FILED

January 22, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

KAREN ANN GAY WILSON ) BRADLEY COUNTY

) 03A01-9708-CV-00324

Plaintiff-Appellee )

)

)

v . ) HON. CARROLL L. ROSS,

 ) JUDGE

) 

KENNETH JAMES WILSON ) AFFIRMED IN PART; VACATED

 ) IN PART; MODIFIED IN PART

Defendant-Appellant ) and REMANDED

ARTHUR BASS OF CLEVELAND FOR APPELLANT

D. MITCHELL BRYANT OF CLEVELAND FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

Kenneth James Wilson appeals a judgment of the Circuit

Court for Bradley County which provided that "the parties are

granted a divorce from one another," and awarded custody of the

parties' two minor children to the wife, Karen Ann Gay Wilson.
1

(b)(1) The complainant shall also allege the full name of the

husband, the full maiden name of the wife, their mailing addresses, dates and

places of their birth, race or color of each spouse, number of previous

marriages of each spouse, date and place of the marriage of the parties, the

number of their children who are minors at the time of the filing of the

complaint, and any other litigation concerning the custody of such children in

this or any other state in which either party has participated, as specified

in § 36-6-210. It shall be mandatory that every complaint filed under this

chapter shall contain the foregoing, and the trial judges shall dismiss

petitions and bills which do not contain the foregoing unless it can be shown

to the satisfaction of the court that such information could not be obtained

by the complainant or petitioner by exercising due diligence.

2

36-6-210. Information in first pleading or affi davit --

Continuing duty to inform court. --(a) Every party in a custody proceeding in

its first pleading or in an affidavit attached to that pleading shall give

information under oath as to the child's present address, the places where the

child has lived within the last five (5) years, and the names and present

addresses of the persons with whom the child has lived during that period. In

this pleading or affidavit every party shall further declare under oath

whether:

(1) The party has participated (as a party, witness, or in any other

capacity) in any other litigation concerning the custody of the same child in

this or any other state;

(2) The party has information of any custody proceeding concerning the

child pending in a court of this or any other state; and

(3) The party knows of any person not a party to the proceedings who has

physical custody of the child or claims to have custody or visitation rights

with respect to the child.

(b) If the declaration as to any of the above items is in the

affirmative, the declarant shall give additional information under oath as

required by the court. The court may examine the parties under oath as to

details of the information furnished and as to other matters pertinent to the

court's jurisdiction and the disposition of the case.

(c) Each party has a continuing duty to inform the court of any custody

proceeding concerning the child in this or any other state of which the party

obtained information during this proceeding.

2

Mr. Wilson appeals, raising the following three issues:

1 . Did the trial court err in failing to dismiss

the Plaintiff's complaint for divorce and child custody

pursuant to T.C.A. 36-4-106(b)(1) 1 for failure to

include the jurisdictional information required in her

first pleading by T.C.A. Section 36-6-210? 2

 

2 . Did the trial court err in awarding custody

of the parties' two minor children to the Plaintiff

rather than to the Defendant?

3 . Did the trial court err in granting a divorce

to the parties rather than to the Defendant

individually on his counter-complaint?
3

Mrs. Wilson filed the original suit on December 21,

1996, and Mr. Wilson an answer and counter-complaint. His

pleading is not stamped filed by the Clerk of the Trial Court,

but the certificate of service by counsel is dated May 29, 1997.

Mr. Wilson's answer specifically addresses the question

raised by his first issue which counsel and the Trial Court

discussed prior to trial. During the discussion, counsel for

Mrs. Wilson suggested that he might amend her complaint to meet

the objection raised, but Mr. Wilson's counsel contended an

amendment would not resolve the problem because T.C.A. 36-6-210

required the information be included in the first pleading. The

Trial Judge indicated that he would be inclined to allow the

amendment, but that if he did so he would be required to grant a

continuance. Parenthetically, we note that it is not clear from

the record nor from argument of counsel before this Court why a

continuance would be required. In any event, the parties tacitly

agreed that the case should go to trial without the amendment

being filed. 

