Bauer v. Bauer

• Decision Date: 30 November 1946
• Citation: 197 S.W.2d 892,184 Tenn. 217
• Parties: BAUER v. BAUER.
• Court: Tennessee Supreme Court

197 S.W.2d 892

184 Tenn. 217

BAUER v. BAUER.

Supreme Court of Tennessee.

November 30, 1946

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit for divorce by Morris G. Bauer against Sara Tucker Bauer. A final decree pro confesso of divorce was entered. From a decree of dismissal of defendant's petition to vacate the final decree, defendant appeals.

Reversed and remanded.

Taylor & Badgett and Williston M. Cox, all of Knoxville, for complainant.

Harley G. Fowler, of Knoxville, for defendant.

PAUL CAMPBELL, Special Justice.

In this case Morris G. Bauer, who will be referred to hereinafter as the complainant, filed in the Chancery Court of Knox County, Tennessee, a petition for divorce against Sara Tucker Bauer, a non-resident, whose residence was said to be Washington, D. C. The bill was filed on February 13, 1946. Publication was made for the defendant. On March 22, 1946, a pro confesso was taken. Thereafter and on March 23, 1946, a final decree of divorce was entered.

On April 19, 1946, within thirty days after the entry of final decree of divorce and within the term, the original defendant, Sara Tucker Bauer, who will be referred to hereinafter as petitioner, filed a petition in the Chancery Court seeking to have the divorce decree set aside and to be allowed to file an answer in the cause. The petition was duly sworn to and the answer, which was tendered with the petition, was sworn to. The petition set forth, in substance that she did not receive a copy of the publication, despite the fact that the complainant knew her address but failed to give it to the Clerk of the Court; that she was not informed as to any date when any reply or answer should be made; that she conferred with a reputable attorney in Washington and was advised that until papers were served upon her she need not take any steps in the matter; that her next information with regard to the suit was that the final decree had been entered. In her petition petitioner states that the complainant is not a bona fide resident of Knox County Tennessee; that he had been temporarily assigned to duty by the War Department to serve there between September 1936 and June 1940; that since that time he has had nine official details; that he had no intention to establish a residence there and took no steps to terminate his domicile in Cincinnati, Ohio; that his domicile in Cincinnati had been recognized by records of the War Department since he entered the Army twenty-two years before this suit was filed; that a short time before this suit was instituted complainant had employed a lawyer in Cincinnati to institute divorce proceedings there; that he recognized that his residence was at Cincinnati. The petitioner further set forth that there was no ground for divorce against the petitioner as shown by the answer tendered with the petition; that the complainant had repeatedly requested her to file divorce proceedings against him and that his conduct had been continuously such as to entitle her to an absolute divorce from him; that complainant had repeatedly assured her that if she would obtain a divorce or permit him to do so, he would provide for her support and maintenance, for which no provision was made in the decree.

Attached to the petition, as Exhibit A, was a communication from counsel for complainant, in which petitioner was advised of the filing of suit for divorce in the Chancery Court of Knox County, and the information given was that abandonment was the major ground of divorce named in the petition. Counsel notified petitioner that his client desired to know what petitioner thought her requirements would be for her future maintenance. In the answer tendered with the petition petitioner charged that the complainant was not a resident of Knox County, Tennessee. She denied that she abandoned the family or her children, denied that she refused to live with or communicate with the complainant, and denied that she had abandoned him as charged. She said further, in the answer that she went to Washington to be near her son who was at the Walter Reed Hospital there, and that to help with the expense she took an apartment, without even a bedroom, and worked for 52 hours a week; that she never refused to live with the complainant and that on the contrary the complainant lived with her in her apartment in Washington from November 1944 to March 1945; that the complainant has never been ordered back to Knoxville since June, 1940. The petitioner denies charges as to her personal conduct alleged in the bill and says that she conducted herself in a proper wifely manner. During the period that complainant was in Europe, she states that complainant did not write his son nor did he communicate with the defendant at all for six months prior to his return to this country, though he was in correspondence with some unnamed individual; that he was not confined at Walter Reed Hospital during the period he alleged he was when he charged that she would not visit him in the hospital, and stated that instead of being a war casualty he was merely a sufferer from sciatica, and instead of staying in the hospital he visited there only for treatment, staying in the meantime in her apartment.

She denied other material allegations of the bill and asked that the bill be dismissed.

The motion for leave to file this petition was opposed by the complainant, who filed a motion to dismiss the petition on the ground of failure of the petitioner to show sufficient merit...