Elrod v. Elrod

• Decision Date: 25 April 1956
• Citation: 41 Tenn.App. 540,296 S.W.2d 849,296 S.W.2d 856
• Parties: Matilda ELROD, Cross-Complainant and Petitioner in Error, v. Albert J. ELROD, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 849

296 S.W.2d 849

41 Tenn.App. 540

Matilda ELROD, Cross-Complainant and Petitioner in Error, v. Albert J. ELROD, Defendant in Error.

Court of Appeals of Tennessee, Western Section.

April 25, 1956.

Rehearing Denied May 18, 1956.

Certiorari Denied by Supreme Court Oct. 5, 1956.

Rehearing on Certiorari Denied Dec. 7, 1956.

See 296 S.W.2d 856.

W. W. O'Hearn, Memphis, and Holmes & Holmes, Trenton, for petitioner in error.

Robert P. Adams and H. H. Elder, Trenton, for defendant in error.

BEJACH, Judge.

This cause is before this Court on writ of error from the Chancery Court of Gibson County, Tennessee at Trenton. The cause originated as a suit for divorce filed July 6, 1949 by Albert J. Elrod against Matilda Elrod, the ground of divorce alleged being cruel and inhuman treatment. Subsequently, an amended bill was filed which set out in more detail the allegations of cruel and inhuman treatment. Matilda Elrod filed an answer and cross bill in which she denied the allegations of cruel and inhuman treatment and sought in her cross bill to recover separate maintenance from the original complainant, Albert J. Elrod. At the trial of the cause, the Chancellor ordered dismissal of the original bill for divorce on the ground that the causes of divorce alleged had occurred outside of the State of Tennessee, and that the complainant, Albert J. Elrod, had not been a resident of Tennessee for as much as two years at the time of filing the suit, as is, in such situation, required by Section 8428 Williams' Code, Section 36-803 Tenn.Code Ann. The Chancellor also ordered dismissal of the cross bill of Matilda Elrod for separate maintenance on the ground that she had been guilty of 'such conduct and treatment to the complainant as to deprive her of any right of support by him'. Both the originall bill and the cross bill were accordingly dismissed, and exceptions were noted by both complainant and cross complainant. The complainant, Albert J. Elrod, prayed and was granted an appeal, but he did not perfect same. No appeal was prayed by cross complainant, Matilda Elrod, but within the time allowed by law, she has filed the record in this Court for review by writ of error. This record is extremely voluminous, consisting of 1,425 pages of typewritten matter. Prior to entry of the final decree dismissing both the original bill and the cross bill, complainant, Albert J. Elrod, on November 4, 1953, filed a petition for finding of additional facts by the Chancellor, which petition requested the Chancellor to find additional facts, 'as announced, when the oral opinion was delivered in open court to the effect that the preponderance of the evidence made out a case of cruel and inhuman treatment, entitling complainant to a divorce, were it not for the two year residence statute.' This petition was denied, the decree denying same reciting, 'The Court has carefully considered the record in the case and his previous finding of facts filed herein, and it is the opinion of the Court that the finding as filed, is the opinion of the Court, and the Court feels that the record does not justify the finding of any additional facts.' The Chancellor had previously, on October 30, 1953, filed a written finding of facts and opinion, which is made part of and incorporated in the record.

Petitioner in error has filed two assignments of error in this Court, which are as follows:

'Assignment One

'The Chancellor erred in finding and decreeing that Cross-Complainant has been guilty of such conduct towards and treatment of Cross-Defendant that she is not entitled to support and maintenance by him; and in dismissing her cross action. (Decree tr. Vol. 5 page 1418) The Chancellor should have awarded her separate maintenance, for the reasons:

'(1) Cross-Complainant is the lawful and legal wife of Cross-Defendant, and is not now, willfully living apart from him.

'(2) The transcript, as a whole, and particularly the testimony, and exhibits thereto, of Cross-Defendant establish that he has refused to allow her to live with him; and has failed and refused to make provisions for her support and maintenance; and the transcript fails to disclose any legal justification therefor.

'(3) The transcript discloses an earnest and bona fide effort and offer upon the part of Cross-Complainant to renew the marriage relationship, which offer the Cross-Defendant has refused and declined.

'(4) To sustain the finding and decree of the Chancellor, it must be determined that Cross-Complainant has been guilty of such cruel and inhuman treatment of and toward Cross-Defendant as to warrant a divorce in his favor. Not only does the evidence contained in the transcript fail to disclose such conduct and treatment, it, affirmatively shows to the contrary.

