Torrie Schneider Longanacre v. Matthew Robert Longanacre - Dissent

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 24, 2012 Session

TORRIE SCHNEIDER LONGANACRE v. MATTHEW ROBERT

LONGANACRE

Appeal from the Chancery Court for Montgomery County

No. MCCHCVDI10490 Laurence M. McMillan, Chancellor

No. M2012-00161-COA-R3-CV - Filed January 16, 2013

P ATRICIA J. C OTTRELL, P.J., M.S., dissenting.

I dissent from the majority because I believe that the evidence preponderates against

the trial court’s finding that the husband did not prove a ground for divorce. My review of

the record leads me to conclude that the husband did, in fact, produce unrebutted evidence

that established the ground of inappropriate marital conduct.

While there appears to be some lack of unanimity in appellate decisions on the

specific words to be applied in defining inappropriate marital conduct, the

basic question remains whether either or both of the parties engaged in a

course of conduct which (1) caused pain, anguish or distress to the other party

and (2) rendered continued cohabitation “improper,” “unendurable,”

“intolerable” or “unacceptable.” See Tenn. Code Ann. § 36-4-101(11) (Supp.

1999); Gardner v. Gardner, 104 Tenn. 410, 412, 58 S.W. 342, 343 (1900);

Garvey v. Garvey, 29 Tenn. App. 291, 299-300, 203 S.W.2d 912, 916 (1946);

White v. White, Carrol Eq. No. 3, 1988 WL 101253 at *1 (Tenn. Ct. App. Oct.

3, 1988) (no Tenn. R. App. P. 11 application filed); Brown v. Brown, No.

02A01-9108-CV-00168, 1992 WL 5243 at *3 (Tenn. Ct. App. Jan. 16, 1992)

(no Tenn. R. App. P. 11 application filed). Over twenty-five years ago, this

court recognized as inappropriate marital conduct the everyday treatment of

a spouse “by which love, the vital principle which animates a marriage, is

tortured to death; with the result that the once happy joinder becomes nothing

less than a ‘bridge of groans across a stream of tears.’” Newberry v. Newberry,

493 S.W.2d 99, 101 (Tenn. Ct. App. 1973).

. . . Both parties’ actions and statements establish the undisputed fact that their

prior conduct toward each other has caused pain and distress such that each

party has determined that cohabitation is improper, unendurable, and

unacceptable. Therefore, I would find that the evidence preponderates against

the trial court’s finding that inappropriate marital conduct was not proved.

Earls v. Earls, 42 S.W.3d 877, 891-93 (Tenn. Ct. App. 2000).

In this case, Mr. Longanacre established that his wife interfered with his relationship

with his daughter and the rest of his family, testimony that went unrebutted. In my opinion,

that evidence, together with the mutual desire to separate, establish grounds for divorce.

____________________________

PATRICIA J. COTTRELL, JUDGE

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