Talley v. Talley

• Decision Date: 27 November 1962
• Docket Number: No. 80,80
• Citation: 51 Tenn.App. 622,84 S.Ct. 216,371 S.W.2d 152
• Parties: Elizabeth Rose Davis TALLEY, Plaintiff in Error, v. J. B. TALLEY, Defendant in Error. . Heard by Western Section, at Knoxville
• Court: Tennessee Court of Appeals

Page 152

371 S.W.2d 152

51 Tenn.App. 622

Elizabeth Rose Davis TALLEY, Plaintiff in Error, v. J. B. TALLEY, Defendant in Error.

No. 80.

Court of Appeals of Tennessee, Eastern Section.

Heard by Western Section, at Knoxville Nov. 27, 1962.

Rehearing Denied Dec. 20, 1962.

Certiorari Denied by Supreme Court May 10, 1963.

Certiorari Denied Nov. 12, 1963.

See 84 S.Ct. 216.

John S. Wrinkle, Chattanooga, for plaintiff in error.

L. D. Miller, Chattanooga, for defendant in error.

BEJACH, Judge.

This cause has previously been before the Court of Appeals, Eastern Section, having been Cause Number 16, Hamilton Law Docket, on this Court's Calendar in 1960. It was reversed and remanded pursuant to an opinion by Hale, J. filed December 2, 1960. The present appeal involves matters which have occurred since that date. The cause originated as a divorce suit in the Circuit Court of Hamilton County, which was heard in Division II of that Court by Hon. Robert E. Cooper, at that time Judge of the Circuit Court of Hamilton County, but now a member of the Court of Appeals, Eastern Section. Judge Cooper granted a divorce to the plaintiff in error, Elizabeth Rose Davis Talley, together with the custody of an infant child, Linda Dianne Talley, and an award of alimony and child support. Visitation rights in favor of J. B. Talley, Jr., were set out in the decree. Subsequent to the entry of that decree, the plaintiff in error removed herself with the child to Dayton, Ohio, where she consorted with a married man, a Mr. Harris, whom she has since married, after his wife obtained a divorce from him. A petition was filed in the cause by defendant in error, J. B. Talley, Jr., seeking a cancellation of his obligation to pay alimony and child support, and seeking a change of custody to him of the infant child, Linda Dianne Talley. This petition was heard, ex parte, in Division IV of the Circuit Court of Hamilton County by Hon. David Tom Walker, Judge of that Division of the Court, after a pro confesso judgment had been taken against plaintiff in error. Plaintiff in error returned to Chattanooga, Tennessee and surrendered custody of Linda Dianne Talley to defendant in error; but she filed a petition to rehear before Judge Walker which was denied by order of court duly entered, and an appeal therefrom to the Court of Appeals was granted. This order is the one which was reversed on the former appeal to this Court. From the opinion of Judge Hale, reversing the cause, we quote as follows:

'Under the inherent principles of equity which underlie divorce actions and matters connected therewith, we think the learned trial judge should have permitted the reopening of this case as to the custody of this child. This carries with it the equitable disposition of the allowance for alimony and support.'

After the former appeal in this cause had been perfected, plaintiff in error surreptitiously regained custody of Linda Dianne Talley. Defendant in error then filed a petition for her citation for contempt of court. This petition was heard by Judge Walker of Division IV of the Hamilton County Circuit Court, who adjudged plaintiff in error to be in contempt of court; but he reserved a ruling on punishment therefor, because she had surrendered possession of the child to defendant in error. The order adjudging her in contempt of court was entered August 24, 1960. That judgment is the subject matter of a petition for writ of error which will be disposed of by this opinion. It was not included in the appeal from a later judgment of the court changing the custody of Linda Dianne Talley from plaintiff in error to defendant in error, which judgment was entered February 27, 1962. Appeal from that judgment was perfected March 27, 1962 by the filing of an appeal bond. The appeal from the order changing custody was granted on condition that the custody remain with the father, defendant in error, and, presumably, defendant in error still has custody of the child. Pursuant to the present appeal, the record was filed in this court June 20, 1962. The record, as filed, contains no bill of exceptions, but does contain affidavit filed in the cause by plaintiff in error and by her attorney, Mr. John S. Wrinkle. To be properly considered as part of the record, however, these affidavits should have been incorporated in a bill of exceptions. Wooldridge v. Robinson, 49 Tenn.App. 137, 352 S.W.2d 238, 244. After the record was filed in this court, June 20, 1962, pursuant to plaintiff in error's appeal, she filed, on September 4, 1962, a petition for writ of error, by means of which she seeks to have reviewed and reversed the judgment of August 24, 1960, adjudging her guilty of contempt of court, by reason of her having taken the child of the parties out of the physical custody of J. B. Talley, Jr. On the same day, September 4, 1962, a written motion was filed by counsel for defendant in error, which seeks to strike the petition for writ of error, because same was filed more than two years after rendition of the judgment or decree sought to be reversed.