'(5) The law and the evidence preponderates against the finding and decree of the Chancellor.

'(6) The effect of the Chancellor's finding and decree is to, forever, bar Cross-Complainant's right to support without regard to her future conduct, which is contrary to the law and public policy of the State and Nation.

'Assignment Two

'The Chancellor erred in finding, in his written opinion filed in the record (tr. Vol. 5 page 1403) that Cross Complainant has been guilty 'of such conduct and treatment to the Complainant as to deprive her of any right of support by him'. This was error for the reasons set out in assignment one, and particularly because, in effect, it constitutes a perpetual bar against her right of maintenance and support, without regard to her future conduct and circumstances.'

In this opinion, the parties to this cause will be designated as in the lower Court, or called by their individual names,--Albert J. Elrod being designated as complainant and as cross defendant, and Matilda Elrod being designated as defendant and as cross complainant. The merits of complainant's original and amended bills are no longer involved, since no appeal was perfected from the decree dismissing same, appeal being the only method of review authorized in such cases. (Gibson's Suits in Chancery 4th ed. Section 1105-a). The Chancellor's decree dismissing the original and amended bills has therefore become final, so far as any right to relief sought by complainant, Albert J. Elrod, is concerned. Nevertheless, the allegations and proof in support of complainant's original and amended bills are material and must be considered by this Court in disposing of this cause on the review sought by cross complainant of the Chancellor's action in dismissing her cross bill, writ of error being an appropriate method of presenting that action for review by this Court.

Learned counsel for cross complainant, Matilda Elrod, contended at the argument of this cause that it would be unnecessary for this Court or the member of same writing its opinion, to read all of the evidence in the cause, or any substantial part of same, because the matter could be disposed of on a question of law. The substance of this proposition of law, as asserted by counsel for cross complainant, is that since the ground of divorce alleged by complainant was cruel and inhuman treatment, and since correspondence between the parties which is copied into the record establishes that a reconciliation was effected before the bill for divorce was filed, complainant could not maintain his suit for divorce without alleging and proving some new or additional act or acts of cruelty,--none of which exist.

It is the law that cruel and inhuman treatment may be forgiven and cannot thereafter be relied upon as a ground for divorce except upon some revival or new act which brings back into life the former misconduct previously forgiven. McClanahan v. McClanahan, 104 Tenn. 217, 228, 56 S.W. 858; Garvey v. Garvey, 29 Tenn.App. 291, 203 S.W.2d 912; Humphreys v. Humphreys, Tenn.App., 281 S.W.2d 270, 281-282. In all of the cases where this principle of law has been applied, however, the parties had not only effected a reconciliation, but had actually resumed marital relations. In the instant case, the parties had not completely effected a reconciliation. They had merely agreed to effect a reconciliation, which agreement was never consummated. We think that Mr. Elrod had a legal right to change his mind about the matter, and, having so changed his mind, he was entitled to rely on the conduct of Mrs. Elrod, alleged as cruel and inhuman treatment, in a suit for divorce. The general rule, which has been adopted in Tennessee, is that one spouse is not justified in leaving the other unless the conduct of the offending spouse is such as would, in itself, constitute a ground for divorce. Douglas v. Douglas, 156 Tenn. 655, 660, 4 S.W.2d 358. That has made necessary an examination of all of the evidence adduced in this cause, for the purpose of determining whether or not, but for the lack of jurisdiction resulting from failure of Mr. Elrod to await until after he had resided in Tennessee two whole years before filing his suit for divorce, he would have been entitled to a decree for divorce on the ground of cruel and inhuman treatment. If he would have been, in that situation, entitled to a decree for divorce, a finding of facts to that effect constitutes a complete defense for Mr. Elrod to Mrs. Elrod's cross bill for separate maintenance. With that proposition in mind, we have examined the evidence and have reached the conclusion that the clear preponderance of the evidence establishes that if the Court had had jurisdiction to try complainant's action for divorce, he would have been entitled to a decree on the ground that the defendant and cross complainant was guilty of such cruel and inhuman treatment or conduct as renders cohabitation unsafe and improper. Even if the evidence be considered equally balanced, the same result would follow. It was incumbent on Mrs. Elrod, before she could be entitled to a reversal by this Court, to establish that the evidence in the record preponderates against the ruling of...