Smith v. Smith

643 S.W.2d 320, 1982 Tenn. LEXIS 367
CourtTennessee Supreme Court
DecidedDecember 6, 1982
StatusPublished
Cited by9 cases

This text of 643 S.W.2d 320 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Smith, 643 S.W.2d 320, 1982 Tenn. LEXIS 367 (Tenn. 1982).

Opinion

OPINION

FONES, Chief Justice.

This procedural quagmire does not lend itself to a brief introductory statement of the issue. We granted defendant’s T.R.A.P. 11 application to examine the propriety of the Court of Appeals’ award of a judgment for child support arrearage based on a procedural technicality, there having been no adjudication on the merits of plaintiff’s claim in the trial court. We reverse and remand for a trial of that issue on its merits.

On June 27, 1980, plaintiff Evelyn Smith filed a petition titled “Petition for Contempt and Increased Child Support.” She recited therein that she and defendant Clarence Smith were divorced by decree entered February 16, 1978, and defendant was ordered to pay ninety dollars per week child support. It was alleged therein that defendant was disabled in an accident in February 1979, but that he had returned to full employment in February 1980. Additional allegations in the petition revealed that the parties litigated throughout the year 1979 and early 1980, plaintiff seeking contempt citations for failure to pay child support and defendant seeking reduction of child support because of his job-related injury. It appears from said allegations that defendant was held in contempt for failure to pay child support, that he appealed to the Court of Appeals, but that the parties settled that controversy before the appellate court reached the case on its merits. The June 27, 1980, petition recites that:

[321]*321“An agreed order was then filed in this Court acknowledging that defendant had become temporarily totally disabled from being a truck driver in February of 1979, and ordering that child support be set at forty ($40) dollars per week, reserving plaintiffs cause of action as to any ar-rearages then due. Said order took effect on February 8, 1980.
V.
That, as of April 28, 1980, defendant has accumulated child support arrearages of two thousand five hundred ($2,500.50) dollars and fifty cents.”

Plaintiff then alleged that defendant had returned to his previous employment as an over-the-road truck driver and was believed to be earning as much or more than he was earning at the time of the original decree when child support of ninety dollars per week was awarded.

The petition also contained allegations about a division of a parcel of real estate in the original decree, that defendant had failed to deliver a deed as he was required to do and that his failure to do so was in wilful contempt of the Court.

The prayers of the petition were that defendant be required to answer but not under oath and (1) that he be held in contempt, (2) that he be ordered to deliver the deed, (3) that child support be increased from forty dollars to ninety dollars per week, and (4) that he be ordered to pay $2,500.50 in child support arrearages “in whatever manner this Court deems proper.”

The June 27, 1980, petition came on for hearing before the trial court on July 17, 1980. The transcript begins with a recitation by the trial judge of a brief history of the case and a summary of the issues raised by the petition, whereupon the trial judge said to defendant’s counsel, “I don’t believe you’ve responded but I do understand you do want to make an oral ... [response].” Defendant’s counsel then responded orally to the issue with respect to the deed, the issue of increasing the child support, and the issue with respect to arrearage. In short, counsel orally stated defendant’s position with respect to every issue in the petition and near the end of his oral answer said, “I emphatically deny that there are any grounds for their petition.” Specifically, with respect to arrearage, defendant’s oral answer was as follows:

“As to the arrearage, I don’t think the Court can go back farther than its order of February 8, in order to compute any arrearage. And to do so would compute arrearage out of workmen’s compensation benefits.”

With respect to plaintiff’s contention that defendant was in wilful contempt for failure to deliver a deed allegedly called for in the final decree of divorce, after a lengthy colloquy between the Court, counsel for the parties, and a former counsel who was present, seeking an award of attorney’s fees for past services rendered for plaintiff, the trial judge called attention to the fact that the final decree vested and divested the respective property interests and no deed was called for.

Thereafter, the parties put on their proof on the issue of whether the child support payments should be increased. Neither party adduced a single word of proof on the question of past-due child support. At the conclusion of the hearing, the trial judge awarded a fee to plaintiff’s former attorney and took under advisement “the other problem.”

On September 24, 1980, an order was entered increasing child support from forty dollars per week to sixty-five dollars per week and dismissing “all other matters.” There were no findings of fact nor any mention of the arrearage issue in that order.

On October 7, 1980, plaintiff filed a motion to amend the judgment or in the alternative grant a new trial. It was plaintiff’s contention that defendant did not file a written answer nor “at the trial of the cause did not utter a denial of plaintiff’s sworn assertion that ‘as of April 23, 1980, defendant has accumulated child support arrearages of $2,500.50.’ ”

[322]*322That motion was heard on November 18, 1980, and overruled by order entered December 8, 1980.

On plaintiff’s appeal, the Court of Appeals filed an opinion on July 22, 1981, affirming the trial court. The intermediate court said that the only issue presented by plaintiff was whether the child support ar-rearage was at issue in the trial on July 17, 1980. After expressly finding that the trial judge treated defendant’s oral response as an answer, the Court of Appeals held as follows:

“Considering the state of the record, we think the Court could have considered the matter, and perhaps did, from the standpoint of whether or not he would hold the defendant in contempt. He apparently decided the contempt issue in favor of the defendant. Since no appeal lies from acquittal for contempt, this Court is without authority to give the plaintiff any relief. Johnson v. Johnson, Tenn.App., 499 S.W.2d 268 (1973) and Plumb v. Plumb, 52 Tenn.App. 267, 372 S.W.2d 771.
The Court’s failure to direct how the defendant should pay the arrearage is harmless. The proof fails to show the amount due but it is not necessary for the Court to enter a second decree directing how it should be paid. It constitutes a judgment and the plaintiff only neéds to have execution issued for its collection. Buchholtz v. Buchholtz, 175 Tenn. 87, 132 S.W.2d 208 (1939).”

In response to plaintiff’s petition to rehear, the Court of Appeals withdrew its first opinion and filed a second opinion on September 18, 1981. The second opinion was substantially the same as the first but with the following addition thereto:

“However, under the circumstances we think it was improper for the Court to dismiss the plaintiff’s petition on this issue.

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Cite This Page — Counsel Stack

Bluebook (online)
643 S.W.2d 320, 1982 Tenn. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-tenn-1982.