Cravens v. Cravens

• Decision Date: 11 October 1947
• Parties: CRAVENS et al. v. CRAVENS et al.
• Court: Tennessee Court of Appeals

207 S.W.2d 593

30 Tenn.App. 487

CRAVENS et al. v. CRAVENS et al.

Court of Appeals of Tennessee, Middle Section.

October 11, 1947

Certiorari Denied by Supreme Court Jan. 16, 1948.

Appeal from Circuit Court, Fentress County; William I. Davis, Jr. Judge.

Action by Clarence Cravens against Ruth Bowden Cravens for divorce. The complainant was granted a divorce, but custody of children was awarded to defendant. From a subsequent decree awarding custody of the children to their paternal grandparents, the defendant appeals assigning errors.

Affirmed.

C. K. McBroom, of Jamestown, for petitioners.

A. R Hogue, of Jamestown, for defendant in error.

HOWELL Judge.

The question before this Court in this case is the validity of the action of the trial Judge in disposing of a petition filed in the divorce case of Cravens vs. Cravens, which prayed for a change in the orders of the Court with reference to the care and custody of two children of the parties.

In the divorce case the husband, the complainant, was granted a divorce from his wife on the ground of adultery. In that decree for divorce, which was granted by a Special Judge sitting in the absence of the regular judge, the disposition of the custody of the children was as follows:

'The custody of their two children is now in the care of the defendant, the Mother. While the complainant has recently been Honorably discharged from the United States Navy and insists that he is now able to care for them and have their custody and asks that they be granted to him at least one half of the time, the court is of the opinion that their custody should not be DISTURBED AT THIS TIME and to divide their custody between the parties would disrupt and disorganize them in such a way that the court feels would not be to their best interest, the prayer of complainants bill, praying for their custody, will therefore, be disallowed, the custody of the children will be retained by the defendant with the right in the complainant to see and visit them as determined by a former judgment of this court.'

That decree was entered on December 17, 1945, and the petition was filed December 13, 1946. The record discloses that these parties were twice married to each other and the decree mentioned was in the second divorce case.

It was insisted for the defendant that the Court had no jurisdiction to entertain this petition because the former decree had awarded the children to the mother and she and the children were living with her parents, B. W. Bowden and wife, Lena Ann Bowden, and the doctrine of res adjudicata applied.

This insistence cannot be maintained. Under Section 8454 of the Code of Tennessee the case remained within the control of the Court and was subject to such changes or modification as the exigencies of the case required.

In the case of Hicks v. Hicks, 26 Tenn.App. 641 176 S.W.2d 371, 375, Felts, J., said:

'But the decrees in those cases were not final in the sense that they precluded a later decree upon new facts or changed conditions making a change of custody necessary for the welfare of the child. In the Kenner case [ Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779, L.R.A.1918E, 587] it was said that the power to make such a change remained in the court that had decreed the divorce and custody, 'such power being held essentially in reserve by all courts in such cases.' 139 Tenn. 222-224, 201 S.W. 782, L.R.A.1918E, 587. See, also, 27 C.J.S., Divorce, § 317.

'That decision was before the enactment of 1932 Code section 8454 by which decrees for support and custody remain in the control of the court and are 'subject to such changes or modification as the exigencies of the case may require.' That section seems merely declaratory of pre-existing law, so far as decrees for custody are concerned. That section and the provision of section 8446, retaining within the court's control decrees for support or maintenance and empowering the court, on application of either party, to 'decree an increase or decrease of such allowance on cause being shown,' were enacted, it would seem, primarily to remove the difficulty that had been encountered with respect to future installments of alimony in cases where a divorce a vinculo had been granted. Such a decree was final, passed beyond the court's control after thirty...