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(Tenn., 256 S. W. 890.)

husband had never paid the $1,800 which the court decreed he should pay on or before July 1, 1920, but had wilfully refused to pay this sum, and had also wilfully refused to pay her the monthly sum of $150 since August 1, 1920, as provided by the decree.

The petition was supported by affidavits alleging that the said L. C. Going had wilfully disobeyed the decree of the court, and was therefore in contempt, and prayed for an attachment of his body, and that he should be required to answer and show cause why he was not in contempt of court.

Mr. Going answered this petition, setting forth his reasons for failing to pay the $1,800, together with subsequent instalments, and insisting that he was not in contempt of court on account of this failure.

On February 4, 1921, the cause was heard before the chancellor on the two petitions and the answers thereto, the testimony of witnesses introduced in open court, and the original record in the cause, including the final decree for divorce, and the chancellor was thereupon of opinion that "there is no reason for modifying or changing the terms of the former decree, and that the petition of L. C. Going is not supported by the evidence." And, after reciting that the said L. C. Going was in arrears in the payment of alimony in the sum of $2,850, the court further decreed "that the petition of L. C. Going be, and the same is hereby, dismissed, and he is hereby ordered and directed to pay into the hands of the clerk and master of this court the sum of $2,850 within ten days from this date, and appeal is hereby granted, provided the said L. C. Going shall enter into a bond with good and solvent sureties in the sum of $3,500 to secure the payment of the amount of alimony now in arrears and the costs, in the event he fails in his appeal, and provided further that, beginning with the 1st day of February, 1921, he pay into the hands of the clerk and master for the benefit of Mrs. Birdie M. Go

ing the sum of $150 on the 1st day of every month pending the appeal from this decree, and until it is finally determined by the supreme court of Tennessee."

L. C. Going excepted to the decree, and prayed an appeal to this court, which was granted, as provided above. Subsequently, by order entered on the same day, Mr. Going was allowed to substitute a $2,500 note in lieu of the $3,500 appeal bond ordered by the chancellor. Thereafter, on February 10, 1920, Mr. Going executed a bond, with personal surety, for $250, to cover the costs of the appeal.

Two points were considered by this court on that appeal:

(a) The right of the chancellor to modify a final decree for alimony, payable in instalments, after the adjournment of the court, where such decree makes no reservation in this behalf.

(b) The action of the chancellor in requiring the petitioner to execute a $3,500 bond, or deposit with the master of the court the $2,500 note "as a condition to his right to appeal."

Disposing of the first point, the court said, at page 308 of 144 Tenn. : "We think the decree of the chancellor must be affirmed. The authorities generally sustain the proposition that a decree for alimony in a case a vinculo, made without reserve, although payable in instalments, cannot be changed or altered after such decree becomes final, which is after the adjournment of court. Mayer v. Mayer, 154 Mich. 386, 19 L.R.A. (N.S.) 245, 129 Am. St. Rep. 477, 117 N. W. 890; Sampson v. Sampson, 16 R. I. 456, 3 L.R.A. 349, 16 Atl. 711; Livingston v. Livingston, 173 N. Y. 377, 61 L.R.A. 800, 93 Am. St. Rep. 600, 66 N. E. 123; Kamp v. Kamp, 59 N. Y. 220; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Ruge v. Ruge, 97 Wash. 51, 165 Pac. 1063, L.R.A.1917F, 721, and the cases there cited.

"There is no reservation in the decree in the instant case giving the court the right to modify it as to ali

mony. We have no statute in this state which gives the court any such authority. The decree was rendered more than a year before the present petition was filed by the husband, and had become final. Like other final decrees, it was beyond the control of the court, and could not be modified at a subsequent term.

"It would seem that the rule is different in cases of an allowance of alimony granted in conjunction with a divorce a mensa et thoro. In such cases a modification may be made, even in the absence of statutory authorization, inasmuch as power to amend such an award existed at common law. 1 R. C. L. § 92; 60 Am. Dec. 668, note."

