Brown v. Brown

FILED
GERALDINE M. BROWN, ) March 23, 2000
)
Plaintiff/Appellee, ) Cecil Crowson, Jr.
) Appeal No. Appellate Court Clerk
v. ) M1999-02739-COA-R3-CV
)
HERMAN H. BROWN, ) Franklin Circuit
) No. 7282
Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR FRANKLIN COUNTY

AT WINCHESTER, TENNESSEE

THE HONORABLE THOMAS W. GRAHAM, JUDGE

JERRE M. HOOD
124 1st Avenue Northwest
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFF/APPELLEE

MARK STEWART
300 South College Street
Winchester, Tennessee 37398
ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
 OPINION

At issue in this case is a husband’s obligation to continue to pay
alimony in the face of his former wife’s second marriage and of the subsequent
annulment of that marriage. Because the husband failed to seek termination of
his alimony obligation on this ground in any of the previous multiple legal
proceedings between the parties, we find that this current challenge is prohibited
by the doctrine of res judicata. We therefore affirm the trial court in its
conclusion to deny the husband relief from his obligation to pay alimony to the
wife.

I. Facts

After a lengthy marriage, much of which was spent in Tennessee,
Herman Brown (“the Husband”) and Geraldine Brown (“the Wife”) were
divorced in the state of Florida. In September of 1989, a Florida court issued the
order (hereinafter “the Florida 1989 Order”) in which the parties were declared
divorced. In the same order, the court decreed that the Husband should pay
periodic alimony “until such time as the wife dies or remarries.” The award of
permanent alimony was affirmed by a Florida appellate court in December of
1990. Subsequent to their divorce, both parties relocated to Tennessee.

Once the Husband moved to Tennessee, the Wife instituted proceedings
in a Tennessee circuit court in Franklin County to domesticate the Florida 1989
Order. By order entered July 28, 1992, the circuit court granted full faith and
credit to the Florida 1989 Order and domesticated the same as an order of
Tennessee (hereinafter “the Tennessee 1992 Order”).

On March 26, 1993, the Wife applied for a marriage license and
married a man named Billy Wilson in Florida. The Wife then filed for annulment
of the marriage on April 6, 1993, alleging that she was forced under duress to
marry Mr. Wilson. She received a swift hearing, and the marriage was annulled
by order of the court dated April 8, 1993. Without articulating the grounds for
the annulment, the Florida judgment of annulment stated that the Wife’s marriage

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to Billy Wilson was “hereby declared wholly null and void and of no legal force
and effect.”

From 1993 to 1996, several petitions for contempt were filed by the
Wife as were petitions filed to reduce or eliminate alimony by the Husband. The
Husband filed a January 1, 1994 Petition for Reduction or Elimination of
Obligation to Pay Alimony on the grounds that the Wife had in the past co-
habitated with a third person and that the amount of alimony was onerous and
beyond the Husband’s financial abilities. On May 4, 1994, in conjunction with
the Husband’s petition to eliminate alimony, the Wife answered interrogatories
in which she fully disclosed that she had remarried in the state of Florida and that
the marriage had been annulled. Subsequent to the filing of these interrogatories,
a hearing was held on May 31, 1994, and an order entered June 8, 1994 pursuant
to the Wife’s petition for contempt and the Husband’s petition for a reduction or
elimination of alimony. The June 1994 Order adjudged the Husband to be in
contempt and set an arrearage and ordered him to pay $223.50 per week. The
order stated that circumstances had not changed to warrant a reduction in the
amount of alimony previously ordered. Following another petition for contempt,
an order was filed in October of 1994 further holding the Husband in contempt
but also finding that he was entitled to a reduction in alimony to $100 per week.
No appeal was taken from either of the court’s 1994 orders. Upon another of the
Wife’s petitions for contempt and the Husband’s petitions to modify the final
decree, an order of contempt was filed in 1997 from which no appeal was taken.

