Atchley v. Atchley

• Decision Date: 06 November 1945
• Citation: 194 S.W.2d 252,29 Tenn.App. 124
• Parties: ATCHLEY v. ATCHLEY.
• Court: Tennessee Court of Appeals

194 S.W.2d 252

29 Tenn.App. 124

ATCHLEY v. ATCHLEY.

Court of Appeals of Tennessee, Eastern Section.

November 6, 1945

Rehearing Denied Jan. 8, 1946.

Certiorari Denied by Supreme Court May 4, 1946.

Error to Circuit Court, Sevier County; Geo. R. Shepherd, Judge.

Suit by Josie Atchley against James R. Atchley, divorced husband of the plaintiff, to recover sums expended by the plaintiff in sending their daugher to college. To review the judgment the defendant brings error.

Affirmed.

On Petition to Rehear.

O. M. Connatser, of Sevierville, for plaintiff in error.

E. E Creswell, of Sevierville, for defendant in error.

BURNETT Judge.

This suit was filed by Mrs. Atchley against her divorced husband to recover sums expended by her in sending their daughter to college.

The parties were divorced in 1938. The custody of the daughter was not awarded to either parent. Apparently the court granting the divorce decided that the daughter was of sufficient age and discretion to decide for herself which of the parents she chose to live with. She chose her mother with whom she has resided since the divorce. The daughter graduated from high school and entered Carson-Newman College in February 1942.

The mother was working as a cook, in a canning factory, as a laundress and in various honorable ways paid this daughter's tuition and expenses at college. The daughter assisted materially in the payment of her expenses by waiting on tables and other work she secured at college. At the same time she was putting in four years work in three--she attended college the full twelve months.

As this suit now stands it seeks recovery only for that expended by the mother up until the filing of the suit on February 19, 1944. An exhibit to the declaration which is substantially supported by the proof shows that the mother spent for the years 1942 and 1943 the sum of $737.49. During this period the father gave his daughter the sum of $246.42. During the same period the daughter earned at college the sum of $144.72 which was credited to her account.

In the four years between the separation of these parties and the entry of their daughter in college the father voluntarily gave his ex-wife and daughter $2,000. This was apparently done so that the daughter might have a high school education. When the daughter graduated from high school she was eighteen years old. The father seems to have had the idea that he was no longer responsible for her maintenance, etc., after she reached her eighteenth birthday or that he need not send her to college.

He makes no direct assertion on the subject. The daughter says 'He didn't feel like he could, from all I gathered. I ask him to give me enough for at least half of it. Sorty talked like he might but yet he never did.'

We are well aware of the well-established rule that: 'The law presumes that the father will provide for his child, of which he has custody, education in that vocation for which it is best fitted, and unless his parental authority has been taken away by the courts, he is ordinarily the one to decide the extent of the education of his child, beyond what is required and provided by the school system of the state.' 39 Am.Jur., sec. 49, page 681.

We have no complaint with the rule and think it certainly should be applied to a proper case. Should the rule and attendant presumptions be applied when the custody of the child has been in the mother, by choice of the child? It seems to us that the mother being in daily contact with the daughter, and knowing her talents and abilities, should be the one to determine what education she should have. It is a natural presumption for us to presume that since the daughter had selected the mother as the one she chose to live with, as opposed to the father, that the father would refuse to do for the daughter what the natural instincts of a parent would ordinarily prompt him to do. The mother is apparently a woman of very limited education. She though is ambitious and desirous of having her daughter attain a higher educational and social standard than she (the mother) had. She shows the natural instinct of a loving and thoughtful parent in trying to give the daughter every advantage so that the daughter might go farther and be more than the mother--an education so that the daughter would not have to work in canning factories and do laundering for a livelihood.

Code section 8463 provides in substances, says Judge Green, that:

'The obligation for the support of a minor child is no longer primarily charged upon the father, but father and mother are equally and jointly charged with the child's care, nurture, welfare, education, and support. This statutory provision was considered by the court in Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654. In that case it was said:

"The obligation previously resting upon the father to maintain and support his minor children cannot be said to have been destroyed by this statute. That obligation was to provide for the child ' in a manner commensurate with his means and station in life.' Evans v. Evans, supra [125 Tenn. 112, 140 S.W. 745, 747, Ann.Cas.1913C, 294]. The obligation cast upon the mother by the statute must be measured by the same varying and relative standard. It is obvious, therefore, that the 'equal and joint' obligation imposed upon both parents cannot be divided between them by arbitrary or mathematical measure. The obligation of both to provide a support for their child is equal and joint, in so far as the child is concerned, but a controversy between the parents, as to the proper contribution of each, seems to us to be determinable only by equitable principles and rules, with due regard to the condition and means of each." (Emphasis ours.) Rose Funeral Home, Inc. v. Julian, 176 Tenn, 534, 539, 144 S.W.2d 755, 757, 131 A.L.R. 858.

The father is a prosperous business man of Sevierville. He has a lumber plant and a furniture plant and owns real estate. In the three and a fraction years prior to his daughter's entering college, he gave her and her mother in excess of $2,000. The father makes no attempt to show that he is financially unable to bear any or all of this college expense. His business and financial condition are clearly within his knowledge. The mother has no...