Logan v. Logan

• Decision Date: 13 November 1943
• Citation: Logan v. Logan, 176 S.W.2d 601, 26 Tenn.App. 667 (Tenn. App. 1943)
• Parties: LOGAN v. LOGAN.
• Court: Tennessee Court of Appeals

176 S.W.2d 601

26 Tenn.App. 667

LOGAN v. LOGAN.

Court of Appeals of Tennessee, Middle Section.

November 13, 1943

Certiorari Denied by Supreme Court Jan. 8, 1944.

Haynes & Green, of Winchester, for plaintiff in error.

Cummings & Melton, of Woodbury, and Warden & Warden, of Manchester for defendant in error.

FELTS Judge.

This is a contest over the custody of Jimmy Logan, age 5, waged on the one side by his mother, Hazel Logan, and on the other by his paternal grandparents, E.A. Logan and wife, Hallie Logan.

In 1936 their son Vernon Logan and Hazel Logan married and this one child was born of their union. In November 1940 she filed the original bill in this cause for divorce and custody of the child, alleging non-support and cruel and inhuman treatment. Vernon Logan filed an answer and cross bill denying the charges, making counter charges of cruel and inhuman treatment, and seeking a divorce and custody of the child.

On January 10, 1941, the cause was heard before the Honorable R.W. Smartt, Circuit Judge, and he sustained the bill dismissed the cross bill, granted Hazel Logan a divorce from bed and board, ordered the husband to pay the wife for herself and the child $5 per month, and decreed to her the exclusive custody of the child. This decree however, directed the mother, on the first Sunday of every month, after attending church or Sunday school, to take the child to the home of Mr. and Mrs. E.A. Logan, where the child was to remain until the following Saturday afternoon, when they directed to return the child to the custody of the mother.

She filed a petition in the cause on August 2, 1941, charging Vernon Logan had failed to pay the monthly installments as ordered and asking that he be attached for contempt. He filed an answer alleging he had paid such installments and denying that he had been guilty of contempt. The record does not reveal what action was taken on this first contempt proceeding.

Vernon Logan filed a petition January 15, 1942, charging that Hazel Logan had been guilty of various acts of misconduct and was not a fit person to have custody of the child. He prayed for an absolute divorce and that the custody be decreed one-half the time to his father, E.A. Logan, and the other one-half to M.S. Smoot, father of Hazel Logan. On January 15, 1942, Judge Smartt entered a decree granting Hazel Logan an absolute divorce. On January 30, 1942, she filed another petition for contempt on the ground that Vernon Logan had failed to pay the $5 per month as ordered. She also filed an answer to his petition of January 15, denying its charges.

The Honorable T.L. Coleman, Circuit Judge, sitting by interchange for Judge Smartt, on February 9, 1942, heard the cause upon these various petitions, dismissed the petition for contempt, ordered that the former decree as to the custody remain in force, and ordered Vernon Logan to continue paying $5 per month.

On July 9, 1942, E.A. Logan and Hallie Logan filed their petition in the cause, reciting the former proceedings, alleging that in May 1942 Hazel Logan had married one Clark and she had refused to bring the child to their home as directed by the former decree; that she was not now the person to have custody of the child; and that they were proper persons and capable of caring for the child. Their petition prayed that she be attached for contempt and that they be decreed the exclusive custody of the child.

On August 12, 1942, Hazel Logan Clark answered the petition, averring that Vernon Logan had been in contempt since January 25, 1942, for refusing to pay the $5 monthly installments; that petitioners, E.A. and Hallie Logan, had themselves been violating the terms of the original decree, which enjoined them to do nothing to alienate the child from the mother; and that they had been continually poisoning the child's mind against her. She admitted that, in view of these continual violations of the decree by them, she did refuse to deliver the child to them on one occasion, she acting without advice and under the impression that since they were disregarding the decree she could do so too. She reiterated that she was a fit and proper person to have custody of the child and prayed that their petition be dismissed.

Judge Coleman heard the cause upon the petition and answer on September 25, 1942. He held that Hazel Logan Clark had not been guilty of wilful contempt, and he dismissed the petition, but allowed the original decree as to the custody to stand unmodified.

On October 30, 1942, E.A. Logan, Hallie Logan, and Vernon Logan, filed their joint petition reciting the former proceedings, and averring that at the time the former decrees were entered all the parties lived in Manchester; that since her recent marriage Hazel Logan Clark and her husband had moved to Tullahoma, approximately 11 miles from Manchester, and had taken the child with them; that by her flagrant disobedience of the decree of the court regarding the custody she had forfeited her right to such custody; and that petitioners were proper persons to have the custody; and they prayed that the court modify the former decree so as to give them the exclusive custody of the child.

Hazel Logan Clark answered this petition reciting in detail the former steps in the cause, and denying that she had violated the decrees except in the one instance above noted. She alleged that this petition was a continuation of the efforts of petitioners "to vex and trouble her into turning over the child to petitioners." She further averred:

"*** She loves her child, is devoted to its interests and lives in constant fear that petitioners will continue to harass and vex her by court proceedings which are unfounded, unjust and without foundation in fact. Respondent most respectfully prays and humbly petitions that this matter be heard in full and settled once and for all, so that she may rest in peace and live a normal undisturbed life devoted to the care and attention of her only child."

And she prayed that the former decrees be modified so as to give her the exclusive custody of her child and that she be not required to deliver him to his grandparents any more.

Judge Smartt, on February 14, 1943, entered an order directing that, pending a hearing upon the petitions, E.A. Logan and wife should have the custody of the child from 9 a.m. of the first day till 9 a.m. of the eleventh day of each month, beginning with the month of February 1943; and that Hazel Logan Clark deliver the child to them at the hour named on the first day and they return the child to her at the hour fixed on the eleventh day of each month.

The cause was heard upon these petitions and the testimony of witnesses on April 22, 1943, before the Honorable Alan S Kelly, Circuit Judge, sitting by interchange with Judge Smartt. He found that Mrs. Hazel Logan...