After the Wife filed a final petition for contempt in April of 1998, the
Husband filed the May 1, 1998 petition to eliminate the obligation to pay
alimony upon which this appeal is based. In his petition, the Husband for the
first time articulated as a ground for the elimination of alimony the March 1993
marriage of the Wife to Billy Wilson which took place in Florida. The Husband
moved for summary judgment and filed a memorandum in support of his motion.
In this memorandum, the Husband stated that upon receiving information of the
Wife’s second marriage, he filed a petition to eliminate alimony. He argued that
pursuant to Tennessee law, the Wife’s marriage obviated the Husband’s alimony
obligation and that the Wife’s subsequent annulment did not reinstate her right

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to receive alimony.

The court denied summary judgment to the Husband by order dated
November 11, 1998. The court based its decision on a conclusion that the Wife’s
second marriage was void and not voidable. The court stated that it was relying
on the finding of the Florida court, as revealed by the annulment petition. The
only ground in the petition was that “the marriage was entered into by [the Wife]
because of the coercion by [Mr. Wilson].” The Tennessee Circuit Court
reasoned that “any agreement entered into by a party acting under coercion is
void ab initio and cannot be said to have the affect [sic] of creating legal
obligations or terminating legal rights of the coerced party.” The court thus
concluded that it “must honor the judgment of the Florida [c]ourt on this question
as it has otherwise honored the original divorce decree.”

After the denial of summary judgment, a hearing was held on the
Husband’s Petition to Eliminate Alimony and the Wife’s Petition for Contempt.
At the hearing on this petition, the Husband attempted to present the testimony
of Billy Wilson as evidence that the factual basis for the purported annulment
was not true. The trial judge denied the Husband the opportunity to present the
testimony of Mr. Wilson. The court reasoned that it should not allow the
Husband to litigate in a Tennessee court the issue of whether a fraud was
committed on the Florida court at the time of the Wife’s annulment proceeding
there. The court did permit the admission of a signed deposition of Mr. Wilson
taken on January 28, 1998 as an exhibit to the trial. In this deposition, Mr.
Wilson testified that he did not force the Wife to marry him.

The final order, filed on March 12, 1999, placed the Husband in
contempt of court for failing to pay alimony for the past 63 weeks resulting in a
$6300 arrearage. The court ordered him to pay or serve 630 days in the jail.
The court further stated that the Husband’s Petition to Eliminate Alimony was
not well taken.

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 II. Issue

On appeal, the Husband presents one issue: whether he should be
relieved of the obligation to pay alimony upon the marriage of the Wife to Billy
Wilson. Essentially, the Husband has advanced two theories in support of his
position that his alimony obligation should terminate. First, he attacks the
Florida judgment annulling the Wife’s marriage to Mr. Wilson on the grounds
that the Wife perpetrated a fraud on the Florida court by committing perjury.
Next, the Husband makes the argument that even if the Florida judgment of
annulment stands, it does not legally effect a revival of the Wife’s right to
alimony under the law.

A.

We first address the issue of the Wife’s alleged fraud upon the Florida
court. The Husband contends that the judgment of annulment was based upon
the perjured testimony of the Wife. To prove this, the Husband presented at the
hearing below the deposition testimony of Mr. Wilson in which Mr. Wilson
claimed that he did not coerce the Wife to marry him. As this court has held:
Foreign judgments are entitled to full faith and credit. U.S.
Const. art. IV, § 1. Once a foreign judgment has been
enrolled, it has the same effect and is subject to the same
procedures, defenses, and proceedings for reopening,
vacating, or staying as a judgment of a court of record in
Tennessee and may be enforced or satisfied in a like manner.
Therefore, the grounds and procedures for vacating or
reopening foreign judgments are those contained in Rule
60.02.

Coastcom, Inc. v. Cruzen, 981 S.W.2d 179, 181 (Tenn. App. 1998) (citations
omitted); see also Remington Investments, Inc. v. Obenauf, 1 S.W.3d 666, 669
(Tenn. App. 1999).

Under Rule 60.02, one must obtain relief from a final judgment
procured by fraud within a year after the judgment. Tenn. R. Civ. P. 60.02 (such
a motion must be filed "not more than one year after the judgment, order or
proceeding was entered or taken"); see also Ellison v. Alley, 902 S.W.2d 415,

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417 (Tenn. App. 1995). The Husband first alleged that the Florida annulment
judgment was based upon fraud in his May 1, 1998 petition to eliminate the
obligation to pay alimony, more than five years after the April 8, 1993 Florida
judgment of annulment. This is not a timely challenge. We therefore hold that
the Florida judgment of annulment must be given full faith and credit.

