Lundy v. Lundy

719 S.W.2d 154, 1986 Tenn. App. LEXIS 3182
CourtCourt of Appeals of Tennessee
DecidedJuly 30, 1986
StatusPublished

This text of 719 S.W.2d 154 (Lundy v. Lundy) 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
Lundy v. Lundy, 719 S.W.2d 154, 1986 Tenn. App. LEXIS 3182 (Tenn. Ct. App. 1986).

Opinion

OPINION

TODD, Presiding Judge,

Middle Section.

The defendant, Taze Ray Lundy, has appealed from a post divorce decree judgment requiring him to support the minor child of the parties.

There is no transcript or statement of the evidence. The technical record shows the following:

On October 6, 1982, under case no. 17560, plaintiff filed this suit for divorce, exhibiting a pre-marriage contract and praying for custody of and support for the minor child of the parties.

On March 28, 1983, an order of default was entered, reciting service of process upon defendant and his failure to file a timely answer.

On the same date, March 28,1983, a final decree was entered awarding to plaintiff an absolute divorce and custody of the minor child and ordering defendant to pay one-half of the medical expense of the birth and treatment of the child and $50.00 per week child support.

On June 13,1983, plaintiff filed a petition for judgment for arrears child support and for contempt.

On October 20, 1983, defendant filed an “Answer, Motion and Affidavit” containing a detailed recitation of the relations and certain agreements between the parties. The pleading requested relief from the judgment pursuant to TRCP Rule 60.02(2).

On October 27, 1983, under case no. 18711, defendant filed a separate suit against plaintiff alleging an agreement by plaintiff to assume and pay all expenses of birth and support of the child and praying for judgment against plaintiff for an unstated amount.

On November 8, 1983, an agreed order was entered consolidating case no. 17560 with case no. 18711.

On November 14, 1983, an order was entered requiring defendant to pay $50.00 per week to the Clerk of the Trial Court.

On December 13,1983, the parties filed a brief stipulation of fact.

On October 29, 1985, an order was entered containing the following:

This cause came on to be heard on the 20th day of May, 1985, upon the pleadings, briefs, motions, depositions filed with the Court and the entire record in this cause, and further upon the arguments of counsel, whereupon the Court made the following comments from the Bench:
The Court first noted that all pleadings, briefs, depositions and the entire amount of materials filed in this matter were deemed to have been placed in the record so as to insure that any Appellate Courts addressing this cause would have a complete record.
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Concerning the matters raised by the pleadings in Case No. 18711, ultimately consolidated with Case No. 17560, it was the feeling of the Court that relative to the argument of restitution made by the original Defendant, Plaintiff in Case No. 18711, TAZE RAY LUNDY, under the circumstances of this case it would be [156]*156“folly” to hold for the Defendant on a restitution theory, because of the circular effect of having TAZE RAY LUNDY pay amounts through Court which would go to the original Plaintiff, DEBBIE SUE HUDSON LUNDY, and then back to TAZE RAY LUNDY....
The Court further made an affirmative finding that Plaintiff is at the present time financially able to provide adequate support for the parties’ minor child without any contribution from Defendant, ....
Based upon the foregoing, it is, therefore, ORDERED as follows:
1. The Defendant, TAZE RAY LUN-DY, is to continue to pay one-half (V2) of all medical expenses incurred for the benefit of the parties’ minor child, and is to further pay the sum of $50.00 per week as child support as of October 27, 1983, pending further Orders of this Court or a Final Order from an appropriate Appellate Court.
2. The matters hereinabove set forth are to be deemed findings of fact and conclusions of law by the Court....

On November 12, 1985, notice of appeal was filed by the defendant.

On April 29, 1986, a document was filed over the signature of the Trial Judge entitled “Authentication of Depositions”.

The proper manner of preserving depositions for consideration on appeal is to copy them into the transcript or authenticate them as exhibits to a transcript filed within 90 days after notice of appeal. TRAP Rule 24.

On appeal, defendant presents issues as follows:

1. May an adult enter a binding agreement to assume sole responsibility for providing for a minor child?
2. Did Plaintiff herein enter such an agreement?
3. Have circumstances changed since the agreement which now prevent Plaintiff from meeting her obligation thereunder?
4.Is Defendant’s assertion of the collateral oral agreement as a defense to Plaintiff’s claim for child support barred by the Default Judgment and Final Decree of Divorce under the doctrine of res judicata?
Appellee presents the following issues:
1. Whether or not the doctrine of res judicata was applicable in the instant action to bar the Defendant from once again litigating the issue of child support.
2. Whether or not a valid contractural agreement existed between the Plaintiff and the Defendant, binding on a court or courts of competent jurisdiction, so as to relieve the obligation of the Defendant to provide support for the parties’ minor child.

The parties stipulated that they were married on April 1, 1982, that the child was born on August 2, 1982, that defendant is the biological father of the child, and that:

8. Petitioner agreed before the marriage and subsequent to birth of the minor child that she would not seek financial assistance from Respondent for the support of the minor child. Petitioner’s attorney, Thomas L. Reed, Jr., informed Respondent of Petitioner’s position in a letter of March 24, 1982, the contents of said letter stipulated herein.
9. Petitioner did ask for financial support in her petition for absolute divorce and such support was ordered by the Court in the Final Decree of Divorce.

The contents of the letter are not stated in the stipulation, nor is the letter attached to the stipulation.

Appellant’s brief relies upon a statement in the final judgment as follows:

[A]nd further the Court found that all twenty-four matters asserted in the summary section of Defendant’s reply brief were either conceded by Plaintiff or found to be true by the Court.

[157]*157The “Summary” of “Respondent’s Reply Brief” reads as follows:

This case presents such a myriad of facts and issues that it is difficult to address all of them at one time in one document but a few of these issues are as follows:
1. The Petitioner’s life experience, including her age, was much greater that that of Respondent. Petitioner was four months pregnant when she married her first husband (Deposition page 19 line 24) and she learned from that experience that you have to have protection to keep you from getting into trouble (Deposition page 37 line 22).
2.

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Related

Damron v. Damron
367 S.W.2d 476 (Tennessee Supreme Court, 1963)
Davenport v. Davenport
160 S.W.2d 406 (Tennessee Supreme Court, 1942)
Hicks v. Hicks
176 S.W.2d 371 (Court of Appeals of Tennessee, 1943)

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Bluebook (online)
719 S.W.2d 154, 1986 Tenn. App. LEXIS 3182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundy-v-lundy-tennctapp-1986.