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(- Tenn. -,

256 S. W. 890.) a strictly legal remedy, and provides unconstitutional and void, as before a technically legal right, which is ac- stated.” companied with such circumstances Thereafter, on December 27, 1921, of oppression and injustice that a the chancellor made a decree on this court of equity will not lend its aid petition, reciting the contents of the in enforcement of such unconscien- original decree of July 11, 1919; tious advantage.”

that for six months prior to the filThe demurrer having been over- ing of complainant's petition for ruled, the defendant filed an answer contempt defendant had made no to the contempt petition, in which payments under said decree; that he denied that he had wilfully dis- for said period he was able to pay obeyed the orders of the court, and $50 per month, or a total of $300; in which he averred his inability to that by reason of his failure to pay comply with these orders.

said amount he was in contempt of In this answer the defendant re- court; and it was thereupon decreed lied upon article 1 of § 18 of the "that he be committed to the Shelby Constitution of Tennessee, which county jail until said sum of $300 is prohibits imprisonment for debt, on paid, or further orders of this court, the theory that said contempt pro

and that a mittimus for this purpose ceeding was merely a proceeding to issue.” imprison defendant for failure to The defendant excepted to this pay said instalments of alimony, decree on various grounds, and which had become, by said decrees, prayed and was granted an appeal final judgments, and therefore to the court of civil appeals, which debts.

appeal was granted on condition For further defense, he relied up. that he give bond in the sum of on the 13th Amendment to the Con- $500, conditioned for the payment stitution of the United States, pro

of said $300 and the costs of the hibiting slavery or involuntary cause, and “on the further condition servitude, his contention in this be- that L. C. Going pay into the hands half being as follows:

of the clerk and master of this court “Defendant further pleads that the additional sum of $50 on the 1st the effort to compel him by a decree day of each month pending the apof this court to pay, through con- peal of this cause.' tempt proceedings, the said unpaid

The complainant, Mrs. Going, apsums of $150 per month continuous- pealed to the court of civil appeals ly through his life with the alterna

from the decree in so far as it failed tive of imprisonment on his failure

to adjudge that her former husband to pay, is an effort to impose upon

should have paid $900, instead of him involuntary servitude in vio

$300, as adjudged by the chancellor, lation of article 13, § 1, of the Con

and this appeal was granted on the

execution of a cost bond. stitution of the United States, which

Before taking up the argument of reads: 'Neither slavery nor invol

the case before the court of civil apuntary servitude, except as a pun- peals the appellant, Mr. Going, made ishment for crime, whereof the party shall have been duly convicted

a motion to transfer the case to this shall exist within the United States,

court, which was as follows:

“Comes one of the appellants, L. or any place subject to their juris- c. Going, defendant below, and for diction.'

the purpose of calling this court's "Defendant pleads that the de- attention to the constitutional quescree of the court compels him to tions involved in this cause moves serve the complainant month by the court to transfer the same to the month, year in and year out, against supreme court, where said cause his will, during the whole of his life. properly belongs. He pleads that such threatened im- "(1) Because the construction of prisonment held over him is both the Constitution of Tennessee, art.


1, § 18, is directly in issue in this brief filed in the court of civil ap. cause, and, under the holdings of peals, and the learned opinion of our supreme court in the cases of that court consists, in great part, of Memphis Street R. Co. v. Byrne, 119 a discussion of these constitutional Tenn. 278, 104 S. W. 460, and Camp- questions. bell County v. Wright, 127 Tenn. 1, Under such circumstances the ju151 S. W. 411, this court has no risdiction is in this court. Clements jurisdiction over this question. v. Roberts, 144 Tenn. 152, 231 S. W.

