Canning v. Canning

• Decision Date: 28 February 1968
• Citation: 443 S.W.2d 502,59 Tenn.App. 678
• Parties: Paul Maynard CANNING, Complainant-Appellant, v. Ernestine Page CANNING, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 502

443 S.W.2d 502

59 Tenn.App. 678

Paul Maynard CANNING, Complainant-Appellant, v. Ernestine Page CANNING, Defendant-Appellee.

Court of Appeals of Tennessee, Western Section.

Feb. 28, 1968 Certiorari Denied by Supreme Court May 20, 1968.

Hearn Tidwell, E. D. Rosenstein, Memphis, for appellant.

Marshall L. Gerber, Gerber, Gerber & Lewis, Memphis, for appellee.

CARNEY, Judge.

The complainant below, Paul Maynard Canning, has appealed from a decree of the Circuit Judge sustaining defendant's motion to withdraw the issues from the jury and dismissing complainant's suit for divorce on the grounds that the complainant's own testimony showed that at the time of the trial and many years prior thereto the complainant had been living as man and wife with a woman other than the defendant and was therefore guilty of adultery. The defendant wife, Ernestine Page Canning, rested her case after moving to withdraw the issues from the jury and did not testify nor did she offer any proof in her behalf. Gibson's Suits in Chancery, 5th Edition, Section 586.

Before discussing the assignments of error an elaboration of the facts will be necessary. Complainant, aged now 67, is a native of New York City and the defendant, aged 61, is a native of the State of North Carolina. They were married January 31, 1941, at Orange, New Jersey. They had two sons born to the marriage. Both sons are now more than 21 years of age. Complainant is a chemist for the Donruss Company of Memphis, Tennessee. His annual salary is approximately $12,500.

The parties lived together from 1941 to 1951 in New Jersey near New York City. They separated on January 16, 1951, when the complainant left the defendant allegedly on the grounds of cruel and inhuman treatment and they have not lived together since that time. After their separation in 1951, the complainant husband continued to live in or near New York City where he was employed as secretary of the Swepts Laboratories which was a family owned business. The company was sold in 1957 when the complainant came to Memphis, Tennessee, where he has since resided. The defendant, Mrs. Ernestine Canning, has continued to live in New Jersey where she has been employed as a saleslady in a dress shop.

The boys were of tender age when their parents separated and for several years they lived in the home of their mother. The complainant testified that for the period 1951, the year of the separation, through the year 1961 he paid a total of some $74,000 to and for the benefit of Mrs. Canning and the children and that in addition permitted her to sell the home out of which she received a net balance of $10,000 making a grand total of $84,933 which he had paid to her over the period. Apparently he ceased paying any support payments to Mrs. Canning after the year 1962.

The bill for divorce was filed in the Circuit Court of Shelby County on May 6, 1966, and alleged as grounds for divorce that the defendant had an uncontrollable and violent temper and on many occasions during their marriage went into fits of rage and temper tantrums with no provocation or just reason. The bill mentioned several specific instances: (1) The complainant went to a great deal of inconvenience and expense in finding a piece of silver jewelry for the defendant's birthday and she rejected it and embarrassed complainant in a public dining room where they were having dinner with the complainant's sister and her husband. (2) On another occasion complainant and defendant met complainant's sister and her husband for dinner and dancing at Ciro's, an exclusive restaurant in New York, when the defendant became enraged simply because the complainant danced with his sister before dancing with her and she rushed out of Ciro's and took the automobile and left the others stranded and because of her furious rage wrecked the car on the way home. (3) On another occasion the complainant gave the defendant a check for $1,000 to buy a mink coat and she became furious because he didn't give her more money to buy a better mink coat and she tore up the check which he had given her. (4) On one Christmas the defendant had a temper tantrum because complainant gave her furniture for Christmas instead of something more personal. (5) Complainant averred that the defendant was a heavy and frequent drinker, constantly used vile and vulgar language, often cursed him in the presence of the children and in the presence of other people. (6) On January 16, 1951, while they were at a restaurant in Plainfield, New Jersey, with friends for dinner, the defendant publicly quarreled with complainant; they left the restaurant and defendant brought a glass containing a highball into the car. On the way home in a rage she smashed the glass in complainant's face lacerating his nose and around his eyes requiring some medical attention. It was on this occasion that the complainant left the defendant and they have not lived together since that time.

