Mount v. Mount

• Decision Date: 25 February 1959
• Citation: 46 Tenn.App. 30,326 S.W.2d 493
• Court: Tennessee Court of Appeals
• Parties: Floy Humphrey MOUNT, Appellant, v. William Wilson MOUNT, Appellee. 46 Tenn.App. 30, 326 S.W.2d 493

Page 493

326 S.W.2d 493

Floy Humphrey MOUNT, Appellant, v. William Wilson MOUNT, Appellee.

46 Tenn.App. 30, 326 S.W.2d 493

Court of Appeals of Tennessee, Western Section.

Feb. 25, 1959 Certiorari Denied by Supreme Court July 27, 1959.

[46 TENNAPP 31] Thomas F. Turley, Jr., Memphis, for appellant.

Blanchard S. Tual, Memphis, for appellee.

BEJACH, Judge.

For convenience, the parties hereto will be designated in this opinion, as in the lower court, as complainant and defendant, Mrs. Mount having been the [46 TENNAPP 32] complainant and Mr. Mount the defendant, or they will be called by their respective names.

This cause is before us on its third appeal from the Chancery Court of Shelby County. The first appeal was from a decree of Hon. Hamilton E. Little, Chancellor, who has since died. The second and third appeals were from decrees of Chancellor Rives A. Manker. The cause originated by a bill for separate maintenance, later amended to pray for an absolute divorce. There was an answer and cross bill which prayed for an absolute divorce. On the hearing prior to the first appeal, Chancellor Little dismissed both the original bill and the cross bill, and made no provision for the support or maintenance of the complainant. On the first appeal, this Court reversed the Chancellor, granted to Mrs. Mount a decree of divorce on the ground of two years desertion, and also on the ground of cruel and inhuman treatment, and awarded alimony to Mrs. Mount, consisting of the defendant's interest in the home place owned by the parties as tenants by the entireties, together with all of the furniture therein, plus the monthly sum of $400 to be paid by defendant. Certiorari was granted by the Supreme Court, where the decree of this Court was reversed, as was also the decree of the Chancellor. From the decree entered in the Supreme Court, we quote, as follows:

'It is therefore ordered and decreed by the Court that the decrees of the Chancellor and the Court of Appeals be reversed; and that this cause be remanded to the Chancery Court of Shelby County for further proceedings in accordance with the Court's opinion, a certified copy of which will accompany the procedendo on remand; and for the collection of the [46 TENNAPP 33] cost of the court below, for all of which let procedendo issue.'

From the opinion of the Supreme Court, written by Mr. Chief Justice Neil, we quote as follows:

'We think the Chancellor erred in dismissing the original bill as amended. When he examined the parties in open court at the conclusion of the testimony and learned from them that there was no possibility of a reconciliation, he should have entered a decree from bed and board on behalf of Mrs. Mount and made a proper allowance for her support, retaining the cause in court for such other and further orders and decrees as future developments might require.

'The Court of Appeals is reversed and the cause is remanded for the entry of a decree in accordance with this opinion. Pending the entry of any decree based upon any future hearing by the Chancellor, the temporary allowance of $200.00 per month to Mrs. Mount will remain in full force and effect. However, this may be increased or reduced as the Chancellor may see fit.

'As to any further determination of the marital and property rights of the parties, including an allowance of additional counsel fees for Mrs. Mount's solicitor, we leave to the sound judgment and discretion of the Chancellor.'

Divorce being exclusively a statutory right in Tennessee, no divorce, either absolute or from bed and board, should have been granted to either complainant or defendant, unless on proof of one or more of the grounds [46 TENNAPP 34] set out in Sections 36-801 and 36-802 T.C.A. Lack of possibility of a reconciliation is not there enumerated. As has been said by Mr. Chief Justice Neil, speaking for the Supreme Court in Perrin v. Perrin, 201 Tenn. 354, 299 S.W.2d 19, at page 24: '* * * it must also be understood that the court cannot by judicial fiat add an additional ground for divorce that is unknown to the statute, 36-801 T.C.A.' We can not question the validity of the divorce granted in the instant case, because the opinion of the Supreme Court herein and the decrees entered pursuant thereto have become the law of this case. Stargel v. Stargel, 21 Tenn.App. 193, 107 S.W.2d 520; Going v. Going, 148 Tenn. 522, 256 S.W. 890, 31 A.L.R. 633; Douglas v. Douglas, 156 Tenn. 655, 4 S.W.2d 358; Perrin v. Perrin, 201 Tenn. 354, 299 S.W.2d 19; and 3 Am.Jur.--Appeal and Error--Sections 1009 and 1158, pages 353 and 669.

