Bevins v. Bevins

• Decision Date: 23 April 1964
• Citation: 383 S.W.2d 780,53 Tenn.App. 403
• Parties: Betty K. BEVINS, Appellant, v. Errette S. BEVINS, Jr., Appellee. 53 Tenn.App. 403, 383 S.W.2d 780
• Court: Tennessee Court of Appeals

Page 780

383 S.W.2d 780

Betty K. BEVINS, Appellant, v. Errette S. BEVINS, Jr., Appellee.

53 Tenn.App. 403, 383 S.W.2d 780

Court of Appeals of Tennessee, Eastern Section.

April 23, 1964.

Certiorari Denied by Supreme Court Aug. 28, 1964.

[53 TENNAPP 404] Joe R. Haynes, Knoxville, for appellant.

Ray L. Jenkins, Knoxville, Jenkins & Jenkins, Knoxville, of counsel, for appellee.

AVERY, Judge.

This case comes to this Court from the Court of Domestic Relations of Knox County on appeal from a decree entered by the Honorable Richard F. Douglass, Judge of said Court.

The question here involved relates only to the custody of two daughters of these litigants, the older, Brenda, approximately seven years, and the younger, Lisa Ann, a bit over four years.

This is the type of case that tries the heart of every Court that has to determine and decree the custody of little children as between their father and mother.

This case was filed on the 5th day of August 1962, and by it the wife and mother sought a divorce. She sought the custody of and support for the children and alimony for herself. She sought injunctive process with respect [53 TENNAPP 405] to property and with respect to the immediate custody of the children. She sought writ of attachment to be levied upon the property of the defendant. Both writs were issued and now appear in the record as having been served. She also sought temporary alimony for herself and support of her children, and which temporary alimony included a reasonable fee for her attorney.

Her bill alleges cruel and inhuman treatment in proper phraseology as related to the facts of this case, but it is not necessary in this opinion to allege in words that which she says is cruel and inhuman treatment.

The original bill was answered on September 4, 1962, and this answer was coupled with a cross-bill which described conditions under which the cross-complainant had lived and alleges activity upon the part of the cross-defendant, mother of these children, who is shown to be sick by all the proof in the case and as alleged in the cross-bill. Cross-complainant sought custody of these two children and an absolute divorce upon the allegations contained in the bill, which it is not necessary here to set forth.

Upon proper notice of order temporary alimony for the original complainant and the two children was fixed at $60.00 per week and an allowance for her attorney as a part of her alimony of $350.00, partial pay for his services as will be more fully referred to hereinafter.

On October 27, 1962, the answer to the cross-bill was filed which is very descriptive in its reply to the charges made in the cross-bill, and specific with regard to her physical condition.

The record shows that the complainant and defendant each were 33 years of age when the case was first heard. [53 TENNAPP 406] These parties had been married for a little more than 12 years. The home of complainant was in LaFollette, Campbell County, Tennessee, and defendant's home was in Knox County Tennessee. After their marriage, the defendant being in school in Memphis, they lived in Memphis for approximately two years, and thereafter defendant was in the military service for two years, and thereafter they lived in LaFollette for about two years, and then in 1957 they moved to Knoxville, having lived there for about five years when the original bill was filed. At the time the bill was filed the complainant and children were living in the home of her parents in LaFollette, Tennessee, and the defendant was living in Knoxville, Tennessee, where they had bought a home and which was deeded to them, the title being taken as tenants by entireties. The defendant was a pharmacist and worked with his father in the drug business, there being three separate drug stores owned by the father, the defendant and his brother and each owning a one-third interest.

The proof in the case was presented orally before the Court beginning on the 15th day of July 1963. The record shows that after the Court was opened:

'Medical reports pertaining to the illness of the complainant, Mrs. Betty K. Bevins, were read, definitions of various medical words were read, and a phamplet pertaining to 'Multiple Sclerosis' was read, all of which were filed by Mr. Haynes as complainant's COLLECTIVE EXHIBIT I.'

Oral testimony of both parties, their respective fathers and mothers, together with neighbors and friends was given. The case was not finished on January 15, 1963, [53 TENNAPP 407] and for some reason which we are sure was proper, the hearing was passed until January 28, 1963, when the trial was renewed and continued through the 29th, 1963.

