IN THE COURT OF APPEALS AT NASHVILLE
TERESA B. LETELLIER ) C/A No. 01A01-9903-JV-00157
) DAVIDSON JUVENILE
Petitioner-Appellant ) No. 9819-43919
)
)
v. )
)
FILED
)
STEVEN G. LETELLIER ) September 21, 1999
)
Respondent-Appellee ) Cecil Crowson, Jr.
Appellate Court Clerk
APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
THE HONORABLE BETTY ADAMS GREEN, JUDGE
Jon S. Jablonski
2400 Crestmoor Road, Suite 321
Nashville, TN 37215
Attorney for Petitioner-Appellant
Gregory D. Smith and Andrea Taylor McKellar
Farris, Warfield & Kanaday, PLC
424 Church Street, Suite 1900
Nashville, TN 37219
Attorneys for Respondent-Appellee
REVERSED AND REMANDED
Houston M. Goddard, Presiding Judge
CONCUR:
FRANKS, J.
SWINEY, J.
O P I N I O N
Goddard, P.J.
1
This is an appeal from the Juvenile Court’s order
transferring this child support case to a Virginia court due to
lack of subject matter jurisdiction. Teresa B. LeTellier,
Petitioner-Appellant, raises the following issues which we
restate:
I. Whether the Juvenile Court had in personam
jurisdiction over Respondent-Appellee to modify
the support order entered by the Superior Court of
the District of Columbia.
II. Whether the Juvenile Court had subject matter
jurisdiction to modify the support order entered
by the Superior Court of the District of Columbia.
Steven G. LeTellier, Respondent-Appellee, raises an
additional issue which we restate:
III. Whether the judge erred in transferring the case
to an unknown tribunal in Virginia.
We find the Juvenile Court possessed personal jurisdiction over
Mr. LeTellier and subject matter jurisdiction to modify the child
support order. We reverse and remand this case to the Juvenile
Court of Davidson County.
The Superior Court of the District of Columbia, Family
Division, Domestic Relations Branch, awarded custody of the
parties’ minor child, Nicholas J. LeTellier, to Ms. LeTellier on
May 22, 1989. In addition, the Superior Court ordered Mr.
LeTellier to pay child support. On July 24, 1997, Ms. LeTellier
filed a petition to modify child support in the Superior Court of
the District of Columbia. The Superior Court dismissed the
petition for lack of subject matter jurisdiction and forum non
conveniens on July 13, 1998. Mr. LeTellier filed a petition to
reduce support on September 17, 1998 in the Juvenile Court of
Arlington County, Virginia. On September 21, 1998, Ms. LeTellier
filed a petition to register the foreign order and to modify the
award of child support in the Juvenile Court of Davidson County,
Tennessee, which was amended on September 29, 1998. The Virginia
2
court dismissed Mr. LeTellier’s petition on October 16, 1998 for
lack of in personam jurisdiction over Ms. LeTellier. By order
dated December 31, 1998, Referee Rosenberg dismissed Ms.
LeTellier’s petition because he found the Juvenile Court of
Davidson County, Tennessee lacked subject matter jurisdiction to
modify the support order. Judge Adams affirmed Referee
Rosenberg’s findings upon rehearing on February 23, 1999, but she
ordered the petition be transferred to the appropriate tribunal
in Virginia.
In Personam Jurisdiction
On November 30, 1998, Mr. LeTellier filed a motion to
dismiss in the Juvenile Court of Davidson County for lack of
subject matter jurisdiction. Ms. LeTellier filed a response to
the motion to dismiss. In Mr. LeTellier’s reply to Ms.
LeTellier’s response, Mr. LeTellier contested personal
jurisdiction for the first time in a pleading. Mr. LeTellier
contends that, during the hearing for a continuance, counsel
explained a continuance was needed “since Appellee was planning
to contest personal jurisdiction.” A transcript of the hearing
on Mr. LeTellier’s motion to continue was not provided to this
Court in the appellate record. The Referee did not address the
issue of waiver in his order dismissing Ms. LeTellier’s petition,
but he found the Juvenile Court had personal jurisdiction over
Mr. LeTellier pursuant to Tennessee Code Annotated section 36-5-
2201(6).
