Rowles v. Reynolds

• Decision Date: 16 March 1946
• Docket Number: 1.
• Citation: 196 S.W.2d 76,29 Tenn.App. 224
• Parties: ROWLES v. REYNOLDS.
• Court: Tennessee Court of Appeals

196 S.W.2d 76

29 Tenn.App. 224

ROWLES v. REYNOLDS.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

March 16, 1946

Certiorari Denied by Supreme Court June 29, 1946.

Appeal in error from Circuit Court, Hamilton County; Fred B Ballard, Judge.

Doris Rowles obtained a divorce from Carl Rowles and thereafter, as Mrs. Doris Rowles Reynolds, obtained a decree awarding to her custody of minor child from September to June of each year with right of Carl Rowles to have custody of the child during July and August. Later each parent sought by petition a decree for exclusive custody of the child. From a judgment modifying the former decree by awarding exclusive custody to Mrs. Doris Rowles Reynolds with right of Carl Rowles to see the child at reasonable times and places, Carl Rowles appeals in error.

Judgment affirmed.

H. W. Schoolfield and W. L. Tillett, both of Chattanooga, for plaintiff in error.

Raulston Schoolfield, Jesse M. Hargraves, and Marguerite K. Lanham all of Chattanooga, for defendant in error.

McAMIS Judge.

This is a contest between divorced parents over the custody of their daughter, Karen Rowles, aged eleven years. The father, Carl Rowles, prosecutes this appeal in error from a judgment granting the exclusive custody to his former wife Doris Rowles Reynolds.

A divorce was granted the wife, for causes not appearing in the present record, on June 22, 1939. On September 2, 1939, an agreed order was entered giving the principal custody to the father. In October 1939 Rowles was married to his present wife and sometime thereafter moved to Alexandria, Virginia, his present place of residence. At some date not appearing between the date of the divorce decree and October 29, 1940, when she filed a petition as Doris Reynolds, Mrs. Rowles became Mrs. Reynolds. She will be hereinafter referred to by that name.

On April 17, 1940, Mrs. Reynolds filed a petition seeking the exclusive custody of the child. The petition is not in the record but the decree recites that it was filed April 17, 1940. After hearing proof the court on September 28, 1940, decreed that for the time being it was for the best interest of the child that she remain in the custody of Mrs. Reynolds from September to June of each year, inclusive, with the right of the father to have the custody and control during July and August of each year. The cause was retained on the docket for further orders and decrees relative to the custody and control of the child. Mr. Rowles excepted to this decree but he seems not to have filed a petition to rehear or a motion for a new trial and, by failing to prosecute an appeal, may be said to have acquiesced in the decision of the Court to award the principal custody of the child to Mrs. Reynolds.

During each succeeding year Mr. Rowles, as provided by the decree, took Karen to his home in Alexandria, Virginia, returning her to the mother for the beginning of the school year. This arrangement seems to have worked satisfactorily until 1945 when the present controversy arose with the unfortunate result that bitterness between the father and mother has been revived and intensified.

In May 1945, the present Mrs. Rowles wrote Mrs. Reynolds that she and her husband would expect Karen for the summer as usual enclosing a check to cover her railroad fare to Alexandria. Mrs. Reynolds promptly returned the check stating that she did not think Karen should make the trip alone and that it would be necessary for either Mrs. Rowles or Mr. Rowles to come for her. Mr. Rowles thereupon went to Oak Ridge where Mrs. Reynolds had resided for some time but upon reaching the government reservation surrounding Oak Ridge he was denied entrance. He then sent a taxi to the Reynolds home for the child but without avail. Mrs. Reynolds testified that she did not send the child with the taxi driver because, in the meantime, Karen had decided she did not wish to visit her father and step-mother during the summer and because she did not think it proper to send her alone in a taxi.

Thereafter, Mr. Rowles filed a petition to have Mrs. Reynolds held in contempt of court for refusing to deliver the child to him and on the further ground that she had taken Karen to Florida, contrary to the provisions of the decree. Both parties also sought by petition to have a decree for the exclusive custody and control of the child.

After hearing proof, the trial judge determined that it was not in the best interest of the child that her custody be alternated between the parties and that the former decree should be modified to grant exclusive custody to Mrs. Reynolds with the right of the father to see the child at reasonable times and places. Mr. Rowles filed a motion for a new trial by which he challenged the conclusions of the court on the facts and strenuously insisted that the trial court should have recused himself and refused to try the case by reason of having talked with Mrs. Reynolds before her petition was filed. On the latter issue affidavits, including an affidavit of the trial judge, were filed and the judge submitted himself to cross examination by attorneys for Mr. Rowles.

It seems proper to first determine the propriety of the action of the trial judge in refusing to grant a new trial on the ground that he had discussed the case with Mrs. Reynolds before the trial and because, allegedly, he had formed an opinion before the trial that the former decree permitting Mr. Rowles to take the child out of the State upon giving bond for its safe return was improper under Cureton v. Cureton, 117 Tenn. 103, 96 S.W. 608, and undertook to modify the former decree to cure this error.

As we have stated, the trial judge filed an affidavit setting forth his conversation with Mrs. Reynolds. He also submitted himself to cross-examination by counsel for Mr. Rowles. The substance of his testimony was as follows:

'X19. You had talked to the mother in the presence of the child but you do not recall whether the child talked to you or not? A. What happened was simply this, as I recall it,--I think I am correct about it, this woman came to my office with this child and asked me if the child had reached the age where she could decide for herself with whom she should live. I told her I could not talk to her about the case, if she had any matters she wanted to bring up before the court to get her a lawyer. They were there only a very short period of time. I was anxious to get rid of them as soon as I could without being discourteous. I do not think they sat down.'

At another place he testified:

'X15. From what this woman had said to you before she filed her preliminary application for modification, you concluded it was the child that did not want to go back to the father? A. I made no conclusion about it, but I naturally assumed when the mother came in and asked that question, that the child did not want to, but no one told me.'

We think there is no substance in the insistence that the trial judge was influenced by anything that occurred before the trial. We will not assume without proof that a trial judge is so lacking in judicial poise or his mind so unstable and formative that he could have formed an opinion from what occurred in this case. We doubt that even the most partisan would be influenced by such an occurrence but certainly there can be no just ground for ascribing partiality and bias to a trial judge of high standing and long experience upon such slight evidence. Occurrences of this nature are not out of the ordinary with trial judges and, while too much emphasis cannot be placed upon strict impartiality in judicial proceedings and any discussion of the case out of court is justly condemned, we do not think the trial judge would have been warranted in recusing himself under the circumstances related.

As to the discussion of the Cureton case and its supposed bearing upon the disposition of this case, it appears that when counsel for Mr. Rowles applied for a contempt citation for Mrs. Reynolds, Judge Ballard merely called attention to the holding in the Cureton case for such bearing as it might have upon the rights of the...