B.

The Husband’s second argument involves the legal effect of the Florida
judgment of annulment on his alimony obligation. The Husband argues that
even if Mr. Wilson did coerce the Wife to marry him and even if the annulment
of this marriage was rightfully based upon this coercion, the Wife’s second
marriage was voidable as opposed to void and therefore her right to alimony is
terminated. As stated, the trial court below held that the Wife’s second marriage
was void and that it did not terminate the Husband’s alimony obligation. In so
holding, the court stated that “[c]learly, any agreement entered into by a party
acting under coercion is void ab initio and cannot be said to have the affect [sic]
of creating legal obligations or terminating legal rights of the coerced party.”

We find that the trial court’s conclusion is contrary to the law of
Tennessee and of Florida. Tennessee law “distinguishes between second
marriages which are void, and those that are voidable, and allows for
reinstatement of the spouse’s right to support only” when a second marriage is
void. Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn. App. 1984). As for which
marriages are void and which are voidable, our cases have made the following
statement:
A marriage is void from the beginning (1) when either
party was already lawfully married; or (2) ...; or (3) when
the parties are within prohibited degrees of kinship; or (4)
when, for any other reason, the marriage was prohibited by
law, and its continuance is in violation of law. [Citations
omitted.]

A marriage is voidable from the beginning (1) when either
party was insane; or (2) the complainant was under duress;
or (3) was under the age of consent; or (4) when the consent
was obtained by force, or fraud, and was given by mistake;

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 or (5) when the defendant was impotent; or (6) when the
woman was pregnant by another man without the knowledge
of the complainant; or (7) when, for any other reason, the
marriage was not binding on the complainant....

Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. App. 1995) (quoting 2
Gibson's Suits in Chancery § 1147 note 10 (5th ed. 1956)); Woods v. Woods,
638 S.W.2d 403, 405 (Tenn. App. 1982). Thus, where consent to a marriage was
obtained by force, that marriage is voidable, not void. Therefore, we conclude
that the clear law of Tennessee is that the Wife’s marriage to Mr. Wilson was a
voidable marriage, the annulment of which did not revive her right to alimony
from the Husband.

Florida law draws the same distinction between the effect of void and
voidable second marriages such that a former spouse’s “right to alimony . . .
terminate[s] with her voidable remarriage and [i]s not revived by the subsequent
annulment.” Evans v. Evans, 212 So.2d 107, 108-09 (Fla. Dist. Ct. App. 1968).
In Evans, the wife’s second marriage was annulled on the grounds of fraud and
concealment. Id. at 108. The court held that such a marriage is voidable, and
therefore the wife’s right to alimony could not be restored. Id. at 108-09. By
contrast, a bigamous marriage in Florida, as in Tennessee, is void and is therefore
ineffectual to alter the legal rights of the parties to the original marriage. Reese
v. Reese, 192 So.2d 1 (Fla. 1966). There is no specific Florida case dealing with
a spouse’s attempt to revive alimony rights upon the annulment of a remarriage
on the grounds of coercion or force. However, from Evans and Reese, it appears
that the Florida courts follow the general distinction between void and voidable
marriages such that they would hold that a marriage entered by force is voidable.

We acknowledge that the Florida judgment of annulment states that the
Wife’s marriage to Mr. Wilson “is hereby declared wholly null and void and of
no legal force and effect.” However, just as the court in Brewer v. Miller did, we
look to the basis of the annulment, not the language of the annulment judgment,
to determine the effect of the second marriage on alimony. Brewer v. Miller, 673
S.W.2d 530, 532 (Tenn. App. 1984) (finding that the marriage was merely
voidable since the ground for annulment was that the marriage was never

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consummated despite the fact that the court had declared the marriage void ab
initio). As stated above, the basis of annulment in this case leads to a conclusion
that the Wife’s second marriage was voidable, not void as the trial court found.

C.

