Lansing v. Lansing

• Decision Date: 06 December 1963
• Citation: 378 S.W.2d 786,53 Tenn.App. 72
• Parties: Elizabeth Hinckley LANSING, Complainant and Appellant, v. Don Kenneth LANSING, Defendant and Appellee. 53 Tenn.App. 72, 378 S.W.2d 786
• Court: Tennessee Court of Appeals

Page 786

378 S.W.2d 786

Elizabeth Hinckley LANSING, Complainant and Appellant, v. Don Kenneth LANSING, Defendant and Appellee.

53 Tenn.App. 72, 378 S.W.2d 786

Court of Appeals of Tennessee, Western Section.

Dec. 6, 1963.

Certiorari Denied by Supreme Court May 8, 1964.

[53 TENNAPP 73] William W. O'Hearn, Memphis, Donelson, Adams, O'Hearn, Grogan & Edwards, Memphis, of counsel, for appellant.

James M. Tharpe, Memphis, for appellee.

BEJACH, Judge.

This cause involves an appeal by Mrs. Elizabeth Hinckley Lansing from a judgment of the Circuit Court of Shelby County awarding alimony and sustaining an exception by defendant, Don Kenneth [53 TENNAPP 74] Lansing, to the report of the Referee who had been appointed to ascertain and report on what property the defendant possessed, what would be a reasonable allowance for the support and maintenance of complainant and the minor children of the parties, and what would be a reasonable amount for solicitors' fees and other necessary costs and expenses of this suit. In this opinion the parties will be referred to, according to their status in the lower court, as complainant and defendant.

The cause had originally been tried as a divorce suit before Hon. Andrew O. Holmes, at that time Circuit Court Judge in Shelby County, but now a Justice of the Supreme Court. Judge Holmes granted an absolute divorce to complainant on the ground of cruel and inhuman treatment, and ordered a reference to Hon. George C. Cunningham as Referee, before awarding alimony and child support and fixing fees for complainant's counsel. Before the report of the Referee was filed and disposed of, Judge Holmes had been appointed to the Supreme Court of Tennessee, and action on the Referee's report was taken by his successor, Hon. William B. Leffler, Judge. Among other items of the Referee's report, therein contained, is a report that the defendant holds 25% of the stock of Kalm, Inc. which owns a lease on the Holiday Inn on Bardstown Road, Louisville, Kentucky, and 25% of the stock of Malco, Inc. which is to operate a Holiday Inn at Jeffersonville, Indiana. Proof in the record shows that defendant's investment in these corporations had been made by him with the proceeds of sales of lots in the Lake Forrest Subdivision on James Road in Shelby County, Tennessee, which had been jointly owned by complainant and defendant as [53 TENNAPP 75] tenants by the entireties, and which had been developed largely from resources of complainant and her mother.

The Referee's report was filed February 22, 1963, and on March 6, 1963, which was more than 5 days thereafter, defendant filed exceptions to the Referee's report, styled therein 'Report of Master', in which he complains that the finding of the Master divests the defendant of all of his property, real and personal, and would leave defendant absolutely nothing for his own support, the Master having found that the defendant has no income. Complainant, on March 7, 1963, filed a motion to strike the exceptions to the report of the Referee, '1. Because they are without merit, and 2. Because the exceptions were not filed within five (5) days as required by Section 20-1407 Tennessee Code Annotated, Official Edition.' Complainant also filed a motion to confirm the Referee's report. The trial judge overruled the motion to strike the exceptions, considered same on their merit, and affirmed the Referee's report except as to the stock of Kalm, Inc. and Malco, Inc. A decree embodying this ruling and fixing alimony and child support was entered April 29, 1963, which decree contains the following paragraph:

'From so much of said decree of the court in overruling the Referee as to the stock of Kalm, Inc., and Malco, Inc., complainant excepts and prays an appeal to the next term of court of the Court of Appeals at Jackson, which appeal is granted upon her taking the Pauper's Oath, and 30 days are allowed her to take said oath and 60 days within which to file her bill of exceptions.'

It is contended by complainant that this ruling of the Circuit Court judge divested from her her 50% interest in [53 TENNAPP 76] the 25% interest held by defendant in Kalm, Inc. and 50% of the 25% interest in Malco, Inc. held by him, and vested same in defendant. That is the sole question involved in this court on complainant's appeal.

Before answering this question, it will be necessary to dispose of some preliminary matters presented by motions of complainant and defendant, respectively. Complainant's one assignment of error filed in this Court is as follows:

'The Honorable trial court erred in the following ruling:

"It is, therefore, ordered, adjudged and decreed that the report of the Referee is sustained except as to the ruling as to the stock of Kalm, Inc., and Malco, Inc., the findings as to which is overruled and the complainant's aforesaid motions are sustained except insofar as stock in Kalm, Inc. and Malco, Inc. is concerned and the defendant's exceptions sustained insofar as stock is concerned."

The above assignment of error was filed in this Court August 2, 1963. On September 4, 1963, complainant filed a motion to amend her assignment of error, in which it is pointed out that the sufficiency of said assignment of error has been raised by defendant in error, and that counse...