Ahmed Mote Alzamzami v. Arwa Al-Sulaihi

02/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 16, 2021 Session
AHMED MOTE ALZAMZAMI v. ARWA AL-SULAIHI
Appeal from the Circuit Court for Shelby County
No. CT-000834-18 Rhynette N. Hurd, Judge
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No. W2020-01467-COA-R3-CV
___________________________________
This is an appeal of a divorce involving children, which includes issues of default
judgment, jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act,
the statute of frauds, and attorney’s fees. The trial court granted a motion for default
judgment against the husband only as to the wife’s counter-complaint for divorce and
subsequently denied the motion to set aside the default judgment. Thereafter, the trial court
entered a final decree of divorce holding that the wife was entitled to a divorce on the
grounds of inappropriate marital conduct and dismissed the husband’s complaint for
divorce. The trial court divided the marital estate and adopted a permanent parenting plan.
Additionally, the trial court awarded a judgment against the husband in the amount of
$15,000.00 for the wife’s attorney’s fees and litigation expenses incurred. The husband
appeals. We affirm in part, vacate in part, and remand for further proceedings consistent
with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Vacated in Part, and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Samuel J. Muldavin and Daniel J. Mickiewicz, Memphis, Tennessee, for the appellant,
Ahmed Mote Alzamzami.
Melissa C. Berry and Michelle S. Crawford, Memphis, Tennessee, for the appellee, Arwa
Al-Sulaihi.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
I. FACTS & PROCEDURAL HISTORY
Mr. Ahmed Mote Alzamzami (“Husband”) and Ms. Arwa Al-Sulaihi (“Wife”)
married in Yemen in February 2004. Husband had resided in the United States since he
was eight years old, but Wife continued to reside in Yemen even after their marriage.
During their marriage, Husband and Wife had a daughter in December 2004 and a son in
November 2007, who both resided in Yemen with Wife. Husband had business pursuits
in the United States and traveled between the two countries periodically until 2013. Wife
did not communicate with Husband at all from 2013 through 2017, but Husband
occasionally would send money to Wife. In an effort to relocate to the United States and
escape the war in Yemen, Wife and the children left Yemen and temporarily went to Egypt
because of visa issues.
On November 3, 2017, Wife and the children came to the United States after her
brother paid for their relocation. Wife and the children resided with Wife’s brother in
Delaware for a short time until Husband moved them to Memphis, Tennessee. Husband
paid for an apartment for Wife and the children, Husband took the children to the doctor to
get their shots, and the children were enrolled in school in January 2018. However,
Husband did not provide food, would not allow Wife to take English classes,2 would not
teach Wife how to drive, and would not allow Wife to go to the hospital. Wife also
discovered that Husband had been unfaithful and had a child with another woman.
Husband also allegedly abused Wife and the children physically, emotionally, and
psychologically during their time in Memphis. According to Wife and the daughter,
Husband spit in the daughter’s mouth because she would not eat a certain food. On
February 14, 2018, just three months after arriving in the United States, Wife and the
children moved to Michigan after Husband brandished a gun, threatened her and the
children, and Wife’s brother called the police.
On February 26, 2018, Husband filed a complaint for divorce, petition to oppose
parental relocation, and petition to declare himself the primary residential parent. Wife
filed an answer and counter-complaint for divorce on June 26, 2018. Wife specifically
requested that the trial court “fairly and equitably divide between the parties all right, title,
and interest in the parties’ property and make a determination as to all separate and marital
property belonging to the parties.” Wife also requested she “be granted such other further
specific and general relief to which she is entitled.” On June 28, 2018, the trial court
This 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. When 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.
2
Because Wife did not speak English, the trial court appointed a foreign language interpreter to
assist with translation throughout this case.
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entered an order requiring Husband to provide Wife with the social security cards, birth
certificates, passports, and green cards for Wife and the children. The trial court also
enjoined Wife from taking the children out of the United States and ordered that Husband
was not allowed parenting time with the children until the matter could be heard. In
October 2018, Wife filed a motion to compel stating that Husband had provided the
children’s social security cards and passports, but had failed to provide any of the
remaining documents.
After a hearing, the trial court entered an order on October 31, 2018, on the petition
to oppose parental relocation, petition to declare Husband the primary residential parent,
and motion to compel. The trial court determined that it had jurisdiction over the primary
residential parent petition under the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”) and concluded that Wife should be designated as the primary residential
parent. Specifically, the trial court stated that “the State of Tennessee is the children’s
home state as the children resided in Tennessee from November of 2017 until February of
2018, so were residing in Tennessee within six months prior to the filing of the Primary
Residential Parent Petition, and one parent resides in Tennessee.” The trial court ordered
that the children should remain in Michigan with Wife. The trial court granted Husband
parenting time and ordered him to pay retroactive child support. Both Husband and Wife
were ordered to attend parenting classes. Additionally, the trial court granted Wife’s
motion to compel ordering Husband to immediately provide the social security cards, birth
certificates, passports, and green cards for Wife and the children or immediately provide
Wife $2,000.00 in order for her to obtain the documentation.
On December 14, 2018, the trial court entered a consent order on child support
ordering Husband to pay Wife $449.00 per month in child support. Afterward, Husband
moved to Delaware on or about February 28, 2019. On July 3, 2019, Wife filed a motion
for wage assignment and to set arrears stating that Husband had only made two monthly
payments toward child support. Therefore, Wife requested that an income withholding
order be entered requiring the child support to be paid to her via wage assignment.
