Crews v. Crews

743 S.W.2d 182, 1987 Tenn. App. LEXIS 2924
CourtCourt of Appeals of Tennessee
DecidedSeptember 18, 1987
StatusPublished
Cited by12 cases

This text of 743 S.W.2d 182 (Crews v. Crews) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crews v. Crews, 743 S.W.2d 182, 1987 Tenn. App. LEXIS 2924 (Tenn. Ct. App. 1987).

Opinion

OPINION

TODD, Presiding Judge.

In this divorce case, the defendant, Donald Evans Crews has appealed, presenting five issues for review, of which the first is as follows:

Should a divorce be granted in the absence of corroborating testimony, where it is practical to obtain such corroborating testimony?

In Fulford v. Fulford, 156 Tenn. 640, 4 S.W.2d 350 (1927), the Supreme Court said:

(1) She testified to facts tending to show abandonment and refusal or neglect to provide as charged. Her testimony as to [183]*183abandonment was not, however, corroborated by any evidence, circumstantial or direct, on the hearing below. Publication was made for the defendant and a pro confesso taken against him. Both the Chancellor and the Court of Appeals were of opinion that a divorce should not be granted under the circumstances appearing upon the uncorroborated testimony of the complainant. The propriety of this conclusion is the only question raised upon the petition for certiorari.
Upon consideration of the matter, we are of opinion that the conclusion reached was correct. Such is the weight of authority. In many jurisdictions there is a statute so declaring the law. Where there is no statute the courts generally adhere to this rule.
It is thought that a different practice would encourage collusion. Section 4212, Thompson-Shannon’s Code, requires that notwithstanding a divorce bill be taken for confessed “the Court shall nevertheless before decreeing a divorce hear proof of the facts aforesaid and then either dismiss the bill or grant a divorce as the justice of the case may require.”
See 10 C.J., 133, R.C.L. 435, Note 25 L.R.A. (N.S.), and Note Anno.Cas. 1913B, 3, where many cases are collected.
(2) We do not intend to lay it down as an inflexible rule that under no circumstances shall a divorce be granted upon the uncorroborated testimony of one of the parties. A case may arise in which it would be impossible to procure corroboration, circumstantial or otherwise. In the case before us, however, the parties seem to have lived in a boarding house at New Orleans and it does not appear that it would have been a matter of any great difficulty for the complainant to have procured evidence corroborating her own at least as to part of the essential particulars. We think this is a case for the application of the general rule.

The full text of Thompson-Shannon’s Code, Section 4212 was:

If the defendant admits the facts charged in the bill or petition and relied upon it as ground for a divorce, or the bill be taken as confessed, the court shall nevertheless, before decreeing a divorce, hear proof of the facts alleged as aforesaid, and either dismiss the bill or petition or grant a divorce, as the justice of the case may require.

The quoted code section appears in the present code as Section 36-4-114 with additional words, “excepting divorces sought on grounds of irreconcilable differences.”

The quoted statute was applicable to Fulford because in that case the defendant was served by publication and a pro confes-so (default judgment) was entered against him. Presumably, defendant was not present at the trial.

The statute is not applicable to the present case wherein the defendant answered, denying the charges of misconduct, and cross examined plaintiff and her witness.

Nevertheless, the opinion in Fulford also appears to adopt the holding of courts of other jurisdictions that, even without statutory provisions, the testimony of the complaining party generally must be corroborated.

In the present case, the plaintiff testified to the following:

The parties were married on June 12, 1962, have lived together since that date and have produced two children ages 23 and 12. From the beginning defendant drank a lot, stayed out a lot, was not at home, was not spending time with plaintiff, was not nice to her. He got drunk the first weekend after marriage. He demanded sex at least once a day, sometimes more, and became very angry when refused. He tried to have sex when intoxicated, but would pass out during sex. He criticized plaintiff continually. He repeatedly asked plaintiff to have a hysterectomy so their sex life would not be interrupted. He passed out on the sofa with a lighted cigarette in his hand. He lied to plaintiff. He took a $1,800 check from the business safe and cashed it.

Plaintiff’s mother testified as follows:

[184]*184Q. Now, back in the spring, Melinda at sometime, either around the end of March or the first of April, discussed with you about separating from Donald, or advised you that she was either thinking about it, or going to do it?
A. Well, I’ve been knowing for years that it would probably happen sooner or later, because the marriage wasn’t working out, but it’s been a few months back when she told me she finally was going to do it.

After plaintiff closed her proof, and defendant moved to dismiss, plaintiff was permitted to call defendant to testify. He testified as follows:

Q. Mr. Crews, did you take a bonus check that was made payable to Caper-ton Insurance and cash it and put it in your personal account?
A. Yes.
Q. What was the value, what was the amount of it?
A. Eighteen hundred ($1,800) dollars. Q. Alright, now, if you would like to go ahead and explain it.
A. Okay, Melinda left me on the 7th day, that was Easter Sunday. Okay, on Wednesday morning, which was the 10th, that’s the day she filed for divorce. And she told me before she left that morning that her mother was going to come to me and ask me to resign my position at the insurance agency. Okay, I didn’t have any money at all in my account to amount to anything, maybe a couple of hundred dollars, and I knew I was going to need some cash. But the check had been in the vault, and I showed it to the girls and told them, they knew about the check being there, or should remember it. I took the check while she was gone that morning to the bank and cashed it and deposited it, and when she got back I told her what I did, and wrote her an IOU to the agency. Okay, and she didn’t like that, or I could tell it upset her. So I took the check, put it back into the Ca-perton Insurance Agency.
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Q. Did you discuss the fact that you were taking the eighteen hundred ($1,800) dollars with anybody before you did it?
A. Not before I did it, no.
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Q. Now, Mr. Crews, do you think that in the past five years that you have drank excessively?
A. No, I don’t think I’ve drank excessively.
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Q. Yes, Sir. Would you say it would be uncommon for you to have come under the influence of alcohol, at least three or four times, six times a month in the last five years?
A. I very seldom came, what you would say “under the influence”.

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Cite This Page — Counsel Stack

Bluebook (online)
743 S.W.2d 182, 1987 Tenn. App. LEXIS 2924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crews-v-crews-tennctapp-1987.