Cline v. Cline

• Decision Date: 17 March 1954
• Citation: 270 S.W.2d 499,37 Tenn.App. 696
• Parties: CLINE v. CLINE. 37 Tenn.App. 696, 270 S.W.2d 499
• Court: Tennessee Court of Appeals

Page 499

270 S.W.2d 499

CLINE v. CLINE.

37 Tenn.App. 696, 270 S.W.2d 499

Court of Appeals of Tennessee, Eastern Section.

March 17, 1954.

Certiorari Denied by Supreme Court July 22, 1954.

[37 TENNAPP 698] Dietzen, Graham & Dietzen, Chattanooga, for appellant.

Moore & Moore, Chattanooga, for appellee.

McAMIS, Presiding Judge.

This is an action by a divorced wife against her former husband to recover money expended prior to the divorce in support of three minor children of the parties. The Chancellor rendered a decree for $5,400 from which defendant has appealed.

The assignments of error make the insistence that the decree is erroneous because: (1) The divorce decree finally adjudicated that complainant wilfully deserted defendant by refusing to move with him to Chattanooga where he was employed; (2) There is no proof that defendant deserted his children or failed to provide them with the necessities of life and, therefore, expenditures made by complainant were voluntary and gratuitous and constituted nothing more than a performance of her statutory duty to her children; (3) Complainant's failure to assert her claim for reimbursement in the divorce suit as she could have done constitutes an estoppel by judgment; (4) The amount allowed by the Chancellor is excessive.

The parties were married April 18, 1938. They lived for several years at Cartwright in Sequatchie County, Tennessee, where they acquired as tenants by the entirety a house and two and one-half acres of land. Three daughters were born to this union, the two oldest being twins, 13 years of age. The youngest daughter is nine years of age. The daughters have continuously resided with their mother in the home at Cartwright.

In 1944 defendant obtained employment in Chattanooga, a distance of about 25 miles from Cartwright. For about eight months he commuted to and from his work. [37 TENNAPP 699] Thereafter and until 1946 he supported his family and returned home at intervals. There is no complaint of the Chancellor's findings that defendant stopped visiting his family in 1946 but, for about a year, contributed ten or fifteen dollars per week to their support; that thereafter he contributed practically nothing and the family has been entirely supported by complainant out of her salary as a public school teacher. Her salary has ranged from $160 to $177 per month for nine months of each year. Defendant's earnings have averaged $281 per month. The Chancellor's decree is based upon an allowance of $75 per month for a period of six years next preceding the filing of the bill.

We think counsel are in error in assuming that the adjudication of wilful desertion in the divorce suit is conclusive of complainant's right to recover. One reason is that the divorce decree only covers a period of two years before the filing of the suit for divorce, or one-third of the period for which the Chancellor awarded a recovery.

In addition, complainant testified that defendant made no request at any time that he be permitted to take care of the children but that, on the contrary, defendant refused to provide a home for them in Chattanooga. It also appears from a divorce bill filed by defendant against complainant in Hamilton County, later dismissed because of his fraud in securing service of process, that he was not interested in obtaining custody of the children but was agreeable that they remain with complainant.

The general rule is that a father willing to support his children in his own home will not be required to support them elsewhere. 67 C.J.S., Parent and Child, Sec. 16, p. 699. In most states, consistent with this rule, it has been held that if the mother leaves the father without[37 TENNAPP 700] sufficient justification, taking the children with her, she cannot recover for necessaries subsequently furnished to the children. 39 Am.Jur. 689; Annotation 32 A.L.R. 1466. The rule has no application, however, where, as in this case, the father has made no attempt to assert his custodial rights and by implication agrees that the mother, living apart from him, retain custody of the children. 32 A.L.R. pp. 1469, 1471; and compare Beigler v. Chamberlin, 138 Minn. 377, 165 N.W. 128, L.R.A. 1918B, 215 and Poindexter v. State, 137 Tenn. 386, 193 S.W. 126. Since the general rule does not apply under the facts outlined and since the divorce decree does not purport to make an adjudication as to the father's willingness to support his children, it has no bearing on complainant's right to an equitable contribution from him.

Considered independently of the divorce decree, we cannot say that the evidence preponderates against the finding of the Chancellor, implicit in the decree, that defendant deserted his children and failed to provide them with the necessities of life. Hence, complainant's support of the children was not voluntary or gratuitous as defendant insists. The statute, Code Section 8463, imposed upon her, equally with defendant, the duty of support. Defendant's breach of duty made the observance of her duty even more imperative. We can find no basis for treating her as a volunteer in relieving defendant of his duty. The same argument...