Page v. Turcott

• Decision Date: 09 January 1943
• Parties: PAGE et al. v. TURCOTT.
• Court: Tennessee Supreme Court

167 S.W.2d 350

179 Tenn. 491

PAGE et al. v. TURCOTT.

Supreme Court of Tennessee.

January 9, 1943

Appeal from Chancery Court, Shelby County; John E. Swepston Chancellor.

Suit by Mary Page and others against Grayce Blaylock Turcott wherein complainants challenge the validity of the defendant's marriage to complainants' brother and assert the right to inherit the brother's estate. From an adverse decree, the complainants appeal.

Decree affirmed.

Hanover & Hanover and L. J. Monteverde, all of Memphis, for complainants.

John T Shea, Sam Taubenblatt, and Harry C. Pierotti, all of Memphis for defendant.

CHAMBLISS Justice.

John Joseph Turcott died intestate in Shelby County, February 3, 1942. The defendant is his widow, who was duly appointed and qualified as administratrix of his estate. John Joseph Turcott and the defendant were married in Tipton County November 17, 1935, and lived as man and wife until his death.

Complainants are sisters and collateral heirs of John Turcott, who challenge the validity of this marriage and assert the right to inherit the estate.

The bill, filed May 4th, 1942, alleges that the defendant had been formerly married to one Drummond Hughes, against whom she filed a bill for divorce in the Circuit Court of Shelby County November 16, 1927, and was granted a decree on the 23rd of December thereafter,--more than fourteen years before the filing of the bill herein. The bill charges that this decree of divorce was void and that the subsequent marriage of John Turcott, deceased, to the defendant was, therefore, invalid and that defendant never became the legal wife of the deceased, and has no valid claim as his wife on his estate.

The challenge of the decree of divorce is on two grounds:

First, that the allegations of the bill for divorce were insufficient to confer upon the Court jurisdiction, in that (1) the causes of complaint were not set forth, with such circumstances of time and place and with such reasonable certainty as is required by Code, Section 8430; and that, more specifically, (2) sufficient facts were not alleged to show that the abandonment and non-support alleged in the bill for divorce (being the ground on which it was granted) was "premeditated, intended or wilful," or otherwise within the demands of the statute.

Second, that the Special Judge shown by the record to have granted the decree of divorce was without legal authority to act because (1) the minutes do not recite the facts touching his election in compliance with the statute, or that (2) the regular Judge was absent or disqualified; or (3) that the Special Judge was qualified to act, or (4) that he took the prescribed oath.

The Chancellor sustained four of eleven grounds of demurrer, dismissed the suit, and complainants appealed.

General grounds of demurrer were that, (1) complainants had no rights in the estate of John J. Turcott at the time of his death, and had none that were prejudiced at the time of the decree of divorce and cannot attack the decree collaterally; and that (2) the deceased husband would have been estopped by laches and acquiescence from denying the validity of said decree and his heirs at law are likewise estopped.

Challenging the charge of the jurisdictional insufficiency of the pleadings, the demurrer pled (1) that the petition for divorce set forth particularly and specifically the causes of the complaint with reasonable certainty such circumstances of time and place as the law requires; (2) that even though a jurisdictional fact may not be affirmed upon the record, it will be presumed upon a collateral attack that the Circuit Court, a Court of general jurisdiction, acted with authority and its judgment is valid; and (3) that, even though the petition contained a defect in form or substance, such defect was cured by the decree, if on the trial the issue required proof.

To so much of the bill as challenged the authority of the acting Judge, the demurrer pled, (1) that the right, title or authority of a Special Judge who presided in a cause is not subject to attack in a collateral proceeding; (2) that the bill contains no allegation that the Judge did not in fact have due authority to act, and, in the absence of any allegation or showing to the contrary, his authority will be presumed; and (3) that incompetency, lack of authority and defects in election of a Special Judge are waived by failure to object in the trial court.

The two grounds of attack are pressed upon our attention by appellants through numerous assignments and earnest and extended arguments are presented by able counsel for both parties.