Disposing of the second point, the court said, at page 310 of 144 Tenn.:

"We are of the opinion that there is no error in the action of the chancellor requiring the execution of the bond referred to. It is expressly provided by § 4896 of Shannon's Annotated Code as follows: 'Where decrees are for a specific sum of money and against the party in his own right, the appeal bond shall be for the amount of the decree and damages and costs.'

"The foregoing section has reference to decrees or judgments in the chancery court. Bilbo v. Allen, 4 Heisk. 31, 34; Chenault v. Chenault, 5 Sneed, 248.

"Having elected to deposit with the master the $2,500 note in lieu of the execution of the bond for $3,500, appellant cannot complain."

The result was to affirm in all respects the decree of the chancellor.

On the remand of the case the complainant, Mrs. Going, on the 15th day of August, 1921, filed her petition in the cause for the purpose of having an attachment of the defendant, Going, for contempt in failing to pay the amounts fixed by the original decree of July 11, 1919, and the subsequent decree of February 4, 1921. The defendant, L. C. Going, demurred to this petition on the following grounds:

"(1) That so much of the original decree entered herein on July 14,

1919, as attempted to reach and affect the future earnings and accessions of the original defendant, L. C. Going, was and is a nullity and incapable of enforcement by the aid of this court or any other.

"(2) The decree heretofore entered in said cause on the 14th day of July, 1919, which is relied on as the basis for the petition for contempt filed, is a final judgment, and as such is a debt, and, being a debt, is incapable of enforcement by contempt proceedings, because such proceedings carry the power of imprisonment, and it would be in violation of the Constitution of this state to imprison the demurrant for failure to pay said debt.

"(3) This said decree being a final judgment, and the time during which the court might exercise jurisdiction over same, or the subjectmatter thereof, having elapsed, it is beyond the jurisdiction or control of this court, and is not now subject to addition or modification by any procedure, especially as the complainant has a plain and adequate remedy by execution which is provided in said decree.

"(4) That so much of said decree entered in said cause on February 4, 1921, as attempted to adjudge and decree to Mrs. B. M. Going the sum of $150 per month to be paid by L. C. Going, is void and unenforceable, because the court had no jurisdiction to make such an award at that time, there being no marital relations existing between the parties, nor any marital obligations resting upon either one to the other, they having been divorced a vinculo.

"(5) So much of said decree dated February 4, 1921, as attempted to require said L. C. Going to pay $150 per month pending his appeal therefrom to the supreme court, was also void and unenforceable for the reason that the court had no jurisdiction over said cause after the perfection of said appeal, and had no power to control, or attempt to control, the same after an appeal.

"(6) The decree relied on herein, being dated July 14, 1919, provides

(Tenn. - 256 S. W. 890.)

a strictly legal remedy, and provides a technically legal right, which is accompanied with such circumstances of oppression and injustice that a court of equity will not lend its aid in enforcement of such unconscientious advantage."

The demurrer having been overruled, the defendant filed an answer to the contempt petition, in which he denied that he had wilfully disobeyed the orders of the court, and in which he averred his inability to comply with these orders.

In this answer the defendant relied upon article 1 of § 18 of the Constitution of Tennessee, which prohibits imprisonment for debt, on the theory that said contempt proceeding was merely a proceeding to imprison defendant for failure to pay said instalments of alimony, which had become, by said decrees, final judgments, and therefore debts.

For further defense, he relied upon the 13th Amendment to the Constitution of the United States, prohibiting slavery or involuntary servitude, his contention in this behalf being as follows:

"Defendant further pleads that the effort to compel him by a decree of this court to pay, through contempt proceedings, the said unpaid sums of $150 per month continuously through his life with the alternative of imprisonment on his failure to pay, is an effort to impose upon him involuntary servitude in violation of article 13, § 1, of the Constitution of the United States, which reads: "Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction."

"Defendant pleads that the decree of the court compels him to serve the complainant month by month, year in and year out, against his will, during the whole of his life. He pleads that such threatened imprisonment held over him is both

unconstitutional and void, as before stated."

