Kizer v. Bellar

• Decision Date: 27 July 1951
• Parties: KIZER v. BELLAR et al. 28 Beeler 540, 192 Tenn. 540, 241 S.W.2d 561
• Court: Tennessee Supreme Court

Page 561

241 S.W.2d 561

KIZER v. BELLAR et al.

28 Beeler 540, 192 Tenn. 540, 241 S.W.2d 561

Supreme Court of Tennessee.

July 27, 1951.

Hofstetter & Hofstetter, Nashville, for appellant.

Goodpasture, Carpenter & Dale, Nashville, for appellees.

TOMLINSON, Justice.

Mrs. Kizer, appellant here, obtained a decree of divorce from appellee, Bellar, by a decree or judgment of the Circuit Court of Davidson County entered in 1948. That decree awarded her alimony and the custody of the children, and an order that he pay her $175.00 per month for the support of these children.

Because Bellar was in default as to the orders with reference to the payment of alimony and for the support of the children, Mrs. Kizer filed this bill in Chancery for the enforcement of the decree of the Circuit Court in those respects. Bellar filed a plea in abatement wherein it is asserted that the Circuit Court which granted the divorce decree and ordered the alimony and support payments above mentioned had exclusive jurisdiction in these matters. The Chancellor sustained that plea and dismissed the bill. This appeal was had.

The divorce decree ordered the cause retained in the Circuit Court for future orders with reference to the welfare and support of the children. In as much as the bill in the instant case seeks relief not only as to that phase of the divorce decree, but also as to the alimony awarded complainant, it is insisted by one assignment of error that the Circuit Court did not have exclusive jurisdiction of all phases of the relief sought, because the divorce decree purported to retain the cause in Circuit Court only for the support and welfare of these children.

In every divorce decree wherein an order is made for the support and maintenance of the wife and children the cause remains in the control of the Court without regard to whether the decree of divorce so provides, Code, Section 8446, Perry v. Perry, 183 Tenn. 362, 364, 192 S.W.2d 830. Accordingly, the assignment of error above stated must be overruled.

The divorce decree awarded Mrs. Kizer (then Mrs. Bellar) alimony in the amount of $31,500.00 payable $500.00 upon entry of the decree, the remainder to be liquidated at the rate of not less than $175.00 per month. That decree expressly declared a lien upon certain personal property to secure the payment of this alimony, but this lien is subject to a $50,000.00 lien thereon to a bank, and on which there was owed at the time of the filing of this bill some $34,000.00. Mrs. Kizer was likewise awarded certain real estate on which there was an encumbrance of $2,500.00. Bellar was ordered to pay that lien indebtedness so that unencumbered title would be vested in Mrs. Kizer.

It is alleged in the bill that Bellar never has paid the $500.00 due on the alimony which the decree ordered him to pay upon the entry of that decree, and that he is in substantial default in his $175.00 per month payments on that alimony; further that he never paid the $2,500.00 lien indebtedness on the real estate awarded his wife with the result that she had to pay $3,000.00 or more to prevent a foreclosure of that property; further, that Bellar is in substantial default in the monthly payments of $175.00 for the support of the children. The bill alleges that Bellar intends not to make the payments ordered and 'will use every possible means to defeat the collection of said judgment and will so manage and control his assets and property as to carry out this purpose', and that he is now, and will continue, dissipating his assets, including the personal property upon which she was awarded a lien to secure the payment of the alimony awarded her.

The bill prays for a judgment for not less than the amount Bellar is in default in payments, and that Mrs. Kizer's lien on the personal property 'be specifically decreed to be on the items of personal property' described in the bill, and that the lien on the real estate and personal property be enforced by sale and her debt paid after satisfaction of the debt of the bank.

The bill prays for an injunction restraining Bellar from transferring or further encumbering his equity in the personal property mentioned and that a Receiver be appointed to take charge of said real and personal property and collect the rents and profits, and to operate the business, etc.

It is apparent from the foregoing review of the contents of the bill that Mrs. Kizer seeks by that bill to subject the equitable interest of Bellar in certain real estate and personal property to the lien which was decreed her in the divorce decree for the satisfaction of the judgment rendered in that divorce decree.

Code, Section 10352 provides that the Chancery Court has exclusive jurisdiction, in aid of a judgment creditor, to subject to the satisfaction of the judgment property of the debtor which cannot be reached by execution. Because of that code secti...