Clardy v. Clardy

• Decision Date: 28 October 1939
• Parties: CLARDY v. CLARDY.
• Court: Tennessee Court of Appeals

136 S.W.2d 526

23 Tenn.App. 608

CLARDY v. CLARDY.

Court of Appeals of Tennessee, Middle Section.

October 28, 1939

Rehearing Denied Nov. 13, 1939.

Motion to Remand Denied Dec. 21, 1939.

Certiorari Denied by Supreme Court Feb. 17, 1940.

Appeal from Circuit Court, Davidson County; Richard P. Dews, Judge.

Suit for divorce by Hobart Clardy against Hattie M. Clardy wherein defendant filed a cross-bill. From a decree granting complainant a divorce and dismissing defendant's cross-bill, defendant appeals in the nature of a writ of error.

Affirmed.

Guild & Guild, of Nashville, for appellant.

Norman & Keefe, of Nashville, for appellee.

FAW Presiding Judge.

This is a divorce suit, brought in the First Circuit Court of Davidson County and tried before the Judge of that Court upon the pleadings and the oral testimony of witnesses examined in open court.

Inasmuch as divorce cases, when tried in a law court without a jury are tried according to chancery procedure and the forms of the chancery court (Broch v. Broch, 164 Tenn. 219 47 S.W.2d 84), we will, in this opinion, adopt the terminology ordinarily used in chancery cases.

The original bill in this case was filed by Hobart Clardy (the appellee here) against his wife, Hattie M. Clardy (the appellant here), alleging that complainant and defendant were married at Hartsville, on November 14, 1934, and immediately came to Nashville, Davidson County, Tennessee, where they have ever since resided; that no children have been born to this marriage; and that the defendant, Hattie M. Clardy, had been guilty of such cruel and inhuman treatment and conduct toward him as rendered it unsafe and improper for him to cohabit with her; and praying that he be granted an absolute divorce from his said wife, and restored to all the rights and privileges of an unmarried person.

Hattie M. Clardy answered the bill, admitting that she and complainant were married and have since resided as alleged in the bill, but denying the material allegations of complainant's bill, and alleging that her said husband, the complainant Hobart Clardy, had been guilty of such cruel and inhuman conduct toward her as rendered it unsafe and improper for her to cohabit with him and be under his dominion and control, and that he had turned her out of doors and refused and neglected to provide for her; and she filed her answer as a cross-bill, praying that a writ of injunction issue restraining the cross-defendant, Hobart Clardy, from molesting or injuring cross-complainant in any manner, and that cross-complainant be given a decree for an absolute divorce from said Hobart Clardy upon the aforesaid grounds. Cross-complainant also prayed that suitable alimony and support money, temporary and permanent, including reasonable attorney's fee, be awarded her out of the "real estate and wages" of cross-defendant (described in her answer and cross-bill).

Pursuant to a fiat of the Judge of the Circuit Court, granted on preliminary application, the injunction prayed for was issued on the oath of cross-complainant prescribed for poor persons.

The cross-defendant, Hobart Clardy, answered said cross-bill and denied all the material allegations thereof.

While we have heretofore stated the statutory causes of divorce alleged in the original bill and the cross-bill, respectively, it should be further stated that, as pleadings, both the original bill and the cross-bill comply fully with the requirement of section 8430 of the Code that the bill or petition in a suit for divorce, "shall set forth particularly and specifically the causes of the complaint, with circumstances of time and place, with reasonable certainty."

The cause was heard and taken under advisement by the Trial Court on February 16, 1939, and, on February 21, 1939, a decree was entered as follows:

"This cause came on to be heard on this and a former day, before the Honorable Richard P. Dews, Judge, etc., upon the original bill of the complainant, the answer and cross-bill of the defendant and cross-complainant, the answer thereto of the complainant and cross-defendant and upon the testimony of witnesses examined in open court, from all of which it appears to the satisfaction of the Court that the allegations of the cross-bill have not been fully sustained by the proof; and that the same has been dismissed at the cost of the defendant and cross-complainant, Hattie M. Clardy; but that the allegations of the original bill have been fully sustained by the proof, that is, that the defendant and cross-complainant has been guilty of such cruel and inhuman treatment or conduct towards the complainant as to render it improper and unsafe for him to longer cohabit with her.

"It is therefore ordered, adjudged and decreed by the Court that the bonds of matrimony heretofore uniting the parties to this cause be and the same are hereby forever and perpetually dissolved, and that the complainant be granted an absolute divorce from the defendant and be restored to all the rights and privileges of an unmarried person.

