Plantt v. Plantt

• Decision Date: 04 November 1944
• Citation: 186 S.W.2d 338,28 Tenn.App. 79
• Parties: PLANTT v. PLANTT.
• Court: Tennessee Court of Appeals

186 S.W.2d 338

28 Tenn.App. 79

PLANTT v. PLANTT.

Court of Appeals of Tennessee, Middle Section.

November 4, 1944

Certiorari Denied by Supreme Court March 3, 1945.

Appeal from Circuit Court, Davidson County; Byrd Douglas, Judge.

Suit for divorce by Walter Henry Plantt against Martha Brown Plantt, wherein defendant filed a cross-action for divorce. From a decree granting defendant an absolute divorce defendant appeals.

Affirmed and remanded.

Rutherford & Rutherford and J. V. Crockett, all of Nashville, for appellant.

Z Alexander Looby and Homer B. Weimar, both of Nashville, for appellee.

HICKERSON Judge.

Walter Henry Plantt filed the original petition for divorce in which he alleged that he was a preacher and that his wife had gone amongst the members of his congregation and had told them that he was 'running around with lewd and loose women of his pastorate;' that he had to give up his church work on account of these accusations of his wife which were untrue that he was 'an upright, righteous, Godfearing colored man, who has always tried to walk in the path of goodness and righteousness;' and that this conduct of his wife constituted cruel and inhuman treatment which entitled him to a divorce from her.

Martha Brown Plantt answered the petition and stated that she may have accused her husband of running around with other women, but if she did the statements which she made were true. By way of cross action she alleged that her husband had abandoned her and had failed, refused and neglected to provide for her; and 'in addition to that he has taken up with another woman with whom he is living in adultery.' She charged that he was guilty of cruel and and inhuman treatment and that it was unsafe and improper for her to live and cohabit with him and be under his dominion and control; and that 'his cruel treatment consisted of his living unlawfully with another woman by whom he has a five year old child which he admits to be his.'

In an answer to the cross petition the husband denied the material allegations thereof.

The case was heard by the circuit judge without a jury upon oral testimony. The judgment of the circuit court provided: 'After due consideration, the Court finds and holds that the allegations of the original bill are not supported by the proof and the same is accordingly dismissed. The Court further finds that the allegations of the cross bill as to cruel and inhuman treatment are sustained by the proof and the Court exercising its discretion orders, adjudged and decrees that the bonds of matrimony heretofore subsisting between the parties be and the same are perpetually dissolved and the cross complainant is hereby granted an absolute divorce from the cross defendant and restored to all the rights and privileges of an unmarried person.'

The court overruled a motion for new trial which was filed by Martha Brown Plantt and she appealed to this court.

The assignments of error present three questions for our determination: (1) That 'the trial court erred in failing to allow the amendment so as to make specific charges against cross defendant;' (2) the court erred in refusing to grant the wife a divorce on the ground that her husband had been guilty of adultery with Pearl Matlock; and (3) the court erred in granting the wife an absolute divorce over her protest when she only prayed for a divorce from bed and board.

These questions will be determined in order.

Code Section 8711 provides that: 'The court may allow material amendments at any stage of the proceedings, upon such terms, and subject to such rules, as it may prescribe.' Whether an amendment will be allowed is within the discretion of the court and this court will not reverse unless that discretion was abused. Tennessee Fertilizer Company v. International Agr. Corporation, 146 Tenn. 451, 243 S.W. 81; Chattanooga Ice Delivery Company v. George F. Burnett Company, 24 Tenn.App. 535, 147 S.W.2d 750.

In Gibson's Suits in Chancery (Higgins and Crownover Edition), 568, section 675, it is said: 'But bills required to be under oath are allowed to be amended with great caution. When a complainant wishes to amend a sworn bill, he must present the proposed amendment in writing so that the court can see that it is a proper matter for an amendment. He must, also, swear to the truth of the proposed amendment, and show a good reason for not incorporating it into the original bill. The application to amend must be made as soon as the necessity for it is discovered.'