Additionally, Wife requested that the arrears be calculated back to February 2018 and that
Husband be required to pay those arrears via wage assignment at a rate of $100.00 per
month. On August 5, 2019, the trial court entered an order granting the motion for wage
assignment and to set arrears. In December 2019, Wife filed a complaint for divorce in
Michigan. However, the complaint was dismissed in February 2020 because Husband
could not be located for service of process.
On April 17, 2020, Wife’s current counsel filed a notice of appearance. On April
24, 2020, Wife filed a motion for default judgment for Husband’s failure to answer her
counter-complaint for divorce. On May 5, 2020, Husband’s former counsel filed a motion
to withdraw stating that Husband had been “uncooperative.” On May 21, 2020, the trial
court entered an order granting Wife’s motion for default judgment as to her counter-
complaint for divorce. On May 26, 2020, the court also entered an order granting the
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motion to withdraw filed by Husband’s attorney. On June 12, 2020, Husband’s current
counsel filed a notice of appearance. Husband then filed an answer to Wife’s counter-
complaint for divorce on June 15, 2020.
On July 7, 2020, Husband filed a motion to set aside the default judgment based
upon good cause shown pursuant to Tennessee Rule of Civil Procedure 55.02; excusable
neglect pursuant to Tennessee Rule of Civil Procedure 60.02(1); and in the interests of
justice pursuant to Tennessee Rule of Civil Procedure 60.02(5). On August 28, 2020,
Husband also filed a motion to dismiss or, in the alternative, relinquish jurisdiction of the
children to the State of Michigan. On September 16, 2020, the trial court entered an order
denying the motion to set aside the default judgment. The trial court found that Husband
had ample time to file his answer to Wife’s counter-complaint while represented by his
former counsel and failed to do so. The trial court also found that Husband retained his
current counsel prior to the default judgment becoming a “Final Order” and yet failed to
timely file his motion to set aside the default judgment or a motion pursuant to Tennessee
Rule Civil Procedure 59. On September 17, 2020, Wife filed a response to Husband’s
motion to dismiss or, in the alternative, relinquish jurisdiction of the children to the State
of Michigan. Wife argued that she had obtained a default judgment and Husband did not
have the right to defend against any claims in the counter-complaint, including jurisdiction.
On September 23, 2020, the trial court held a final hearing. Following this hearing,
the trial court entered a final decree of divorce and permanent parenting plan on September
30, 2020. The trial court found that Wife was entitled to a divorce on the grounds of
inappropriate marital conduct and dismissed Husband’s complaint for divorce. Among
other things, the trial court also found the following: the proposed permanent parenting
plan filed by Wife was in the best interest of the children; Wife currently held the deed to
real property in Yemen owned by Husband as collateral for a $20,000.00 loan he obtained
from her; and Husband must pay the sum of $500.00 per month to Wife to satisfy his
obligation to pay back the loan. In the event Husband did not satisfy this obligation and
the arrearage owed to Wife by October 1, 2024, Wife would be awarded the real property
and permitted to sell it to satisfy Husband’s obligations. Additionally, the trial court
awarded a judgment against Husband for $15,000.00 for Wife’s attorney’s fees and
litigation expenses incurred. The trial court based its award of attorney’s fees on affidavits
filed after the hearing by both Wife’s former and current counsel.
On October 26, 2020, Husband filed his appeal. Husband later filed a notice of no
transcript on December 2, 2020. On January 6, 2021, the trial court entered an order
denying Husband’s motion to dismiss or, in the alternative, relinquish jurisdiction of the
children to the State of Michigan. The trial court found that: (1) it had subject matter
jurisdiction over this matter; (2) it had personal jurisdiction over the parties; (3) the home
state of the children was Tennessee at the time the complaint was filed in this matter, and
Tennessee had continuing, exclusive jurisdiction over the custody of the children until it
relinquishes same; (4) there were no other actions pending to which it could transfer
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jurisdiction over custody of the children; and (5) it had heard substantial proof regarding
the best interest of the minor children.
Husband filed his proposed Statement of the Evidence on January 14, 2021.3 On
February 5, 2021, Husband filed a motion to supplement the record regarding his statement
of the evidence. Wife responded to the motion, filed objections to Husband’s statement of
the evidence, and submitted her own statement of the evidence. Husband then filed initial
and supplemental objections to Wife’s statement of the evidence.
On March 16, 2021, the trial court entered an order finding that “Husband’s Motion
to Supplement the Record is granted and a Statement of the Evidence will be included in
the record on appeal.” However, the trial court found that Husband’s statement of the
evidence was “an account of part of the procedural history,” but was “not a statement of
the evidence as contemplated by Tennessee Rule of Appellate Procedure 24,” and “should
not be considered an account of the evidence in the case.”4 Conversely, the trial court
found that Wife’s statement of the evidence and proceedings should be considered in the
record on appeal. Therefore, the trial court adopted and approved Wife’s statement of the
evidence and proceedings with additions made by the court.
II. ISSUES PRESENTED
Husband presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the trial court erred by not setting aside the default judgment entered in this
case;
2. Whether the trial court erred in retaining jurisdiction under the UCCJEA;
3. Whether the trial court erred when it granted relief on a default judgment outside
the pleadings and request for relief;
4. Whether the judgment for $20,000.00, granted to Wife for an alleged loan made to
Husband, violated the statute of frauds as no paper writing was entered into evidence
by Wife; and
5. Whether the trial court erred in granting attorney’s fees in the amount of $15,000.00
to Wife when no findings were made as to ability to pay or need of Wife.
