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(- Tenn. -, 256 8. W. 890.) husband had never paid the $1,800 ing the sum of $150 on the 1st day which the court decreed he should of every month pending the appeal pay on or before July 1, 1920, but from this decree, and until it is finalhad wilfully refused to pay this sum, ly determined by the supreme court and had also wilfully refused to pay of Tennessee." her the monthly sum of $150 since L. C. Going excepted to the deAugust 1, 1920, as provided by the cree, and prayed an appeal to this decree.

court, which was granted, as providThe petition was supported by af- ed above. Subsequently, by order fidavits alleging that the said L. C. entered on the same day, Mr. Going Going had wilfully disobeyed the was allowed to substitute a $2,500 decree of the court, and was there- note in lieu of the $3,500 appeal fore in contempt, and prayed for an bond ordered by the chancellor. attachment of his body, and that he Thereafter, on February 10, 1920, should be required to answer and Mr. Going executed a bond, with show cause why he was not in con- personal surety, for $250, to cover tempt of court.

the costs of the appeal. Mr. Going answered this petition, Two points were considered by setting forth his reasons for failing this court on that appeal: to pay the $1,800, together with sub- (a) The right of the chancellor sequent instalments, and insisting to modify a final decree for alimony, that he was not in contempt of payable in instalments, after the court on account of this failure. adjournment of the court, where

On February 4, 1921, the cause such decree makes no reservation in was heard before the chancellor on this behalf. the two petitions and the answers (b) The action of the chancellor thereto, the testimony of witnesses in requiring the petitioner to exeintroduced in open court, and the cute a $3,500 bond, or deposit with original record in the cause, includ- the master of the court the $2,500 ing the final decree for divorce, and note "as a condition to his right to the chancellor was thereupon of appeal." opinion that “there is no reason for Disposing of the first point, the modifying or changing the terms of court said, at page 308 of 144 Tenn.: the former decree, and that the peti- We think the decree of the chantion of L. C. Going is not supported cellor must be affirmed.

The auby the evidence." And, after recit. thorities generally sustain the proping that the said L. C. Going was in osition that a decree for alimony in arrears in the payment of alimony a case a vinculo, made without rein the sum of $2,850, the court fur- serve, although payable in instalther decreed "that the petition of ments, cannot be changed or altered L. C. Going be, and the same is here- after such decree becomes final, by, dismissed, and he is hereby or- which is after the adjournment of dered and directed to pay into the court. Mayer v. Mayer, 154 Mich. hands of the clerk and master of 386, 19 L.R.A.(N.S.) 245, 129 Am. this court the sum of $2,850 within St. Rep. 477, 117 N. W. 890; Sampten days from this date, and appeal son v. Sampson, 16 R. I. 456, 3 is hereby granted, provided the said

L.R.A. 349, 16 Atl. 711; Livingston L. C. Going shall enter into a bond

v. Livingston, 173 N. Y. 377, 61 with good and solvent sureties in L.R.A. 800, 93 Am. St. Rep. 600, 66 the sum of $3,500 to secure the pay

N. E. 123; Kamp v. Kamp, 59 N. Y. ment of the amount of alimony now

220; Erkenbrach v. Erkenbrach, 96 in arrears and the costs, in the event N. Y. 456; Ruge v. Ruge, 97 Wash. he fails in his appeal, and provided 51, 165 Pac. 1063, L.R.A.1917F, 721, further that, beginning with the 1st and the cases there cited. day of February, 1921, he pay into There is no reservation in the the hands of the clerk and master decree in the instant case giving the for the benefit of Mrs. Birdie M. Go- court the right to modify it as to alimony. We have no statute in this 1919, as attempted to reach and afstate which gives the court any such fect the future earnings and accesauthority. The decree was rendered sions of the original defendant, L. C. more than a year before the present Going, was and is a nullity and inpetition was filed by the husband, capable of enforcement by the aid of and had become final. Like other this court or any other. final decrees, it was beyond the con- “(2) The decree heretofore entrol of the court, and could not be tered in said cause on the 14th day modified at a subsequent term. of July, 1919, which is relied on as

“It would seem that the rule is the basis for the petition for condifferent in cases of an allowance of tempt filed, is a final judgment, and alimony granted in conjunction as such is a debt, and, being a debt, with a divorce a mensa et thoro. In is incapable of enforcement by consuch cases a modification may be tempt proceedings,

tempt proceedings, because such made, even in the absence of stat

proceedings carry the power of imutory authorization, inasmuch as prisonment, and it would be in violapower to amend such an award ex- tion of the Constitution of this state isted at common law. 1 R. C. L. to imprison the demurrant for fail92; 60 Am. Dec. 668, note.”

ure to pay said debt. Disposing of the second point, the (3) This said decree being a court said, at page 310 of 144 Tenn.: final judgment, and the time during

“We are of the opinion that there which the court might exercise juis no error in the action of the chan- risdiction over same, or the subjectcellor requiring the execution of the matter thereof, having elapsed, it is bond referred to. It is expressly beyond the jurisdiction or control of provided by § 4896 of Shannon's this court, and is not now subject Annotated Code as follows: "Where to addition or modification by any decrees are for a specific sum of procedure, especially as the commoney and against the party in his plainant has a plain and adequate own right, the appeal bond shall be remedy by execution which is profor the amount of the decree and vided in said decree. damages and costs.'

(4) That so much of said decree "The foregoing section has refer- entered in said cause on February 4, ence to decrees or judgments in the 1921, as attempted to adjudge and chancery court. Bilbo V. Allen. 4

decree to Mrs. B. M. Going the sum Heisk. 31, 34; Chenault v. Chenault, of $150 per month to be paid by L. 5 Sneed, 248.

C. Going, is void and unenforceable, “Having elected to deposit with because the court had no jurisdicthe master the $2,500 note in lieu of tion to make such an award at that the execution of the bond for $3,500, time, there being no marital relaappellant cannot complain.”

tions existing between the parties, The result was to affirm in all re- nor any marital obligations resting spects the decree of the chancellor. upon either one to the other, they

On the remand of the case the having been divorced a vinculo. complainant, Mrs. Going, on the (5) So much of said decree dat15th day of August, 1921, filed her ed February 4, 1921, as attempted to petition in the cause for the purpose require said L. C. Going to pay $150 of having an attachment of the de

per month pending his appeal therefendant, Going, for contempt in fail- from to the supreme court, was also ing to pay the amounts fixed by the void and unenforceable for the reaoriginal decree of July 11, 1919, and son that the court had no jurisdicthe subsequent decree of February tion over said cause after the perfec4, 1921. The defendant, L. C. Go- tion of said appeal, and had no powing, demurred to this petition on the er to control, or attempt to control, following grounds:

the same after an appeal. “(1) That so much of the origi- (6) The decree relied on herein, nal decree entered herein on July 14, being dated July 14, 1919, provides

(- 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.

as

if on

1, $ 18, is directly in issue in this brief filed in the court of civil apcause, 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. Co. 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 court has no jurisdiction to dispose appeal. Campbell -scope of con

sideration. of 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 The motion to dismiss the appeal Appeal-court

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 :

constitutional

(- 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

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