Evans v. Evans

• Decision Date: 27 July 1977
• Parties: Jessie Lewis EVANS v. Mary Helen EVANS.
• Court: Tennessee Court of Appeals

Page 851

558 S.W.2d 851

Jessie Lewis EVANS v. Mary Helen EVANS.

Court of Appeals of Tennessee, Eastern Section.

July 27, 1977.

Certiorari Denied by Supreme Court Nov. 7, 1977.

J. Arnold Fitzgerald, Dayton, for plaintiff.

Allen H. Carter, of Carter & Reid, Athens, for defendant.

OPINION

SANDERS, Judge.

Both sides have appealed from a Chancery Court decree in a divorce proceeding.

Plaintiff, Jessie Lewis Evans, filed a complaint against the Defendant and Cross Complainant for a divorce on grounds of adultery. The Defendant filed a cross complaint asking for a divorce on the grounds of cruel and inhuman treatment. Each of the complaints sought disposition of their jointly-owned properties. The Plaintiff dismissed his complaint before the case came to trial and the case proceeded to trial on the cross complaint.

The Court granted the Cross Complainant a divorce and made a division of the properties. He declined to award attorney's fees to the Cross Complainant. The Plaintiff made a motion for a new trial based on newly-discovered evidence. The Cross Complainant appeared in opposition to the motion. The Court overruled the motion and Plaintiff prayed an appeal. Cross Complainant asked for attorney's fees for defending the motion for a new trial, which were allowed. She also asked for attorney's fees for this appeal, which were denied.

Both sides have appealed and assigned error. The Plaintiff says it was error for the Court (1) to deny his petition to rehear based on newly-discovered evidence; (2) not to hear the newly-discovered evidence; (3) grant Cross Complainant a divorce; (4) award the Cross Complainant one-half of the properties. The Cross Complainant says it was error for the Court not to award attorney's fees for this appeal.

In support of his petition to rehear Plaintiff filed affidavits by his two sons. The affidavit of one son, 13 years of age, stated he knew his mother was dating one, Kitty Ramsey, prior to the divorce. Kitty Ramsey would pick the Defendant up at their home and they would be gone a considerable period of time before returning. The affidavit of the other son, who is 18 years of age, stated the Defendant told him after the divorce she had been dating one, Fred Hayes, prior to the divorce.

Plaintiff says he had no way of obtaining this information prior to trial. He insists this evidence, if offered on a trial, would be grounds for the Court to grant him a divorce and if he were granted a divorce the Defendant would not be entitled to any of their properties under T.C.A. § 36-826.

The most recent case we have been cited to concerning newly-discovered evidence is the case of Serv-U-Mart, Inc. v. Sullivan County, Tenn., 527 S.W.2d 121 (1975). In that case the court said:

"The discovery of new evidence which could not have been previously discovered by due diligence may be the ground for a rehearing in Chancery, but such evidence must be pertinent to the issue raised by the pleadings. If new facts are discovered constituting a new issue not asserted at the trial, they may be brought before the Court by a supplemental bill in the nature of a bill of review, but again, only if the new proof could not possibly have been used at the trial."

Although the Court could have considered the newly-discovered evidence in passing upon the merits of the Cross Complainant's grounds for divorce, he could not have granted the Plaintiff a divorce. The Plaintiff had dismissed his bill and affirmative relief could have been granted to him only under Rule 60 of the Rules of Civil Procedure in the nature of a bill of review.

Plaintiff states in his affidavit that "at all times the plaintiff, affiant, has tried diligently to get all matters before this Court, affecting a particular case, but did not learn of the matters that would be taken up with this Court on a new trial of the matter until after the prior trial." Plaintiff's attorney also filed an affidavit in which he said, ". . . . At all times both before and after the trial of this case that affiant has been diligent in his search for information for all facts to properly be before the court in this case." Plaintiff fails to give any particulars as to what his efforts were to obtain, before the trial, the type of evidence he has now discovered.

In the case of Travis v. Bacherig, 7 Tenn.App. 638, 646, the court said:

"The defendant's affidavit does not state any facts showing due diligence on his part. He merely stated that he had made diligent search and inquiry before the trial for witnesses. This is not sufficient. His affidavit must show reasonable diligence, that is, ordinary diligence to obtain the evidence before the trial. A mere statement of due diligence is not sufficient, but the facts constituting diligence must appear, and the facts must be specifically set out. Mere general statement that affiant inquired among persons likely to know, is not sufficient, the particulars must be shown. See Ross v. State, 130 Tenn., 392, 170 S.W., 1026."

The trial court has wide discretion in matters of denying a new trial based on newly-discovered evidence. Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192. The denial of a motion for a new trial or petition to rehear based on newly-discovered evidence will not be disturbed on...