Weaver v. Weaver

• Decision Date: 11 March 1953
• Citation: 261 S.W.2d 145,37 Tenn.App. 195
• Parties: WEAVER v. WEAVER. 37 Tenn.App. 195, 261 S.W.2d 145
• Court: Tennessee Court of Appeals

Page 145

261 S.W.2d 145

WEAVER v. WEAVER.

37 Tenn.App. 195, 261 S.W.2d 145

Court of Appeals of Tennessee, Eastern Section.

March 11, 1953.

Certiorari Denied by Supreme Court July 29, 1953.

[37 TENNAPP 195] John S. Wrinkle, Chattanooga, McCanless & Taylor, Morristown, for appellant.

Carlyle S. Littleton, Maurice M. Weaver, Chattanooga, for appellee.

[37 TENNAPP 196] McCAMPBELL, Special Judge.

This is an appeal from the Chancery Court for Hamilton County, at Chattanooga, Honorable Raulston Schoolfield, Chancellor by interchange for the Honorable Alvin Zeigler, Chancellor.

The cause initially commenced as an action for divorce in the Chancery Court for Hamilton County, in 1946, wherein the complainant, Maurice Weaver, instituted the action against the defendant, Lois Harrell Weaver. There was a partial hearing of this cause before the Chancellor and in the course of the proceedings the parties agreed upon a decree which awarded an absolute divorce, based on cruel and inhuman treatment, to the complainant, Maurice Weaver, and fixed the custody of the child born of the marriage of the parties, Max Weaver, as alternating each three months with each parent. At the time of the entry of the final decree in this case the infant was then less than four years old. This arrangement appears to have been worked out by agreement of the parties but was approved by the Chancellor. Unfortunately, it was the source of the prolonged controversy which subsequently arose between them, resulting in this appeal.

The arrangement for rotating custody of the infant continued with more or less satisfactory results until the spring of 1948, when the infant was then approaching school age. It became manifest apparently to both parties about the same time that rotating custody could not continue with the infant in school, when the father was living in Chattanooga and the mother in Morristown, Tennessee.

The father, however, first broke the ice by instituting this proceeding to modify the decree of the Chancellor, setting forth as the reason therefor that circumstances had changed in that the child was approaching school [37 TENNAPP 197] age, that it was necessary for one or the other parent to have the predominant or exclusive custody of the child, and that the mother was unfit to have it. This petition was met by an answer and cross-bill from the mother agreeing that the circumstances had changed, but asserting that she should have the predominant or exclusive custody of the child because the father was unfit to have it.

In the meantime there had been a change of other factors in the situation. The Chancellor who heard the original cause in 1946, no longer sat as such, but had become a member of this Court. The husband, Maurice Weaver, remarried shortly after the hearing of the divorce case and has had another child, or children, by his second marriage.

We have carefully reviewed a record that runs in excess of three thousand pages, recording the testimony of more than forty witnesses. Suffice it to say that as is usually the case in proceedings of this kind, the record generates more heat than light upon the one real question that the trial court had before it for consideration. We likewise address ourselves only to a consideration of the one question for decision, and that is what is for the best interests of the unfortunate victim of the failure of the marriage of the parties to this cause, Max Weaver. He was less than four years of age when the parties separated, less than six when they commenced their war over his custody. Even now, we take judicial knowledge of the fact that he is not yet eleven.

From the record that has been made we can see that the parties were married in 1935, and had their first child in 1942 at the height of World War II, and when the departure of the father for military service was imminent. During the course of the marriage the father had undertaken[37 TENNAPP 198] to establish himself in a law practice, with debatable success. He and his wife had lived in the household of his parents and she had sought to supplement his earnings by first teaching school, later assisting him in various abortive business enterprises, finally doing war work at a munitions plant, and later, during his absence in the service, returning to school teaching. The over-tones of the record make it manifest that the marriage prior to the husband's departure for the service had encountered at least the usual amount of trouble, if not more than this.

We cannot tell from this record the inducing cause of the wife's consulting with a Dr. Jacobson, who was serving in the Chattanooga area with the Navy as a psychiatrist during the war. The wife, in her testimony, says that her husband urged her to seek psychiatric consultation to resolve certain sexual difficulty, and there is some evidence to support this claim. On the other hand, it is the husband's theory that his wife met Jacobson perchance during his absence while Jacobson was carrying on some kind of consultation work with the school system in the community, and that an adulterous affair ensued. More than a hundred letters the wife received from Jacobson after his departure from Chattanooga in the spring of 1945, at a Post Office box rented by her in a fictitious name, have become a part of the record. Indeed, the discovery of these letters by the husband upon his return from the service served as the basis for the original proceeding for divorce. These letters are certainly capable of the construction that they referred to an adulterous affair, and the writing of them and their transmission through the mails to the wife, and retention by her, was an enormous indiscretion on both the part of Jacobson and Mrs. Weaver, to say the least. It is difficult to accept her theory that these letters were written as part of a [37 TENNAPP 199] psychiatric treatment of her by Jacobson to the end of increasing her libido so that she might have a more satisfactory marital relationship with her husband. Needless to say, the existence of these letters and of the fact that Mrs. Weaver had lived much of her married life with her in-laws, in a community far from her childhood home and immediate relatives, placed her at a significant disadvantage when it came time to participate in a contested domestic relations proceeding. Much of the record that has been made here consists of testimony from partisans on behalf of the respective parties in support of their respective contentions that the other was and is an unfit person to have predominant or exclusive custody of the infant, Max Weaver. When one goes to the core of the case, one finds simply the letters received by Mrs. Weaver from Dr. Jacobson, combined with what seems to have been at best a tenuous marriage.

Whereas, the husband's petition to modify the original decree pertaining to custody was filed on April 23, 1948, the trial on the merits did not commence until December 13, 1948. In the interval there was the usual sparring...