Folk v. Folk

• Decision Date: 08 February 1962
• Citation: 210 Tenn. 367,355 S.W.2d 634,14 McCanless 367
• Parties: , 210 Tenn. 367 Mrs. Pauline L. FOLK v. Winston P. FOLK.
• Court: Tennessee Supreme Court

Page 634

355 S.W.2d 634

14 McCanless 367, 210 Tenn. 367

Mrs. Pauline L. FOLK v. Winston P. FOLK.

Supreme Court of Tennessee.

Feb. 8, 1962.

Rehearing Denied April 4, 1962.

Newman Brandon, Jr., Tom Stewart, Nashville, for petitioner.

David M. Keeble, Nashville, Hobart Atkins, Knoxville, for respondent.

BURNETT, Justice.

A divorce suit was brought September 10, 1954, by the wife for divorce for cruel and inhuman treatment and indignities to her person. On April 24, 1957, Chancellor Steele denied her a divorce, but decreed her a separate maintenance, ordering the husband to pay her $150.00 a month for her support pending the further orders of the court, and providing he might in the future apply to the court to discontinue such payments 'upon a showing by the Defendant that Complainant has arbitrarily or unreasonably rejected a sincere and honest effort or efforts on his part to effect a reconciliation and resumption of the marital relation and a discharge of his marital duties.'

He acquiesced in that decree. She appealed from so much of it as denied her a divorce. The Court of Appeals modified and affirmed the decree, striking out the part above quoted and providing that if the husband asked the court to discontinue such payments, the rights of the parties should be determined upon all the circumstances, as contemplated by the statute (T.C.A. Sec. 36-820); and the court remanded the case.

After the remand, the husband, on November 13, 1959, petitioned the Chancellor to discontinue his payments to his wife, alleging, as ground for such relief, that he had 'repeatedly, and up to a recent date, in sincerity and in good faith, sought a reconciliation with his wife,' and had 'invited and urged her to come make her home with him,' but that his efforts in this regard had been declined by her.

In her answer to his petition, she denied that he had sought any reconciliation in sincerity or in good faith; she referred to Chancellor Steele's findings that he 'had been domineering, sullen, short of temper, and on occasions has asserted more physical force against his wife than was necessary or than he should have done'; and she averred that he had not changed this attitude toward her.

The matter was heard orally before Chancellor Lentz according to the forms of Chancery. In his findings, he noted that the husband's brief had stated his only motive in seeking to discontinue the payments to his wife 'was to completely remove this matter from the court arena,' as the best way to effect a reconciliation. After reviewing the evidence, Chancellor Lentz summed up his findings and conclusion as follows:

'From all the proof this Court is of the opinion that petitioner has not made a sincere, honest and reasonable effort toward reconciliation which has been arbitrarily refused. Neither is the fact that petitioner thinks he can effect a reconciliation by removing this cause from the court arena justification for granting the relief prayed for.'

He accordingly entered a decree August 8, 1960, dismissing the husband's petition and directing that he continue to make the payments as required by the former decree--$150.00 a month to the wife for her separate maintenance and support. The husband saved a bill of exceptions and appealed to the Court of Appeals.

That court, one judge dissenting, reversed the Chancellor's decree and decreed that, after three months from the entry of its decree, the husband shall be relieved from making any further payments to his wife, without regard to whether there has been a reconciliation or not. The wife has presented to this Court a petition for certiorari to review and reverse that decree. The certiorari was granted. The case has been ably briefed and argued before this Court. We now have the matter for disposition.

Inasmuch as the Chancellor and the Court of Appeals differed in their respective findings and conclusion of fact upon the oral evidence heard by the Chancellor, this Court must review the evidence de novo, but with the presumption that the Chancellor's decree is correct unless we find the evidence preponderates against it. T.C.A. Sec. 27-303; Barnett v. Thirkield, 201 Tenn. 528, 300 S.W.2d 905.

Each of these parties is of a prominent family; the wife, a daughter of a General of the Army; and the husband, a retired Admiral in the Navy. They were married in 1931 and have two children, a daughter 24, and a son 22 years of age. During the husband's service in the Navy, they lived in many places, but kept their domicile in Davidson County. They lived in London, England from 1950 to 1954, while he was on duty there.

On their return to the United States September 2, 1954, they separated, she went to live in the home of her mother in Franklin, Tennessee, where she has lived ever since; and he went to Knoxville where he has since been living.

As stated, she filed her bill for divorce September 10, 1954. He denied the charges. While in the opinion of Chancellor Steele, affirmed by the Court of Appeals, the proof did not make out the grounds for divorce, it did show such misconduct on the part of the husband as justified a decree for separate maintenance. The latter court pointed out that such misconduct, though not constituting a ground for divorce, justified a decree for separate maintenance.

The wife's right to separate maintenance rests on the husband's duty to support her and on his fault causing their separation; and a court of equity has inherent jurisdiction, independent of our divorce statutes, to decree her separate maintenance though his fault was not a statutory ground of divorce. In Stephenson v. Stephenson, 201 Tenn. 253, 257, 298 S.W.2d 717, 719, Chief Justice Prewitt, for the Court, said:

'The right of the wife to a separate support and maintenance is founded upon the obligation of the husband to support the wife and is in no sense dependent upon the divorce statutes. It is true that the relief is frequently granted as an incident to a divorce proceeding. But it is well settled that the chancery court has the inherent power, independent of statute, to grant the relief in proper cases, where a divorce is not sought or in which the complainant is not entitled to a divorce' (citing cases) (italics ours).

There has been some discussion in the briefs as to the nature and duration of a decree for separate maintenance. Such a decree is not a mere temporary order but is a final decree in the sense that it is appealable as of right, and is binding as res judicata upon the facts and issues adjudged. Freeman on Judgments (5th ed.), Secs. 909, 1442; Cf. Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371.

Such a decree continues in force, and the husband must continue to make the required payments to the wife, until the court orders their discontinuance, after first being satisfied that there has been a reconciliation, or that he proposes in good faith to take her back and resume his marital duties. Cureton v. Cureton, 117 Tenn. 103, 96 S.W. 608, Rutledge v. Rutledge, 37 Tenn. 554, 27 Am.Jur., Husband and Wife, Secs. 410, 428.

So the question here is whether the proof established the allegations of the husband's petition to discontinue his monthly payments to his wife; whether he had, in sincerity and in good faith, made an honest effort to bring about a reconciliation with his wife and a resumption of their marital relations, and such effort had been unreasonably refused by her.

Soon after the first opinion of the Court of Appeals (April 25, 1958), the husband began a 'campaign for a reconciliation' which consisted of writing letters to his wife, keeping copies of them for the record. When he would send her a monthly payment, he...