Summary
In Watkins v. Watkins, 194 Tenn. 621, 254 S.W.2d 735 (1953), the court held that jurisdiction over the person of the defendant is essential to a judgment on a motion by the wife in a divorce action to determine the status of her children for the purpose of their future support in the event the husband should return to the jurisdiction of the court.
Summary of this case from Brondum v. CoxOpinion
Opinion filed January 15, 1953.
DIVORCE.
Where a pro confesso was taken against nonresident husband served by publication in wife's divorce action but no decree had been entered, circuit court had no jurisdiction to determine status of children for future support in event husband should return to jurisdiction of court (Code, sec. 8454).
FROM DAVIDSON.LOUIS FERGUSON, of Nashville, for plaintiff.
A wife sued her husband for divorce. The husband was a nonresident and service was had upon him by publication. A pro confesso was taken against him, but no decree had been entered. The wife filed motion to determine status of children for future support in event that husband should return to jurisdiction of the court. The Circuit Court, Davidson County, BYRD DOUGLAS, Judge, denied motion but permitted the present appeal by the wife. The Supreme Court, GAILOR, Justice, held that, there being no final decree of divorce, the Circuit Court had no jurisdiction.
Affirmed and cause remanded with directions.
This appeal presents a divorce bill filed in the Circuit Court of Davidson County, where the wife is suing the husband for a divorce on grounds of abandonment and cruel and inhuman treatment. The husband is a nonresident and service was had upon him by publication. Thereafter a pro confesso was taken against him, but no decree has been entered.
After pro confesso, and before any final decree, the bill was amended to permit the Complainant to ask additional relief "to determine the status of the children of the parties and their future support, and to retain this cause in Court for the purpose of awarding such support to said children."
After this amendment, the Complainant, by written motion, sought to have the Court "determine the status of the children for future support in the event the Defendant returns to the jurisdiction of the Court, but personal service of process may be served on him, and whether this cause can be retained in Court for this purpose." (Our emphasis.)
Being of the opinion that he had no jurisdiction, the learned Circuit Judge denied this motion, but permitted the present appeal.
The Complainant admits that there is no authority in Tennessee, or apparently elsewhere, since she cites none, for the practice attempted in the present case. Our cases of Darby v. Darby, 153 Tenn. 287, 298, 277 S.W. 894, 42 A.L.R. 1379; Baker v. Baker, 169 Tenn. 589, 89 S.W.2d 763; and Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406, furnish no such authority since in the present case, there is no final decree of divorce and the parties are still husband and wife. At the present time, the Courts of Tennessee have jurisdiction only for the divorce. Jurisdiction of the person of the Defendant is essential to a judgment on the motion. The Defendant may never be within the jurisdiction of the Tennessee Courts, so that a present adjudication would be void. White v. Kelton, 144 Tenn. 327, 232 S.W. 668; United States Fidelity Guaranty Co. v. Askew, 183 Tenn. 209, 213, 191 S.W.2d 533.
The judgment of the Circuit Court denying the motion of Complainant is affirmed and the cause remanded for further proceedings consistent with this opinion. If upon the remand, a decree for divorce is entered, such decree will provide that the cause is retained in Court for the determination of future questions involving the support and custody of the children in accord with Code, Sec. 8454.