Brenda Carrol Bivens v. Donald Eugene Bivens ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 6, 2010
BRENDA CARROL BIVENS v. DONALD EUGENE BIVENS
Appeal from the Circuit Court for Hamilton County
No. 08D815 W. Jeffrey Hollingsworth, Judge
No. E2010-00248-COA-R3-CV - FILED NOVEMBER 22, 2010
Brenda Carrol Bivens (“Wife”) filed this divorce action against Donald Eugene Bivens
(“Husband”) in the Hamilton County Circuit Court in the Eleventh Judicial District. At the
time of the parties’ separation, they lived in Grundy County in the Twelfth Judicial District.
Husband has lived in Grundy County his entire adult life. Husband filed a motion to dismiss
for improper venue which he claims was granted orally by the Trial Court. No order
dismissing the case ever was entered. The Trial Court later entered a final decree and marital
dissolution agreement submitted by Wife and signed by Husband. Husband filed a motion
to set aside the final decree. Following a hearing, the Trial Court determined that Husband
had waived any objection to venue and refused to set aside the final decree. Husband
appeals. We conclude that Husband did not waive his objections to venue and that the proper
venue in this case never has been Hamilton County. Accordingly, we vacate entry of the
final decree and remand this case to the Circuit Court for Hamilton County with instructions
to transfer this case to an appropriate court in Grundy County.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Circuit Court Vacated; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.
Michelle M. Benjamin, Winchester, Tennessee, for the Appellant, Donald Eugene Bivens.
Katherine H. Lentz, Chattanooga, Tennessee, for the Appellee, Brenda Carrol Bivens.
OPINION
Background
Wife filed a complaint for divorce in April of 2008. In her complaint, Wife
alleged that Husband was guilty of cruel and inhuman treatment or, in the alternative, that
irreconcilable differences existed between the parties.1 The complaint was filed in the
Eleventh Judicial District, which is comprised solely of Hamilton County.
In February of 2009, Wife filed a motion for default alleging that Husband had
failed to appear or otherwise respond to the complaint. The Trial Court entered a default
judgment against Husband and set the case “for a hearing ex parte on Friday, March 13,
2009, at 8:30 am for entry of the Final Decree of Divorce.” Following the ex parte hearing,
a Final Decree was entered on March 19, 2009. In the Final Decree, Wife was awarded the
entire interest in the marital residence located in Grundy County, Tennessee. Grundy County
is in the Twelfth Judicial District.
On March 30, 2009, Husband appeared for the first time in this matter and filed
a motion to dismiss. According to Husband’s Motion:
Venue of this case is proper in Grundy County,
Tennessee, as the parties resided in Gruetli-Laager, Grundy
County, Tennessee, for the duration of the marriage, and prior
to their separation approximately two years ago. Gruetli-Laager
in Grundy County has always been the domicile of [Husband],
and he has not resided anywhere else. Therefore, this action
should have been filed in Grundy County, Tennessee and should
be dismissed.
According to the clerk’s office, [Wife] made two
attempts to serve [Husband] with process in Grundy County,
Tennessee that were unsuccessful. [Wife’s] proposed Final
Decree states that [Husband] was served by publication, but
1
The complaint states that the statistical information pertaining to the parties as required by Tenn.
Code Ann. § 36-4-106 was being attached to the complaint as an exhibit. If this information was attached
to the complaint, it was not included in the record on appeal. Because this information was not attached to
the complaint and/or was not included in the record, we do not have useful and very basic information about
the parties, such as their age, how long they were married, etc. We note that the complaint does indicate that
the parties have two adult children.
-2-
such claim appear[s] to be unsupported by the court’s record.
(original paragraph numbering omitted)
Husband requested that the action be dismissed for improper venue and ineffective service
of process, that costs be taxed to Wife, and that he be awarded attorney fees.
On March 30, 2009, the Trial Court entered an order setting aside the Final
Decree and ordering that Husband be served by publication and “upon expiration of the
required statutory time period [Wife] may take appropriate steps as provided by law.” The
Trial Court reserved making a ruling as to costs.
