Tennessee Supreme Court voids judgment for lack of personal jurisdiction; establishes standard for determining when void judgments are still binding.

By Daniel Horwitz:

After a short marriage, Kevin Turner and Stephanie Turner divorced on October 19, 2000.  Full custody of their two children was awarded to Mr. Turner, and Mrs. Turner was directed to pay Mr. Turner child support.  However, the couple’s divorce decree also provided that Mrs. Turner was entitled to visitation “during such periods of visitation as may be awarded.”

By July 2001, Mrs. Turner had left Tennessee and had lost all contact with Mr. Turner and their children.  Mrs. Turner also failed to pay Mr. Turner any child support, and she stopped seeking visitation.  Consequently, Mr. Turner filed a petition to terminate Mrs. Turner’s parental rights over their children.  Because Mrs. Turner had moved, however, the summons that was issued to alert her of Mr. Turner’s petition was returned undelivered.

Having been unable to provide Mrs. Turner with personal service of his petition to terminate her parental rights, Mr. Turner attempted to give Mrs. Turner “constructive” notice of his petition by publication.  Under Tenn. Code Ann. § 21–1–203(a)(5), personal service is not required “[w]hen the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry.”  However, to be excused from the personal service requirement, a litigant must describe his diligent efforts to provide personal service under oath or in a separate affidavit.[1]  Additionally, a separate statute that applies specifically to parental termination proceedings provides that any request to authorize constructive notice through publication “shall be accompanied by an affidavit of the petitioners or their legal counsel attesting, in detail, to all efforts to determine the identity and whereabouts of the part[y] against whom substituted service is sought.”[2]

In this case, it was undisputed that Mr. Turner never provided the court with the required affidavit describing his efforts to serve Mrs. Turner personally.  Even so, after Mr. Turner published notice of the hearing in a local newspaper, the court entered a default judgment to terminate Mrs. Turner’s parental rights in December of 2001.  The Court’s default judgment also provided that Mrs. Turner was no longer obligated to pay Mr. Turner child support.

Nearly nine years later, in July 2010, Mrs. Turner filed a petition to set aside the default judgment as void for lack of personal jurisdiction.  The trial court granted Mrs. Turner’s motion to vacate the nearly decade-old judgment, and the Court of Appeals affirmed the trial court’s ruling.  This appeal followed.

1.  Personal Jurisdiction

For a judgment to be valid against a particular party, the court must have “personal jurisdiction” over the litigant.  “Personal jurisdiction refers to the power of a court over the parties to the controversy to render a binding judgment,”[3] and a court that lacks personal jurisdiction over a party is “without power” to issue a binding judgment against her.[4]  The Due Process clause of the United States Constitution provides the basis for this rule.  As the U.S. Supreme Court explained in the 1950 case Mullane v. Cent. Hanover Bank & Trust Co.:

“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”[5]

Tennessee law reflects this principle, and it provides generally that “constructive service by publication should be viewed [only] as a last resort” under circumstances when an opposing party’s identity is known.[6]  Accordingly, the Tennessee Supreme Court held, “a plaintiff who resorts to constructive service by publication must comply meticulously with the governing statutes.”[7]  Because it was undisputed in this case that Mr. Turner had failed to comply with the governing notice statutes by failing to submit an affidavit describing his efforts to provide Ms. Turner personal service, the Court held that the default judgment against Mrs. Turner was void for lack of personal jurisdiction.[8]

2.  Exceptional Circumstances

This was not the end of the matter, however.  Adopting the standard set forth in the Second Restatement of Judgments – a legal treatise compiled by the prestigious American Law Institute – the Tennessee Supreme Court also held that if two exceptional circumstances are met, then a litigant will still be bound by a default judgment even if it is determined to be void.  Specifically, the Court explained, a litigant will not be afforded relief from a void default judgment if:

(1)  The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and

(2) Granting the relief would impair another person’s substantial interest of reliance on the judgment.[9]

In this particular case, with respect to the first of these requirements, the Court observed that Mrs. Turner waited approximately two years after receiving actual notice of the default judgment before attempting to have it set aside.  The Court also noted that Mrs. Turner did not attempt to contact, visit, or provide financial support for her children during this time, suggesting that she may have considered the judgment to be valid.  These facts, the Court explained, could demonstrate both Mrs. Turner’s actual knowledge of the judgment and her intent to treat it as valid against her.

With respect to the second requirement – impairment of another person’s substantial interest of reliance on the judgment – the Court noted that Mr. Turner’s new wife had subsequently adopted their children in reliance on the December 2001 default judgment.  Further, the Court observed that Mr. Turner had refrained from attempting to collect child support after the judgment was entered, indicating that he had substantially relied upon the judgment as well.  Based on these facts, the Court remanded the Turners’ case and instructed the trial court to hold a hearing to determine whether both of the two “exceptional circumstances” described by the Second Restatement of Judgments were established.

Read the Tennessee Supreme Court’s unanimous decision in Turner v. Turner here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Tenn. Code Ann. § 21–1–203(b) (“To dispense with process in any of the cases listed in subsection (a), the facts shall be stated under oath in the bill, or by separate affidavit, or appear by the return.”).

[2] Tenn. Code Ann. § 36-1-117(m)(3).

[3] Turner v. Turner, No. W-2013-01833-SC-R11-CV, 2015 WL 6295546, at *8 (Tenn. Oct. 21, 2015) (quoting Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994) (“Personal jurisdiction . . . refers to the court’s authority to adjudicate the claim as to the person.”)

[4] Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 381, 57 S.Ct. 273, 81 L.Ed. 289 (1937).

[5] 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L. Ed. 865 (1950).

[6] Turner, 2015 WL 6295546, at *11 (Tenn. Oct. 21, 2015).

[7] Id.

[8] Id. at *13 (“The record reflects clearly that Father failed to abide by these statutory procedures. Therefore, constructive service by publication was ineffective, and the judgment terminating Mother’s parental rights is void for lack of personal jurisdiction.”).

[9] Turner, 2015 WL 6295546, at *15 (quoting Restatement (Second) of Judgments § 66 (1982)) (emphases added).