Schwalb v. Schwalb

• Court: Tennessee Court of Appeals
• Writing for the Court: BEJACH; AVERY, P. J., and CARNEY
• Citation: Schwalb v. Schwalb, 39 Tenn. App. 306, 282 S.W.2d 661 (Tenn. App. 1955)
• Decision Date: 13 January 1955
• Parties: Daniel C. SCHWALB, Appellant, v. Ruth Hogue SCHWALB, Appellee.

Page 661

282 S.W.2d 661

39 Tenn.App. 306

Daniel C. SCHWALB, Appellant, v. Ruth Hogue SCHWALB, Appellee.

Court of Appeals of Tennessee, Western Section.

Jan. 13, 1955 Certiorari Denied by Supreme Court June 10, 1955.

Harold Johnson and Hancock & Manhein, Jackson, for appellant.

Robert A. Tillman, Memphis, Brooks McLemore, Jackson, for appellee.

BEJACH, Judge.

This case involves a contested divorce suit with a cross bill for separate maintenance, appealed from the Chancery Court of Madison County, Tennessee. As the appellant was the complainant or petitioner in the lower court, the parties will, for convenience, be styled as complainant and defendant, or by their names, Mr. Schwalb and Mrs. Schwalb. There was a cross bill by Mrs. Schwalb seeking a decree for separate maintenance. The Chancellor, exercising his inherent authority, sustained the cross bill and allowed separate maintenance to Mrs. Schwalb, as cross complainant, but not on the grounds alleged.

The cause also involved the question of custody of two children of the complainant and defendant, Diane Schwalb and Judy Kaye Schwalb, aged respectively, 16 and 14. There was also involved a question of contempt alleged to have been committed by the defendant and cross complainant, Mrs. Schwalb, consisting of violation of the terms of an injunction granted by the Chancellor on the original bill or complaint of Mr. Schwalb. At the trial of the cause, the complainant, leave of court having been first obtained, amended his original bill by adding two additional grounds of divorce, viz., habitual drunkenness of the defendant contracted after the marriage of the parties; and that the defendant had attempted the complainant's life by means showing malice. The original bill had been filed on the ground of cruel and inhuman treatment. By agreement, the trial for contempt of court against the defendant, Mrs. Schwalb, was tried simultaneously with the trial of the cause on its merits.

Mr. and Mrs. Schwalb were married in June, 1936. They lived in Memphis until 1939. At that time they moved to Jackson, Tennessee where they lived together as husband and wife until the separation which occurred June 6, 1953. Since their separation, they have continuously lived apart, although there is some evidence in the record that on two or perhaps three occasions after the separation, but before the filing of the bill for divorce, the parties were together and had sexual relations with each other. Mr. Schwalb did not, however, return to the home of Mrs. Schwalb to live. Mr. Schwalb owns and operates the Double Cola Bottling plant in Jackson.

The marriage does not appear to have been a happy one, even from the beginning. Soon after the parties married, trouble developed between Mrs. Schwalb and her husband's mother and she left complainant on two occasions for a week or so at a time. Complainant says that throughout their marriage they had more arguments than married couples ordinarily have; that his wife was continually dissatisfied about something and that she nagged and argued constantly. The record discloses, and the Chancellor found as a fact, that the defendant was in the habit of using profane and obscene language, and that a large part of same was directed towards complainant. The record discloses that Mrs. Schwalb has, on several occasions, consulted a psychiatrist. No contention is made that she is mentally incompetent, and she, herself, testified that one psychiatrist told her that her mind was perfectly all right.

At the trial of the cause, the Chancellor dismissed the original bill, and found as a fact that neither complainant nor defendant had been guilty of cruel and inhuman treatment. Under his inherent authority, however, the Chancellor did sustain complainant's cross bill for separate maintenance, decreed separate maintenance in her behalf in the amount of $75 per week, and granted custody of the children to her. Complainant, as cross defendant, was also required to provide Mrs. Schwalb with an automobile and to keep up payments on the home place in Jackson, Tennessee on Burkett Street, the exclusive use of which was decreed to her and the children. The complainant was granted the exclusive use, management and control of the residence of the parties in which they had formerly lived in the Bon Air Subdivision in Madison County, Tennessee. Both the home place in Jackson and the one in the Bon Air Subdivision were held by the parties as tenants by the entireties. The injunction against Mrs. Schwalb was continued in full force and effect. Mr. Schwalb was required to pay $500 solicitors' fees for cross complainant's solicitors, and the costs of the cause were taxed against him. The contempt citation was dismissed.

