Chappell v. Chappell

• Decision Date: 28 May 1952
• Parties: CHAPPELL v. CHAPPELL. 37 Tenn.App. 242, 261 S.W.2d 824
• Court: Tennessee Court of Appeals

Page 824

261 S.W.2d 824

CHAPPELL v. CHAPPELL.

37 Tenn.App. 242, 261 S.W.2d 824

Court of Appeals of Tennessee, Western Section.

May 28, 1952 Certiorari Denied by Supreme Court Dec. 5, 1952.

[37 TENNAPP 245] Allen J. Strawbridge, Dresden, for complainant.

George C. Rowlett, Martin, for defendant.

ANDERSON, Presiding Judge.

The complainant moves the Court to affirm the decree on the ground that the decree shows that proof was introduced in the cause and no bill of exceptions filed in the record. The motion is disallowed and the cause heard here on the technical record.

This cause originated in the County Court of Weakley County, wherein the complainant, Mrs. Allie Orene Chappell, filed a bill against the defendant, William Ashbury Chappell, seeking a divorce and alimony for support of [37 TENNAPP 246] herself and her two children. The bill alleged that the defendant was a non-resident of the State of Tennessee and was a resident of the State of Illinois. Publication was made as required, after which a pro confesso was taken against the defendant, and the cause heard ex parte as to him. On April 14, 1945, a decree was entered granting the complainant an absolute divorce, together with custody of said two children. The Court further decreed that the defendant should pay to complainant the sum of $40 per month for support of herself and said children. The cause was retained in court for the enforcement of the decree, and for making any further orders in the future. No effort was made to obtain personal service on the defendant and no property was attached.

On October 4, 1946, the complainant filed a petition seeking an attachment for the body of the defendant and that he be cited to appear and show cause why he should not be held in contempt of court.

An order was entered for the attachment, the defendant was arrested and gave bond for his appearance. So far as the record discloses, no further steps were taken and no order entered by the Court on the petition.

On December 21, 1946, the complainant filed another petition seeking to have the defendant attached and brought into Court to answer contempt charges alleged on account of defendant's failure to pay the amount adjudicated in the divorce decree.

An order was issued for such attachment. The defendant was arrested and gave bond for his appearance. Again the record does not disclose that any further steps were taken and no order entered by the Court on said petition.

On July 3, 1951, the complainant filed the present petition, seeking an attachment of the defendant and to have [37 TENNAPP 247] him brought into court to answer charges of contempt in failing to pay the amount adjudicated in the divorce decree.

An order was issued for such attachment. The defendant was arrested and gave bond for his appearance.

The defendant moved the Court to dismiss the petition and quash the attachment on the ground that the decree, upon which the proceedings are predicated, was and is void in that the Court had no authority or power to enter a decree against him for the payment of any sum or sums of money due the complainant by and on account of the fact that he was a defendant in said original proceedings only by and through constructive service, that is, by publication made for him, he being a non-resident of the state at the time, and that the record shows he did not personally appear in court.

The trial court overruled this motion, to which action the defendant excepted.

The defendant then filed an answer, raising the same question of want of jurisdiction of the court to enter a personal judgment against him, where he is made a party through constructive service.

In addition, the defendant pleaded to the merits. He denied he was in contempt for the reasons set forth in the petition, and averred that he had not voluntarily and willingly neglected the payment of the necessary amount for the support of his children. He further averred that petitioner had re-married and that recently when the defendant went to see his children, her present husband ordered him off the premises and told him not to come back, saying he and his wife had rather do without his contributions of support of the children than to have him coming into their home; that in all of this the petitioner, who was present, acquiesced; and that he has [37 TENNAPP 248] accordingly followed her directions. He further averred that he did not have the money to pay the amount claimed in the petition to be due and was not able to obtain it, and he concluded by an averment that 'all other statements and allegations in said petition are here and now denied as fully as if specifically denied.'

On the final hearing the Court found the defendant to be in contempt for his failure to pay the amounts due for the support of petitioner and her children, and ordered the defendant incarcerated in the county jail until he paid said sum. From this decree the defendant appealed.