Ms. LeTellier contends the Juvenile Court can assert
jurisdiction over Mr. LeTellier pursuant to Tennessee Code
Annotated section 36-5-2201(2) or (6). Under T.C.A. § 36-5-
3
2201(2), a Tennessee court may exercise personal jurisdiction
over a nonresident to establish, enforce, or modify a support
order if the nonresident consents, enters a general appearance,
or files “a responsive document having the effect of waiving any
contest to personal jurisdiction.” Under T.C.A. § 36-5-2201(6),
a basis for jurisdiction over a nonresident is “the individual
engaged in sexual intercourse in this state and the child may
have been conceived by that act of intercourse.” The Referee
found section (6) applicable to this case.
In personam jurisdiction may be waived by a party “if
there is no objection to personal jurisdiction in the first
filing, either a Rule 12 motion or an answer.” Landers v. Jones,
872 S.W.2d 674, 676 (Tenn. 1994). The Tennessee Supreme Court
further explained that “courts should only find a general
appearance that waives a defendant’s right to contest personal
jurisdiction when the defendant has recognized the proper
pendency of the cause by making a motion that goes to the merits
or by filing an answer, without challenging personal
jurisdiction.” Landers, 872 S.W.2d at 677. Tennessee Rule of
Civil Procedure 12.08 provides that the defense of lack of
personal jurisdiction is waived when not presented in a motion or
answer. We find Mr. LeTellier’s motion to dismiss for lack of
subject matter jurisdiction was a general appearance constituting
a waiver of personal jurisdiction because a contest to personal
jurisdiction was not part of his motion to dismiss. See 6 C.J.S.
Appearances § 23 (1975 & Supp. 1999).
Moreover, UIFSA provides an additional basis for
finding personal jurisdiction over Mr. LeTellier. Mr. LeTellier
4
engaged in sexual intercourse in Tennessee and the child may have
been conceived in Tennessee. See T.C.A. § 36-5-2201(6). We
affirm the Referee’s finding that the Juvenile Court possessed
personal jurisdiction pursuant to T.C.A. § 36-5-2201(6).
Subject Matter Jurisdiction
The statute governing subject matter jurisdiction of
Tennessee courts over child support orders issued by other states
is within the Uniform Interstate Family Support Act (UIFSA),
codified at T.C.A. §§ 36-5-2001 to -2902. After the child
support order of another state is registered in Tennessee, a
Tennessee court may modify it if:
(1) The following requirements are met:
(i)The child, the individual obligee, and the obligor
do not reside in the issuing state;
(ii) A petitioner who is a nonresident of this state
seeks modification; and
(iii) The respondent is subject to the personal
jurisdiction of the tribunal of this state; or
(2) The child, or a party who is an individual, is
subject to the personal jurisdiction of the tribunal of
this state and all of the parties who are individuals
have filed written consents in the issuing tribunal for
a tribunal of this state to modify the support order
and assume continuing, exclusive jurisdiction over the
order.
T.C.A. § 36-5-2611(a) (1998). If the requirements of the
previous section are not met, another section provides for
subject matter jurisdiction when both parties reside in Tennessee
and the child does not reside in the issuing state. See T.C.A. §
36-5-2613 (1998). Under UIFSA, Tennessee courts only have
subject matter jurisdiction for the very specific situations
previously described.
The facts of this case do not fit within the situations
for which Tennessee courts have subject matter jurisdiction. The
5
Petitioner-Appellant, Ms. LeTellier, is a resident of Tennessee.
Under T.C.A. § 36-5-2611(a), the petitioner must be a nonresident
of Tennessee. Under T.C.A. § 36-5-2613, both parties must be
residents of Tennessee. The Respondent-Appellant, Mr. LeTellier
is a resident of Virginia. Therefore, the Juvenile Court did not
have subject matter jurisdiction pursuant to these provisions in
UIFSA to modify the child support order issued by the Superior
Court of the District of Columbia.