We need not consider further the contempt question, because, in Tennessee, there is no right to appeal a judgment of acquittal in a contempt case. Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273; Collier v. City of Memphis, 160 Tenn. 500, 26 S.W.2d 152.

After the dismissal of his bill, complainant, through his solicitors, requested the Chancellor to make 22 additional findings of fact. The Chancellor did find as requested, paragraphs 1, 3, 4, 8, 10, 11 and 12 of the requested additional findings of fact, which are as follows:

'1. Complainant and defendant were married in Memphis, Tennessee, on June 21, 1936. After their marriage, they lived together as husband and wife in Memphis until September, 1939, when they moved to Jackson, Madison County, Tennessee, where they continued to live together as husband and wife until June 6, 1953. Since June 6, 1953, complainant and defendant have lived apart continuously and now are living apart. Two children, namely, Jamie Dian Schwalb, 16 years of age, and Judy Kaye Schwalb, 14 years of age, were born unto their marriage. These children are now living with defendant and have lived with her since June 6, 1953.

'3. In February, 1952, after the parties had a fight, defendant kept a butcher knife on the table next to her bed for a period of eight days, which she says she would have used on complainant if necessary to defend herself. (pp. 361, 470, 471, 472, 473)

'4. In January or February of 1953, several months before the separation of the parties, complainant found a butcher knife in defendant's bedroom under a pillow on her bed. The parties were having serious domestic difficulties at this time. (pp. 16, 17, 109, 110) On other occasions, complainant found butcher knives at somewhat unusual places about the house. (pp. 17, 18, 110) Defendant's explanation of this is that the knives were used by her to make certain minor household repairs. (p. 366)

'8. After leaving home, complainant obtained a room at Midtown Motel in Jackson, Tennessee, where he stayed for several weeks. He then converted an office at his place of business, the Double Cola Bottling Company, into a bedroom and has been sleeping at his plant since leaving the tourist court.

'10. About a month after the separation of the parties, that is, on or about July 13, 1953, defendant went to complainant's room at the Midtown Motel at about 1:45 o'clock in the afternoon. Complainant admitted defendant into the room and they talked for about an hour; whereupon, a violent argument developed. Defendant then went outside the room and obtained a 32 caliber revolver from her vehicle which was parked just outside. She returned to complainant's room with the weapon in her purse, then pulled the gun from her purse, and held it on complainant for 45 minutes or longer, all the while threatening and cursing complainant. On several occasions, defendant pulled the hammer of the gun back as if to fire, but her anger finally subsided, and she left the premises. (pp. 28, 29, 30, 31, 32, 33, 34, 119, 120, 121, 122, 123, 267, 372, 373, 374, 377, 486, 487, 488, 489, 493, 494)

'11. On another occasion, after the tourist court incident and on or about July 18, 1953, defendant went to complainant's office at the bottling plant and threatned to strike complainant, as well as one of his employees, with soft drink bottles. Complainant was able to take the bottles away from her before she struck anyone. On this occasion, there was a violent argument and much cursing on the part of defendant. (pp. 34, 35, 36, 37, 132, 133, 205, 206, 207, 208, 209, 378, 379, 380, 381, 503, 504, 505, 506, 507)

'12. In December, 1953, defendant went to complainant's office during his absence and carried away a diary which he was keeping of his troubles with her. The next day she returned, pilfered his desk, and carried away certain letters addressed to complainant. (pp. 37, 38, 39, 40, 381, 382, 383, 510, 511, 512)'

About a year and four months before the separation on June 6, 1953, namely, in February, 1952, Mr. Schwalb did beat Mrs. Schwalb and was injured sufficiently for him to call a doctor to attend her. This is the only instance of mistreatment of Mrs. Schwalb by Mr. Schwalb which is proved in the record of this case, and she continued to live with him for many months, thereafter. Indeed, she tried to get him to return after the separation and even testified that she wished him back at the time of the trial.

Mr. Schwalb has appealed from the Chancellor's decree and has made five assignments of error in this Court, which assignments of error are as follows:

'1. The Chancellor erred in finding that defendant had not been guilty of such cruel and inhuman treatment or conduct toward complainant as rendered it unsafe and improper for complainant to cohabit with and be under her dominion and control.

'This was error because the preponderance of the evidence showed that defendant had been guilty of such cruel and inhuman treatment or conduct. As a consequence of this error, complainant's bill was dismissed.

'2. The Chancellor erred in finding that defendant had not attempted complainant's life by means showing malice.

'This was error because the preponderance of the...