3
On January 25, 2021, Husband filed a motion with this Court requesting that we accept the late-
filing of his Statement of the Evidence. We granted Husband an extension to file a statement of the evidence
in so far as it would allow the January 14, 2021 filing of a statement of evidence with the trial court. We
then remanded the matter to the trial court for the limited purpose of determining the proper contents of the
record and directed Husband to promptly file a motion to supplement the record with the trial court to
address the proposed Statement of the Evidence.
4
The trial court also stated that “prior to the Motion hearing, the Circuit Court Clerk’s Office
apparently tendered Husband’s Statement of Evidence to the Court of Appeals by way of supplementing
the record.”
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For the following reasons, we affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
III. STANDARD OF REVIEW
In non-jury cases, we review the trial court’s findings of fact de novo upon the
record, accompanied by a presumption of correctness of the findings, unless they are
contrary to the preponderance of the evidence. Ellis v. Ellis, 621 S.W.3d 700, 704 (Tenn.
Ct. App. 2019); see Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685,
692 (Tenn. 2013). “We review the trial court’s resolution of questions of law de novo with
no presumption of correctness.” Ellis, 621 S.W.3d at 704-05; see Armbrister, 414 S.W.3d
at 692.
IV. DISCUSSION
A. Default Judgment
Husband’s first issue is whether the trial court erred by not setting aside the default
judgment entered in this case. Wife filed her counter-complaint for divorce on June 26,
2018. Nearly two years later, on April 24, 2020, Wife filed a motion for default judgment
for Husband’s failure to answer her counter-complaint. On May 21, 2020, the trial court
entered an order granting Wife’s motion. On July 7, 2020, Husband filed a motion to set
aside the default judgment based on alleged good cause shown pursuant to Tennessee Rule
of Civil Procedure 55.02; excusable neglect pursuant to Tennessee Rule of Civil Procedure
60.02(1); and in the interests of justice pursuant to Tennessee Rule of Civil Procedure
60.02(5). On September 16, 2020, the trial court entered an order denying Husband’s
motion, specifically finding that Husband had ample time to file his answer to Wife’s
counter-complaint while represented by his former counsel but failed to do so. The trial
court also found that Husband retained his current counsel prior to the default judgment
becoming a “Final Order” and yet failed to timely file his motion to set aside the default
judgment or a motion pursuant to Tennessee Rule of Civil Procedure 59.
i. Tennessee Rule of Civil Procedure 54
We first consider the proper rule to be used in this case. The Tennessee Supreme
Court has thoroughly explained each rule available to a party seeking relief from a previous
trial court decision and the stage of the proceedings at which each rule applies. See
Discover Bank v. Morgan, 363 S.W.3d 479, 488-489 (Tenn. 2012) (explaining the
difference between Tennessee Rules of Civil Procedure 54, 59, and 60). “[M]otions
seeking relief from a trial court’s decision adjudicating fewer than all the claims, rights,
and liabilities of all the parties, should be filed pursuant to Rule 54.02.” Id. at 488. Rule
54.02(1) provides in pertinent part that
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[A]ny order or other form of decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision at any time before
the entry of the judgment adjudicating all the claims and the rights and
liabilities of all the parties.
Tenn. R. Civ. P. 54.02(1). Because the trial court only granted default judgment as to
Wife’s counter-complaint, and fewer than all the claims had been adjudicated, we conclude
that in this case Tennessee Rule of Civil Procedure 54 applies. Therefore, Husband’s
motion seeking to set aside the trial court’s order of default judgment should have been
premised on and evaluated pursuant to Rule 54.02. See Discover Bank, 363 S.W.3d at 489-
90 (applying Rule 54.02 because the order of default judgment did not adjudicate all of the
claims, rights, and liabilities of all the parties).
ii. Test for Relief
Regardless of which rule applies, the Tennessee Supreme Court has determined that
the test for relief is the same pursuant to both Rule 54.02 and Rule 60.02. See id. at 490-
94 (holding that the trial court did not abuse its discretion by applying an incorrect legal
standard because the same test for relief applies to Rule 54.02 and Rule 60.02). Tennessee
has adopted the following criteria to be considered: “(1) whether the default was willful;
(2) whether the defendant has a meritorious defense; and (3) the level of prejudice that may
occur to the non-defaulting party if relief is granted.” Id. at 491 (citing Tenn. Dep’t of
Human Servs. v. Barbee, 689 S.W.2 863, 866 (Tenn. 1985)). The Tennessee Supreme
Court has also clarified that “willfulness” in the first factor of this test is a threshold inquiry.
