Estes v. Estes

• Decision Date: 07 June 1952
• Parties: ESTES v. ESTES. 30 Beeler 96, 194 Tenn. 96, 250 S.W.2d 32, 32 A.L.R.2d 730
• Court: Tennessee Supreme Court

Page 32

250 S.W.2d 32

ESTES v. ESTES.

30 Beeler 96, 194 Tenn. 96, 250 S.W.2d 32, 32 A.L.R.2d 730

Supreme Court of Tennessee.

June 7, 1952.

Graham Moore, Memphis, for appellant.

Poston Cox, Divorce Proctor, and Walter Chandler, Memphis, for appellee.

NEIL, Chief Justice.

The complainant filed her original bill in the Shelby County Chancery Court seeking a decree for the annulment of her ceremonial marriage to the defendant, alleging: (1) that she is a citizen and resident of Shelby County, Tennessee; and that defendant was a citizen and resident of Shelby County for sometime prior to December 22, 1950; (2) 'That complainant and defendant were intermarried at Hernando, Mississippi, on December 3, 1950, and returned to Memphis where they lived as husband and wife at 567 Lucy Avenue, Memphis, until December 22, 1950; that at the time complainant was married to the defendant, she understood that he was an unmarried man, but on or about December 22, 1950, she learned that he had previously been married to Grace Parmely and that there had been no divorce of the defendant and Grace Parmely Estes; that as soon as complainant learned that the defendant was married to another woman she refused to live with him any longer and she has not lived with the defendant since December 22, 1950'; and (3) 'That by reason of the former marriage of the defendant with another woman, the marriage between complainant and the defendant was void and she is entitled to have her marriage to defendant set aside, annuled and held void.'

The defendant was personally served with process but failed to answer the bill. The Divorce Proctor intervened with a formal answer, neither admitting nor denying the truth of the allegations made in the bill. A decree pro confesso was duly entered, and the cause proceeded with ex parte. The chancellor denied the relief sought on the ground that the complainant had not been a resident of Shelby County for two (2) years next preceding the filing of the bill, as required by Code Section 8428. An appeal was prayed and granted to the Court of Appeals and that court in an able and exhaustive opinion by Anderson, P. J., reversed the lower court and entered a decree annulling the marriage.

We granted certiorari because of the importance of the question involved. Oral argument was heard at Jackson as required by the statute. Both the chancellor and the Court of Appeals concurred in finding that there was material evidence to support every allegation made in the complainant's bill.

The complainant contends that the requirements of Section 8428 apply to divorce actions only; that it has no application to a suit in chancery to annul a void marriage; that a court of equity has inherent jurisdiction to annul and declare void a contract of marriage and that the jurisdiction is not dependent upon residence for any specified time. The Divorce Proctor in his argument, and on his brief, contends that the court has no inherent authority to enter such a decree, especially where the ground for annulment is also covered by the divorce statute.

Pretermitting the several grounds for divorce in this State as set forth in the Code Section 8426(2), one of which is: 'That either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting.'

Code section 8428 reads as follows: 'A divorce may be granted for any of the aforesaid causes, though the acts complained of were committed out of the state, or the petitioner resided out of the state at the time, no matter where the other party resides, if the petitioner has resided in this state two years next preceding the filing of the bill or petition.'

Code Section 8443 is as follows: 'If, upon hearing the cause, the court is satisfied that the complainant is entitled to relief, it may be granted either by pronouncing the marriage void from the beginning, or by dissolving it forever and freeing each party from the obligations thereof, or by a separation for a limited time (1799, Ch. 19, Sec. 5; 1835-36, Ch. 26, Secs. 7, 19).'

It thus appears from an examination of the statutes that the chancellor may, within his sound discretion, declare the marriage void ab initio or enter a decree of divorcement depending upon the facts developed on the trial of the cause. Where such suit is primarily one for divorce and annulment is alternative to divorce and rests within the court's discretion for good and sufficient reasons, the Code Section 8428 requiring two (2) years residence before filing the suit would no doubt be applicable. But we are here confronted with the inherent jurisdiction of the court to annul a void marriage, and without regard to any statutory requirements as the residence of the complainant. The sole question at issue is does the Chancery Court have inherent jurisdiction to declare void that which is admittedly void, both in law and in fact. While there is respectable authority to support the chancellor, we think the opinion of the Court of Appeals is not only supported by the weight of authority but is also in keeping with sound public policy.

In giving consideration to the statutory requirement of two (2) years residence in this State before bringing a divorce action the Court of Appeals made the following timely observation:

'The two-years residence requirement was designed to discourage hasty divorces and a resort to this state by non-residents having no intention of becoming domiciled here but coming only for the purpose of using our courts to get relief which they could not get at their place of domicile. The statute is in aid of the public policy which is concerned with the maintenance of the marriage relation. To this end a waiting period is appropriate because the law always envisages the possibility of a reconciliation.

'But this policy presupposes a valid marriage. Public policy can have no concern in perpetuating an ostensible marriage which is void ab initio and as a result of which the parties by a public record appear to be married, whereas as a fact they are not married at all but living in adultery. Cf. Scurlock v. Scurlock, 92 Tenn. 629, 22 S.W. 858; McKee v. Bevins, 138 Tenn. 249, 197 S.W. 563; Moore v. Moore, 102 Tenn. 148, 52 S.W. 778. Upon the contrary, the state is interested always in removing any uncertainty as to the marital status of its citizens. See 2, Kent's Commentaries 76; Hamm v. Hamm, 30 Tenn.App. 122, 142 et seq., 204 S.W.2d 113, 175 A.L.R. 523.

'In short, we find it impossible to attribute an intention to the legislature that a citizen of this state who has innocently entered into an ostensible marriage with another who is a party to a subsisting marriage, whether here or elsewhere, should continue to live in a state of adultery for a period of two years before he or s...