*1 H. A. THOMAS. EDNA THOMAS NORMAN (2d) 583. S. July 1959.
Eastern Section.
Rehearing September 3, Denied 1959. Supreme December 1959. Denied Certiorari *2 Chattanooga, Tipton, for Edna H. Thomas. Jere T. Chattanooga, A. Bishop for Norman & Thomas, Folts, Thomas. proceeding sequel This of a divorce P. J.
McAMIS, alimony payments. question of future 1942 involves the appealed, from the ac- Mrs. Thomas have Both requiring for child her account tion of the Court *3 by support payments Mr. Thom- her, received heretofore adjudica- per month and the of as from an award $300 payments required to continue of that he will be tion they alimony to terminate 1962 when were after by agreement the property entered into settlement a [The at prior discussed parties facts are to the divorce. opinion.] unpublished portion length this of in an petition, hearing decreed: That on the the Court At the imprоperly the $2,450 received for Mrs. Thomas daughter married but that support after she had of the representing credited with $700 should be this amount leaving owing wedding, Thomas expense Mrs. her of the alimony payments increased should be that future $1,750; monthly payment, to be abated however, $300, to each repaid Thomas had the until Mrs. extent of $50 the to per payments of month are $300 These $1,750. sum of provisions notwithstanding the after 1963 continue to agreement. support No further child the settlement of daughter. Upon for the his payments to made be graduation, hearing, payments two months after the support of the son also to were cease. agree
We can not that the Court erred in dis provision regarding limiting of contract alimony payments per amount of the month from $100 August August 18, 1958, to 1963. serious is More question propriety of the Court’s action in continuing payments beyond under the when, agreement they settlement and the decree, divorce were questions to terminate. These will be discussed order stated.
The first is ruled Osborne v. Osborne, App 463, 197 S. 234, 236, this Court where speaking through Judge Burnett, Bur now Mr. Justice carefully reviewing nett, after authorities from other states, said: really triangular
“A proceeding is divorce action a parties through where in addition to State quasi party. It this basic reason possible hearing courts afford fullest mat- guard against ter and at all times must collusion, fraud practice advantage unfair or undue that one party might Adhering prin- take of the othеr. to these ciples agreements take courts do not merely as conclusive but use them as a basis on which *4 alimony an is fixed. decree When the circumstances of parties change may chаnged. court’s decree be provides among things Code, 8446, section other that, ‘the order or to remain in court’s control; decree application party, may on and, either the court deсree being an or decrease of such on increase allowance cause Davenport Davenport, shown.’ In 178 517, v. Tenn. 160 576 (2d) sec- above Code 406,
S. the court held every incorporated divorce de- is in tion and section 8454 the matter instant case retains in the cree. The decree open modification.” on the docket and ground on the as dictum statement is This attacked ex- consideration case, in that the contract under that, pressly provided of the award. revision of amount may speaking through Pre- be, court, this this However again siding Judge considered Anderson, (2d) Doty Doty, App. 413, 260 411, v. S. W. 37 Tenn. supporting upon the con- as and relied Osborne case again such contracts announced that clusion there upon “regarded which more than the evidence as no binding as to so fix are not court will the amount” and subsequent preclude In the court from revisions. Doty it said: case was
*“* * recites: ‘and It the decree also is true that per regard payment agreement to the $100.00 with petitioner (the wife) accepted by and month has been support by approved further lieu of petitioner said child.’ or for the maintenance beyond power thus of the Court to “But deprive conferred Section itself of the Code showing.” proper modify award (Citing cases.) including Rus Russell v. brief, cases
The cited App. 24 Tenn. Matthews, Matthews 232; sell, App. Killibrew, Killibrew 3; 148 S. W. App. (2d) 953; cases, Term. were not 24, 137 S. W. having adopted present, onсe Court, where like the wa,s upon, agreement, later called the settlement provisions modify in- its but were cases statute, to *5 volving adoption agreement the initial of in the the decree of divorce. It trne that Mason v. cases like may Mason, 163 be S. W. found the where Court commented the fact that al- the partially lowance under consideration for the was benefit parties. holding of the children оf the the What would only if have been wife’s the allowance been involved regard can not known be and we do not as cases such overruling Doty Osborne and cases. question toAs the second are nоt we advised what parties original and the in its Court decree had providing payments August mind cessation on of it 18, 1963, when, of seem, would needs the wife will great greater may be as or than before that date. There indicating contrary. any have been circumstances In parties solemnly agreed event so so and stay opera- decreed. Should at this Court, time, agreement tion of the and of ? decree futurо Should adjudication question expiration not of that await the period conceivably, may it when, moot but, become if and not, determined the contract and decree weigh propriety cаn be so can modified, overturning agreement parties and wisdom of against the needs of Mrs. Thomas at that time? agreements gen have seen, we of this
As nature subject erally They to future modification. are other legal binding and on wise and are consistent public policy. supra; with sound Russell Russell, Mat supra; supra. thews v. Matthews, Killibrew v. Killibrew, they approved by they After have been Court, should lightly disregarded. Accordingly, not bе overturned or alimony payments as to whether can or August is reserved 18, 1963, should be continued after expressing as we are not understood be opinion question. on that *6 taxing against parties assign
Both
as error the
Thomas of onе-half counsel fees allowed counsel for
Mr.