Thereafter, on December 27, 1921, the chancellor made a decree on this petition, reciting the contents of the original decree of July 11, 1919; that for six months prior to the filing of complainant's petition for contempt defendant had made no payments under said decree; that for said period he was able to pay $50 per month, or a total of $300; that by reason of his failure to pay said amount he was in contempt of court; and it was thereupon decreed "that he be committed to the Shelby county jail until said sum of $300 is paid, or further orders of this court, and that a mittimus for this purpose issue."

The defendant excepted to this decree on various grounds, and prayed and was granted an appeal to the court of civil appeals, which appeal was granted on condition that he give bond in the sum of $500, conditioned for the payment of said $300 and the costs of the cause, and "on the further condition that L. C. Going pay into the hands of the clerk and master of this court the additional sum of $50 on the 1st day of each month pending the appeal of this cause.'

The complainant, Mrs. Going, appealed to the court of civil appeals from the decree in so far as it failed to adjudge that her former husband should have paid $900, instead of $300, as adjudged by the chancellor, and this appeal was granted on the execution of a cost bond.

Before taking up the argument of the case before the court of civil appeals the appellant, Mr. Going, made a motion to transfer the case to this court, which was as follows:

"Comes one of the appellants, L. C. Going, defendant below, and for the purpose of calling this court's attention to the constitutional questions involved in this cause moves the court to transfer the same to the supreme court, where said cause properly belongs.

"(1) Because the construction of the Constitution of Tennessee, art.

1, § 18, is directly in issue in this cause, and, under the holdings of our supreme court in the cases of Memphis Street R. Co. v. Byrne, 119 Tenn. 278, 104 S. W. 460, and Campbell County v. Wright, 127 Tenn. 1, 151 S. W. 411, this court has no jurisdiction over this question.

"(2) Because the construction of article 13, § 1, of the Constitution of the United States, is also directly involved, and (said section is) required to be construed by the issues presented in said cause, and this court has no jurisdiction to dispose of said constitutional questions.

"(3) Because the further question of criminal offense is charged and is directly in issue in said cause, this court has no jurisdiction over criminal matters.

"Wherefore L. C. Going respectfully moves this honorable court to transfer said cause to the supreme court, where it properly belongs, for final disposition."

The court of civil appeals, however, overruled this motion, and delivered a carefully considered opinion, in which the contentions of the appellant, L. C. Going, were overruled, and the appeal of Mrs. Birdie M. Going sustained from that part of the chancellor's decree which denied a recovery of $900, etc.; and the chancellor's decree was accordingly modified so as to require the appellant, L. C. Going, to pay the full amount in arrears, and it was adjudged that he be held in custody until this was done.

L. C. Going has filed his petition for certiorari to review the decree of the court of civil appeals, insisting, in the first instance, that that court was without jurisdiction, and that his motion to transfer the cause should have been sustained.

I. We are of opinion that the court of civil appeals should have sustained the motion to transfer the case to this court. Constitutional questions were set up in the demurrer and in the answer

Appeal-courtconstitutional questions.

of the defendant, Going, as hereinbefore noted, were insisted on in the

brief filed in the court of civil appeals, and the learned opinion of that court consists, in great part, of a discussion of these constitutional questions.

Under such circumstances the jurisdiction is in this court. Clements v. Roberts, 144 Tenn. 152, 231 S. W. 902; Campbell County v. Wright, 127 Tenn. 1, 6, 151 S. W. 411; Memphis Street R. Co. v. Byrne, 119 Tenn. 278, 325-329, 104 S. W. 460. The case will accordingly be considered as if on

sideration.

appeal. Campbell -scope of conCounty v. Wright,

127 Tenn. 1, 6, 151 S. W. 411; Acts 1909, chap. 192.

II. It is insisted on behalf of the appellee, Mrs. Going, that the appeal should be dismissed because the certificate of the clerk and master shows that the appellant, L. C. Going, has not complied with the condition imposed by the chancellor of paying $150 per month alimony, etc.

