Lingner v. Lingner

• Decision Date: 11 February 1933
• Citation: 56 S.W.2d 749
• Parties: LINGNER v. LINGNER.
• Court: Tennessee Supreme Court

56 S.W.2d 749

LINGNER v. LINGNER.

Supreme Court of Tennessee.

February 11, 1933.

Appeal from Chancery Court, Davidson County; James B. Newman, Chancellor.

Bill for divorce by Effie T. Lingner against W. H. Lingner, wherein defendant filed a cross-bill. From the decree, defendant appeals.

Remanded, with directions.

Jeff McCarn, of Nashville, for complainant.

Seth Walker, George Armistead, Jr., and Wm. Hume, all of Nashville, for defendant.

GREEN, Chief Justice.

In this case the wife filed her bill seeking a divorce from bed and board on the ground (1) of cruel and inhuman conduct and (2) abandonment and failure to provide for her. The husband filed an answer denying the charges of the bill, and by way of cross-bill sought a divorce himself on the ground of cruel and inhuman conduct. Considerable proof was heard, and the chancellor dismissed the cross-bill, dismissed the bill in so far as it charged cruel and inhuman conduct, but sustained the bill upon the charge of abandonment and failure to provide.

In disposing of the case, among other things, the chancellor said:

"I have seen the complainant on the stand. I have seen the defendant on the stand. I have observed their manner and demeanor as only a trial court can. I have seen the children of the complainant on the stand. I have seen the sisters of the defendant, worthy and good women, and these good children on the stand. It is perfectly apparent to me that no reconciliation can, and will ever, take place between these people. * * * It must be apparent to everybody that observed the demeanor of these people on the stand that wounds have been opened and that it would not be in the interest of society and the marital relation, but a travesty, to grant the kind of divorce prayed in this bill. It would only prolong the situation that now ought to be stopped, and I have concluded that under the authority of sections 4202, 4205 and 4220 of the Code (Shannon's) as construed in the case of Hackney v. Hackney, 9 Humph. (28 Tenn.) on page 452-453, to end this marital relation. It ought to be ended and I am going to grant an absolute divorce on the ground of abandonment and failure to provide to this woman under this bill, under her prayer for general relief."

By a petition to rehear, the case of Merritt v. Merritt, 10 Tenn. App. 369, was called to the attention of the chancellor. In that case the Court of Appeals held that an absolute divorce could not be granted upon a bill or cross-bill in which a divorce from bed and board only was sought. Feeling constrained by this authority, the chancellor modified his former decree so as to grant to the wife a divorce from bed and board, made allowance of attorney's fees, and referred the cause to the master for a report as to the extent of the husband's property, so that a suitable order for support might be made.

The husband appealed, and in the Court of Appeals assigned error to the action of the chancellor in dismissing his cross-bill and in decreeing a limited divorce instead of dissolving the bonds of matrimony.

The Court of Appeals concurred in the finding of the chancellor that charges of cruel and inhuman conduct were not sustained against either party. It also concurred in the chancellor's finding that the husband had abandoned the wife and failed to provide for her. Likewise it thought the decision in Merritt v. Merritt, supra, was controlling and approved the chancellor's decree awarding to the wife a divorce from bed and board only. The finding of the chancellor to the effect that no reconciliation between the parties was possible and that it was not in the interest of society to preserve the marriage status between the parties under such circumstances was not adverted to by the Court of Appeals. This latter conclusion of the chancellor was not challenged, however, by either party in this court, and, if it were, the record fully sustains it.

Upon re-examination of Merritt v. Merritt, supra, the Court of Appeals expressed itself as being satisfied with the result therein reached, and indicated a disposition to adhere to the ruling in that case, for the further reason that a petition for certiorari therein had been denied by this court, pointing out an expression of this court in Beard v. Beard, 158 Tenn. 437, 14 S.W.(2d) 745, 747, that the denial by us of the writ of certiorari, "without a written opinion or some explanatory memorandum," tended to show the approval by this court of the reasoning of the Court of Appeals in a given case. The quoted expression of this court was merely intended to state the views of the case ordinarily entertained by this court when a petition for certiorari to the Court of Appeals is denied. Many petitions for certiorari, however, are denied because statutory prerequisites to their consideration are overlooked by counsel, and, moreover, this court has not felt itself required in every instance to file a memorandum upon denial of the writ, although we only concurred in the result reached by the Court of Appeals. Beard v. Beard, therefore, is not to be taken as announcing an invariable rule in this particular. At any rate, if upon re-examination we become dissatisfied with an opinion of the Court of Appeals which we approved, and a mere matter of practice is involved, we no more hesitate to investigate again the question decided than we would hesitate so to do in a like case disposed of by us on direct appeal.

In Merritt v. Merritt, supra, the Court of Appeals said:

"The rule is that no relief will be granted inconsistent with that prayed for. The decree ordinarily follows the special relief sought by the bill, if the pleadings and proof will warrant it. The relief under the general prayer must be such as follows, ordinarily and logically, from the pleadings and proof. Gibson's Suits in Chancery (2 Ed.), sec. 557. An absolute divorce is, of course, very inconsistent with a divorce from bed and board. In suits for divorce, as well as in suits in equity in general, all orders and decrees must be justified by the pleadings as well as by the proofs."

Marriage is a status regulated by law. Prescribed formalities are necessary to the creation of this status. Prescribed procedure is necessary to its dissolution. Although a divorce suit is in the nature of a suit in equity, Broch v. Broch, 164 Tenn. 219, 47 S. W.(2d) 84, nevertheless a divorce suit is sui generis. The procedure is largely controlled by statute. Pleading and practice in divorce cases, as governed by statute, differ in many particulars from pleading and practice in equity cases generally.

"But, in divorce cases, by our local legislation, the observance of forms, is, in a great degree, dispensed with, and, in this respect, such cases stand upon grounds peculiar to themselves, and do not fall within the ordinary rules governing chancery proceedings." Hackney v. Hackney, 28 Tenn. (9 Humph.) 450.

Section 8427 of the Code provides that it shall be a cause of divorce from bed and board, or from the bonds of matrimony, in the discretion of the court, "That he has abandoned her, or turned her out of doors, and refused or...