Going v. Going

• Decision Date: 13 December 1923
• Parties: GOING v. GOING.
• Court: Tennessee Supreme Court

256 S.W. 890

148 Tenn. 522

GOING v. GOING.

Supreme Court of Tennessee.

December 13, 1923

Certiorari to Court of Civil Appeals.

Contempt proceeding by Mrs. Birdie M. Going against L. C. Going, to enforce payment of alimony. The decree from which both parties appealed was modified by the Court of Civil Appeals and defendant brings certiorari. Decrees of both courts reversed, and case remanded.

Appeal from chancellor's decree on executing bond as required by Shannon's Code, § 4896, for specific amount of money decreed, with damages and costs, is a matter of right; so that further condition imposed by chancellor, that appellant pay further sums of alimony as they become due each month, is ineffectual.

Ewing King & King and L. W. Taylor, all of Memphis, for appellant.

Jackson Neil & McRee and W. C. Rodgers, all of Memphis, for appellee.

MALONE Special Judge.

This is an appeal from a contempt proceeding to enforce the payment of alimony.

This case was heard by this court on another phase of the litigation at a previous term, and the opinion of the court delivered at the April term, 1921, is reported in 144 Tenn. 303, 232 S.W. 443.

As appears from the statement of facts made in that case, the complainant, Mrs. Birdie M. Going, on June 24, 1919, filed her original bill against her husband, L. C. Going, in the chancery court of Shelby county, seeking a divorce from him on the grounds of adultery and of abandonment and failure to provide. No defense was made to this bill, and an order pro confesso was taken against the husband. The case was finally heard on July 11, 1919, at which time the chancellor decreed an absolute divorce to the wife, allowing custody of their two minor children, a boy aged 17 years, and a girl aged 14 years, and, after reciting "that the defendant is a man of learning and ability, with large earning capacity, and the petitioner is practically without means, and is now working to support herself and family," further decreed:

"That the defendant, L. C. Going, as permanent alimony, pay to the petitioner, Mrs. Birdie M. Going, the sum of $4,000 cash, which has this day been done, and the receipt of which is acknowledged, and that the said L. C. Going pay into the hands of the clerk and master of this court on July 1, 1920, the sum of $1,800 for the support and maintenance of the petitioner, Mrs. Birdie M. Going, and that the said L. C. Going also pay into the hands of the clerk and master of this court, for the petitioner, the sum of $150 per month, beginning August 1, 1920, and on the 1st of every month thereafter during the lifetime of the petitioner."

Thereafter, on the 30th day of July, 1920 (erroneously said to be on the 24th day of June, 1919, in the reported case, 144 Tenn. 304, 232 S.W. 443) L. C. Going filed a petition seeking by said petition to have the decree rendered July 11, 1919, vacated or modified on the ground that there had been a change in the status of the parties since the rendition of said decree warranting such action. In this petition it was alleged that one of the children had married; that the family expenses had been greatly reduced; that the wife had come into the possession of certain property from her deceased father's and brother's estates, which, together with certain property given to her by the petitioner prior to the granting of the divorce, and the permanent alimony decreed to her by the court in the divorce proceeding, was sufficient for her support. The petitioner prayed to be relieved from paying any other or further sums to the complainant under said decree, or that said decree at least be modified so as to relieve petitioner from a portion of the payments thereby required.

On August 17, 1920, Mrs. Going answered the petition of her former husband, showing the property which had come into her possession from the estates of her father and brother since the divorce was granted, as well as the property received from the petitioner prior to granting the divorce, and denying that the income from said property, including payments to be made by petitioner under the decree, was more than sufficient to support herself and her unmarried daughter, then 15 years of age, and living with her mother in the city of Memphis.

On November 23, 1920, before the petition of Mr. Going had been acted upon, Mrs. Going filed her petition in the case, alleging that the husband had never paid the $1,800 which the court decreed he should pay on or before July 1, 1920, but had willfully refused to pay this sum, and had also willfully refused to pay her the monthly sum of $150 since August 1, 1920, as provided by the decree.