Defendant filed an answer to the original bill denying the allegation of cruel and inhuman treatment and further averring that the complainant, at the time of the filing of the bill and for several years prior thereto had been living in adultery with one whose name was unknown to the defendant and further averring that on occasions such woman posed as the wife of the complainant. The defendant prayed that she be awarded alimony and attorneys' fees and that the original bill be dismissed. She did not pray for a divorce. The jurat to her answer was as follows: 'State of New Jersey, County of Essex, Ernestine Page Canning makes oath that she has read her foregoing answer and knows the contents thereof and that the same is true of her own knowledge, except as to the matters therein stated to be on her information and belief, and those matters she believes to be true. / s/ Ernestine Page Canning' before a notary public which is not clearly discernable from the record.

The complainant husband demurred to the answer of the defendant on the ground that it averred no facts sufficient to award her alimony pendente lite or otherwise and this demurrer was overruled by the court. Thereafter the complainant filed a motion to strike the answer of the defendant insofar as it set up a prayer for affirmative relief because it was insufficient in form as required by Section 21--613. Also the complainant filed a plea in abatement to the answer of the defendant asking affirmative relief in the form of alimony pendente lite because the answer had not been served on the complainant. Both the motion to strike and the plea in abatement were overruled by the court after which the complainant, by consent, agreed to pay the defendant $20.00 per week as alimony pendente lite and $100 attorney fee pendente lite. These orders were made while the Honorable Robert M. McRae was presiding over Division VIII of the Circuit Court of Shelby County.

The defendant filed an amendment to the answer which averred that the complainant began going out with a woman by the name of Jean Lovett in 1951 and that he lived with this woman in New York, New York, in 1952 and subsequent years; that the complainant and Jean Lovett had been living together as man and wife at 545 Mineral Road, Memphis, Tennessee, since approximately February, 1961, and that they had been holding themselves out as man and wife and that the complainant and the said Jean Lovett purchased a tract of real estate in Memphis, Tennessee, in the name of 'Paul Canning and wife, Jean L. Canning,' and that on April 18, 1961, the complainant conveyed his interest in the aforesaid property to the said Jean Lovett who used the name of Jean L. Canning in the deed of conveyances; that the complainant had listed the said Jean Lovett as an exemption on his income tax returns holding her out as his lawful wife. Further, the answer averred that the complainant, during the time he lived with the defendant, drank alcoholic beverages to excess; that in January, 1947, he stated that if he ever took another drink, he would never bother the defendant again. The defendant again prayed that the bill be dismissed and that she be awarded alimony and attorneys' fees upon the hearing. The oath to this answer was the same as that given to the original answer and made no attempt to comply with T.C.A. Section 36--806.

Upon the trial the complainant testified to the acts of cruelty set out in his original bill and in these acts he was corroborated by interrogatories propounded to his sister, Mrs. Miriam C. Anderson, of Great Neck, New York, and his sister, Mrs. Cora Sheehan, who lived at Wilton, Connecticut. Also the complainant was substantially corroborated by the testimony of his youngest son, Richard Bruce Canning, age 21 at the time of the trial who testified in open court and who had been in the military service for over four years and was about to be discharged.

On cross examination complainant admitted that he had known Jean Lovett since about 1950, and that he and Jean Lovett were living together as man and wife in Memphis Tennessee, and that they had bought the property as husband and wife; that he later conveyed to her his interest in the property using the name Jean L. Canning; that he listed her as an exemption on his income tax return as his wife and that he was living with her at the time of the trial. Also he admitted that he had been going out with the said Jean Lovett even before he separated from his wife in 1951 and that after the separation they shared an apartment in New York and that she camne to Memphis with him in 1957 and that they had lived together in Memphis since 1957.

As stated above the Trial Court sustained the defendant's motion to withdraw the issues from the jury and on December 7, 1966, entered an order dismissing the complainant's bill for divorce with prejudice. He vacated the order theretofore entered granting the defendant alimony pendente lite. He ordered the complainant to pay solicitors for...