Mollish v. Mollish

• Decision Date: 17 November 1972
• Parties: John McRay MOLLISH v. Doris Ann MOLLISH.
• Court: Tennessee Court of Appeals

Page 145

494 S.W.2d 145

John McRay MOLLISH v. Doris Ann MOLLISH.

Court of Appeals of Tennessee, Eastern Section.

Nov. 17, 1972 Certiorari Denied by Supreme Court April 16, 1973.

Rom Meares, Jr., Maryville, with Meares & Dungan, Maryville, for appellant.

D. K. Thomas, Maryville, for appellee.

OPINION

SANDERS, Judge.

This is an appeal from a decree of the Circuit Court of Blount County where the Court granted a divorce to the husband and awarded him custody of their 22-month-old child because of the religious beliefs of the mother.

The Plaintiff, John McRay Mollish, and the Defendant, Doris Ann Millish, were married in 1968. At the time of the trial of this case the Plaintiff was 30 years of age and the Defendant was 27 years of age and they had one daughter, 22 months of age.

At the time the parties were married the Plaintiff was a member of the Catholic faith and the Defendant was a member of the Lutheran Church. The Defendant was active in her church work, attended church every Sunday, taught a Sunday school class, acted as secretary, presumably, of the Sunday school, and had a children's nursery at the church. The difference in the religious faiths of the parties created no problem and when their child was born it was baptized in both the Lutheran Church and in the Catholic Church.

About eight months before the original bill in this case was filed, the Defendant became interested in the faith of Jehovah's Witnesses. After studying the teachings of this denomination for a while and attending some of their meetings, she renounced her affiliation with the Lutheran Church and became a member of Jehovah's Witnesses.

Plaintiff objected to Defendant's attending meetings or being affiliated with Jehovah's Witnesses because he didn't believe in a lot of things they taught.

As time passed the Defendant apparently became more devout in her new-found religion and the objection of the Plaintiff to her affiliation with it became more severe.

The Plaintiff set out on a course of conduct to force the Defendant to give up her membership in the church. He would not permit any of the members of the organization to come to their home and, on occasions when they would come by to pick up the Defendant to take her to church meetings, they would have to wait for her at the highway.

The Plaintiff would burn or destroy all of Defendant's religious literature, including her Bible.

He would forbid the Defendant to attend church meetings and on one occasion when she wanted to attend he forceably restrained her. On another occasion when she told him she was going to a meeting he became enraged, turned over a table and a chair and physically whipped the Defendant.

At another time, after Plaintiff and Defendant had agreed that they would invite the priest of Plaintiff's church and the elders of Defendant's church to their home in an effort to resolve some of their differences, the priest did not attend, but the elders were there for a few minutes and after they left the Plaintiff asked the Defendant why she invited those people into his house, then departed and stayed away from home all night.

The following day, when the Defendant told the Plaintiff she was going to a meeting, he told her he would take her, but instead of taking her to the meeting he drove 16 miles out into the country. When he stopped, she got out of the car and he drove off and left her.

The Plaintiff would refuse to have sexual relations with the Defendant, in spite of her solicitous overtures. He would tell the Defendant that if they were going to live together she would have to get out of the church; that it was a choice between him and her religion.

He stopped talking to the Defendant and started staying away from home until late hours at night, claiming he had been fishing. But when she asked him about his fishing tackle, he would turn and walk away.

Because the Defendant refused to give up her religion, the Plaintiff filed suit for divorce and custody of their child, alleging cruel and inhuman treatment.

The Plaintiff alleged in his bill that their marriage was reasonably happy until about eight months prior to filing his bill, when the Defendant started 'to toy with the idea of changing her church affiliation from that of a Lutheran to that of a Jehovah's Witness. This situation has grown progressively worse and has reached the point of being intolerable, all as will be more fully hereinafter set out.'

He alleged that the Defendant would go to church meetings at least once a week and take their baby and stay until almost midnight. But on the trial of the case the proof showed that these meetings would last only about two hours and the Defendant would be home by 9:30 or ten o'clock.