The petition was supported by affidavits alleging that the said L. C. Going had willfully disobeyed the decree of the court, and was therefore in contempt, and prayed for an attachment of his body, and that he should be required to answer and show cause why he was not in contempt of court.

Mr. Going answered this petition, setting forth his reasons for failing to pay the $1800, together with subsequent installments, and insisting that he was not in contempt of court on account of this failure.

On February 4, 1921, the cause was heard before the chancellor on the two petitions and the answers thereto, the testimony of witnesses introduced in open court, and the original record in the cause, including the final decree for divorce, and the chancellor was thereupon of opinion that "there is no reason for modifying or changing the terms of the former decree, and that the petition of L. C. Going is not supported by the evidence." And, after reciting that the said L. C. Going was in arrears in the payment of alimony in the sum of $2,850, the court further decreed:

"That the petition of L. C. Going be, and the same is hereby, dismissed, and he is hereby ordered and directed to pay into the hands of the clerk and master of this court the sum of $2,850 within 10 days from this date, and appeal is hereby granted, provided the said L. C. Going shall enter into a bond with good and solvent sureties in the sum of $3,500 to secure the payment of the amount of alimony now in arrears and the costs, in the event he fails in his appeal, and provided further that, beginning with the 1st day of February, 1921, he pay into the hands of the clerk and master for the benefit of Mrs. Birdie M. Going the sum of $150 on the 1st day of every month pending the appeal from this decree, and until it is finally determined by the Supreme Court of Tennessee."

L. C. Going excepted to the decree, and prayed an appeal to this court, which was granted, as provided above. Subsequently, by order entered on the same day, Mr. Going was allowed to substitute a $2,500 note in lieu of the $3,500 appeal bond ordered by the chancellor. Thereafter, on February 10, 1920, Mr. Going executed a bond, with personal surety, for $250, to cover the costs of the appeal.

Two points were considered by this court on that appeal:

(a) The right of the chancellor to modify a final decree for alimony, payable in installments, after the adjournment of the court, where such decree makes no reservation in this behalf.

(b) The action of the chancellor in requiring the petitioner to execute a $3,500 bond, or deposit with the master of the court the $2,500 note "as a condition to his right to appeal."

Disposing of the first point, the court said at page 308 of 144 Tenn., at page 444 of 232 S. W.:

"We think the decree of the chancellor must be affirmed. The authorities generally sustain the proposition that a decree for alimony in a case a vinculo, made without reserve, although payable in installments, cannot be changed or altered after such decree becomes final, which is after the adjournment of court. Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477; Sampson v. Sampson, 16 R.I. 456, 16 A. 711, 3 L. R. A. 349; Livingston v. Livingston, 173 N.Y. 377, 66 N.E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600; Kamp v. Kamp, 59 N.Y. 220; Erkenbrach v. Erkenbrach, 96 N.Y. 456; Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L. R. A. 1917F, 721, and the cases there cited.

There is no reservation in the decree in the instant case giving the court the right to modify it as to alimony. We have no statute in this state which gives the court any such authority. The decree was rendered more than a year before the present petition was filed by the husband, and had become final. Like other final decrees, it was beyond the control of the court, and could not be modified at a subsequent term.

It would seem that the rule is different in cases of an allowance of alimony granted in conjunction with a divorce a mensa et thoro, In such cases a modification may be made, even in the absence of statutory authorization, inasmuch as power to amend such an award existed at common law. R. C. L. § 92; 60 Am. Dec. 668, note."

Disposing of the second point, the court said at page 310 of 144 Tenn., at page 444 of 232 S. W.:

"We are of the opinion that there is no error in the action of the chancellor requiring the execution of the bond referred to. It is expressly provided by section 4896 of Shannon's Annotated Code as follows:

'Where decrees are for a specific sum of money and against the party in his own right, the appeal bond shall be for the amount of the decree and damages and costs.'

The foregoing section has reference to decrees or judgments in the chancery court. Bilbo v. Allen, 4 Heisk. 31, 34; Chenault v. Chenault, 5 Sneed, 248.

Having elected to deposit with the master the $2,500 note in lieu of the execution of the bond for $3,500, appellant cannot complain."

The result was to affirm in all respects the decree of the chancellor.

On the remand of the case the complainant,...