Ms. LeTellier argues Tennessee Code Annotated sections
36-5-2611 and 36-5-2613 do not apply to this case because these
sections are excluded pursuant to Tennessee Code Annotated
section 36-5-2202. When personal jurisdiction is asserted over a
nonresident pursuant to T.C.A. § 36-5-2201, the other provisions
of UIFSA do not apply because they are specifically excluded by
T.C.A. § 36-5-2202. Ms. LeTellier contends the Juvenile Court
can assert jurisdiction over Mr. LeTellier pursuant to T.C.A. §
36-5-2201(2) or (6).
When excluding the other sections of UIFSA which confer
subject matter jurisdiction on a Tennessee court to modify the
support order of another state, T.C.A. § 36-5-2202 states “the
tribunal shall apply the procedural and substantive law of this
state.” There is substantive law, prior to the enactment of
UIFSA, which supports the finding of subject matter jurisdiction
of a Tennessee court to modify a child support order of another
state. In some cases, Tennessee courts have found subject matter
jurisdiction to modify support orders of other states when the
child or one of the parties is a resident of Tennessee and
Tennessee has in personam jurisdiction over the obligor. See
6
Parker v. Parker, 497 S.W.2d 572 (Tenn. 1973) (holding
modification of child support order appropriate when Georgia
resident filed petition against Tennessee resident who was no
longer amenable to process of Georgia court); Hood v. Munsey, an
unreported opinion of this Court, filed in Knoxville on August
13, 1993 (holding modification allowed under the Uniform
Enforcement of Foreign Judgments Act, T.C.A. §§ 26-6-101 to -
107); Gilbert v. Gilbert, an unreported opinion of this Court,
filed in Knoxville on December 15, 1988 (“it is the general rule
followed in Parker that where a court adopts as its own, a decree
of a sister state, it assumes jurisdiction for the purposes of
alimony and child support, the power to modify the foreign decree
indirectly”). This case law supports the finding of subject
matter jurisdiction to modify the child support order of the
Superior Court of the District of Columbia.
In addition to Tennessee case law supporting the
finding of subject matter jurisdiction, there is a federal
statute which places subject matter jurisdiction in state courts
for modification of child support orders of other states. The
Full Faith and Credit for Child Support Orders Act (FFCCSOA)
provides:
A court of a State may make a modification of a child
support order issued by a court of another State if--
(1) the court has jurisdiction to make such a child
support order pursuant to (i); and
(2)(A) the court of the other State no longer has
continuing, exclusive jurisdiction of the child support
order because that State no longer is the child’s State
or the residence of any individual contestant; or
(B) each individual contestant has filed a written
consent with the State of continuing, exclusive
jurisdiction for a court of another State to modify the
order and assume continuing, exclusive jurisdiction
over the order.
7
28 U.S.C.A. § 1738(B)(e) (1998). Under section (i), if neither
of the parties nor the child resides in the issuing state, the
party seeking modification must register the order in a State
with jurisdiction over the nonmovant for the purpose of
modification. 28 U.S.C.A. § 1738(B)(i) (1998).
Under the FFCCSOA, the Juvenile Court of Davidson
County possesses subject matter jurisdiction to modify the child
support order in this case. The Juvenile Court possesses
“jurisdiction over the nonmovant” as required by 28 U.S.C.A. §
1738(B)(I). The District of Columbia is no longer the residence
of the parties or the child. Therefore, the District of Columbia
no longer has continuing, exclusive jurisdiction over the child
support order.
There is a conflict between the federal law, FFCCSOA,
and the state law, UIFSA. Federal law preempts state law when
there is a conflict. See Brown v. Brown, 847 S.W.2d 496, 499
(Tenn. 1993). Although Tennessee law, UIFSA, fails to place
subject matter jurisdiction in the Juvenile Court of Davidson
County under these circumstances, the federal law, FFCCSOA,
places subject matter jurisdiction in the Juvenile Court of
Davidson County to modify the support order in this case.
In light of our disposition of Ms. LeTellier’s issues,
it is unnecessary to address the issue raised by Mr. LeTellier.
For the foregoing reasons the judgment of the Juvenile
Court is reversed and the cause remanded. Costs of this appeal
are adjudged against Mr. LeTellier.
8
Houston M. Goddard, P.J.
CONCUR:
Herschel P. Franks, J.
D. Michael Swiney, J.
9