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FILED
November 30, 1999 Cecil Crowson, Jr. Appellate Court Clerk

TINA NONG MABERRY, Plaintiff/Appellant, v. RICKY WAYNE MABERRY, Defendant/Appellee. )

) ) ) ) ) ) ) ) Appeal No. M1999-01322-COA-R3-CV Jackson Chancery No. 97-48

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR JACKSON COUNTY AT GAINESBORO, TENNESSEE THE HONORABLE C. K. SMITH, CHANCELLOR

RICHARD BROOKS 215 Smotherman Avenue P. O. Box 255 Carthage, Tennessee 37030 ATTORNEY FOR PLAINTIFF/APPELLANT

BOBBY JAMES ELLIS 111 South Union P. O. Box 192

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Gainesboro, Tennessee 38562 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AS MODIFIED AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION
Tina Nong Maberry, ("Wife"), and Ricky Wayne Maberry, ("Husband"), were allegedly divorced by court decree entered in the district court of Naha, Okinawa, Japan, on August 23, 1993. The action at bar was commenced when Wife filed suit in chancery court in Jackson County, complaining that the alleged decree failed to dispose of Husband's military retirement benefit as marital property " although the District Court of Naha, Okinawa, Japan is believed to have had jurisdiction to do so."1 Husband, for his part, raised the affirmative defense of res judicata, arguing that since the Japanese court refused to dispose of his retirement benefit, Wife should be estopped from rearguing the issue. In his cross claim Husband complained that while the alleged foreign decree awarded him custody of the parties' child, it lacked any child support award. 2 The court below found in pertinent part as follows: ...it appearing to the court that the original Complaint, seeking to obtain, for the plaintiff, a portion of the defendant's military retirement is without merit and should be dismissed. It further appearing to the Court that the Petition requiring the original Plaintiff/Counter-Defendant to pay child support is without merit and should be dismissed.

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IT IS THEREFORE ACCORDINGLY ORDERED, ADJUDGED and DECREED that the original Complaint in this cause, seeking to obtain a portion of the Defendant Ricky Wayne Maberry's retirement be and the same is dismissed and the costs thereof is taxed to the Plaintiff, Tina Nong Maberry [sic]. IT IS FURTHER ORDERED, ADJUDGED and DECREED by the Court that the Petition for child support be and the same is hereby dismissed and the costs of that is taxed to the petitioner, Ricky Wayne Maberry [sic]. Wife appeals from the action of the trial court, and argues that the dismissal was on res judicata grounds which were not effectively proven below. For the reasons and under the authorities cited infra, we hold that the alleged foreign decree does not operate as res judicata. We find dismissal proper, however, for other reasons. Much is made by both parties of the lower court's apparent interpretation of the foreign decree as having preclusive effect on Wife's claim. The source of Wife's appeal is the set of statements from the bench regarding res judicata. Said the court: Well that's fine. I've still made my Findings of Fact and Conclusions of Law. No attorney fees. I'm denying any relief to the plaintiff. And I would say that ultimately the child support issue will probably meet with the same type of finding here. You know, you are over there and you enter this order, and you just leave out these important things. And I get the sense that all of these things may have been left out, but they probably was part of the deal. [sic] You know, every time there's

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