Thomas v. Thomas

• Decision Date: 04 May 1960
• Citation: 206 Tenn. 584,335 S.W.2d 827,10 McCanless 584
• Court: Tennessee Supreme Court
• Parties: Edward Purkee THOMAS v. Dorothy Sue Marsh THOMAS. 10 McCanless 584, 206 Tenn. 584, 335 S.W.2d 827

Page 827

335 S.W.2d 827

Edward Purkee THOMAS v. Dorothy Sue Marsh THOMAS.

10 McCanless 584, 206 Tenn. 584, 335 S.W.2d 827

Supreme Court of Tennessee.

May 4, 1960.

Willard E. Smith, Henderson, for appellant.

Lloyd Tatum, Henderson, for appellee.

PREWITT, Chief Justice.

This case involves first a suit for divorce and also custody and support for their minor children.

This appeal in error is by the defendant, husband, who was found in contempt in failing to comply with the support provisions of the decree for divorce.

This appeal presents the question as to whether the father will be relieved of his liability to support his minor children as fixed by the decree of court at the suit of the mother, when the divorced mother remarries and moves out of the State, the mother having exclusive custody of said small children and not being ordered to remain in the State, and the father having visitation rights with respect to the children.

These parties were divorced in Henderson, Chester County, on the ground that the husband was a habitual drunkard and also for cruel and inhuman treatment.

There was no restriction on the mother from taking the children, whose custody was awarded to her, from the State. Later on she married and moved to Texas, and the defendant claimed that he was relieved of the obligation to support the children and that he was deprived of his visitation powers provided for in the decree.

In Pendray v. Pendray, 35 Tenn.App. 284, 245 S.W.2d 204, 205, it appeared that the mother left the State before her remarriage and in this case the mother moved to Texas after her remarriage to her second husband. The Court held that these facts were insufficient to relieve the father of his duty to support his children and thus deprive them of the benefit of the father's assistance. The Court said:

'The current of authority on the question is that except where so conditioned in the original decree as in Weinbaum v. Weinbaum, R.I., 153 A. 303, or where the mother seeks to enforce a private agreement for support by the father of children in her custody but giving the father the right to see the children at reasonable times as in Cole v. Addison, 153 Or. 688, 58 P.2d 1013, 105 A.L.R. 897, the refusal of the mother to allow the father to see the children does not relieve him of the obligation of supporting the children of the marriage.'

In the case of Evans v. Evans, 125 Tenn. 112, 140 S.W. 745, it was held that when the custody of a child was granted to the mother...