State v. Perry

• Court: Tennessee Supreme Court
• Writing for the Court: TOMLINSON; ROBERT S. CLEMENT
• Citation: State v. Perry, 198 Tenn. 389, 280 S.W.2d 919, 2 McCanless 389 (Tenn. 1955)
• Decision Date: 10 June 1955
• Parties: , 198 Tenn. 389 STATE of Tennessee, Department of Public Welfare, Plaintiff in Error, v. Asa PERRY, John D. Vanover, John H. Anderson, Sr., Howard Kerns, and Antone Malenovsky, Defendants in Error.

Page 919

280 S.W.2d 919

2 McCanless 389, 198 Tenn. 389

STATE of Tennessee, Department of Public Welfare, Plaintiff in Error, v. Asa PERRY, John D. Vanover, John H. Anderson, Sr., Howard Kerns, and Antone Malenovsky, Defendants in Error.

Supreme Court of Tennessee.

June 10, 1955.

Bess Blake, Nashville, for plaintiff in error.

No appearance for defendants in error.

TOMLINSON, Justice.

Tennessee's Department of Public Welfare filed in the Law Court of Roane County a separate petition against each of the five persons named in the caption of this opinion as a defendant in error. The controlling allegations are the same in each petition. This opinion will be treated as response to the appeal by the State in each of the five cases.

According to each petition, the defendant, residing in some State other than Tennessee, has a wife and minor children in Tennessee in such destitute circumstances that Tennessee, functioning through its Department of Public Welfare, has, under existing laws, expended for the necessary support of such destitute dependents the amount stated in the petition; and that the amount which the State will continue to have to pay for such support is the amount set out in the petition. The State in which the defendant is said to live, and his address there is stated.

The petition does not pray for process, but it does pray (1) that the State be given a personal judgment against the defendant for the amount which the petition says the State has advanced for the necessary support of these dependents, and (2) adjudge and order the defendant to pay the amount which the Court shall deem fair and reasonable for the support of these persons based on the 'budgetary deficiency' given in the petition, and (3) for costs. No opportunity for a hearing to be afforded the defendant prior to the entry of this personal money judgment and order for additional payments by him each month is contemplated by the petition.

The Circuit Judge dismissed each petition on the theory that any personal judgment rendered under the circumstances stated would be void for lack of jurisdiction over the person of defendant.

The State has appealed and, by its assignments of error, says that the Circuit Judge erred in so acting. It bases its contention upon the provisions of Chapter 188 of the Public Acts of 1953, and upon the decision of this Court in Sinclair v. Sinclair, Tenn., 268 S.W.2d 573. We think the State has misconstrued Chapter 188, and the decision of this Court in the Sinclair case.

Chapter 188 intends to deal with two situations with reference to persons having the obligation to support a wife and minor children to the reasonable extent of his ability in accordance with their needs. The first of these situations is when the wife and children are living in this State while the delinquent husband-father is living in a different State. In this situation Chapter 188 calls Tennessee the 'Initiating State'.

It is intended by the provisions of Chapter 188 to set up machinery whereby the Initiating State may take steps which will finally result in bringing the allegedly delinquent husband-father in the State where he resides to a trial wherein, after a hearing, he may be ordered by the Courts of that State to pay each month the amount found by that Court to be reasonable and necessary, and in accordance with his ability, for the support of this destitute wife and children in Tennessee, the Initiating State, if the evidence presented at such hearing justifies in fact and law such and order. The State in which the trial is had after process served upon the defendant is called by Chapter 188 the 'Responding State'.

In the case at bar Tennessee is the Initiating State. In the Sinclair case Tennessee was the State denominated by Chapter 188 as the 'Responding State'. To determine then whether the Court erred in dismissing this petition, aside from constitutional questions, we need only to look to the provisions of Chapter 188 with reference to the Court action authorized in Tennessee when Tennessee is the Initiating State.

In so far as...