded to the trial court for further proceedings consistent with this
opinion. The costs are taxed to the Lee Allen and Gail Allen, for which execution may issue.
PER CURIAM
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