McClung v. McClung
| Decision Date | 13 November 1946 |
| Citation | 198 S.W.2d 820,29 Tenn.App. 580 |
| Parties | McCLUNG v. McCLUNG. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court Jan. 11, 1947.
Appeal from Domestic Relations Court, Knox County; Hu B. Webster Judge.
Suit by A. J. McClung against Lola Vaul Conner McClung for divorce wherein defendant filed a cross-bill. Decree dismissing the suit and sustaining cross-bill on ground of abandonment only and refusing to grant defendant alimony, and defendant appeals.
Modified and as modified affirmed.
Cates, Fowler, Long & Fowler and W. W. Piper all of Knoxville, for appellant.
Geo. S Child, of Knoxville, for appellee.
This is a divorce suit. On December 4, 1945, A. J. McClung, appellee, sued Lola McClung, appellant, for divorce on the ground of cruel and inhuman treatment. On December 27, 1945, she answered and filed a cross bill based on adultery, cruel and inhuman treatment and abandonment. On the hearing his suit was dismissed and her cross bill sustained on the ground of abandonment only. She was awarded his interest in their furniture and personal property except an automobile which was given him. A house they owned by the entirety was 'left as provided by law.'
She has appealed and assigned appropriate errors because the Court dismissed her bill as to the charge of adultery and cruel and inhuman treatment, and because the Court refused to grant her alimony (the award of household furniture was said by the Court to be because the parties agreed thereto) and that 'this is not a case for the award of alimony.'
These parties were married in February, 1929, and lived together in various East Tennessee cities from that time until a month before the original bill was filed. He is 60 years old and she is 43 years old. They have no children. She has worked for many years in a Knoxville bank. His employment has been here and there--never particularly regular or steady. During a great portion of their married life she has had to foot the bills or a large portion thereof for their living expenses. She is a devout christian. He is not.
During the last seven years of their married life he took frequent trips to surrounding towns telling his wife he was going on business. Either through intuition or his lack of sexual ardor she became suspicious that these trips were not business trips but were to meet and be with another woman. Her suspicions being aroused she checked his movements at various places and finally in July 1945 caught him in a hotel room at 10 o'clock at night with a strange woman partially dressed. This occurrence took place in a town fifty miles away from his home. The strange woman hastily dressed and left. The parties herein remained at the hotel, in separate rooms, the remainder of the night returning to Knoxville next day.
He was forgiven this transgression and the parties again resumed marital relations. She says she forgave him because he had sinned and she thought that by forgiving him she might be a means of making a christian out of him. Since the beginning of the world people have frequently wondered why such and such a woman put up with such and such a man. There have been various reasons given--more often no reason is given. Why they do we will not attempt to say. Be this as it may, the bedroom scene was condoned by their resumption of marital relations and cannot now be the basis of a divorce for adultery.
In 1943 the appellant purchased a home in Knoxville. The deed to this property was made to the appellant, she paying the down payment. They jointly signed a note and trust deed for deferred payments which along with taxes and upkeep were largely paid out of rents received from the portion of the house not occupied by these parties. These rents were not enough to pay all the necessary payments and the parties herein pooled their earnings and made up the difference. He has contributed about equal amount to that contributed by his wife for these payments.
Within sixty days after this bedroom incident and after the parties had resumed marital relations she deeded the home to...
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