# Gracey v. Gracey

> Tennessee Supreme Court · March 8, 1957 · 201 Tenn. 414

URL: https://www.frixlaw.com/law-library/cases/8303538

## Case

- **Full name:** C. B. Gracey v. Mrs. Enid Lindenberg Gracey
- **Court:** Tennessee Supreme Court
- **Decided:** March 8, 1957
- **Citations:** 201 Tenn. 414; 5 McCanless 414; 300 S.W.2d 606; 1957 Tenn. LEXIS 317
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Chiee, Neil
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8303538

## Opinion text

On Petition to Rehear.
A petition to rehear has been filed by Mr. Gracey’s counsel complaining that the Court should recall the original opinion because it is in conflict with Brown v. Brown, 198 Tenn. 600 , 281 S.W.2d 492 , and “will-cause confusion among lawyers and place in jeopardy many agreements that have been drawn in good faith.” The petitioner has confused the issues in Brown v. Brown and the real issue in the case at bar.
In the former, Mr. Brown, following a bitter contest with his wife in an action for divorce, was granted an absolute divorce; she was awarded custody of two minor children. In the divorce decree he. was ordered “to pay as ‘alimony’, for the support and maintenance of defendant (Mrs. Brown) and said two dependent children, the sum of $125.00 per month * * (Emphasis ours.) The decree further ordered that the parking lot “held in the joint names of complainant and defendant should be decreed to defendant as alimony.” No mention was made in this decree of any property settlement agreement between the parties. There was none.
The former wife later on filed her petition in the trial court seeking to have Mr. Brown held in contempt of court for refusing to comply with the decree in not executing a deed conveying to her his interest in the parking lot. This Court held that the decree ordering such a conveyance was void on its face; that the trial judge was *423 without jurisdiction to award alimony in favor of the' wife, and against Mr. Brown, who was successful in the divorce proceeding. He could not be held in contempt for refusing to comply with a decree that was void ab initio. Much was said in Brown v. Brown, citing supporting authority, that the trial court was without jurisdiction to make such an award in the face of the statute prohibiting it.
No such issue was made in. the case at bar. There was never any insistence in the divorce case that the Circuit Judge (Dews) was without jurisdiction to enter the decree of divorce in favor of Mrs. Gracey, and to pass upon the “property settlement”. This property settlement was submitted to Judge Dews for his approval or disapproval. He expressly disapproved it. Thereafter Mr. Gracey filed his petition to set aside the pro confesso, and so much of the final decree as adjudged the property rights of the parties. This petition was denied and thereupon he appealed to this Court. We affirmed the decree of the trial court on the ground that he had not abused his discretion.
In the instant case the complainant bases his right to a decree for $10,000 against Mrs. Gracey because the “property settlement” was never acted upon in the original divorce suit. In the petition to rehear it is said:
“Therefore, since the Circuit Court trying the divorce case was without jurisdiction to award property of the tvife to the husband, Brown v. Brown, 160 Tenn. 685 , 28 S.W.2d 350 ; Clouse v. Clouse, 185 Tenn. 666 , 207 S.W.2d 576 , the Court could not possibly have decided the issue with reference to payment by the wife to the husband of $10,000.00, and indeed any *424 attempt to do so would have been void under the Brown case in 198 Tenn. 600 , 281 S.W.2d 492 . Here then, it' is respectfully submitted, is the confusion that will confront every practitioner if the present opinion stands
At no time throughout this litigation has the petitioner insisted that the trial judge, in the divorce decree, considered or adjudges any right of the parties that was beyond his jurisdiction. Moreover -the petitioner fails to state wherein the decree pronounced by Judge Dews was in excess of his jurisdiction.
The property agreement was fully considered in the divorce case, and reaffirmed by Chancellor Marable in the present case. By its terms nothing unlawful was contemplated. In Brown v. Brown, supra, the court .pronounced a decree that was unlawful because it was in plain' violation of the statute and was beyond, the jurisdiction of the court. In the instant case the decree was lawful. There is no showing whatever that any part of it was in violation of law or the principles of equity. For the foregoing reasons we made no reference to Brown v. Brown; it had no application to the issues.
We have discussed at some length the question raised in the petition to rehear because of the zeal and courtesy of counsel in presenting it. It is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8303538. Public record. Not legal advice.