Murrell v. Murrell

• Decision Date: 31 December 1958
• Citation: 45 Tenn.App. 309,323 S.W.2d 15
• Parties: Leo Marshall MURRELL, Appellant, v. Frances May MURRELL, Appellee.
• Court: Tennessee Court of Appeals

Page 15

323 S.W.2d 15

45 Tenn.App. 309

Leo Marshall MURRELL, Appellant, v. Frances May MURRELL, Appellee.

Court of Appeals of Tennessee, Western Section, at Jackson.

Dec. 31, 1958 Certiorari Denied by Supreme Court April 8, 1959.

W. C. Rodgers, Memphis, for appellant.

Hanover, Hanover, Hanover & Walsh, Memphis, for appellee.

BEJACH, Judge.

This cause involves an effort by Leo Marshall Murrell, who was divorced from the appellee, Frances May Murrell, by a decree of absolute divorce granted in the Circuit Court of Shelby County, Tennessee, November 30, 1956, to have that decree set aside and declared null and void. For that purpose, on March 17, 1958, he filed a petition in the cause in which the divorce decree had been entered, same being Number 71466 R.D. in the Circuit Court of Shelby County. Pursuant to that petition, and as therein prayed for, new process was issued and served on Frances May Murrell, who had been the complainant or petitioner in the divorce action and in whose favor the divorce had been granted. In response to said petition and process, the respondent, Frances May Murrell, entered her appearance April 7, 1958 by filing a 'Motion to Dismiss Petition to Set Aside and Vacate Decrees Heretofore Filed'. The grounds of said motion to dismiss are:

'1. That the petition on grounds therein stated, is unknown to the forms of equity;

'2. That the only proper method for setting aside a former decree for errors of law is by a bill of review, which the petition herein filed is not, and that same cannot be sustained as such because:

'(a) There are no errors of law apparent on the face of the decree,

'(b) The petition alleges no evidence or facts not already considered and passed on;

'3. That the proper method for setting aside a decree on the grounds of fraud would be by a separate bill in the Chancery Court;

'4. That all the matters and things alleged in said petition were fully considered at the original hearing of the cause, so that if any errors were made by the Court, the proper method to correct same would have been by appeal.'

Said motion of respondent was sustained by the trial judge, and by order entered April 24, 1958, the petition to set aside the former decree of divorce was dismissed. From the order of dismissal, we quote as follows:

'That this Court is of the opinion that the petition heretofore filed by the defendant is not well taken, in that this Court has no jurisdiction at this time to hear and try the matters raised in the petition itself; that a full and complete hearing was accorded the petitioner at the original filing of this cause, and that his remedy, if he felt he was aggrieved by the final decree, was one of appeal; and that no error of law appears on the face of the decree.

'This Court is further of the opinion that in regard to the fraud claimed by the petitioner and alleged by him to have been practiced in this Court with regard to this Court's jurisdiction to try the cause originally, that the petitioner's proper remedy would be to file an original bill in the Chancery Court of this County.'

From this order of dismissal, petitioner, Leo Marshall Murrell, has prayed and perfected his appeal to this Court. Here he has filed one assignment of error which is as follows:

'Assignment of Errors

'The Circuit Court erred in dismissing appellant's 'Petition to Set Aside and Vacate Former Decrees' of divorce, on the grounds that it had no jurisdiction 'to hear and try the matters raised in the petition', and that his only remedy was, to appeal from the original decrees, or 'file an original bill in Chancery Court' to set aside the decrees, on the grounds of fraud (R.p. 045), because, all such decrees are subject to direct attack by such petition where the record, particularly, the bills or petitions, themselves, fail to state sufficient cause of action to vest the Court with jurisdiction.'

For convenience, the parties will be referred to in this opinion as petitioner and respondent, Leo Marshall Murrell, being the petitioner, and Frances May Murrell, being the respondent, or referred to by their respective names, with perhaps an occasional reference to respondent, Frances May Murrell, as complainant, and Leo Marshall Murrell, as defendant, she having been the complainant in the original divorce action, and he the defendant therein.