Id. at 492-94. As such, “whether pursuant to Rule 54.02 (for interlocutory judgments),
Rule 59.04 (for final judgments within thirty days of entry), or Rule 60.02 (for final
judgments more than thirty days after entry), a reviewing court must first determine
whether the conduct precipitating the default was willful.” Id. at 494. Willful conduct
includes “deliberate choices” and “conduct that is flagrant and unexplained.” Id. at 493(quoting Hayes v. Hayes, No. M2006-02356-COA-R3-CV, 2007 WL 2580026, at *2
(Tenn. Ct. App. Sept. 6, 2007); Barber & McMurry, Inc. v. Top-Flite Dev. Corp., 720
S.W.2d 469, 471 (Tenn. Ct. App. 1986) (counsel chose not to attend trial due to scheduling
conflict)); see also McBride v. Webb, No. M2006-01631-COA-R3-CV, 2007 WL 2790681,
at *3 (Tenn. Ct. App. Sept. 25, 2007) (“[Defendant] read the summons and did nothing to
respond to the Complaint as directed by the summons. This is willful conduct.”). In
Discover Bank, the Tennessee Supreme Court discussed an example of a case
demonstrating willful conduct, wherein “on no less than ‘ten occasions counsel for the
defendant was served with ample warning that if his client intended to further defend
plaintiff’s suit that action in that regard must be taken.’” Discover Bank, 363 S.W.3d at493 (citing Munday v. Brown, 617 S.W.2d 897 (Tenn. Ct. App. 1981)). Once the
determination of whether the default was willful is made, there are two different outcomes:
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If the court finds that the defaulting party has acted willfully, the judgment
cannot be set aside on “excusable neglect” grounds, and the court need not
consider the other factors. If the conduct was not willful, however, then the
court must consider whether the defaulting party has a meritorious defense
and whether the non-defaulting party would be prejudiced by the granting of
relief. The court may also consider any other factor that it deems relevant.
Id. at 494. Accordingly, we analyze whether Husband’s default was willful in this case.
Wife filed her counter-complaint on June 26, 2018. Husband failed to file an answer
in the nearly two years that had passed before Wife filed her motion for default judgment
on April 24, 2020. During this time, the parties actively participated in the litigation, with
multiple orders being entered by the court which addressed various issues. In its order
denying the motion to set aside the default judgment, the trial court found that Husband
had ample time to file his answer to the counter-complaint and yet failed to do so. Finding
no explanation in the record for this “flagrant and unexplained” violation, other than the
inaction of Husband’s former counsel despite ample time to file an answer, we conclude
this conduct was willful. Id. at 493 (quoting Hayes, 2007 WL 2580026, at *2). Therefore,
having found that Husband’s conduct was willful, he is not eligible for any relief on the
grounds of “excusable neglect” or in the interests of justice pursuant to Tennessee Rule of
Civil Procedure 60.02.
B. UCCJEA
Husband’s second issue is whether the trial court erred in retaining jurisdiction
under the UCCJEA. This is a question of law subject to de novo review with no
presumption of correctness. Ellis, 621 S.W.3d at 704-05; see Armbrister, 414 S.W.3d at
692. On August 28, 2020, Husband filed a motion to dismiss or, in the alternative,
relinquish jurisdiction of the children to the State of Michigan. On January 6, 2021, the
trial court entered an order denying that motion. The trial court found that: (1) it had subject
matter jurisdiction over this matter; (2) it had personal jurisdiction over the parties; (3) the
home state of the children was Tennessee at the time the complaint was filed in this matter,
and Tennessee had continuing, exclusive jurisdiction over the custody of the children until
it relinquishes same; (4) there were no other actions pending to which it could transfer
jurisdiction over custody of the children; and (5) it had heard substantial proof regarding
the best interest of the minor children. Husband argues that the trial court erred in accepting
and continuing to exercise jurisdiction over custody and other issues involving the children
after all parties and the children had moved from the State of Tennessee.
i. Accepting Jurisdiction
In order to analyze this issue, we must first determine whether the trial court initially
properly exercised jurisdiction over these children. Tennessee Code Annotated section 36-
-8-
6-216 confers jurisdiction on the Tennessee courts as follows:
(a) Except as otherwise provided in § 36-6-219, a court of this state has
jurisdiction to make an initial custody determination only if:
(1) This state is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within six (6) months
before the commencement of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under subdivision
(a)(1), or a court of the home state of the child has declined to exercise
jurisdiction on the ground that this state is the more appropriate forum under
§ 36-6-221 or § 36-6-222, and:
(A) The child and the child’s parents, or the child and at least one (1)
parent or person acting as a parent, have a significant connection with
this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships;
(3) All courts having jurisdiction under subdivision (a)(1) or (a)(2) have
declined to exercise jurisdiction on the ground that a court of this state is the
more appropriate forum to determine the custody of the child under § 36-6-
221 or § 36-6-222; or
(4) No court of any other state would have jurisdiction under the criteria
specified in subdivision (a)(1), (a)(2), or (a)(3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-
custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child-custody determination.
Tenn. Code Ann. § 36-6-216. Because “home state jurisdiction is given priority over all
other types of jurisdiction” in this statute, we first determine whether Tennessee was the
home state of the children as defined by Tennessee Code Annotated section 36-6-205(7).
Doss v. Doss, No. E2004-00759-COA-R10-CV, 2005 WL 946744, at *5 (Tenn. Ct. App.
Apr. 25, 2005). That statute defines “home state” as follows: “[T]he state in which a child
lived with a parent or a person acting as a parent for at least six (6) consecutive months
immediately before the commencement of a child custody proceeding.” Tenn. Code Ann.
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§ 36-6-205(7).
We begin our analysis with the six-month period prior to the commencement of this
suit. The six-month period immediately before the commencement of this proceeding
began on August 26, 2017. At that time, Wife and the children lived in Yemen. After a
brief excursion through Egypt, they arrived in the United States on November 3, 2017.