We think the chancellor had no power to impose such a condition. As stated by this Appeal-concourt in the original dition-payment opinion herein (144

of alimony.

Tenn. 310, 232 S. W. 443), it is expressly provided by Shannon's Compilation, § 4896: "Where decrees are for a specific sum of money and against the party in his own right, the appeal bond shall be for the amount of the decree and damages and cost."

The appeal from the chancellor's decree was a matter of right upon the execution of an appeal bond conditioned as required by the statute.

The chancellor doubtless based his action upon a misconstruction of the court's previous opinion in this case; but the court did not, in that case, intend to hold that the chancery court had power to impose other conditions than those fixed by the specific terms of the statute relating to appeals.

The motion to dismiss the appeal is therefore overruled and disallowed.

III. Coming now to the merits of this controversy:

(Tenn., 256 S. W. 890.)

(1) It was, of course, settled by the previous opinion of this court that the chancellor had no authority to modify the terms of the divorce decree, in the absence of a reservation of authority contained in such decree. That such is the weight of authority, in the absence of statute, is clearly shown by the review of cases, and the reporter's note, in the case of Ruge v. Ruge (1917) 97 Wash. 51, 165 Pac. 1063, as reported in L.R.A.1917F, 721.

It is, perhaps, unfortunate that this should be so. The status of the parties is subject to constant change, and there is much to be said (as pointed out in the dissenting opinion of Chadwick, J., in the foregoing case) in favor of the right of the court to modify such a decree, even in the absence of a reservation.

And see the strong opinion of Morris, J., in the case of Alexander v. Alexander (1898) 13 App. D. C. 334, 45 L.R.A. 806.

In the present case, moreover, this court might have found an exception to the rule, on the ground that the rights and interests of minor children were involved. Thus, in Ruge v. Ruge, supra, the court, in a learned opinion, attempts to classify the conflicting cases, and, with regard to the cases involving support and maintenance of minors, says: "This class includes cases where there are minor children of the parties to the divorce action, and the courts of all the states are at one upon the proposition that so far as the decree of alimony is for the benefit of the minor children of the spouses, the power to modify the decree continues so long as there are minor children under the protection of the court. While in cases dealing with this aspect of the question the courts have not always paused to state the fundamental principle upon which the right to modify is based, it is manifest in reading them that the dominant thought and controlling circumstance in the cases is the fact that there are minor children to be cared for as wards of the

court. As it seems to us, the true basis upon which the power to modify the decree in these cases rests is that out of the marital relation springs a new relationship, viz., that of parent and child. Palpably neither executive edict, enactment of legislature, nor decree of court can change the relationship existing between parent and child. The courts may decree that the marital tie shall be absolutely severed and the parties be placed, so far as the law is concerned, in the same situation that they occupied prior to the solemnization of the marriage ceremony; but they cannot alter or modify the fact that a father is the parent of his offspring. This parental relationship, springing as it does from the relationship of marriage, is to this extent incident to the marital status. But the duty of the father, if he has means with which to do so, to support his infant children, springs immediately from the parental relationship. As this relationship, incidental as it is to the marriage state, continues to exist after the status out of which it arose has been terminated, either naturally as by death or artificially as by divorce, the duty incident to that continuing relationship still exists. The right of the wife to alimony arises immediately out of the marriage contract, but the right of the child to support at the hands of its parents springs from the incidental relationship which had its origin in marriage, to wit, that of parent and child. The court therefore, acting upon this relationship as one of the things brought to it by the divorce action, has the power to modify or alter its decree so long as there are minor children under the protection of the court."

And see the full discussion of this matter in Spain v. Spain (1916) 177 Iowa, 249, 158 N. W. 529, as reported in L.R.A.1917D, 319, Ann. Cas. 1918E, 1225, with annotation.

This point does not seem to have been brought to the court's attention on the previous appeal, and is not mentioned in the opinion. But, in

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