While we agree with the Husband that the trial court’s refusal to grant
him summary judgment was based upon an incorrect application of law, we find
that the trial court’s decision must be affirmed due to the doctrine of res judicata.
“[R]es judicata bars a second suit between the same parties or their privies on the
same cause of action with respect to all issues which were or could have been
litigated in the former suit.” Hampton v. Tennessee Truck Sales, Inc., 993
S.W.2d 643, 645 (Tenn. App. 1999) (citing Goeke v. Woods, 777 S.W.2d 347,
349 (Tenn.1989)). In Potts v. Celotex Corp., the court talked about the “single
injury rule” which is “a logical extension of basic legal principles, primarily
those underlying the doctrine of res judicata.” 796 S.W.2d 678, 682 (Tenn.
1990). “Under the rule ‘estoppel of the former judgment is conclusive, not only
as to matters actually put in issue, but equally as to those which by due diligence
of the litigant . . . might have been put in issue and determined.’ ” Hayes v. Civil
Serv. Comm'n of Metro. Gov’t, 907 S.W.2d 826, 828 (Tenn. App. 1995) (quoting
National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 379, 380 S.W.2d
793, 796 (1964)).

The Court of Appeals addressed this aspect of res judicata in the case
of McKinney v. Widner, 746 S.W.2d 699, 705 (Tenn. App. 1987):

The doctrine of res judicata is based on the principle not
only that the same parties in the same capacities should not
be required to litigate anew a matter which might have been
determined and settled in the former litigation, but that
litigation should be determined with reasonable expedition,
and not be protracted through inattention and lack of
diligence. Jordan v. Johns, 168 Tenn. 525, 79 S.W.2d 798
(1935).

The rule requires that the whole subject of the litigation
be brought forward by the parties, and the judgment
concludes all matters, whether of action or defense, legally

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 pertaining to that subject which, by the exercise of
reasonable diligence, might have been brought forward.
Sale v. Eichberg, 105 Tenn. 333, 59 S.W. 1020, 52 L.R.A.
894 (1900).
...
This Court cannot accept the argument of appellant that,
by disclaiming or failing to present a particular fact or theory
supporting his action, a plaintiff may thereby reserve and
preserve the disclaimed and unpresented fact or theory as an
“ace in the hole” to be used as a ground for a second lawsuit
based on such ground. To assent to plaintiff's insistence
would be to condone piecemeal presentation of suits and
defenses at the whim of the parties. Such is not the policy of
our law and is contrary to the authorities set out above.

The Husband knew about the Wife’s second marriage and subsequent
annulment as early as May 4, 1994, at which time the Wife disclosed this
information in her answer to interrogatories. Since that time, a hearing was held
on May 31, 1994 and an order was entered on June 8, 1994 on petitions of both
parties. Soon thereafter, another hearing was held on a petition for contempt
filed by the Wife resulting in an October 1994 Order. Finally, in December of
1996, the Wife filed another contempt petition to which the Husband responded
by filing a January 1997 petition to modify the final decree in which he alleged
that material changes had occurred which warranted the elimination of alimony.
An order was filed in February of 1997 upon these petitions.

At no time prior to the Husband’s May 1998 petition to eliminate the
obligation to pay alimony did the Husband mention the Wife’s remarriage as a
ground for the elimination of his alimony obligation or as a defense for his
failure to pay alimony. We hold that such an argument is prohibited by the
doctrine of res judicata at this point in the parties’ litigious history. From the
time of the May 4, 1994 disclosure by the Wife of her second marriage, the issue
of the Husband’s payment of alimony has been before the court on at least three
occasions. With the exercise of reasonable diligence, the Husband should have
discovered that the Wife’s remarriage was a basis for the termination of alimony.
To consider this argument now would “condone piecemeal presentation of suits
and defenses at the whim of the parties.” McKinney, 746 S.W.2d at 705.

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 III. Conclusion

For the foregoing reasons, we affirm the trial court in its decision to
deny the Husband relief from his alimony obligation. We find that the doctrine
of res judicata prohibits the Husband from presenting the Wife’s remarriage as
a basis for the elimination of this alimony obligation. This case is affirmed and
the costs are taxed against the Husband.

_____________________________________
WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________
BEN H. CANTRELL, P.J., M.S.

_____________________________________
PATRICIA J. COTTRELL, JUDGE

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