Wife and the children lived in Delaware for no more than a few days, moved to Tennessee
for about three months, then lived in Michigan for approximately ten days before the
commencement of this proceeding on February 26, 2018. On June 28, 2018, the trial court
entered an order enjoining Wife from taking the children out of the United States and
stating that Husband was not allowed parenting time with the children until the matter
could be heard. On October 31, 2018, the trial court determined that it had jurisdiction
over the primary residential parent petition under the UCCJEA and concluded that Wife
should be designated as the primary residential parent. Specifically, the trial court stated
that “the State of Tennessee is the children’s home state as the children resided in
Tennessee from November of 2017 until February of 2018, so were residing in Tennessee
within six months prior to the filing of the Primary Residential Parent Petition, and one
parent resides in Tennessee.” The trial court also decided that the children should remain
in Michigan with Wife, granted Husband parenting time, and ordered Husband to pay
retroactive child support.
Based upon these events, we find that Tennessee was not the “home state” of the
children on the date of the commencement of this proceeding as defined in Tennessee Code
Annotated section 36-6-205(7). Tenn. Code Ann. § 36-6-205(7) (emphasis added); see
also Thrapp v. Thrapp, No. E2006-00088-COA-R3-CV, 2007 WL 700963, at *6 (Tenn.
Ct. App. Mar. 8, 2007) (holding that Tennessee did not have home state jurisdiction
because the mother and her son had lived in Tennessee for only three consecutive months).
Our inquiry into jurisdiction does not end with determining whether Tennessee had
“home state” jurisdiction. Under Tennessee Code Annotated section 36-6-216, it is
possible for the courts of this state to acquire jurisdiction over the children by other means,
one of which is “extended home state jurisdiction.” See Tenn. Code Ann. § 36-6-216 cmt.
1. According to Tennessee Code Annotated section 36-6-216(a)(1) “Tennessee courts still
can have home state jurisdiction if three elements are met: (1) Tennessee was the home
state for the children at any time within six months before commencement of these
proceedings . . . ; (2) the children are absent from Tennessee; and (3) a parent continues to
live in Tennessee.” Doss, 2005 WL 946744, at *4. “This is referred to as six month
‘extended home state jurisdiction.’” Id. However, it is clear that the first element of this
test is not met because the children had only lived in Tennessee on one occasion for about
three months. As such, Tennessee did not have “extended home state jurisdiction” because
Tennessee was not “the home state for the children at any time within six (6) months before
the commencement of the proceeding.” Tenn. Code Ann. § 36-6-216(a)(1). Therefore, the
trial court’s determination that it had jurisdiction under Tennessee Code Annotated section
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36-6-216(a)(1) as the children’s home state was made in error.
Although Tennessee was not the “home state” for the children, Tennessee was still
the appropriate state to exercise jurisdiction under the UCCJEA. “[H]ome state jurisdiction
is not the only manner in which a Tennessee court can obtain jurisdiction.” Doss, 2005
WL 946744, at *5. Under Tennessee Code Annotated section 36-6-216(a)(2), a court of
this state has jurisdiction to make an initial custody determination if:
(2) A court of another state does not have jurisdiction under subdivision
(a)(1), or a court of the home state of the child has declined to exercise
jurisdiction on the ground that this state is the more appropriate forum under
§ 36-6-221 or § 36-6-222, and:
(A) The child and the child’s parents, or the child and at least one (1)
parent or person acting as a parent, have a significant connection with
this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the
child’s care, protection, training, and personal relationships[.]
Tenn. Code Ann. § 36-6-216(a)(2). Significant connection jurisdiction “can be found only
where no other state qualifies as the child’s home state, or the home state has declined to
extend jurisdiction.” Hogan v. Hogan, No. W2008-01750-COA-R3-CV, 2009 WL
2632755, at *8 (Tenn. Ct. App. Aug. 27, 2009) (citing Tenn. Code Ann. § 36-6-216(a)(2).
We conclude that neither child had a “home state” as defined by the statute at the time of
commencement of the proceeding because neither child lived in any one state for this entire
six-month period. See Doss, 2005 WL 946744, at *3 (holding that neither child had a home
state as defined by the statute because neither child lived in any one state for the entire six-
month period). Furthermore, no other state had “extended home state jurisdiction” because
the children had only lived in the United States for approximately four months at the time
of the commencement of this proceeding.5
Pursuant to Tenn. Code Ann. § 36-6-216(a)(2), the question then becomes two-
5
We note here that in making our determination that no other state had home state jurisdiction, we
also considered Yemen as a state pursuant to Tennessee Code Annotated section 36-6-208(a), which
provides that “[a] court of this state shall treat a foreign country as if it were a state of the United States for
the purpose of applying this part.” Pursuant to Tennessee Code Annotated section 36-6-216(a)(1), Yemen
was not the home state on the date of commencement of the proceeding because the children were not living
there at the time of the commencement of this proceeding. Furthermore, although the children had lived in
Yemen for more than a six-month period and that period would have been within the six months before
commencement of this proceeding, Yemen did not have “extended home state jurisdiction” because no
parent continued to reside there. See Doss, 2005 WL 946744, at *4 (explaining the elements of “extended
home state jurisdiction”).