It affirmatively appears from the face of the record proper that the original decree for alimony and support of the children was rendered against the defendant without his having been served with process, and hence there can be no question about that decree being void insofar as a personal judgment was rendered against him, and none about the fact that its invalidity is apparent on the face of the record. Darby v. Darby, 152 Tenn. 287, 277 S.W. 894, 42 A.L.R. 1379.

The Court below held that upon the facts disclosed on the hearing the defendant waived his right to attack the judgment on the ground that he had not been served with process, and this presents the question in the case. As indicated, the defendant did not preserve the evidence heard upon the trial by a bill of exceptions, and the case is here on the technical record only. Hence the facts found by the lower court are conclusively presumed to be correct. Code, Sec. 10622; Morrell v. Fire Ins. Co., 168 Tenn. 137, 76 S.W.2d 317; Fletcher v. Russell, 27 Tenn.App. 44, 177 S.W.2d 854; Iskiwitz v. John F. Clark & Co., 16 Tenn.App. 159, 65 S.W.2d 825; Drake v. Stinnett, 32 Tenn.App. 573, 223 S.W.2d 208.

[37 TENNAPP 249] In the original decree granting the divorce and awarding alimony, which was entered on April 14, 1943, there is the following finding:

'And it satisfactorily appears to the Court from the proof that the facts charged in the bill are true; that the defendant did, on the 12th day of January, 1942, desert and abandon the complainant and their two minor children, leaving the complainant and said children destitute and liable to become a public charge, all without any cause; that a warrant was sworn out for the defendant for wife and child desertion in April, 1942, and defendant was arrested thereon in Chicago, Illinois, and extradited to Tennessee, where he was bound over to the Grand Jury of Weakley County, and was at the August Term of the Circuit Court of Weakley County indicted on the charge of wife and child desertion; and it further appears to the Court that said cause is still pending in the Circuit Court of this County and has been continued from term to term upon agreement of the defendant to pay to the complainant the sum of $40.00 per month for her support and the support of said two minor children, and will be tried upon failure of the defendant to so pay such amount per month.'

In the petition filed July 3, 1951, citing the defendant for contempt on the occasion under review, there are among others the following averments:

'Complainant would further show to the Court that the defendant left your complainant and said two minor children destitute and without means of support, and that on May 1, 1942, the defendant was arrested in Illinois and retured to Tennessee on a charge of child desertion where he was subsequently [37 TENNAPP 250] indicted, but upon his agreement to pay the sum of Forty ($40.00) Dollars per month for the support of said minor children, it was agreed that the case in the Circuit Court would be continued from term to term and not tried so long as he paid such sums, which sums he paid up until about August, 1945, when he began paying her the sum of Twenty ($20.00) Dollars per month by the consent of the complainant; that on or about July 1, 1946, the defendant quit paying anything.

* * *

'That on or about October 5, 1946, she filed her petition in this Honorable Court praying that the defendant be cited for contempt of this Honorable Court for failure to pay such alimony; that the body of the defendant was attached and brought into Court, whereupon the defendant paid the amount of alimony in arrears; that in November, 1946, he became in arrears again on such alimony payments, and that on or about January 9, 1947, she again filed her petition in this Honorable Court praying that the defendant be cited for contempt for failing to pay such alimony, the defendant was again produced in Court, at which time, he paid up the alimony in arrears.'

In overruling the defendant's motion to dismiss the petition on the ground that the original judgment was void, the Court decreed as follows:

'After hearing said motion and argument of counsel, the Court is of the opinion that the grounds of said motion are not well taken, for the reason that (1) the record shows that the defendant has twice before been cited for contempt of Court for non-payment of the alimony adjudged against him in the original decree, without making a question as to the [37 TENNAPP 251] validity of such decree, on the grounds that he was not personally served with process, or any other grounds, (2) the proof shows that the defendant paid such sums of monthly alimony, provided by such decree, from time to time and over an extended period of years, without making any question as to the validity of such decree, and (3) the proof shows that on two occasions previously, when cited for contempt of court for not paying alimony ordered by the original decree, the defendant purged himself of...