For the purpose of this opinion it is only proper to say that the decree or judgment of the Court was entered on the 8th day of March 1963, nunc pro tunc as of January 29, 1963, and from that proof and the decree it is shown that the children, at the time of the hearing, were with their mother in the home of their maternal grandparents in LaFollette, Tennessee, and that the oldest child, Brenda, was in school and was making reasonable progress in the school. It is also shown that the mother was sick, suffering from a disease diagnosed by physicians in Mayo's Clinic and local doctors, as 'Multiple Sclerosis', the effect of which is explained by a doctor at a future hearing, and filed in the record is the definition of the medical terms used in connection with the explanation of that designated disease shown by the pamphlet which explains the disease, as used by the doctor in the final hearing on the whole record. Suffice it to say that the Court found, and correctly so, that the mother was not in condition to take care of the children at the time the decree was pronounced, but due to the fact that the oldest daughter was in school, the Court decreed that they continue with their mother until the end of that school term and then said in that decree:

'and that unless, at the end of the present school term in LaFollette, Tennessee, she has shown substantial improvement, the custody of the children will be awarded the father, the defendant and cross-complainant, Errette S. Bevins, Jr.'

While this order does not so state, apparently the judgment for the support of the mother and the children [53 TENNAPP 408] was left in force until the case was heard again on oral proof introduced on July 2, 1963, which was apparently after the school term referred to in the temporary order hereinbefore shown ended, and the decree was entered on July 12, 1963, in which the Court held that the charges in the cross-bill were not sustained by the proof, but that the charges in the original bill were sustained, and found:

'That the defendant, Errette S. Bevins, Jr. has been guilty as charged of scuh cruel and inhuman treatment and conduct toward complainant as renders it unsafe and improper for her to further cohabit with him and be under his dominion and control. That complainant has been true to her marriage vows and gave the defendant no reason or cause for his misconduct, nor has she condoned the same/'

He then decreed that the cross-bill be dismissed, an absolute divorce to complainant, who was restored to all the rights of an unmarried person. He also found that the original complainant was still a sick person 'and presently unable to care for these children.' He then decreed:

'The defendant, Errette S. Bevins, Jr., shall have custody of the children, beginning with the fall school term. Complainant shall have all reasonable privileges of child visitation, including but not limited to her having the children on alternate weekends. Presently the defendant shall have the children during the month of July, thereafter returning them to complainant with whom they shall remain until school time.'

He also decreed that defendant will pay complainant alimony in the amount of $35.00 per week thereafter, and an additional amount of $25.00 per week for child support[53 TENNAPP 409] when the children are with her for one week or longer.

He also directed a division of the property as set out in the decree, which is not necessary to further refer to in this opinion because the complainant appealed only from that part of the decree which granted the defendant-father the custody of the two children at the time stated in the decree. That decree also provided, with respect to the children, as follows:

'This decree shall be retained upon the docket of the Court for the purpose of enforcing the provisions herein made and for such future orders as may be proper, and either party may make application by petition. Furthermore, a report on the status of complainant's physical condition may be made to the Court at the conclusion of the regular 1963-1964 school term, in early June, 1964.'

The appeal was prayed, perfected and this case was heard by the Western Section of the Court of Appeals of Tennessee sitting in the Eastern Section at Knoxville, Tennessee, on the 11th day of December 1963. It was taken under advisement and is now being determined by this opinion.

There is only one assignment of error. It is stated in these words:

'The Court erred in failing and refusing to award custody of the two minor daughters to complainant. This was error because the evidence does not establish that complainant's custody of these children would jeopardize their welfare.'

We approach the decision in child custody cases, under our statute authorizing review by the Appellate [53 TENNAPP 410] Courts, as we do the ordinary civil suit. We review them de novo. Smith v. Smith, 188 Tenn. 430, 439, 220 S.W.2d 627, and many other cases to the same effect could be referred to. However, we also are faced with the statutory provision on such review that the opinion of the trial Court is presumed to be factually correct as well as legally correct unless the evidence preponderates against the judgment of the trial Court, or of course, unless the trial Court committed legal error.

We are...