The record before us includes the entire technical record of the divorce suit, no bill of exceptions having been filed to preserve the testimony therein offered; and, of course, the technical record consisting of appellant's petition and the respondent's motion to dismiss same. The motion to dismiss having been sustained, there was, obviously, no oral evidence at the last hearing, which could be preserved. The material facts, as presented by this record, are as follows:

On January 9, 1956, Frances May Murrell filed a petition for separate maintenance and support. This petition alleges that she and defendant, Leo Marshall Murrell, are both resident citizens of Memphis, Shelby County, Tennessee, and that they intermarried at Grenada, Mississippi March 17, 1951, from which union one child Patricia Anne, then two years of age, was born. This petition alleges further that she and defendant first lived in Mobile, Alabama; then in November 1951 they moved to New Orleans, Louisiana, where they remained until January 1954; that the situation between said defendant and herself became intolerable while living in New Orleans, and in January 1954, she filed a separation suit against him; and that while separated, she lived with her family in Memphis, Tennessee. It alleges further, that on March 25, 1955, while she was living at the home of her father, (in Memphis), said defendant tried to force his way into her father's house and created such a disturbance that her father was forced to call upon police authorities for assistance; and that, after he was released, on April 27, 1955, after he had called and made arrangements to see their child, he grabbed said child and started to run down the street; whereupon she, her mother and two neighbors, ran after said defendant and secured the said child. Her petition alleges further that a reconciliation was effected in August 1955 and that at this time she spent a month with defendant at LaFayette, Louisiana; that he was advised that he would be sent to Memphis, Tennessee, and that she came to Memphis to secure a place for them to live in October 1955. Her petition alleges further that she did everything possible to make the marriage a success, and after the reconciliation, doubled her efforts; but that defendant's conduct made it impossible. Her petition refers to the defendant's resentment against a child of hers born of a former marriage, which resentment she alleges became more intense after their own child was born, and enumerates instances of misconduct toward and mistreatment of her said child by a former marriage, which instances she claimed were intended to and did harass her. Other instances of mistreatment by defendant of their own child are alleged, coupled with the allegation that she had told defendant to quit 'pestering' her, whereupon he stated that she had called him a pest and that he intended to be one as far as she was concerned; and that in order to punish her he refused to permit her to go to her mother's house to take their baby. The petition concludes with the allegation that:

'She would further show that the situation is so intolerable she is now leaving said defendant and going to the home of her parents; that she fears unless said defendant is restrained by law from so doing he will seek to forceably take from her the custody of her minor child and it is necessary the Court set times and places said defendant is to have said child with him; that as young as said child is, said defendant has so influenced said child that she does nothing petitioner wants her to do; that she has suffered great mental anguish over said defendant's conduct and realizes now the situation between them is hopeless and she can no longer live with him.

'Wherefore, she now charges that said defendant has been guilty of such cruel and inhuman treatment or conduct towards her as renders it unsafe and improper for her to cohabit with him and be under his dominion and control; that the said defendant offered such indignities to her person as to render her condition intolerable, thereby forcing her to withdraw.

'She would further show that she does not wish an absolute divorce at this time.'

The petition prays for process, for injunction against defendant, Leo Marshall Murrell, and against the Plaza Branch of the First National Bank, which was made a party to the suit (which injunctions were granted at that time, but are not now material to the issues involved on the present appeal); prays that custody of their minor child, Patricia Anne Murrell, be awarded to her; that she be awarded separate maintenance and support for herself and said minor child; that as alimony, she be awarded any and all interest the said defendant has in and to the furniture accumulated during their married life; that her attorney of record be awarded reasonable attorney's fees; and for such other and further relief as she may be entitled to.

On January 12, 1956, as defendant to the petition for separate maintenance and support, Leo Marshall Murrell, filed an answer in which he either denies or undertakes to explain and justify the allegations of the petition not admitted by him.

On January 13, 1956, an order was entered awarding alimony, child support, and attorney's fees pendente lite.

On May 17, 1956, a decree of divorce from bed and board was entered. This decree recites that complainant moved the Court to amend her original bill to ask for an absolute divorce, which motion was granted; and it also recites that the cause was heard on testimony of complainant and her witnesses, Mrs. Frank Flournoy and Mrs. G. R. Wright, and the...