We will first dispose of the motion to strike the petition for writ of error. The motion to strike must, in our opinion, be granted. The law applicable to the situation is contained in sections 27-604, 27-605, and 27-606 T.C.A., which are as follows:

'27-604. Time for application to appellate court.--The application to the clerk of the proper appellate court to bring up a proceeding of the circuit, chancery, or county court shall be made within one (1) year after the judgment or decree.

'27-605. Time for application to appellate court or judge.--The application to the appellate court, or a judge thereof, to bring up a proceeding of the circuit, chancery, or county court shall be made within two (2) years after the judgment or decree.

'27-606. Persons under disability.--Infants, persons of unsound mind, or imprisoned may prosecute writs of error within the time proscribed after disability removed.'

Counsel for plaintiff in error concedes that the petition is filed more than two years after the entry of the judgment sought to be reviewed, but seeks to avoid that by bringing petitioner within the saving clause of section 27-606 T.C.A. The petition recites that she was at the time of the entry of the judgment a minor, and that she became 21 years of age on March 24, 1962. Inasmuch as this entire proceedings grows out of a divorce suit, the decree awarding child custody, together with alimony and child support, under the provisions of sections 36-820 and 36-828 T.C.A., remained under control of the court which granted the divorce. Since plaintiff in error was petitioner or complainant in the divorce action, which was filed by her while still an infant, without the intervention of a guardian or next friend, we think that, in subsequent proceedings in or growing out of that cause, she must be treated as if she were an adult. From the opinion of the Supreme Court in Kenner v. Kenner, 139 Tenn. 211, 226, 201 S.W. 779, L.R.A.1918E, 587, we quote as follows:

'It is said the defendant herself being a minor when this action was tried should have had a guardian appointed to defend for her, pursuant to complainant's application for such appointment. This is likewise a mistaken view. She needed no guardian to effect the contract of marriage; nor yet to escape its bond. Still less did she need one to defend the rights she acquired under the decree that freed her. The court itself can protect personal rigths of the nature here involved without the aid of a guardian.' Kenner v. Kenner, 139 Tenn. 226, 201 S.W. 783, L.R.A.1918E 587.

From the opinion of this court in Holman v. Holman, 35 Tenn.App. 273, 244 S.W.2d 618, written by Swepston, J., we quote as follows:

'Under Code Section 8429 (36-804 T.C.A.) the bill may be filed in the proper name of complainant; it makes no distinction between adults and minors.

'Minors may prosecute and defend divorce actions without the necessity of a next friend or a guardian ad litem. Tenn.Proc.--Higgins & Crownover, Sec. 2336; Schouler on Marriage, Divorce etc., 6th Ed., Vol. 2, Sec. 1514; Gibson's Suits in Chancery, Sec. 1093, note 13, on the principle that one who is old enough to marry is old enough to sue in her own name.

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'The marriage of a minor child either with or without the consent of the parents fully emancipates such child from parental authority and from the duty of support and deprives the parent of the right to the child's earnings, even though the child may later be divorced while still a minor. Going v. Going, 8 Tenn.App. 690.

'We, therefore, conclude that complainant had the right to select her own domicile for the purpose of divorce even though yet a minor and that the Chancellor was in error in holding to the contrary.' Holman v. Holman, 35 Tenn.App. 277-278, 244 S.W.2d 619-620.

It is therefore our conclusion that plaintiff in error, even though a minor, could and should have filed her petition for writ of error, if she desired to do so, within two years after the date of the judgment on August 24, 1960, and that she is not entitled to the saving clause, ordinarily applicable to infants, as set out in section 27-606 T.C.A. The motion to strike the petition for writ of error is accordingly granted. Even if the petition for writ of error could be considered on its merits, there being no bill of exceptions in the record, the relief prayed for would have to be denied, unless it should be held that Judge Walker of Division IV of the Hamilton County Circuit Court had illegally exercised jurisdiction in the case. That question will be disposed of in a later portion of this opinion.

We will next dispose of plaintiff in error's appeal from the judgment of Division IV of the Circuit Court of Hamilton County, changing the custody of Linda Dianne Talley from plaintiff in error to defendant in error. In support of this appeal, plaintiff in error has filed in this court seven...