Doty v. Doty

• Decision Date: 28 May 1952
• Citation: 260 S.W.2d 411,37 Tenn.App. 120
• Parties: DOTY v. DOTY.
• Court: Tennessee Court of Appeals

Page 411

260 S.W.2d 411

37 Tenn.App. 120

DOTY v. DOTY.

Court of Appeals of Tennessee, Western Section.

May 28, 1952 Certiorari Denied by Supreme Court Oct. 10, 1952.

W. W. Lackey, Savannah, for plaintiff in error.

Ross & Ross, Savannah, for defendant in error.

ANDERSON, Presiding Judge.

This cause originated as a divorce proceeding filed by Maxine Doty against her then husband, Dr. O. C. Doty. Upon the trial of that proceeding, Mrs. Doty was granted an absolute divorce and awarded custody of the minor child of the parties by a decree entered on March 24, 1949. The decree likewise approved an agreement of the parties that Dr. Doty should pay the sum of $100 per month for the support of Mrs. Doty and the child. On February 26, 1951, Dr. Doty filed a petition, alleging that the circumstances of the parties have changed in certain respects, and praying that the award made in the original decree be reduced. To this petition Mrs. Doty filed an answer, in which was incorporated a demurrer. There was filed as an exhibit to this pleading a written agreement entered into by the parties prior to the granting of the divorce, by the terms of which they purported to settle certain property rights and agree upon the amount Dr. Doty should pay for the support and maintenance of his wife and his child. The Court took the demurrer under advisement and ordered a hearing on the merits, which was had. At the conclusion of the trial, the Court concluded that 'the written property agreement executed by the parties, * * * (and) approved by this Court and order entered thereon in the decree for divorce heretofore entered in this cause as aforesaid, is controlling, and that the Court now has no power, jurisdiction or authority to alter, change or amend the terms of said agreement or to entertain this petition, and the said demurrer should have been sustained, so adjudges and decrees'. The petition of Dr. Doty was accordingly dismissed. From this action he appealed in error to the Supreme Court, where the case was transferred to this Court.

The appeal was taken to the Supreme Court on the theory that the case was finally disposed of on demurrer. It is true that the judge did say in his order that the demurrer was sustained, but it is clear that his disposition of the case was based solely on the written agreement filed as an exhibit to the answer. This was evidence and hence the case was finally disposed of upon a consideration of evidence, and the appeal should have been to this Court.

There was no reference in the petition to the agreement, and in disposing of the demurrer it was not proper for the judge to consider facts not alleged in the petition and not otherwise appearing from the record proper, whether such facts were in the form of an exhibit or made to appear otherwise. See Gibson's Suits in Chancery, Sec. 307.

But the recital in the order that the demurrer was sustained may be disregarded and the case treated as if the petition was dismissed following the trial on the merits, on the sole ground that the agreement of the parties, which was proven and introduced in evidence, precluded a modification of the award; for that in effect was the manner in which the case was disposed of.

The sole question presented is whether the judge was correct in holding that the agreement of the parties which was in part adopted by the divorce decree, was irrevocably binding upon the parties in the sense that the Court had no power to change or modify the amount of $100 per month which the petitioner was ordered to pay for the support and maintenance of the wife and child.

Code Section 8446 provides that in cases of absolute divorce or separation, the Court may make an order for the suitable support and maintenance of the wife and her children, the order or decree to remain in the court's control and on application of either part the Court may decree an increase or decrease of such allowance on cause being shown. This Section becomes a part of every decree in the type of cases contemplated thereby, and has the effect of preserving the jurisdiction of the Court for the purpose indicated even though the decree does not expressly retain the cause in court. Perry v. Perry, 183 Tenn. 362, 192 S.W.2d 830; Darty v. Darty, 33 Tenn.App. 321, 232 S.W.2d 59; Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371; Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 131 A.L.R. 858; Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406.

The fact that an agreement of the parties was adopted as the basis for fixing the amount of the award, does not operate to deprive the Court of its statutory power to modify it upon a proper showing, and this is expressly true where the award is not only one for alimony for the wife but one for the support of a minor child as well. In such cases the agreement of the parties is regarded as no more than the evidence upon which the court will fix the amount. Perry v. Perry, 183 Tenn. 362, 192 S.W.2d 830; Brown v. Brown, 156 Tenn. 619, 4 S.W.2d 345; Osborne v. Osborne, 29 Tenn.App. 463, 197 S.W.2d 234. The agreement becomes merged in the decree and loses its contractual nature.

But it is said that the contract in this case purported to be and in fact was a settlement of property rights between Dr. Doty and his wife, and that such a case constitutes an exception to the general rule, that is, that a decree incorporating a contract cannot afterwards be modified. Some courts take the view that where the parties have made a written contract settling their property rights, and the contract is approved by the court and incorporated in the decree, it cannot be modified under the general power to modify a decree concerning alimony; and that this is true even though the decree provide that the husband shall make...