Born v. Born

• Court: Tennessee Court of Appeals
• Writing for the Court: TODD; CANTRELL, J., and T. MACK BLACKBURN
• Citation: Born v. Born, 614 S.W.2d 49 (Tenn. App. 1981)
• Decision Date: 06 January 1981
• Parties: Donna J. BORN, Plaintiff-Appellant-Appellee, v. Terry Michael BORN, Defendant-Appellee-Appellant.

Page 49

614 S.W.2d 49

Donna J. BORN, Plaintiff-Appellant-Appellee, v. Terry Michael BORN, Defendant-Appellee-Appellant.

Court of Appeals of Tennessee, Middle Section.

Jan. 6, 1981 Certiorari Denied by Supreme Court April 6, 1981.

Muriel Robinson, Nashville, for plaintiff-appellant-appellee.

James D. Petersen, Franklin, for defendant-appellee-appellant.

ABRIDGED OPINION

TODD, Presiding Judge.

Both plaintiff and defendant have appealed from a decree of the Chancellor which:

1. Granted plaintiff-wife an absolute divorce from defendant-husband on grounds of cruel and inhuman treatment;

2. Awarded plaintiff alimony of $26,400 payable in installments of $200 per month to cease at the death or remarriage of plaintiff;

3. Awarded defendant the right of occupying the residence and farm of the parties until their youngest child reaches the age of 22 years or until the completion of the education of all children, thereafter the sale of the farm for division between the parties with one-half of taxes and improvements deducted from plaintiff's share;

4. Required defendant to pay all taxes and expenses of the farm;

5. Awarded defendant-husband custody of the minor children subject to certain provisions for visitation with plaintiff; and

6. Awarded plaintiff attorney's fee of $300.

The issues presented to this Court by the briefs of the parties are as follows:

1. To whom should the divorce have been awarded.

2. Custody of the children.

3. Division of property.

4. Attorneys fees.

The first issue, challenging the grant of the divorce to the plaintiff-wife, is presented by the defendant-husband.

In granting the divorce to the wife, the Trial Judge stated:

"Now the reason that I granted the divorce to her is that I believe Mr. Born was abusive to her.... I believe that she made out a case where she was justified in getting a avinculo divorce."

The plaintiff-wife testified that she and defendant met in a psychiatric ward where they were both undergoing testing; that she and defendant lived together until he obtained a divorce after which they were married May 18, 1969; that defendant displayed a violent temper and "beat me up" on several occasions (giving details of several incidents); that she separated from defendant several times but was induced to return by promises of reform; and that his violence finally convinced her that the last separation should be permanent.

This testimony, in considerable detail as to brutality, was believed by the Trial Judge. Nothing is cited or found in the record which would justify this Court in reversing the conclusion of the Trial Judge that the plaintiff-wife was telling the truth as to the violence suffered by her at the hands of the defendant-husband.

Nevertheless, defendant argues that the divorce should have been awarded to him instead of the wife because of her admission of misconduct. The conduct cited by defendant occurred several months after the separation. While this Court cannot condone improper conduct in violation of undissolved marriage ties, its seriousness and effect upon claims for divorce must be judged in the light of all the circumstances, especially the previous gross misconduct of the other spouse and resultant separation.

If, at the time of the separation, the wife was then entitled to a divorce for gross mistreatment, she did not necessarily forfeit her right to that divorce by a future act of misconduct.

Defendant-husband next insists that the wife should not receive a divorce because of "falsified allegations" in her complaint and false testimony. No authority is cited, and none occurs to this Court, which denies relief to a litigant as a punishment for a false statement. Judicial relief is granted upon the basis of facts found by the Court, and not upon a moral judgment of whether the litigant is a good enough person to deserve judicial favor. As previously noted, the Trial Judge found facts justifying the award of the divorce to the wife, and this Court finds no justification for reversing this finding.

The first issue is therefore resolved in favor of the plaintiff-wife.

The next issue relates to the custody of the children which was granted to the defendant-husband. In this respect, the Trial Judge stated:

"I do not believe that Mr. Born was abusive to his children. I believe that Mr. Born is a good ... an excellent father. I believe that his ex-wife is an adequate mother but is involved in a belated teen-age years.

... I was impressed with Mr. Born ... He is content to run a successful business and to be with his children in and about the environments of his farm and whatever vacations and so forth. So it is for that reason that I gave the custody of the children to Mr. Born with liberal visitation rights to the mother."

The three children are a daughter aged 11, a son aged 10 and a daughter aged 3. Since the last separation in August, 1979, they have resided with their mother in Memphis, where the parents and family of the defendant reside. Indeed, the sister of the defendant resides with the plaintiff and her children. Since August, 1979, the two older children have attended Memphis schools. There is no evidence of any serious fault in the care of the children by the mother.

The two older children testified that they liked their home, friends and school in Memphis, and that they wanted to continue to reside with their mother. It is necessary for the mother to work, but her work schedule allows her to be at home when the children arrive from school. The youngest child is in the care of a neighbor while the mother is at work. Even though the Trial Judge found a "special bond" between the three-year-old and her father, it would not be in order to separate so young a child from its sister, brother and mother without the most compelling reasons.

The record before this Court is entirely written except for a tape...