The jurisdiction to grant a divorce is statutory and it is well settled that, as an essential of jurisdiction, a petition for divorce must contain allegations setting "forth particularly and specifically the causes of the complaint, with circumstances of time and place, with reasonable certainty," as required by statute. Code, Section 8430. Each petition must be tested by this statute and must meet its requirements. We look then first to the petition which is herein attacked for alleged insufficiency, bearing in mind that the divorce was granted for this statutory cause: "That he has abandoned her, or turned her out of doors, and refused or neglected to provide for her." Code, Section 8427. Was this cause "set forth particularly and specifically *** with circumstances of time and place, with reasonable certainty"?

The petition first sets out the names and residence in Shelby County of the parties, for more than two years before the filing of the bill, and next their marriage, in April, 1927. The petition then proceeds:

(1) "Complainant further shows to the Court that from the beginning of their marriage, the defendant has constantly made false and malicious accusations against her, and constantly intimated and insmuated she was meeting other men.

(2) "She further shows to the Court that during the time they lived together as husband and wife, the defendant did not support her, and she was forced to work from time to time to meet their bills.

(3) "She further shows that on the 14th day of July, 1927, the defendant grew angry over some trivial matter, and left her; that he has not since been back to live with her, and has not contributed anything whatsoever toward her support.

(4) "She further shows that the defendant was extremely jealous without any cause whatsoever, and made her life very unhappy by his constant false and malicious accusations.

(5) "Complainant therefore charges that the defendant has been guilty of such cruel and inhuman treatment or conduct towards her.

(6) "She further charges that the said defendant has abandoned her and turned her out of doors, and has refused and neglected to provide for her; that said abandonment was without reasonable cause, and occurred in Shelby County, Tennessee.

(7) "She further shows that the defendant is working for the Southern Motors Car Co., as a salesman, but she is not advised as to his earnings; that she has not fund or means of support, except her small salary, out of which she has to support her child by a former marriage, and that she has no property or funds to defray the expenses of this action."

We have numbered the foregoing paragraphs for convenient reference. It will be observed that paragraphs (1), (4) and (5) state and relate to charges of cruel and inhuman treatment. Since the decree was not granted on this ground, we need consider only whether or not the charge of abandonment and nonsupport is sufficiently set forth in paragraphs (2), (3), (6) and (7). It will be seen that in paragraph (6) the charge is made, in the language of the statute, that the "defendant has abandoned her and turned her out of doors, and has refused and neglected to provide for her"; and the petition adds the charge that "said abandonment was without reasonable cause," thus negativing this defense, "and occurred in Shelby County, Tennessee."

We understand the specific insistence of appellants to be that the bill failed "to charge that the said abandonment and non-support of which the said complainant in said cause complained, was "premeditated, intended or wilful," to use the language of the original bill herein. Is it essential that the petition show affirmatively that the abandonment of and failure to provide for the wife was "premeditated, intended, or wilful"?

Counsel apparently mistakenly seek to apply to the cause alleged, and made the basis of the decree in the instant case, of abandonment and failure to support, being the cause set out in subsection (3) of Code, Section 8427 (Shannon's Code, § 4202), expressions in cases dealing with the cause of wilful or malicious desertion, found in subsection (4) of Code, Section 8426. Certainly, when the relief sought is for this cause, it must be charged as well as proved that the desertion was intended and wilful. And, when this is the cause relied on, or when the charge is cruel and inhuman treatment, under subsection (1) of Code, Section 8427, not only must the allegation be made "in words fully equal and definite in their meaning" to those of the statute ( Stewart v. Stewart, 32 Tenn. 591, 592; Saillard v. Saillard, 2 Tenn.Ch.App.396), but the requirements of particularity and specification, with circumstances of time and place, Code, Section 8430, must be observed with particular care. But, even in these cases, "reasonable certainty" only is exacted, not "mathematical certainty," remembering that the manifest purpose of this statute is to ensure "notice to the defendant in order that he might defend intelligently." Brown v. Brown, 159 Tenn. 551, at page 553, 20 S.W.2d 1037, at page 1038; Baeyertz v. Baeyertz, 171 Tenn. 190, 101 S.W.2d 689.

We think a degree...