Perry v. Perry

• Decision Date: 02 March 1946
• Citation: 192 S.W.2d 830,183 Tenn. 362
• Parties: PERRY v. PERRY.
• Court: Tennessee Supreme Court

192 S.W.2d 830

183 Tenn. 362

PERRY v. PERRY.

Supreme Court of Tennessee.

March 2, 1946

Error to Circuit Court, Davidson County; Richard P. Dews, Judge.

Suit by Grover J. Perry against Iris Aylene Perry to obtain a judgment that a prior decree for alimony be suspended or satisfied in full. From a judgment determining that the plaintiff might pay $1,000 in discharge of obligations under decree for divorce and alimony, the defendant brings error.

Judgment reversed and cause remanded.

George H. Cate, of Nashville, for plaintiff in error.

Rutherford & Rutherford, of Nashville, for defendant in error.

GREEN Chief Justice.

In 1938 the plaintiff, Iris Aylene Perry, was granted a divorce from the defendant, Grover J. Perry, in the Circuit Court of Davidson County. Following an agreement made between the parties before decree, the court directed the payment to the plaintiff by the defendant of alimony in the sum of $30 a month during the lifetime or until the remarriage of the former. The petition filed in this case avers that these payments have since been made for a period of about seven years.

This petition is filed by Perry asking 'that the decree for alimony be suspended or satisfied in full.' Mrs. Perry answered setting up the aforesaid contract between the parties, the decree of the court approving that contract, and challenging the jurisdiction of the court to modify its former decree. As appears from statement of counsel, the court heard the case on the petition and answer without proof, and adjudged that Perry might pay his former wife $1,000 in discharge of his obligations under the decree for divorce and alimony. Mrs. Perry has appealed.

In this court Mrs. Perry takes the position that since the decree of divorce contained no provision retaining the cause in court it was final and the court was without power to alter it. For this she relies on Going v. Going, 144 Tenn. 303 232 S.W. 443. Such was the law at the time of that case--1921. Since that time the Code of 1932 was enacted and § 8446 is as follows: 'Whether the marriage be dissolved absolutely, or a perpetual or temporary separation be decreed, the court may make an order and decree for the suitable support and maintenance of the complainant and her children, or any of them, by the husband, or out of his property, according to the nature of the case and the circumstances of the parties, the order or decree to remain in the court's control; and, on application of either party, the court may decree an increase or decrease of such allowance on cause being shown.'

The power of the court at a future date to modify the provisions in a divorce decree for the support of the wife or children cannot now be gainsaid. The statute keeps the cause in court as effectually as that could be accomplished by express retention thereof.

In his argument before this Court, counsel for Mrs. Perry contended that regardless of the foregoing her right to the continuing payment of $30 a month was secured to her by contract approved by the court and incorporated in the divorce decree. Counsel for Perry averred in the petition for modification that an agreement to pay alimony for the life of the wife was against public policy.

Without passing on this contention, we are satisfied that the agreement or contract made by these parties respecting alimony was against public policy and unenforceable for another reason. The contract was entered into before the decree of divorce and contained the following provision 'It is further agreed that this cause (the divorce suit) may be tried at any time...