In Tennessee Procedure in Law Cases, 333, section 803, it is said: 'A motion to amend in any material aspect must be duly entered. The amendment, or a substitute paper, when substitution is desired, should be prepared in advance and should be tendered with the motion, and the motion should be written. It is improper to request a court to allow an amendment without at the same time presenting to the court the exact amendment desired.'

The exact amendment desired does not appear in the record in this cause. No request for an amendment was made on the trial of the case. The judgment of the Court was entered on February 29, 1944, and the question of amendment was raised for the first time in a motion for new trial which was heard on March 11, 1944. The only complaint in regard to the amendment was made in the motion for new trial in these words: 'The court failed to allow the amendment so as to make specific charges against cross defendant.' When the particular amendment which was refused does not appear in the record, it is impossible for us to say what the amendment was or whether it was sufficient in substance or form. In the absence of the proposed amendment this court will conclusively presume that the trial judge properly exercised his discretion in refusing to allow it.

We now pass to the next question: Did the court err in refusing to grant Martha Brown Plantt a divorce on the ground that her husband had been guilty of adultery with Pearl Matlock?

In Jordan v. Jordan, 145 Tenn. 378, 430, 239 S.W. 423, 438, our Supreme Court said: 'It is an elementary principle that nothing is properly before the court of chancery for its determination except what is submitted to it in the pleadings, and that an adjudication outside of the scope of the pleadings is void. 1 Daniel's Chancery Practice, 235; Story's Eq. Pl., 267; Gibson's Suits in Chancery, 139; Wilson v. Schaefer, 107 Tenn. 300, 64 S.W. 208; East Tennessee Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062.'

Divorce cases are tried as chancery cases in law courts or equity courts when they are tried before the court without a jury, and the action of the lower court is reviewed in this court de novo. Broch v. Broch, 164 Tenn. 219, 47 S.W.2d 84. It is, therefore, our duty to examine the entire record and see if the pleadings would justify a divorce on the ground of adultery.

Code Section 8430 provides that the cause of complaint in a divorce petition shall be 'set forth particularly and specifically * * * with circumstances of time and place, with reasonable certainty * * *.'

The requirements of this Code Section have been construed and determined in the following cases: Page v. Turcott, 179 Tenn. 491, 167 S.W.2d 350; Baeyertz v. Baeyertz, 171 Tenn. 190, 101 S.W.2d 689; Loy v. Loy, 25 Tenn.App. 99, 151 S.W.2d 178; Clardy v. Clardy, 23 Tenn.App. 608, 136 S.W.2d 526; Stargel v. Stargel, 21 Tenn.App. 193, 107 S.W.2d 520; Beard v. Beard, 3 Tenn.App. 392.

The charge in the petition of Martha Brown Plantt on the ground of 'adultery' is that defendant had taken up with another woman with whom he was living in adultery. The name of the woman is not given, and there is no particular averment of time and place. These allegations are not sufficient to meet the requirements of the statute relating to the pleading of grounds for divorce. It appears from the petition of appellant that she did not rely on the charge of adultery as a ground for divorce, because she only prayed for a divorce from bed and board. Under this condition of the record, the trial court properly refused to grant the appellant a divorce on the ground that appellee had been guilty of adultery with Pearl Matlock.

Appellant also complains that the court erred in granting her an absolute divorce over her protest when she only prayed for a divorce from bed and board. She objects to the absolute divorce which was granted her because she does not want appellee to be free so he can marry Pearl Matlock the woman with whom he committed acts of adultery according to the contention of appellant. It is insisted that Code Section 8452 should be given effect by granting appellant a divorce from bed and board and not from the bonds of matrimony. Under this limited divorce appellee could not marry again. But it has been held that Code Section 8452 does not apply unless the divorce was granted upon the grounds that defendant was guilty of adultery. Cole v. Parton, 172 Tenn. 8, 108 S.W.2d 884. The relationship of a defendant with another person which is not adjudged to be adulterous and made the ground upon which a...