Bailey v. Bailey, Record No. 1991.

• Decision Date: 09 January 1939
• Docket Number: Record No. 1991.
• Citation: 172 Va. 18
• Court: Virginia Supreme Court
• Parties: DAISY LEA BAILEY (BONITZ) v. J. HUGH BAILEY.

Page 18

172 Va. 18

DAISY LEA BAILEY (BONITZ) v. J. HUGH BAILEY.

Record No. 1991.

Supreme Court of Virginia, Richmond.

January 9, 1939.

Present, Campbell, C.J., and Holt, Gregory, Eggleston and Spratley, JJ.

1. DIVORCE — Decree — Decree for Payment of Money after Service of Process Outside State. — Where original process in a suit for divorce is served upon the defendant outside the state, the trial court is without jurisdiction to enter a decree against defendant for the payment of money.

2. DIVORCE — Decree — Decree for Payment of Money in Absence of Actual Jurisdiction over Defendant's Person. — A decree for the payment of money (for maintenance) in a suit for divorce is essentially a decree in personam, and is therefore void in the absence of actual jurisdiction over the person of the defendant.

3. DIVORCE — Jurisdiction — Dependent upon Statute. — The jurisdiction of a court of equity in divorce cases depends solely upon statute.

4. DIVORCE — Nature of Proceeding — Status Not Changed by Entry of Decree for Payment of Money. — While the entry of a decree against a defendant for the payment of money in a divorce suit is essentially a decree in personam, this rule does not change the status of a suit for divorce which is in its very nature a proceeding in rem.

5. DIVORCE — Decree — Modification — To Compel Support of Child after Divorce Granted on Service in Another State — Case at Bar. — In the instant case, appellant, after service of process on appellee in another state, secured a divorce a vinculo and custody of the parties' infant child. Upon appellee's return to the state, appellant filed a petition praying that the cause be reinstated on the docket and that appellee be compelled to provide for the support of the child. Upon service of process upon him, appellee appeared specially and moved to dismiss the petition on the ground that the court was without jurisdiction to hear it, which motion was granted.

Held: That when the provision for care and custody was placed in the original decree the power granted by section 5111 of the Code of 1936 "to revise and alter such decree" immediately became effective, and when the husband returned to Virginia the trial court, upon the filing of the petition to reinstate and upon proper process, acquired jurisdiction over his person, and having acquired such jurisdiction by force of the statute, the court was empowered to enforce the common-law duty of the husband to support his infant daughter.

6. DIVORCE — Decree — Modification — Statute to Be Liberally Construed. — Section 5111 of the Code of 1936 is a remedial statute and should be construed liberally in order to effectuate the plain intention of the legislature to empower courts of equity to discharge the function of a guardian in the protection of the rights and interests of infants.

Appeal from a decree of the Corporation Court of the city of Danville. Hon. Henry C. Leigh, judge presiding.

The opinion states the case.

Rutledge C. Clement, for the appellant.

Harris, Harvey & Brown, Earle Garrett and Earl L. Valentine, for the appellee.

CAMPBELL, C.J., delivered the opinion of the court.

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...