(2) Because the construction of 902; Campbell County v. Wright, article 13, § 1, of the Constitution of 127 Tenn. 1, 6, 151 S. W. 411; the United States, is also directly in Memphis Street R. Ço. v. Byrne, 119 volved, and (said section is) re- Tenn. 278, 325–329, 104 S. W. 460. quired to be construed by the issues The case will accordingly be conpresented in said cause, and this sidered as if on court has no jurisdiction to dispose appeal. Campbell scope of conof said constitutional questions. County v. Wright,

“(3) Because the further ques- 127 Tenn. 1, 6, 151 S. W. 411; Acts tion of criminal offense is charged 1909, chap. 192. and is directly in issue in said cause, II. It is insisted on behalf of the this court has no jurisdiction over appellee, Mrs. Going, that the apcriminal matters.

peal should be dismissed because the "Wherefore L. C. Going respect- certificate of the clerk and master fully moves this honorable court to shows that the appellant, L. C. Gotransfer said cause to the supreme ing, has not complied with the concourt, where it properly belongs, for dition imposed by the chancellor of final disposition."

paying $150 per month alimony, etc. The court of civil appeals, how- We think the chancellor had no ever, overruled this motion, and de- power to impose such a condition. livered a carefully considered opin. As stated by this

Appeal-conion, in which the contentions of the court in the original dition-payment appellant, L. C. Going, were over- opinion herein (144 of alimony. ruled, and the appeal of Mrs. Birdie Tenn. 310, 232 S. W. 443), it is exM. Going sustained from that part pressly provided by Shannon's Comof the chancellor's decree which de- pilation, § 4896: “Where decrees nied a recovery of $900, etc.; and are for a specific sum of money and the chancellor's decree was accord against the party in his own right, ingly modified so as to require the the appeal bond shall be for the appellant, L. C. Going, to pay the amount of the decree and damages full amount in arrears, and it was and cost." adjudged that he be held in custody The appeal from the chancellor's until this was done.

decree was a matter of right upon L. C. Going has filed his petition the execution of an appeal bond confor certiorari to review the decree ditioned as required by the statute. of the court of civil appeals, insist- The chancellor doubtless based his ing, in the first instance, that that action upon a misconstruction of the court was without jurisdiction, and court's previous opinion in this that his motion to transfer the cause case; but the court did not, in that should have been sustained.

case, intend to hold that the chanI. We are of opinion that the cery court had power to impose othcourt of civil appeals should have er conditions than those fixed by the sustained the motion to transfer the specific terms of the statute relating case to this court. Constitutional to appeals.

questions were set Appeal-court

The motion to dismiss the appeal up in the demurrer is therefore overruled and disalquestions.

and in the answer lowed. of the defendant, Going, as herein- III. Coming now to the merits of before noted, were insisted on in the this controversy:


(- Tenn.

256 8. W. 890.) (1) It was, of course, settled by court. As it seems to us, the true the previous opinion of this court basis upon which the power to modthat the chancellor had no authority ify the decree in these cases rests is to modify the terms of the divorce that out of the marital relation decree, in the absence of a reserva- springs a new relationship, viz., that tion of authority contained in such of parent and child. Palpably neidecree. That such is the weight of ther executive edict, enactment of authority, in the absence of statute, legislature, nor decree of court can is clearly shown by the review of change the relationship existing becases, and the reporter's note, in the tween parent and child. The courts case of Ruge v. Ruge (1917) 97 may decree that the marital tie shall Wash. 51, 165 Pac. 1063, as reported be absolutely severed and the parties in L.R.A.1917F, 721.

be placed, so far as the law is conIt is, perhaps, unfortunate that cerned, in the same situation that this should be so. The status of the they occupied prior to the solemnizaparties is

is subject to constant tion of the marriage ceremony; but change, and there is much to be said they cannot alter or modify the fact (as pointed out in the dissenting that a father is the parent of his opinion of Chadwick, J., in the fore- offspring. This parental relationgoing case) in favor of the right of ship, springing as it does from the the court to modify such a decree, relationship of marriage, is to this even in the absence of a reserva- extent incident to the marital status. tion.

But the duty of the father, if he has And see the strong opinion of means with which to do so, to supMorris, J., in the case of Alexander port his infant children, springs imv. Alexander (1898) 13 App. D. C. mediately from the parental rela334, 45 L.R.A. 806.