Even if, as insisted by Mr. Wilson, the requirements of

the Code Sections are jurisdictional, it seems to us the Court

had authority to enter the decree which he did based upon prayers

of the counter-complaint which met the requirements of T.C.A. 36-

4-106(b)(1) and 36-6-210. 
4

We will not address the second issue because we find

the record is not sufficiently developed for us to do so. We say

this because at the conclusion of Mr. Wilson's testimony, the

following colloquy occurred between counsel and the Court:

MR. BRYANT: Your Honor, I have several other

witnesses here. I have the babysitter that keeps the

children --

THE COURT: I don't need -- just briefly tell me

who the witnesses are. I don't see any need to bring

all these other witnesses on. So I would like for you

to just generally tell me what they would show.

MR. BRYANT: Your Honor, I have two witnesses that

work with Mrs. Wilson that will testify about -- who

have been in her home, who have children themselves --

the fitness of her home, about their children being

over there, staying over there, how they have no

problems with that.

I have the babysitter here who would testify how

punctual Mrs. Wilson is about dropping off and picking

up the children. She's never observed anything in the

way of the children seeming to be dirty or neglected or

abused in any way during the time she's kept the

children.

Her sister is here and her husband who have been

around them. Those are the other types of witnesses I

have.

MR. BASS: Your Honor, I have his mother here, who

will testify about the times that the parties have

lived with her during the marriage, about the lack of

attention that Mrs. Wilson gave to the children, and

also about her excessive use of force in disciplining

the children, particularly in slapping Melinda in the

face. And she also has the little camcorder with the

video screen on it to show the video of Melinda. And

what that will show, Your Honor, is a large bruise

directly on the lower back above the right buttocks and

another small bruise directly in the middle of the left

buttocks.

They would also -- his mother and father would

testify to the quality of care he provided for the

children. We also have his sister here, who will

testify about what she knows about Mr. Mantooth.
5

THE COURT: I would accept that all these witnesses

will testify to those things. The parties will make a

brief closing.

It is apparent from the foregoing that a proper

resolution of the question of custody depends upon the Court's

assessment of the credibility of the witnesses who did not

testify. 

As to the last issue, Mr. Wilson insists that he should

be granted the divorce because his wife had been guilty of

numerous acts of adultery and he only one, which he contends she

had condoned. While it is true the parties lived together after

the occasion of Mr. Wilson's indiscretion in 1992, there is no

proof that Mrs. Wilson had knowledge of it, which is a

prerequisite of the defense of condonation. Moreover, there is

proof in addition to Mr. Wilson's adultery, that he was guilty of

physical and mental abuse to Mrs. Wilson which, along with the

act of adultery, would support the Court's finding that "there

are ample grounds for divorce on both the complaint and on the

counter-complaint." In light of the Trial Court's granting a

divorce to both parties, it may be inferred that there were ample

grounds for divorce proven by both parties.

Based upon the record before us, It appears the Court

would be authorized in declaring the parties to be divorced
3

36-4-129. Stipulated grounds and/or defenses--G rant of divorce. - -

(a) In all actions for divorce from the bonds of matrimony or from bed and

board, the parties may stipulate as to grounds and/or defenses.

(b) The court may, upon such stipulations or upon proof, grant a divorce

to the party who was less at fault or, if either or both parties are entitled

to a divorce, declare the parties to be divorced, rather than awarding a

divorce to either party alone. 

6

pursuant to T.C.A. 36-4-129, 3 and the decree entered below is

modified by deleting that portion which states, "The parties are

granted a divorce from one another," and inserting in lieu

thereof, "The parties are declared to be divorced."

For the foregoing reasons the judgment of the Trial

Court is affirmed in part, vacated in part, modified in part and

remanded for proceedings not inconsistent with this opinion. The

costs of appeal are adjudged one-half against Mrs. Wilson and 

one-half against Mr. Wilson and his surety. 

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Don T. McMurray, J.

________________________________

Charles D. Susano, Jr., J.