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pronged: whether there was a significant connection to this state and whether there was
substantial evidence available in this state. As stated in the statute, a significant connection
with this state requires more than “mere physical presence.” Tenn. Code Ann. § 36-6-
216(a)(2)(A). In regard to substantial evidence available in this state, “[t]he jurisdictional
determination should be made by determining whether there is sufficient evidence in the
State for the court to make an informed custody determination. That evidence might relate
to the past as well as to the ‘present or future.’” Tenn. Code Ann. § 36-6-216 cmt. 2. In
their three months in Tennessee, the children lived in an apartment with Wife, were
enrolled in school, and received their shots for school. Husband lived in Tennessee, and
remained there until he moved to Delaware on or about February 28, 2019. At the time of
the commencement of this proceeding, neither Husband, Wife, nor the children had lived
in any other state for as long or longer than they had lived in Tennessee. For these reasons,
we find that the children and at least one parent had a “significant connection” with
Tennessee other than mere physical presence. Tenn. Code Ann. § 36-6-216(a)(2)(A).
Further, there was no other state, but Tennessee, with any significant connections to this
family. See State, Dep’t of Children’s Servs. v. T.M.B.K., 197 S.W.3d 282, 291 (Tenn. Ct.
App. Feb. 8, 2006) (holding that there was no other state, but Tennessee, with any
significant connections to the child and the mother). Additionally, there was also
“substantial evidence” in Tennessee concerning the events that led to the filing for divorce.
Tenn. Code Ann. § 36-6-216(a)(2)(B). Wife alleged that Husband abused her and the
children while they lived in the apartment in Tennessee, and on one occasion, the police
became involved because Husband had threatened Wife and the children with a gun. After
the commencement of this proceeding, the trial court had also heard lengthy testimony
from the parties regarding these issues.
We find that Tennessee was the appropriate state to exercise jurisdiction under
Tennessee Code Annotated section 36-6-216(a)(2). As such, the trial court did not err
when it made the initial custody determination concerning the parties’ children in this
matter in 2018.
ii. Continuing Jurisdiction
Having determined that Tennessee properly exercised initial jurisdiction, we then
turn to the issue of whether Tennessee had jurisdiction to enter its final custody order on
September 30, 2020.
It is important to note here that “[j]urisdiction attaches at the commencement of a
proceeding,” which in this case was on February 26, 2018 when Husband filed his
complaint for divorce. Tenn. Code Ann. § 36-6-217 cmt. 2; see also Tenn. Code Ann. §
36-6-205(5) (“‘Commencement’ means the filing of the first pleading in a proceeding.”).
When the trial court made its initial custody determination, it cemented “its exclusive,
continuing jurisdiction until one of the statutory conditions to lift it occurred.” In re Apex
R., 577 S.W.3d 181, 202 (Tenn. Ct. App. 2018); see Mortiz v. Tulay, No. E2013-01528-
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COA-R3-CV, 2014 WL 5306789, at *7 (Tenn. Ct. App. Oct. 17, 2014) (“The trial court
made an initial custody determination . . . pursuant to the parties’ divorce, providing that
court exclusive, continuing jurisdiction.”). However, since Husband moved to Delaware
in February 2019, neither the children nor a parent lived in Tennessee at the time of the
entry of the final decree of divorce and permanent parenting plan. This event requires us
to consider the provision in Tennessee Code Annotated 36-6-217. In re Caleb F.N.P., No.
M2013-00209-COA-R3-PT, 2013 WL 5783141, at *6 (Tenn. Ct. App. Oct. 25, 2013);
Busler v. Lee, No. M2011-01893-COA-R3-CV, 2012 WL 1799027, at *2 (Tenn. Ct. App.
May 17, 2012).
In regard to exclusive, continuing jurisdiction, Tennessee Code Annotated section
36-6-217(a) provides in part:
(a) Except as otherwise provided in § 36-6-219, a court of this state which
has made a child-custody determination consistent with this part has
exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and
one (1) parent, . . . have a significant connection with this state and that
substantial evidence is no longer available in this state concerning the child’s
care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that the child,
the child’s parents, and any person acting as a parent do not presently reside
in this state.
Tenn. Code Ann. § 36-6-217(a). This section sets out conditions under which a court may
lose jurisdiction which it lawfully exercised at an earlier stage in the proceeding. “[I]f
either of these events occurs, the Tennessee court loses its exclusive, continuing
jurisdiction.” Earls v. Mendoza, No. W2010-01878-COA-R3-CV, 2011 WL 3481007, at
*7 (Tenn. Ct. App. Aug. 10, 2011). “The primary function of this section is to ensure either
(1) that no state has a jurisdictional basis superior to Tennessee’s jurisdictional basis or (2)
that any state with a superior jurisdictional basis has declined to exercise jurisdiction.”
Thrapp, 2007 WL 700963, at *6.
On August 28, 2020, Husband filed a motion to dismiss or, in the alternative,
relinquish jurisdiction of the children to the State of Michigan. Thereafter, the trial court
entered a final decree of divorce and adopted the permanent parenting plan on September
30, 2020. On January 6, 2021, the trial court denied Husband’s motion holding that it had
subject matter jurisdiction and personal jurisdiction, it had continuing, exclusive
jurisdiction over the custody of the children, and there were no other actions pending to
which it could transfer jurisdiction over custody of the children.6 Despite the fact that
6
As previously stated, although Wife filed a complaint for divorce in Michigan, the complaint was
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neither the children nor a parent lived in Tennessee, the trial court did not make a finding
regarding Tennessee Code Annotated section 36-6-217(a)(2) in its order denying
Husband’s motion to dismiss. Instead, it found that it had “continuing, exclusive
jurisdiction until it relinquishes same.” For this reason, Husband argues on appeal that the
trial court erred in retaining jurisdiction when it had lost continuing exclusive jurisdiction.
