Bailey v. Bailey

Decision Date09 January 1939
Citation200 S.E. 622
PartiesBAILEY. v. BAILEY.
CourtVirginia Supreme Court

Appeal from Corporation Court of Danville; Henry C. Leigh, Judge.

Suit for divorce by Daisy Lea Bailey against J. Hugh Bailey, wherein plaintiff obtained divorce with custody of child, and subsequently, after having married one Bonitz, filed petition to reinstate the suit in order to compel defendant to provide for support and maintenance of daughter. From a decree dismissing the petition, plaintiff appeals.

Reversed, and cause remanded.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Rutledge C. Clement, of Danville, for appellant.

Harris, Harvey & Brown and Earle Garrett, all of Danville, and Earl L. Valantine, of Lexington, for appellee.

CAMPBELL, Chief Justice.

The controlling facts are undisputed and are as follows: At the first July, 1929, rules of the Corporation Court of the city of Danville, the appellant, Daisy Lea Bailey, filed her bill of complaint against her husband, J. Hugh Bailey, a non-resident, seeking a divorce a vinculo matrimonii on the ground of wilful desertion; the bill also prayed for the custody of Lydia Lea Bailey, an infant. Pursuant to the provisions of section 6071 of the Code, process was served personally upon appellee, in the State of Montana where he then resided.

Upon the bill of complaint and depositions taken in support thereof, the cause was heard and a decree was entered granting the prayer of the bill for an absolute divorce. The decree also contained this provision:

"It further appearing to the court that the said Daisy Lea Bailey is a suitable person to have the care and custody and control of her said infant daughter, Lydia Lea Bailey, complete control, care, and custody of said child, free from the interferences of the said J. Hugh Bailey, or any other person, is hereby awarded to the said Daisy Lea Bailey, but this decree shall not in any wise affect, release or discharge the said J. Hugh Bailey from such obligations as are imposed upon him by law to support and maintain said infant daughter; * * *."

Subsequent to the entry of the decree for divorce a vinculo matrimonii, appellant married one Bonitz, and appellee returned to Virginia and became a citizen of Rockbridge county. At the September, 1936, term of the corporation court, appellant filed her petition setting forth the proceedings had in the divorce suit and praying that the suit be reinstated upon the docket; that process issue against the appellee, and that he be compelled to provide for the support and maintenance of their infant daughter, Lydia Lea Bailey.

At the same term of the court a decree was entered reinstating the divorce suit upon the docket and directing that appellee appear and show cause why the prayer of the petition should not be granted. Upon service of process upon him, appellee appeared specially and moved the court to dismiss the petition of appellant, on the ground that the corporation court was without jurisdiction to hear the petition, for the reason that the divorce was obtained upon constructive service while the appellee was a citizen of the State of Montana, and that appellee was now a resident of the county of Rockbridge. The chancellor sustained the motion of appellee and entered a decree dismissing appellant's petition. It is from that decree this appeal was allowed.

It is the contention of appellant that a proper construction of section 5111 of the Code demonstrates that the trial court had jurisdiction to hear and determine the question presented in appellant's petition.

So far as is pertinent to the issue, section 5111 is as follows:

"Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board,...

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8 cases
  • Evans v. Evans
    • United States
    • Virginia Supreme Court
    • July 15, 2021
  • Smith v. Smith
    • United States
    • West Virginia Supreme Court
    • October 19, 1954
    ... ... Mitchell, 90 W.Va. 702, 111 S.E. 763; Witten v. St. Clair, 27 W.Va. 762; Bailey v. Bailey, 172 Va. 18, ... 200 S.E. 622; Bray v. Landergren, 161 Va. 699, 172 S.E. 252. 'To render a judgment or decree binding, the court ... ...
  • Morris v. Henry, 3920
    • United States
    • Virginia Supreme Court
    • April 21, 1952
    ... ... ' In Bailey v. Bailey, 172 Va. 18, 22, 200 S.E. 622, 624, we said this 'statute is a remedial one and should be construed liberally in order to effectuate the ... ...
  • Wallihan v. Hughes
    • United States
    • Virginia Supreme Court
    • June 21, 1954
    ... ... Section 20-108, [196 Va. 123] Code of 1950; Gloth v. Gloth, et al., 154 Va. 511, 153 S.E. 879; Bailey v. Bailey, 172 Va. 18, 200 S.E. 622; Kern v. Lindsey, 182 Va. 775, 30 S.E. (2d) 707. The full faith and credit clause does not require that we ... ...
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