Davenport v. Davenport

• Court: Tennessee Supreme Court
• Writing for the Court: CHAMBLISS, Justice.
• Citation: Davenport v. Davenport, 160 S.W.2d 406, 178 Tenn. 517 (Tenn. 1942)
• Decision Date: 04 April 1942
• Parties: DAVENPORT v. DAVENPORT.

160 S.W.2d 406

178 Tenn. 517

DAVENPORT v. DAVENPORT.

Supreme Court of Tennessee.

April 4, 1942

Error to Circuit Court, Davidson County; A. B. Neil, Judge.

Suit by Ethel Jane Davenport against James Davenport, subsequent to an absolute divorce between the parties, to compel defendant to support the minor children of the parties awarded to plaintiff. To review a dismissal of her petition, plaintiff brings error.

Reversed and remanded with directions.

Rutherford & Rutherford, of Nashville, for plaintiff in error.

Claude Callicott, of Nashville, for defendant in error.

CHAMBLISS Justice.

An absolute divorce was granted Mrs. Ethel Jane Davenport by judgment of the Circuit Court of Davidson County on the 27th day of July, 1939.

This petition was filed by Mrs. Davenport on the 9th day of April 1941, alleging that she has in her custody two children by her divorced husband, James Davenport, defendant, aged eight and nine years; that they are without means and that she is unable to furnish them with adequate support; that while the father was not working and had no income at the time of the divorce and no order on him to pay any stated sum was at that time sought or justified, the defendant, father of these children, is now earning an income from which he could and should be required to contribute to the support of these dependent children. Petitioner, therefore, prayed that the Court modify its decree of July 27, 1939, and now make an allowance order on the defendant to make weekly payments to the clerk of the Court for the support of these children.

The defendant filed his plea in abatement on the ground that the decree of divorce was entered July 27, 1939; that it contained no provision for support of the children, or reference thereto, and no provision retaining the case in Court for this or any other purpose, but that said decree was final, and the Court is now without jurisdiction in that case to entertain this petition or grant the relief sought; and that no such relief can be granted in an independent proceeding, if the petition should be treated as so filed. The trial Judge sustained this plea and dismissed the petition.

It is well settled that the petition cannot be sustained if it be treated as a new proceeding brought by the wife and mother either in her own right, or as next friend of the children. Fuller v. Fuller, 169 Tenn. 586, 89 S.W.2d 762, and Baker v. Baker, 169 Tenn. 589, 89 S.W.2d 763. These and other of our cases recognize the father's legal liability for the support of an infant child after divorce and award of custody of the child to the mother, and the mother may prosecute a suit against the father for reimbursement of any sums expended by her for this purpose. Evans v. Evans, 125 Tenn. 112; 140 S.W. 745, Ann.Cas. 1913C, 294; Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654, approved in Baker v. Baker, supra. But no decree will lie in such an independant proceeding for future support.

Furthermore, before the adoption of the Code of 1932, unless the original decree of divorce had contained a provision recognized as proper in divorce suits, a practice peculiar to this character of suit, retaining the case in the control of the Court for future orders, thus extending the jurisdiction of the Court, no application for further orders and decrees therein could be entertained. However, this Court has held that any language in the original decree expressing a purpose to retain the case in the control of the Court granting divorce, should be given a liberal construction empowering the Court upon application of either party to order "all such readjustments of the rights of the respective parties as might thereafter appear to be proper." Fuller v. Fuller, 157 Tenn. 697, 11 S.W.2d 896, 897. It was contended in that case that the language of the retention clause of the decree was too narrow to embrace the particular relief sought, which related to the custody of the children and allowance of alimony; that the decree provided for retention only for "enforcement of the decree," and that the relief sought was not within that term. Rejecting this view, the Court said: "In view of the nature of the cause and the duty of the chancellor, which this court has heretofore emphasized, to retain the cause in his control generally with respect to all matters involving alimony and child custody, we think that the language employed in the provision before us should be given a liberal construction. The word 'enforcement', used in this connection and under the circumstances dealt with by the chancellor may fairly be construed to embrace modifications both positive and negative in character, tending either to decrease or enlarge the provision for alimony, or to limit or extend the exclusiveness of the control of the children by either party. In a broad and general sense, these matters are incidents of the 'enforcement' of the decree. The word may be fairly treated as synonymous with the execution or performance, or carrying out of its general purposes, which embraces all such readjustments of the rights of the respective parties as might thereafter appear to be proper."

In the same case, after noting Mr. Gibson's recognition of the exception as to finality of decrees applicable to divorce suits, when the cause is retained on the docket for future orders, and the approval of this practice by this Court in Taylor v. Taylor, 144 Tenn. 311, 232 S.W. 445, and Going v. Going, 148 Tenn. 522, at page 556, 256 S.W. 890, 31 A.L.R. 633, it was said:

"Such a practice is particularly consistent with the distinctive nature of proceedings in divorce suits, involving as they do fundamental social conditions, the welfare of dependent children, peculiarly wards of chancery, as well as rights between the husband and wife touching matters subject to unforeseen changes in the controlling conditions.

"Moreover, divorce proceedings which involve matters of continuing, or installment, alimony and the custody of children, are distinguished from most other proceedings, in that the decree is of a

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