"The complainant will pay all the costs of this case, but he being the successful party will not be required to pay the State and County Taxes; which are adjudged against the defendant, for all of which execution may issue."

The cross-complainant, Hattie M. Clardy, filed a written "motion for rehearing" (described on the minutes below as a motion "for a new trial"), which was overruled by the Court, and the cross-complainant excepted to the action of the Court in overruling said motion, and prayed an "appeal in the nature of a writ of error" to this Court, which was granted by the Trial Court and perfected by the appellant.

In divorce cases an "appeal" (not an appeal in the nature of a writ of error) is "the only mode of reviewing errors." Code, sec. 9039. But we will treat the "appeal in the nature of a writ of error" in this case as an "appeal". Stargel v. Stargel, 21 Tenn.App. 193, 196, 107 S.W.2d 520, 522.

Through her assignments of error the appellant asserts (1) that there is no evidence to support the judgment and findings against appellant; (2) that the judgment and findings of the Court are against the preponderance of the evidence, and the evidence preponderates in favor of appellant; and (3) that the Court erred in sustaining plaintiff's bill, and in not sustaining defendant's cross-bill with appropriate alimony and attorney's fee to defendant.

It is insisted for appellee that under Sec. 10622 of the Code, the decree of the trial court will not be reversed unless the evidence preponderates against its finding and decree. It might be inferred from the opinion in Broch v. Broch, supra, that divorce cases are not governed by Sec. 10622, supra; but as we understand the later ruling in McCalla v. Rogers, 173 Tenn. 239, 243, 116 S.W.2d 1022, 1024, all "causes tried according to the forms of chancery" (which includes divorce cases) are governed by Sec. 10622 of the Code.

But whether this case is or not within the scope of said Code Section, we think the finding of the Chancellor or Trial Judge is entitled to "great weight" when he "saw the witnesses face to face and heard them testify" (Mathis v. Campbell, 22 Tenn.App. 40, 46, 117 S.W.2d 764, 767); and this is peculiarly true where (as in the instant case) the determination of the issues of fact depends, in large measure, upon the comparative credibility of the two adversary parties to the suit.

If the testimony of the present appellee, Hobart Clardy, is true, the Trial Court did not err in granting him an absolute divorce from the appellant, upon the authority of section 8427, subsection 1, of the Code; Parks v. Parks, 158 Tenn. 91, 11 S.W.2d 680; Gardner v. Gardner, 104 Tenn. 410, 412, 58 S.W. 342, 343, 78 Am.St.Rep. 924; 19 C.J. 49, 50; Stargel v. Stargel, 21 Tenn.App. 193, 200, 107 S.W.2d 520.

On the other hand, if the testimony of the appellant, Hattie M. Clardy, is true, she was entitled to a divorce from the appellee under her cross-bill, upon the authority of the Code section 8427 and reported opinions of the Supreme Court and the Court of Appeals too numerous and too familiar to the legal profession to need citation here.

We have carefully read and re-read all the evidence in the record. Parts of it have been read several times, and it has all been fully considered by all the members of this Court, and we concur in the finding of the Trial Court that the defendant Hattie M. Clardy, has been guilty of such cruel and inhuman treatment or conduct towards the complainant, Hobart Clardy, as to render it improper and unsafe for him longer to cohabit with her, and that the allegations of the complainant's bill so charging are sustained by the proof; and we further find that the allegations of the cross-bill of appellant Hattie M. Clardy are not sustained by the proof.

We do not feel inclined, and see no occasion, to incorporate in this written opinion the testimony of the witnesses. The statute, section 10620 of the Code, requiring this Court to make written findings of facts, contemplates that the Court shall find only the ultimate, determinative facts upon which its conclusions of law are predicated, and not mere matters of evidence, nor all the separate and disjointed facts which they may consider in arriving at a result. Melody v. Hamblin, 21 Tenn.App. 687, 704, 115 S.W.2d 237; Badger v. Boyd, 16 Tenn.App. 629, 645, 65 S.W.2d 601; Julian v. American National Bank, 21 Tenn.App. 137, 163, 106 S.W.2d 871; Anderson County v. Hays, 99 Tenn. 542, 552, 42 S.W. 266.

It results that the appellant's assignments of error are overruled and the decree of the Trial Court is affirmed. The costs of the appeal will be adjudged against the appellant Hattie M. Clardy.

CROWNOVER and FELTS, JJ.,...