Notice of the divorce proceeding was published in the Hamilton County
Herald. The notice indicates that a divorce action had been filed and [Husband] was a non-
resident of the State of Tennessee. Contrary to the statement contained in the notice as to
Husband’s residence, Husband was not living in another state. In fact, he was living in the
marital residence in Grundy County, Tennessee.
On April 3, 2009, Husband again filed his motion to dismiss on the basis of
improper venue and ineffective service of process. On June 29, 2009, Husband filed a
motion to dismiss claiming lack of jurisdiction on the same basis, i.e., the action should have
been filed in Grundy County, not Hamilton County, and Husband had not been properly
served.
On July 27, 2009, the Trial Court entered a second Final Decree of Divorce that
was tendered to the Court by Wife. The final decree contained a marital dissolution
agreement that was signed by Husband and Wife on June 29, 2009. Once again, Wife was
awarded the entire interest in the marital residence located in Grundy County.
On August 26, 2009, Husband filed a motion to set aside the July 27, 2009
Final Decree of Divorce and dismiss this case. According to Husband, at a hearing on July
13, 2009, the “Motion to Dismiss filed by Defendant was granted on the basis of improper
venue and no effective service of process.” Husband noted that the Trial Court’s file
indicates that the “attys [were to] submit ag. order on Motion to Dismiss.” We note that no
such agreed order ever was entered. Husband’s attorney did, however, submit a proposed
order to the Trial Court granting the motion. This proposed order never was entered.2
2
We have been unable to determine from the record if, on July 13, 2009, the Trial Court actually did
orally grant Husband’s motion to dismiss.
-3-
In any event, Husband went on to allege that following the hearing, Wife
brought him documents to sign “before he had time to consult his attorney.” According to
Husband’s affidavit filed in support of his August 26, 2009 motion, Wife told him that she
had the documents prepared the way that Husband wanted them prepared and that they both
would continue to own the marital residence. Husband claimed that he relied on Wife’s false
assertions and signed the documents, even though he has only a “2 nd grade [education] and
cannot read very well.”
The caption of the final decree submitted by Wife to the Trial Court states that
the proceedings were pending in the “Twelfth Judicial District at Altamont.” Altamont is in
Grundy County. As stated, however, this action was pending in Chattanooga in Hamilton
County, and the final decree was entered in Hamilton County.
The Trial Court treated Husband’s motion to set aside and to dismiss as a Rule
60 motion and a hearing was conducted. As pertinent to this appeal, Husband testified at the
hearing that he was living and always had lived in Grundy County. Husband testified that
he signed the documents given to him by Wife only after Wife assured him that they would
leave things as they were with respect to ownership of the parties’ real property when, in fact,
they divested him of any ownership interest.
Wife testified that she currently was living in Chattanooga. Wife claims she
told Husband that the marital dissolution agreement put title to the parties’ real property
solely in her name, but that Husband signed it anyway. Wife acknowledged that Husband
was living in Grundy County and has lived in Grundy County his entire adult life.
Following the hearing, the Trial Court entered an order denying Husband’s
Rule 60 motion and ratifying the July 27, 2009, final decree. The Trial Court determined that
by signing the marital dissolution agreement and final decree, Husband implicitly waived any
objection to venue or service of process.
Husband appeals claiming the matter should be dismissed for improper venue
and ineffective service of process. Husband also requests an award of costs and attorney
fees. Wife asks this Court to affirm the judgment of the Trial Court. Wife asserts that she
is entitled to attorney fees incurred on appeal because Husband’s appeal is frivolous.
Discussion
The factual findings of the Trial Court are accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence
preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,
-4-
727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de
novo standard of review, according no deference to the conclusions of law made by the lower
courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001). We review a trial court’s refusal to set aside a final decree pursuant to Tenn.
R. Civ. P. 60 under the abuse of discretion standard. See Reynolds v. Battles, 108 S.W.3d
249, 251 (Tenn. Ct. App. 2003).
