Kenner v. Kenner

• Decision Date: 19 February 1918
• Parties: KENNER v. KENNER.
• Court: Tennessee Supreme Court

201 S.W. 779

139 Tenn. 211

KENNER v. KENNER.

Supreme Court of Tennessee.

February 19, 1918

Certiorari to Court of Civil Appeals.

Suit by Kenneth B. Kenner against Mary Nice Kenner. From a judgment dismissing the bill, plaintiff appealed to the Court of Civil Appeals, which awarded alternate monthly custody of the child to each, and both parties bring certiorari. Decree of the Court of Appeals reversed, and the bill dismissed.

Rehearing denied 202 S.W. 723.

L. D Smith, of Knoxville, and C. W. Margraves and S. F. Powel both of Rogersville, for Kenneth B. Kenner.

H. H Shelton, of Winston-Salem, N. C., and Harr & Burrow, of Bristol, for Mary Nice Kenner.

NEIL C.J.

Complainant and defendant were both born and reared in Hawkins county, this state. On the 23d of January, 1913, they went to Asheville, N. C., and were married, returning to the home of the husband's parent, where they lived until shortly before their separation. On December 12, 1913, a girl child was born to them. Shortly after the birth of this child, on the 20th of December, 1913, they separated. In March, 1914, Mrs. Kenner removed to Birmingham, Ala., to make her home with her brother, Dr. C. M. Nice, who had resided there for some years, and was engaged in the practice of medicine at that place. Her purpose in removing to Alabama was to make that state her future home. She took the child with her, at the time she removed to Alabama, and has ever since retained it. The separation was caused by the cruel treatment which was inflicted by the husband upon the wife, it appearing that he committed violence on her person, and in other ways treated her with great indignity. At first she took up her residence at the home of her father in Rogersville, Hawkins county, but the attentions of her husband, against whom she had conceived an intense antipathy on account of his cruelties and indignities, so annoyed her that she resolved to remove to Alabama, with the double purpose of making her home there and so escaping her husband, and at the same time of obtaining a divorce from him, after the requisite residence of one year in Alabama, according to the laws of that state. After she had lived in Alabama one year she filed her bill of divorce in the chancery court of Jefferson county in that state. Her husband remaining in Tennessee, he was proceeded against as a nonresident, and due publication was made for him, as required by the laws of Alabama, and in addition a copy of the bill was mailed to him, which he duly received. After such service, an order pro confesso was entered against the defendant to that bill, he having failed to enter his defense, and likewise evidence was introduced and heard fully sustaining the bill. He went to Birmingham and employed counsel to watch the proceedings and make report to him. This was done. He forbade the counsel to enter his appearance in the case. In due time the decree for divorce absolute, in accordance with the laws of Alabama, was entered reciting as ground for divorce the cruelties and personal violence which had been inflicted upon the complainant by her husband. This decree awarded the custody of the child to the mother. This child was then but a little over a year old. When she was taken to Alabama by her mother she was very small even for a child of her age, and was in very delicate health. She needed the constant attention of a physician. Mrs. Kenner's brother, with whom she lived, was a specialist in children's diseases, and he bestowed upon the child all needed medical attention. The decree of the Alabama court of Jefferson county did not give the husband any right to see the child, but he went to Alabama after the divorce had been granted, and was permitted, on two occasions, by the mother, to see the child. A short time after the entry of the Alabama decree Mrs. Kenner returned to Rogersville, Tenn., to the home of her father, for the purpose of making a visit, taking with her the child. The visit was made principally on account of the health of the child, the wife entertaining the belief, on advice, that the climate of East Tennessee would be better for the child at the time the visit was made. While Mrs. Kenner was on this visit the complainant, her former husband, filed his bill in the present case for the purpose of setting aside the decree of the Alabama court on the ground that it was obtained by fraud, and also for the purpose of securing custody of the child, or at least the opportunity of having custody for a part of the time. Chancellor Haynes, before whom the case was tried, after a very full consideration of it, and after finding the facts as we have found them, declined to give any relief to the complainant, and dismissed the bill. Thereupon an appeal was prayed and prosecuted to the Court of Civil Appeals. That court, while expressing its view of the facts contrary to those we have stated, yet declined to interfere with the divorce, but was content to decree to the complainant the right to see the child at certain intervals. The court directed that a decree should be entered containing the following provisions:

"The father and mother shall be given the monthly custody, control, and society of their child. The husband shall at other times have the right to look after and secure the support, education, and welfare of the child. Each party will be required to enter into a bond of $5,000 not to permanently remove the child from the jurisdiction of the chancery court of Hawkins county. While the mother may take the child on a visit to Birmingham, or elsewhere, she will not be permitted to keep it out of the jurisdiction of the courts of this state for a longer period than a month, and the father will not be allowed to keep the child, until further orders, without its jurisdiction for a longer period than a month."