tionship. As this relationship, inIn the present case, moreover,

cidental as it is to the marriage this court might have found an ex- state, continues to exist after the ception to the rule, on the ground status out of which it arose has been that the rights and interests of mi- terminated, either naturally as by nor children were involved. Thus, death or artificially as by divorce, in Ruge v. Ruge, supra, the court, in the duty incident to that continuing a learned opinion, attempts to clas- relationship still exists. The right sify the conflicting cases, and, with of the wife to alimony arises immeregard to the cases involving sup- diately out of the marriage contract, port and maintenance of minors, but the right of the child to support says: “This class includes cases

at the hands of its parents springs where there are minor children of from the incidental relationship the parties to the divorce action, and which had its origin in marriage, to the courts of all the states are at one wit, that of parent and child. The upon the proposition that so far as court therefore, acting upon this rethe decree of alimony is for the lationship as one of the things benefit of the minor children of the brought to it by the divorce action, spouses, the power to modify the de- has the power to modify or alter its cree continues so long as there are decree so long as there are minor minor children under the protection children under the protection of the of the court. While in cases dealing court." with this aspect of the question the And see the full discussion of this courts have not always paused to matter in Spain v. Spain (1916) 177 state the fundamental principle up- Iowa, 249, 158 N. W. 529, as reporton which the right to modify is ed in L.R.A.1917D, 319, Ann. Cas. based, it is manifest in reading them 1918E,

1225, with annotation. that the dominant thought and con- This point does not seem to have trolling circumstance in the cases is been brought to the court's attention the fact that there are minor chil- on the previous appeal, and is not dren to be cared for as wards of the mentioned in the opinion. But, in

-law of case.

any event, that opinion is the law of the course and practice of the court,

this case

on the

as to the court shall seem meet and Appeal-second

present appeal, and agreeable to equity and good con

we must proceed on science. 1801, chap. 6, § 3; 1835–36, the theory that the chancellor had chap. 26, 8 10.” no power to modify the terms of the As will be noted, our statute does original decree. Bristol v. Bost- not provide for an attachment for wick, 146 Tenn. 205, 210, 240 S. W. contempt as a method of enforcing 774.

the collection of alimony; and it may (2) Should this judgment for be further noted that there is no permanent alimony, beyond the reported case, since the enactment power of the chancellor to alter, be of this section of the Code of 1858, enforced by contempt proceedings? or the passage of the Acts of 1801

On behalf of the appellant, it is and 1835 on which it is based, which contended that such a judgment be- upholds the exercise of such a powcomes a debt which is to be collect- er. ed by execution like any other debt, (b) It is, however, contended on or, at most, by sequestration of the behalf of the appellee that an athusband's property, or the appoint- tachment for contempt in such cases ment of a receiver as provided by is one of the "other lawful ways and our statutes on the subject, and that means" which are “usual and acto enforce its collection by contempt cording to the course and practice of proceedings would violate § 18 of the court," even after the expiraarticle 1 of the Tennessee Constitu- tion of the term at which the decree tion, which provides: “The legisla- was rendered. ture shall pass no law authorizing In support of this contention, refimprisonment for debt in civil erence is made to certain standard cases.'

text-books, or encyclopedias, and to On behalf of the appellee, it is certain cases decided by other state contended that permanent alimony, courts, and by the United States Sualthough the decree has passed out preme Court, especially the cases of of the control of the chancellor, is Wetmore v. Markoe (1904) 196 U. not, properly speaking, a debt, but a S. 68, 49 L. ed. 390, 25 Sup. Ct. Rep. portion of the husband's estate equi- 172, 2 Ann. Cas. 265, and Audubon tably due the wife, or in the nature v. Shufeldt, 181 U. S. 575, 45 L. ed. of a penalty for his misconduct, and 1009, 21 Sup. Ct. Rep. 735. that the husband's obligation may These two cases, it may be obbe enforced by imprisonment with- served, both deal with the same out violation of our constitutional question, viz., whether alimony is a provision.

debt provable in bankruptcy, and (a) Our statutes on the subject

therefore to be evaded by taking the of enforcing a decree for alimony Bankrupt Act (U. S. Comp. are carried into the Code of 1858 in

9585–9656, 1 Fed. Stat. Anno. 2d ed. $ 2470 (Shannon's Compilation, $ p. 509). In the Audubon Case, the 4223), which reads as follows: decree was rendered in a court “Decree for Alimony, How En- which had control over it, with full forced. The court may enforce its

power to amend or alter. In the orders and decrees by sequestering

Wetmore Case, the decree rendered the rents and profits of the real es- by one of the courts of New York tate of the husband, if he has any, was concededly beyond the power of and his personal estate and choses in the court to alter or amend. action, and by appointing a receiver Whatever was said by the United thereof, and from time to time caus- States Supreme Court in these opining the same to be applied to the use ions must be considered in the light of the complainant and her children, of the actual question under considor by such other lawful ways and eration and the actual point decidmeans as are usual and according to ed, and is, obviously, not a decision