Even if the trial court had lost its exclusive, continuing jurisdiction, Tennessee Code
Annotated section 36-6-217(b) provides that “[a] court of this state which has made a child-
custody determination and does not have exclusive, continuing jurisdiction under this
section may modify that determination only if it has jurisdiction to make an initial
determination under § 36-6-216.” Tenn. Code Ann. § 36-6-217(b). As such, we have
explained that “even if a Tennessee trial court that has made a custody determination does
not have continuing exclusive jurisdiction, it may nevertheless modify the existing custody
order ‘if it has jurisdiction to make an initial determination under § 36-6-216.’” Earls,
2011 WL 3481007, at *9 (citing Tenn. Code Ann. § 36-6-217(b) (emphasis added);
McQuade v. McQuade, No. M2010-00069-COA-R3-CV, 2010 WL 4940386, at *8 (Tenn.
Ct. App. Nov. 30, 2010)). It follows then that “even in the absence of exclusive, continuing
jurisdiction, under [Tennessee Code Annotated] § 36-6-217(b), the trial court below could
modify its prior custody determination if it had jurisdiction to make an initial custody
determination.” Id.
We find our reasoning in Moorcroft v. Stuart, No. M2013-02295-COA-R3-CV,
2015 WL 413094, at *4-6 (Tenn. Ct. App. Jan. 30, 2015), to be instructive on this issue.
In that case, we found that a “Kentucky court lost exclusive, continuing jurisdiction to
modify its . . . temporary visitation order when both the Kentucky and Tennessee courts
determined that neither Mother, Father, nor their children continued to reside in Kentucky.”
Id. at *6. Similarly, in our case, the trial court failed to recognize that Tennessee lost
exclusive, continuing jurisdiction over its previous temporary orders regarding custody,
parenting time, and the designation of the primary residential parent because neither
Husband, Wife, nor their children continued to reside in Tennessee.7 However, in
Moorcroft we held that a Kentucky court would have retained jurisdiction to modify its
temporary order under its statute for exclusive, continuing jurisdiction because it had
jurisdiction to make an initial custody determination. Id.; see Ky. Rev. Stat. Ann. §§
403.824(2), 403.822(1)(a). While Moorcroft dealt with Kentucky’s version of the
UCCJEA, we explained that Tennessee’s version of the UCCJEA “has substantially the
same language as the Kentucky version and both are derived from the same Model Act.”
Id.; compare Ky. Rev. Stat. Ann. § 403.822, with Tenn. Code Ann. § 36-6-216; compare
Ky. Rev. Stat. Ann. § 403.824, with Tenn. Code Ann. § 36-6-217. Therefore, as we found
for the Kentucky court in Moorcroft, the Tennessee court in this case retained jurisdiction
to enter its final order adopting the permanent parenting plan on September 30, 2020, even
dismissed in February 2020.
7
To reiterate, Husband had moved from Tennessee to Delaware in February 2019.
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though it served as a modification of a temporary order and the family had moved before
the conclusion of the proceedings.
Because we have previously found that the trial court had jurisdiction to make an
initial custody determination pursuant to Tennessee Code Annotated section 36-6-216, the
trial court retained jurisdiction to modify its prior custody determination, regardless of
whether it had lost exclusive, continuing jurisdiction under Tennessee Code Annotated
section 36-6-217. This is consistent with the plain language of Tennessee Code Annotated
section 36-6-217(b), which states that “[a] court of this state which has made a child-
custody determination and does not have exclusive, continuing jurisdiction under this
section may modify that determination only if it has jurisdiction to make an initial
determination under § 36-6-216.” Tenn. Code Ann. § 36-6-217(b). Accordingly, we find
that the trial court properly exercised jurisdiction under the UCCJEA.
C. Relief on Default Judgment
Husband’s third issue is whether the trial court erred when it granted relief outside
the pleadings and request for relief on a default judgment. Husband divided this issue into
subparts: (a) whether the trial court erred when it granted a judgment to Wife of $20,000.00
for an alleged loan to Husband which had not been mentioned or pled in Wife’s counter-
complaint; and (b) whether the trial court erred in granting Wife a lien on real property
located in Yemen as collateral for the alleged $20,000.00 loan and attorney’s fees, when
no mention of the Yemen property was mentioned in the counter-complaint or prayer for
relief.
On September 23, 2020, the trial court held a final hearing. Wife testified that she
loaned Husband $20,000.00, and that Husband gave her the title to the real property in
Yemen to hold as collateral until he paid her back. Although Husband’s complaint was
still outstanding, he neither asked any questions of Wife or her brother on cross
examination, nor offered any proof or evidence. The trial court ultimately found that Wife
currently held the deed to real property in Yemen owned by Husband as collateral for a
$20,000.00 loan he obtained from her. Husband was ordered to repay the loan at a rate of
$500.00 per month to Wife to satisfy his obligation to pay back the loan. In the event
Husband did not satisfy this obligation and the arrearage owed to Wife by October 1, 2024,
Wife would be awarded the real property and permitted to sell it to satisfy Husband’s
obligations. However, after the trial court’s oral ruling, Husband did raise an objection
that Wife was awarded relief and damages outside the pleadings. The trial court overruled
the objection finding that the evidence supported the award and Wife’s ad damnum
included the language “[t]hat the Counter-Plaintiff be granted such other further specific
or general relief to which she is entitled.” Husband argued on appeal that he did not have
the opportunity to participate in this hearing or to assert defenses to this relief. However,
we find nothing in the record to confirm this argument.
