Fuller v. Fuller

• Court: Tennessee Supreme Court
• Writing for the Court: Chambliss
• Citation: Fuller v. Fuller, 11 S.W.2d 896, 157 Tenn. 697 (Tenn. 1928)
• Decision Date: 08 December 1928
• Parties: FULLER v. FULLER.

Page 896

11 S.W.2d 896

FULLER v. FULLER.

Supreme Court of Tennessee.

December 8, 1928.

Appeal from Chancery Court, Blount County; R. B. Robertson, Chancellor.

Divorce action by Effie Fuller against Ben E. Fuller. Decree for plaintiff, and from a subsequent decree dismissing defendant's intervening petition for modification of the former decree, defendant appeals. Reversed and remanded.

Gamble, Crawford & Goddard, of Maryville, for appellant.

Brown & Johnson, of Maryville, for appellee.

CHAMBLISS, J.

After a hearing upon the merits, Mrs. Effie Fuller was decreed a divorce, in October, 1926, on the ground of cruel and inhuman treatment, and by way of alimony the husband was required to convey to her for life the home in Maryville in which the parties were then living, and, further, the wife was given custody of the children and the husband required to pay $12.50 per week as installment alimony; the decree further providing that the husband should be allowed to see his children twice a month at suitable times and places. He was, however, restrained from trying to persuade the children away from their mother. The decree concluded with the following clause: "This cause will be retained in the Court for the enforcement of this decree whenever necessary, and either party has leave to apply."

Following the entry, on October 13, 1926, of this decree, on the 7th day of July, 1927, an intervening petition was filed in the cause by the husband, Ben Fuller, in which he recited the substance of the former decree and showed that he had complied therewith, and alleged that his former wife had on May 2, 1927, since the decree of divorce, intermarried with one Freeland Godfrey, and that on the 18th day of June following a child had been born to the former Mrs. Fuller. He charged that it thus therefore definitely appeared that Mrs. Fuller was at the time of the granting of the divorce pregnant. He alleged that he was not the father of her child, as he had not lived with her since the filing of the original bill in April, 1925. He charged that the divorce was procured by fraud under these facts, his wife having been guilty of adultery and at that time pregnant. It was further charged that her present husband was the father of the child. He sought a modification of the former decree with respect to the custody of the children and the allowance of alimony.

The chancellor ordered the petition filed, the case reset on the trial docket, and process issued for the defendant. She thereupon appeared and, in effect, admitted the material allegations of the petition, but denied the right of the court to grant the relief prayed. In this situation the court heard and granted a motion to dismiss the petition upon the ground that the court was without "jurisdiction or right to modify or change said decree in any manner, as the same was retained on the docket only for the enforcement of the decree, and that the time in which the Court could use its discretion had expired." Petitioner has appealed.

It is undoubtedly the general rule that the chancellor's power to revise a decree settling rights, except on a bill of review, or a bill to impeach the decree for fraud ends with the close of the term. See Gibson, Suits, § 572. This general rule, supported by many authorities, is relied on to sustain the action of the chancellor. However, it is equally the rule that in...