Tenn. Code Ann. § 36-4-105(a) governs venue in divorce cases. According
to this statute:
The bill or petition may be filed in the proper name of the
complainant, in the chancery or circuit court or other court
having divorce jurisdiction, in the county where the parties
reside at the time of their separation, or in which the defendant
resides, if a resident of the state; but if the defendant is a
nonresident of the state or a convict, then in the county where
the applicant resides.
Tenn. Code Ann. § 36-4-105(a) (2005).
At the time the divorce was filed and throughout these proceedings, the only
county with proper venue was Grundy County. This is where Husband lived and where the
parties resided at the time of their separation. Husband never was a “nonresident of the
state.” Tenn. Code Ann. § 36-4-105(a). In short, this lawsuit never should have been filed
in Hamilton County.
Even though Husband claims that the Trial Court initially granted his motion
to dismiss for improper venue and instructed the parties to submit an agreed order dismissing
the action, due to the sparse record on appeal, we cannot ascertain if the motion indeed was
granted or denied. All we know is that the Trial Court instructed counsel to submit an agreed
order. This never happened, although, as noted, counsel for Husband did submit a proposed
order granting the motion, but this proposed order never was entered by the Trial Court.
There is no doubt that pursuant to Tenn. Code Ann. § 36-4-105(a), Hamilton
County was not the proper venue. The question then becomes whether Husband implicitly
waived venue, as found by the Trial Court. Husband filed a motion to dismiss for improper
venue on multiple occasions. According to Husband, the motion had been granted orally by
the Trial Court. Wife then made an end-run around Husband’s attorney and got him to sign
a marital dissolution agreement and final decree that were not reviewed by Husband’s
-5-
attorney. Even these documents were confusing as the final decree incorrectly stated that the
action was pending in the “Twelfth Judicial District at Altamont.”
Given all of the foregoing, we conclude that Husband cannot be deemed to
have waived his objection to venue, and, therefore, the Trial Court erred when it denied
Husband’s motion to set aside the final decree. We vacate entry of the final decree and
marital dissolution agreement. On remand, the Circuit Court for Hamilton County is
instructed to transfer this case to an appropriate court in Grundy County.
The next issue is whether Husband ever was effectively served with process.
Wife argues that because the marital dissolution agreement references the pending action,
the Trial Court correctly determined that Husband waived service of process pursuant to
Tenn. Code Ann. § 36-4-103(a)(2). This statute provides, among other things, that in lieu
of service of process, “the defendant may enter into a written notarized marital dissolution
agreement with plaintiff that makes specific reference to a pending divorce by a court and
docket number. . . .”
The problem with Wife’s argument is that the marital dissolution agreement
also states that the action was pending in the “Twelfth Judicial District at Altamont.”
However, the words “Twelfth” and “Altamont” are scratched out and the words “Eleventh”
and “Chattanooga” were hand-written over the scratched-out words. We have no way of
knowing if these changes were made before or after Husband signed the marital dissolution
agreement. Because we have vacated entry of the final decree and marital dissolution
agreement and ordered the case to be transferred to the proper venue, the validity of any
purported waiver of service of process is a matter that will need to be addressed by the
Grundy County court on remand.3
The final issues surround each party’s claim for attorney fees. We decline to
award either party attorney fees incurred on appeal. Husband also claims he should be
awarded attorney fees incurred below. We decline to award Husband attorney fees incurred
below as this is a matter that needs initially to be addressed by the Grundy County court. Our
present denial of Husband’s request for attorney fees incurred below shall have no prejudicial
effect on either party later requesting attorney fees incurred below should they properly
demonstrate entitlement to such an award to the Grundy County court. Notwithstanding the
foregoing, the Circuit Court for Hamilton County is instructed to tax costs incurred in that
venue to Wife.
3
We note that Wife obtained new counsel, her current attorney, on February 19, 2010.
-6-
Conclusion
The judgment of the Trial Court is vacated. This cause is remanded to the
Circuit Court for Hamilton County with instructions to transfer this case to an appropriate
court in Grundy County for further proceedings consistent with this Opinion. The Circuit
Court for Hamilton County is instructed to tax court costs incurred in that venue to Wife.
Costs on appeal also are taxed to Wife, Brenda Carrol Bivens, for which execution may
issue, if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
-7-