(- Tenn, -, 256 8. W. 890.) so far as it is sought to be applied contempt in failing and refusing to to a contempt proceeding. The ac- pay alimony. tual decision in each case was that Answering the contention that alimony, not being based on con- after final judgment the jurisdiction tract, was not a provable debt in of the court was exhausted, the bankruptcy.

court says: “This contention also is The appellee also relies on the text without force. It has always been of 1 R. C. L. p. 960, where it is said: the law in this state that a decree "Even after the expiration of the for alimony is subject to modificaterm at which a decree for perma- tion by the court in which the denent alimony was granted (Welty v. cree was entered, according to the Welty, 195 Ill. 335, 83 Am. St. Rep. varying circumstances of the par208, 63 N. E. 161), payment there- ties. Barclay v. Barclay, 184 Ill. of may be enforced by an order com- 375, 51 L.R.A. 351, 56 N. E. 636. mitting the husband for contempt of Section 18 of the Divorce Act procourt (Lewis v. Lewis, 80 Ga. 706, vides that 'the court may, on appli12 Am. St. Rep. 281, 6 S. E. 918; cation, from time to time, make such Staples v. Staples, 24 L.R.A. 433, alterations in the allowance of aliand note (87 Wis. 592, 58 N. W. mony and maintenance, and the 1036, 17 Am. St. Rep. 272, note; 137 care, custody, and support of the Am. St. Rep. 875, note), owing to children, as shall appear reasonable the fact that alimony does not con- and proper.' 2 Starr & Ct. Anno. stitute a debt,' within the meaning Stat. 2d ed. p. 1449. Under this secof that term as used in the usual tion of the statute the court is inconstitutional inhibition against im- vested with power to declare the terprisonment for debt.” Re Popejoy, mination of all alimony upon the 26 Colo. 32, 77 Am. St. Rep. 222, 55 occurrence of facts reasonably justi. Pac. 1083; Bronk v. State, 43 Fla. fying such a declaration. Lennahan 461, 99 Am. St. Rep. 119, 31 So. 248; v. O'Keefe, 107 Ill. 620. In Cole v. Barclay v. Barclay, 184 Ill. 375, 51 Cole, 142 Ill. 19, 19 L.R.A. 811, 34 L.R.A. 351, 56 N. E. 636; State ex Am. St. Rep. 56, 31 N. E. 109, we rel. Cook v. Cook, 66 Ohio St. 566, said (142 Ill. 23]: "The power over 58 L.R.A. 625, 64 N. E. 567; Re the subject-matter of alimony is not Cave, 26 Wash. 213, 90 Am. St. Rep. exhausted by the entry of the origi736, 66 Pac. 425; 24 L.R.A. 434,

nal order, but is, under the statute, note.

continuing, for the purpose, at any We have, for convenience in the time, of making such alterations quotation, associated directly with

thereof as shall appear to the chanthe text the citations in the foot

cellor, in the exercise of a judicial

discretion, reasonable and proper.' notes.

Foote v. Foote, 22 Ill. 425; Stillman These authorities will now be ex

v. Stillman, 99 Ill. 196, 39 Am. Rep. amined.

21; Lennahan v. O'Keefe, 107 Ill. In the case of Welty v. Welty, su- 620.pra, the decree of divorce provided As will be observed, the court in that “the defendant Robert A. Welty that case had power under the speshall pay to the said Catherine cific terms of a state statute to modiWelty $25 on the 1st day of each fy the decree at any time, and the month for a period of eight months, decision is based on that statute. commencing June 1, A. D. 1899, and The case of Lewis v. Lewis, supra, continue until the sum of $200 is was an attachment for contempt paid, said sum to be in lieu of and because of failure to comply with a in full for alimony and in full of all final decree giving the wife alimony. other claims of any kind or nature.” The opinion is quite meager, cites On June 13, 1900, at a subsequent no authority, and does not show term of the court, the defendant, R. whether the court retained jurisdicA. Welty, was committed to jail for tion of the case in the final decree,

31 A.L.R.–41.

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