The Plaintiff alleged in his bill that the Defendant went to the State of Louisiana, stating that she needed to get away for a while, but he learned that she had attended a convention of Jehovah's Witnesses while there. The proof showed that the Defendant went to Louisiana to visit her mother and sister and did attend a meeting while there, but did not make this trip for the purpose of attending such meeting.

The Plaintiff alleged that the Defendant was high tempered and on occasion had cursed him and told him that she didn't love him and that she hated him.

The Defendant denied that she had ever cursed the Plaintiff since she had embraced her new religion and the extent of the Plaintiff's testimony on this allegation was that on an occasion when he was forceably restraining her from leaving the home to attend a church meeting she had said, 'Damn you.' The Defendant admitted that on one occasion she told the Plaintiff she hated him, but this was after the Plaintiff had wrecked their car while drinking and, instead of purchasing another car for family use, he purchased a pick-up truck and she was so hurt and disappointed when he brought it home without having consulted her that she did make the remark.

The Plaintiff further alleged that when the Defendant returned from her trip to Louisiana she falsely accused him of having a woman in their home and suggested he had been in bed with this woman. The Defendant testified that upon her return from Louisiana she had a rather distressing telephone call which made her 'think that, well, maybe John isn't fishing and everything'; that when she came back she found someone had been using her cosmetics, and bobby pins were on the sink, and long blond hair was in her hair brush; that although the Plaintiff had never before washed anything, the bed sheets had all been washed; that she did ask the Plaintiff if he had had someone in their home and 'he said that he didn't have to tell me anything, that he didn't know when I was going to return. Then he said if Stanley Blair had one of his girl friends here at the house, he couldn't stop that.'

The Defendant filed her answer to the Plaintiff's bill and later filed a cross bill seeking separate maintenance. The case was heard before The Honorable William Kittrell, Circuit Judge, who, after hearing the evidence, entered a judgment granting the Plaintiff a divorce and awarding him custody of their child.

The Defendant has perfected her appeal to this court and assigned error.

In rendering his judgment, the Court made no finding of fact, nor did he indicate upon what he relied for granting the Plaintiff a divorce and awarding him custody of the child. From reading the record, we can only conclude that the judgment was predicated upon the Defendant's religious beliefs.

On cross-examination the Plaintiff testified as follows:

'Q Mr. Millish, it's my understanding that it's your impression that your and your wife's problems started about eight months before August when you filed for a divorce; is that right?

'A Well, I'd say it was probably about eight months.

'Q And that the whole source of your problems as you understood it was because of your wife's acquaintance and later affiliation with the Jehovah's Witness church; is that right?

'A Yes Sir.'

Concerning the custody of the child, the Plaintiff, on direct examination, testified as follows:

'Q Mr. Mollish, as I understand you, if you are given a divorce in this case, it's your position that Mrs. Millish is not a proper person to have custody of this child and rear it under the circumstances that she lives under?

'A Yes Sir.

'Q And strictly on account of her attachment to this church; is that right?'

'A Yes Sir.'

In the course of the trial, the Plaintiff testified about certain beliefs of Jehovah's Witnesses which he does not embrace, but the one with which he appeared to be most concerned so far as the welfare of their daughter is concerned, is that they do not believe in blood transfusions.

However, in this regard, the Defendant testified that it was her belief that the Plaintiff, as the natural father of their child, should have control of the child and if he should feel that the child needed a blood transfusion, she would permit it.

There are other divergences of religious beliefs of the Plaintiff and Defendant--but the reason there are so many different religions of the world and so many different denominations within the Christian religion is because of divergent beliefs.

The Defendant has premised her assignments of error on: (1) The Court's granting the Plaintiff a divorce and (2) The Court's awarding the custody of their infant child to the Plaintiff.

The Defendant insists that it was error for the Court to grant the Plaintiff a divorce because: (a) The proof did not support the allegations and (b) That since the divorce was grounded upon divergence of religious beliefs, the action of the Court was unconstitutional.

In construing the statutory ground of cruel and inhuman treatment for divorce, our Supreme Court, in the case of Baber v. Baber (1959) 205 Tenn. 681, 330 S.W.2d 307, said:

'Cruel and inhuman treatment in this State is a wilful, persistent and continuing course of abusive and humiliating...