parties
that,
Mr.
the
Mrs. Thomas.
Thomas insists
since
longer any
longer
is no
no
there
wife,
are
husband and
part
obligation on
while Mrs. Thomas
fees,
his
such
have
taxed to him.
insists that all of
fee should
been
the
long
say
Although
it has
think it correct to
that
we
practice
proceedings
in
to tax
fees
such
counsel
been the
appear
aganist
re-
to have no
the former
we
husband,
controlling
question.
ported
decision
expressly reserving to
In the absence of statute
power
courts
modification,
some
courts
future
the view that after
favor
divorce
longer
strangers
liable for
husband
no
such
and the
Many
have allowed counsel fees to the di
courts
fees.
point
relying
discussing
without
or
vorced wife
implied,
express
legislation dealing
power,
or
either
alimony
quеstions
future
and child
related
with the
support payments.
other
take
view
courts
Still
compel
power
possess
to
inherent
husband
the courts
pay
counsel
Annotation 15
his
wife’s
fees.
to
former
Where make are authorized to modifications of courts future generally prevails original view that the award the subsequent proceeding a is but continuation of the ori- legislativе give intent ginal was to and that against protect power the wife to defaults same litigation harassing instituted payments or
579 original husband that it in the action. Helden v. 11 Helden, 554; Wis. Stillman v. Stillman, 196, Ill. Rep. 39 Am. 21; Lamborn Lamborn, Cal.
P. 862.
Although,
contrary,
there is
Barish
v. Barish,
In this case, all the we circumstances, find no placing equally upon abuse of discretion in this burden *7 parties. Mrs. Thomas insists that the court erred in re lieving payments Mr. Thomas of the accumulated for support daughter marriage of after her on the ground payments paid that these had been before he applied to a the court for modification of the decree. unable to
We are follow this insistence. Crane, Crane App. (2d) 26 Tenn. 170 227, 663; S. W. Gossett v. Gos App. (2d) Daugherty 34 sett, 241 S. 654, Tenn. 934; App. Dixon, v. S. W. The 944. merely requires equity by Mrs. decree Thomas to do restoring improperly she the amount received. adjudication
Except alimony payments as to that beyond will continue which reversed and the respects is in all reserved, decree affirmed. generally particularly, remanded and, The cause is for necessary, proper to determine if and reference, a аllow a appeal. on for this for counsel Mrs. Thomas fee Costs surety appeal Ms on will to Mr. Thomas and be taxed bond.
Hale and Howard, JJ., eoncnr. Rehear to
On Petition have H. Norman Thomas P. for J. Counsel McAMIS, petition seeking to it was clarifiсation as whether a filed opinion divide between the to onr former intended any for Mrs. Thomas amount allowed counsel asking appeal on services rendered an banc to asserted conflict en resolve Court be convened holding App. Russell, and Russell 3 Tenn. onr v. between 232. dividing no counsel fees on reason
We see merely appeal trial court did so and because the charge not intention to Mrs. Thomas with was our part the fee to be on remand. allowed pointed convening banc, as out
As en to original opinion case, in was not a our Russell v. Russell present, upon where thе court like the called modify property a to a former decree based statute question whether The the Russell case was settlement. fixing alimony, disregard prenuptial could court, Doty pointеd Doty, property As settlement. out opinion, beyond in our it is and followed former cited deprive power itself of the *8 sec. T. 36-820. fact that Russell C. A. The conferred proceeding not a under the statute Russell was present distinguish from case. Accord sufficient ingly, petition to convene the en banc is dis allowed. petitioner petition to Norman H. Thomas. cost of
Tax JJ., Howard, concur. Hale