Both sides filed petitions for the writ of certiorari to remove the case from the Court of Civil Appeals to this court.

Although it is true, a divorce decree procured in a foreign state without personal service of process on the defendant therein, the latter having been made a party only by publication or other substituted process, under the foreign law, and the plaintiff in such proceeding having gone to the foreign jurisdiction solely for the purpose of instituting such litigation, may be successfully attacked by a bill for fraud in any other state wherein rights are claimed under such decree (Gettys v. Gettys, 3 Lea [71 Tenn.] 250, 31 Am. Rep. 637; Chaney v. Bryan, 15 Lea [83 Tenn.] 599); yet such attack cannot be sustained when it appears, as in the present case, that the party obtaining the decree removed to the foreign state with the bona fide purpose of making a home in that state, although entertaining at the same time a purpose to bring in the latter state an action for divorce as soon as a domicile therein could be acquired ( Thomas v. King, 95 Tenn. 60, 31 S.W. 983; Colburn v. Colburn, 70 Mich. 647, 649, 38 N.W. 607; Hunter v. Hunter, 64 N. J. Eq. 277, 281, 53 A. 221; Fosdick v. Fosdick, 15 R.I. 130, 23 A. 140). Jurisdiction of the person of the defendant may be acquired in the foreign state by publication, or other substituted service, although the defendant is in fact a nonresident. Thomas v. King, supra; Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L. R. A. 443; Dunham v. Dunham, 162 Ill. 589, 44 N.E. 841, 35 L. R. A. 70. And this applies to either spouse, although the other has never been in the state where the suit is brought; and on such service a decree can be obtained which should be respected in another jurisdiction. 9 R. C. L. Divorce, § 336; Thompson v. Thompson, supra; Dunham v. Dunham, supra; Gordon v. Munn, 87 Kan. 624, 125 P. 1, Ann. Cas. 1914A, 783; Succession of Benton, 106 La. 494, 31 So. 123, 59 L. R. A. 135, and note on page 146, second col., par. 3 et seq., and pages 148, 149, and pages 167 and 168; Felt v. Felt, 59 N. J. Eq. 606, 45 A. 105, 47 L. R. A. 546, 83 Am. St. Rep. 612; Bidwell v. Bidwell, 139 N.C. 402, 52 S.E. 55, 2 L. R. A. (N. S.) 324, 329, 330, 111 Am. St. Rep. 797, 803. And see Cheever v. Wilson, 9 Wall. 108, 19 L.Ed. 604; Cheely v. Clayton, 110 U.S. 701, 4 S.Ct. 328, 28 L.Ed. 298; notes to 53 Am. St. Rep. 183, 94 Am. St. Rep. 554, 16 L. R. A. 499, and 5 Ann. Cas. 28. The effect of such a decree, in a state that chooses to recognize it, is to free both spouses from the bonds of matrimony previously binding them. 9 R. C. L. p. 508, § 330, note 14. But it is optional with each state to accord recognition, or to refuse it, since a refusal has been held by the highest authority not to violate the full faith and credit clause of the federal Constitution. Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1. That is, the courts of the several states may still recognize such foreign decrees on the ground of comity, as suggested in the case just cited. And see Howard v. Strode, 242 Mo. 210, 146 S.W. 792, Ann. Cas. 1913C, 1057; Felt v. Felt, supra; Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am. St. Rep. 900, 907; Joyner v. Joyner, 131 Ga. 217, 62 S.E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220, Toncray v. Toncray,

123 Tenn. 476, 491, 492, 131 S.W. 977, 34 L. R. A. (N. S.) 1106, Ann. Cas. 1912C, 284.

Should such foreign decree be accorded binding force when it purports to determine the right of custody of the children of the marriage, when such children were in the foreign state, in the custody of the plaintiff therein, where the suit was brought, and where the decree was pronounced or should the defendant in that suit, aside from grounds of fraud, be permitted to reopen the question, on such child or children being brought into the residence state of such defendant, for a temporary purpose, as for a visit?

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