Thomasson v. Thomasson

• Decision Date: 02 August 1988
• Citation: 755 S.W.2d 779
• Court: Tennessee Supreme Court
• Parties: Edwin Clyde THOMASSON, Jr., Appellant, v. Mary Patricia THOMASSON, Appellee.

Page 779

755 S.W.2d 779

Edwin Clyde THOMASSON, Jr., Appellant, v. Mary Patricia THOMASSON, Appellee.

Supreme Court of Tennessee at Nashville.

Aug. 2, 1988.

W. Thomas Schmitz, Brentwood, for appellant.

Mary Frances Lyle, Bruce, Weathers, Dughman & Lyle, Nashville, for appellee.

OPINION

FONES, Justice.

This litigation was initiated by Husband's complaint for divorce on grounds of adultery, cruel and inhuman treatment and irreconcilable differences. It was filed on 19 November 1985 and on 27 November 1985 Wife filed an original complaint for divorce on grounds of cruel and inhuman treatment and irreconcilable differences. No answer was filed by either party.

A constant stream of pre-trial motions were filed and hearings held involving principally money, child custody and visitation. A four day trial began 30 June 1986 and on 25 July 1986 the trial judge filed a memorandum opinion granting Wife a divorce on the ground of cruel and inhuman treatment and dismissing Husband's complaint for divorce. The Court of Appeals affirmed.

We granted Husband's Rule 11 application because neither of the courts below recognized in any way that Wife's own proof established Husband's cause of action for divorce on the ground of adultery, to which there was no defense under the pleadings, the proof or the law applicable to this case.

The parties were married in April 1967 and two sons were born of the marriage. At the time suit was filed, they were 14 and 10 years of age. Husband was in the military during the Vietnam War and the parties lived in Virginia, South Carolina and Georgia prior to moving to Nashville in October 1979. Wife did not want to move away from the East Coast to live in Nashville, but Husband was offered what he considered to be a good job opportunity that required the move. They purchased a home in Nashville that Wife did not like, and Husband testified that she refused to sign the papers until he promised that they would sell it as soon as possible. Husband testified that he was unable to fulfill that promise because he was fired in 1981, remaining unemployed for six months. During that period Wife worked. In 1982 she entered full-time employment as an interior decorator with Packer and Associates. She worked long hours and during the period February 1983 through November 1985 her take home earnings were $58,158. Her work as an interior designer was recognized in the September 1986 issue of Better Homes and Gardens magazine.

Wife testified that Husband had always dominated her, criticized her and otherwise destroyed her self-esteem; that on many occasions she had confronted him with the necessity of discussing his treatment of her and he always refused to talk about it. However, Wife wrote Husband a handwritten letter in October, 1985, that contradicts that description of their married life.

Husband denied that they had had any problems beyond normal marital adjustments and described the marriage as harmonious until his wife had a personality change in 1984 that accompanied her success as an interior designer. He acknowledged that Wife was unhappy, and admitted that he was also unhappy during the six month period that he was unemployed in 1981. He testified that with her success in the interior design business she had very little time to spend with the family, spent a great deal of money on clothes and shoes, began smoking, losing weight and exhibiting mood swings.

Husband testified that in mid-February 1985 he returned home about 9:30 p.m. from an all day business trip to Georgia and found Wife in bed asleep. The oldest son advised him that Wife had been acting strange and had gone to bed early in the evening with her shoes on. Husband aroused her and noticed that she was groggy, but she seemed pleased that he was home and nothing eventful occurred. A day or so later a friend called Husband and reported that she had received a phone call from Wife wherein Wife asked why taking sleeping pills and drinking alcohol had resulted in a failed suicide attempt.

Husband was greatly concerned upon learning that Wife had apparently attempted suicide. He contacted Dr. Doren Edwards who prescribed antidepressant medication for Wife. On 7 June Wife made a second suicide attempt at the La Quinta Inn on Harding Place and I-65 by taking sleeping pills and drinking champagne. Wife telephoned Husband who took her to Williamson County Hospital in time to abort the suicide. She was released from the hospital the following day and began seeing Judy Belsito, a psychologist, on 10 June 1985.