After the remand by the Supreme Court, at a hearing before Chancellor Rives A. Manker, who had succeeded Hon. Hamilton E. Little, complainant was awarded a decree of divorce from bed and board, together with an award of $350.00 per month as alimony, and the additional sum of $500.00 as fee for services of her attorney. This decree provided, also, that after one year either party might apply to have the divorce made absolute. From the opinion of Chancellor Manker, we quote, as follows:

'From all of which it appears, and the Court finds, that the grounds alleged in complainant's original and amended and supplemental bills are true; that defendant is guilty of such cruel and inhuman treatment or conduct towards her as renders cohabitation [46 TENNAPP 35] unsafe and improper and for her to be under his dominion and control, and that complainant is entitled to a decree from bed and board, as ordered annd decreed by the Supreme Court.

'The Court further finds from its interpretation of the opinion of the Supreme Court and from the applicable law, that the property rights of these parties are not affected by this decree, but that defendant should contribute to complainant a reasonable amount for her support; that said sum is $300.00 per month; that as long, however, as defendant continues to occupy the furnished residence owned by these parties as tenants by the entireties, he should contribute the additional sum of $50.00 per month for complainant's support, and continue to maintain the monthly mortgage payments upon said property, in the approximate sum of $50.00, and the taxes and insurance thereon; further that the Court was not directed by the Supreme Court to fix in solido alimony for complainant, as prayed by her, during the time the bed and board divorce is in effect.

'The Court further finds that a reasonable fee for services to date for complainant's solicitor is the sum of $500.00, in addition to a like sum heretofore allowed.

'It is therefore, ordered, adjudged and decreed:

'1. That Floy Humphrey Mount, complainant herein, be and she is awarded a bed and board divorce from defendant, William Wilson Mount.

'2. That after the expiration of one year from the entry of this decree, either party may apply to make this divorce absolute.

[46 TENNAPP 36] '3. That defendant pay to complainant, beginning April 1, 1957, the sum of $350.00 per month as alimony, pending further orders of this Court, the cause being retained for all purposes.

'4. That defendant pay complainant's solicitor, Thomas F. Turley, Jr., the additional sum of $500.00 as fee for services rendered to complainant to date.

'5. The costs of this cause are adjudged against defendant, for all of which execution may issue.

'6. Defendant will maintain the mortgage payments, taxes, insurance and repairs upon the residence of these parties.

'To all of which, except the portion thereof decreeing her a divorce from bed and board as ordered by the Supreme Court, complainant respectfully excepts and prays an appeal to the next term of the Court of Appeals in Jackson, which appeal is granted, and complainant having tendered her pauper's oath for appeal, the same is ordered filed and the appeal stands perfected.'

On the second appeal, this Court reversed the Chancellor as to the amount of his award of counsel fees for complainant's lawyer, and, so as to transfer to complainant the title to one of the automobiles owned by defendant; but, in other respects, the Chancellor's decree was affirmed because, the divorce being from bed and board, only, it was the opinion of this Court that the Chancellor had not abused his discretion with reference to the award made by him pending the application for an absolute divorce. There was no petition for certiorari on the second appeal. From the opinion of this Court, on the second appeal, written by Carney, J., we quote as follows:

[46 TENNAPP 37] 'The Chancellor was of opinion that $300.00 per month was a reasonable sum for the complainant's support, but in view of the fact that the defendant continued to live in the home owned by the parties as tenants by the entireties, the Chancellor ordered the defendant to pay to the complainant the sum of $350.00 per month as alimony and required the defendant to continue paying the monthly payments on the mortgage indebtedness on said home in the amount of approximately $48.00 per month.

'It is to be observed that the parties are still married and theoretically, at least, a reconciliation may occur within the year's legal separation provided by the Chancellor's decree, making a final adjudication of the property rights between the parties unnecessary.

'The general rule is that the trial court is vested with wide discretion in matters of divorce, alimony, attorney's fees, custody and support of minor children, and appellate courts will not interfere except upon a showing of an abuse of that discretion. Marmino v. Marmino, 34 Tenn.App. 352, 238 S.W.2d 105; Grant v. Grant, 39 Tenn.App. 539, 286 S.W.2d 349.

'Bearing this rule in mind, and bearing in mind that there will probably be a hearing by the Chancellor on a petition to make the divorce final and absolute, we feel constrained to overrule those assignments of error relating to the refusal of the Chancellor to decree to the wife full title to the home, the furniture and a portion of the life insurance.

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[46 TENNAPP 38]...