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In her counter-complaint, Wife specifically requested that the trial court “fairly and
equitably divide between the parties all right, title, and interest in the parties’ property and
make a determination as to all separate and marital property belonging to the parties.” Wife
also requested she “be granted such other specific and general relief to which she is
entitled.” Pursuant to Tennessee Rule of Civil Procedure 54.03, “[a] judgment by default
shall not be different in kind from or exceed in amount that prayed for in the demand for
judgment.” We have explained that:
The obvious reasons for the rule are that a party has a right to assume that
the judgment following his or her default will not go beyond the issues
presented in the complaint and the relief sought therein, . . . and that it would
be fundamentally unfair to permit the complaint to lead the defendant to
believe that only a certain type and dimension of relief was being sought and
then to permit the court to give a different type of relief or a larger damage
award.
Owens v. Owens, No. M2009-02540-COA-R3-CV, 2010 WL 2516879, at *2 (Tenn. Ct.
App. June 23, 2010) (quoting Pittman v. Pittman, Nos. 01-A-01-9301-CH00014, 87-077,
1994 WL 456348, at *4 (Tenn. Ct. App. Aug. 24, 1994)). “In sum, . . . a default judgment
may not extend to matters outside the issues raised by the pleadings or beyond the scope
of the relief demanded.” Electric Controls v. Ponderosa Fibres of America, 19 S.W.3d
222, 228 (Tenn. Ct. App. 1999) (citations omitted). Wife clearly requested that the trial
court equitably divide the parties’ property in her counter-complaint. The trial court made
a ruling regarding an outstanding debt acquired during the marriage and property relevant
to that debt, which was within the scope of the relief demanded by Wife in her counter-
complaint. Therefore, we find that the trial court properly granted relief within the scope
of the pleadings and the relief demanded.
D. Statute of Frauds
Husband next argues that the judgment for $20,000.00, which was granted to Wife
for an alleged loan made to Husband, violated the statute of frauds as no paper writing was
entered into evidence by Wife. After reviewing the record, there is no indication that this
issue was raised to the trial court. “[I]ssues not raised at trial are generally considered
waived on appeal.” In re Aliyah C., 604 S.W.3d 417, 419 (Tenn. Ct. App. 2019); see
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (“It has long been the general
rule that questions not raised in the trial court will not be entertained on appeal.”).
Therefore, we find that Husband has waived the issue of whether the trial court’s judgment
violated the statute of frauds.
E. Attorney’s Fees
Husband’s final issue is whether the trial court erred in granting attorney’s fees in
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the amount of $15,000.00 to Wife when no findings were made as to ability to pay or need
of Wife. “It is well-settled that an award of attorney’s fees in a divorce case constitutes
alimony in solido.” Cain-Swope v. Swope, 523 S.W.3d 79, 100 (Tenn. Ct. App. 2016)
(citing Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011)). Tennessee Code
Annotated section 36-5-121(h)(1) provides in part that “alimony in solido may include
attorney fees, where appropriate.” Tenn. Code Ann. § 36-5-121(h)(1). This Court has
stated that “[a]n award of attorney’s fees is appropriate when the disadvantaged spouse’s
income is not sufficient to pay the spouse’s attorney’s fees and the divorce fails to provide
the spouse with a revenue source, such as from the property division or assets from which
to pay the spouse’s attorney’s fees.” Cain-Swope, 523 S.W.3d at 100 (citing Yount v.
Yount, 91 S.W.3d 777, 783 (Tenn. Ct. App. 2002)). “When determining whether to award
attorney’s fees, the trial court must consider the relevant factors regarding alimony set forth
in Tenn. Code Ann. § 36-5-121(i).” Id. “[W]here the spouse seeking such an award has
demonstrated that he or she is financially unable to procure counsel, and where the other
spouse has the ability to pay, the court may properly grant an award of attorney’s fees as
alimony.” Bounds v. Bounds, 578 S.W.3d 440, 449 (Tenn. Ct. App. 2018) (quoting
Gonsewski, 350 S.W.3d at 113)). Additionally, “trial courts are afforded wide discretion
in determining whether there is a need for attorney's fees as alimony in solido, and the trial
court’s decision will not be disturbed on appeal absent an abuse of discretion.” Cain-
Swope, 523 S.W.3d at 100 (citing Gonsewski, 350 S.W.3d at 113).
The trial court awarded a judgment against Husband for $15,000.00 for Wife’s
attorney’s fees and litigation expenses incurred. However, the trial court failed to make
any findings as to Husband’s ability to pay or Wife’s need. Therefore, we vacate the trial
court’s award of attorney’s fees to Wife and remand to the trial court for consideration of
the relevant factors regarding alimony in solido, to make findings of fact and conclusions
of law, and to enter judgment accordingly. See id. at 86 (quoting Gooding v. Gooding, 477
S.W.3d 774, 783 (Tenn. Ct. App. 2015)) (“If the trial court fails to explain the factual basis
for its decisions, the appellate court ‘may . . . remand the case with instructions to make
the requisite findings of fact and conclusions of law and enter judgment accordingly.’”).
V. CONCLUSION
For the aforementioned reasons, we vacate the trial court’s award of attorney’s fees
to Wife, but affirm on all other issues. The case is remanded for further proceedings
consistent with this opinion. Costs of this appeal are taxed to the appellant, Ahmed Mote
Alzamzami, for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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