Wife's third suicide attempt occurred in February 1986, after commencement of divorce proceedings. Wife testified that this attempt was caused by Husband's refusal to allow her to see or communicate with the children. Husband testified that her calls to him preceding the third suicide attempt were principally about the repossession of the Oldsmobile, jointly owned by Husband and Wife, that she had been using, and upon which no payments had been made for more than three months. Again Wife took pills and drank alcohol and called husband to rescue her, which he did.

After Wife's third suicide attempt she was under the care of Dr. Suzanne Dowdy, a psychiatrist. Wife failed to tell Dr. Dowdy about her affair with Mike Joyce [to be discussed below] or about her June 1985 suicide attempt. Both Dr. Dowdy and Ms. Belsito were absolutely positive that Wife had always told them the truth.

At trial Wife attempted to attribute negligence and non-caring upon the part of Husband in the two suicide rescues and the immediate aftermath--attempts that had no substance.

Wife testified that Husband insisted upon sexual practices that she disapproved of, such as anal and oral intercourse and using filthy language while engaged in the various acts. However, during one of her visits to Ms. Belsito, Wife reported that for a period of about one and one-half years preceding that time, Husband had shown very little interest in sex and in fact resisted her advances to engage in sex. Apparently the practices of which she complained were not disapproved of to the extent that they threatened the marriage.

Most of the testimony of the parties and their witnesses concerned events occurring after the June 1985 suicide attempt.

Husband denied all charges of physical abuse, with a single exception, to-wit: Wife's claim that he slapped her on the cheek in July 1985. Husband's version of that episode was that the boys were in Virginia visiting his parents. While Husband and Wife were out for dinner one evening, Wife was preoccupied with her proposed purchase of a dinner ring for $1,350. Husband opposed the purchase and suggested that her priorities were misplaced considering their family budgeting factors. When they arrived home, Wife went straight to the bedroom, while Husband remained in the living room thinking over their disagreement. Later Husband went to the bedroom "to speak to her about the ring and the priorities and see what I could do for her." He continued his explanation as follows:

A. She was very despondent and depressed and began talking about killing herself and ending it all and wanting to leave the home or go out and wreck the car or something to that effect. And as best as I recall, I was simply sitting on the edge of the bed and she was not talking sensibly and was talking about self destructive activities. I slapped her on her left cheek to say Pat, you can't talk like that. It was more of a loving type slap to--I know I made the statement that you can't talk about or consider taking the mother of our boys away, is basically the way I presented it to her.

Husband testified that he and Wife went to a party at the home of Helen Hart on 30 August 1985. They arrived about 7:00 p.m. By 2:00 a.m. he was tired and told Wife that he was ready to go home. She told him she was not ready and would not go with him. He presented the issue to her every fifteen minutes for the next hour or so with the same results before he informed the hostess about his problem and told her he was leaving. The next morning about 8:00 a.m. he discovered his Wife asleep in the den downstairs. Husband assumed she had stayed at the party until she was brought home. When he learned that Bret Broadwater had brought her home, he thought nothing of that fact.

Wife testified that at the party Husband wanted to leave. When she told him she was not ready to go yet, "all of a sudden he got mad and left." She said she was very upset that he would leave like that and Bret Broadwater offered to take her home. She had been drinking, as had everyone else, and when she got in the car with Broadwater she was "almost hysterical". He took her for coffee, tried to calm her down and then took her home where she went to sleep on the sofa in the downstairs den.

Mrs. Broadwater and Wife were good friends. Both worked for Packer Interior Designs. Mrs. Broadwater testified that she and her husband were at Helen Hart's party on the weekend prior to Labor Day 1985. She tried to persuade her husband to leave from about midnight to 2:30 a.m., at which time she informed him she was going home in their car. Mr. Broadwater was agreeable and walked her to the car and kissed her good-bye. Mrs. Broadwater was not aware of the episode between the Thomassons with respect to Husband leaving without Wife. Mrs. Broadwater testified that Mr. Broadwater came home about 8:30 a.m. the next morning. He told her that Husband had left Wife at the party and she became very upset, was crying and asked him to take her home. When he told her that he did not have a car, a friend offered his car and Mr. Broadwater took Wife to a restaurant on Murfreesboro Road for breakfast. Mr. Broadwater then took her home and returned to the party. Although Mrs. Hart and her daughter were in bed asleep, Mr. Broadwater cleaned up the kitchen and the patio and then walked home. Mrs. Broadwater estimated the distance from Mrs. Hart's...