Newberry v. Newberry

• Decision Date: 02 February 1973
• Citation: 493 S.W.2d 99
• Parties: Sandra Lee Wilkerson NEWBERRY, Appellee, v. James Avery NEWBERRY, Appellant.
• Court: Tennessee Court of Appeals

Page 99

493 S.W.2d 99

Sandra Lee Wilkerson NEWBERRY, Appellee, v. James Avery NEWBERRY, Appellant.

Court of Appeals of Tennessee, Western Section.

Feb. 2, 1973 Certiorari Denied by Supreme Court April 2, 1973.

W. H. Inman, Morristown, Ben Z. Tabb, Chattanooga, for appellant.

James E. Beckner, Morristown, for appellee.

NEARN, Judge.

Sandra Wilkerson Newberry filed her complaint for divorce on November 16, 1971. The complaint charged cruel and inhuman treatment of the husband as the grounds for divorce. On November 26, 1971, James Avery Newberry filed his Answer and Counter-Claim. The Answer portion thereof denied any acts of cruel and inhuman treatment on his part and the Counter-Claim alleged that the plaintiff was guilty of cruel and inhuman treatment conduct toward him and prayed that the divorce be awarded to him.

After hearing the proof, the Trial Court awarded Mrs. Newberry the divorce, the home of the parties, certain of the contents thereof, custody of the minor child and ordered the husband to pay certain medical bills that had been accrued and $50.00 per week child support.

Mr. Newberry has perfected his appeal to this Court with five Assignments of Error. The first charges the Trial Court with error in awarding the divorce to the plaintiff and the second with error in not awarding the divorce to the counter-claimant. The remaining Assignments of Error complain of the financial awards and adjustments made by the Court.

Before considering the Assignments of Error, we must first consider the motion of the appellee to strike from the record the document styled 'Supplemental Assignments of Error, Brief and Argument of the Appellant, James Avery Newberry'.

The record from below was filed with this Court on April 20, 1972. Pursuant to Rule 12 of this Court, counsel for appellant timely filed his Assignments of Error and Brief; to which counsel for appellee timely filed his response thereto on May 9, 1972. It would seem that Mr. Newberry engaged additional counsel in the latter part of May, 1972. Additional counsel filed the 'Supplemental' document as aforesaid, on November 28, 1972. We grant the motion to strike the document not only because it comes way too late, but because its contents are things and matters entirely outside the record as evidenced by the first sentence thereof which is as follows: 'Your defendant, James Avery Newberry, presents this supplemental assignments of error and brief, due to a change of financial conditions not caused by him, but by the inhuman persecution of this defendant since the original trial.' Such document will not be considered by this Court.

Although a divorce action may be tried in the Circuit Court, it is yet a Chancery matter and is tried below as such and is reviewed on appeal as a Chancery matter. Jones v. Jones (1972 W.S.), Tenn.App., 486 S.W.2d 927. Therefore, the review in this court is De novo on the record, accompanied by a presumption of the correctness of the Decree below unless the preponderance of the evidence is to the contrary. T.C.A. § 27--303.

The real question presented by appellant's first two Assignments of Error is: Does the evidence preponderate against the Trial Court's findings that James Avery Newberry was guilty of cruel and inhuman conduct, and Sandra Wilkerson Newberry was not guilty of such conduct?

Cruel and inhuman treatment is often times not evidenced by public assaults and beatings, but is accomplished in more subtle and insidious ways. The whispered invective, accusation by insinuation, stinging sarcasm and heartless intimidation are the implements frequently used by which love, the vital principle which animates a marriage, is tortured to death; with the result that the once happy joinder becomes nothing less than a 'bridge of groans across a stream of tears'. The existence of such continuous refined cruelty can best be determined by the trier of the facts who has seen the parties face to face and who has observed their manner and demeanor as well as that of their respective witnesses. In such matters, the Trial Judge's judgment as to credibility of witnesses should not be overturned unless the clear preponderance of the evidence is to the contrary. Acree v. Acree (1969 W.S.), 60 Tenn.App. 386, 447 S.W.2d 108.

We deem it unnecessary to set out in detail all the proof adduced by both parties to sustain the charge against the other. See Ellis v. Ellis (1971 W.S.), Tenn.App., 472 S.W.2d 741. On cross-examination Mr. Newberry was asked if he denied the fact that he had cursed and called Mrs. Newberry vile and dirty names. His response was: 'I have told her what she was and it is the truth of what she is.' Further, there is competent evidence in the record that Mr. Newberry has denied that the child of the parties is his and that he has refused to have sexual relations with his wife for a considerable period of time. Suffice it to say, after examination of the record, we have concluded that the evidence does not preponderate against the finding of the Trial Judge on the issue of which party was guilty of cruel and inhuman treatment and which was not. Therefore, the first two Assignments of Error are overruled.

The proof shows that this marriage was the second marriage for both parties. Mr. Newberry has two children by his first marriage. His first wife was killed in an accident. Shortly before Mr. Newberry married the plaintiff, he purchased in his own name with his own funds a home located at 1325 Hickory Lane in Morristown, Tennessee. The record indicates that the home has a value of approximately $23,500.00. Immediately prior to the purchase of the home in question, Mr. Newberry owned another home which he sold in order to buy 1325 Hickory Lane. At the time of purchase, Mr. Newberry paid the sum of $6,000.00 as down payment and executed or assumed a mortgage for the balance. Mr. Newberry, sometimes one and sometimes both of...