Buchanan v. Buchanan

• Decision Date: 10 March 1938
• Citation: 197 S.E. 426
• Court: Virginia Supreme Court
• Parties: BUCHANAN. v. BUCHANAN.

197 S.E. 426

BUCHANAN.

v.BUCHANAN.

Supreme Court of Appeals of Virginia.

March 10, 1938.

As Modified on Denial of Rehearing June 8, 1938.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Fauquier County; J. R. H. Alexander, Judge.

A habeas corpus proceeding was instituted by John R. Buchanan against Ruth Lester Buchanan which resulted in an order making substantial changes in property rights of the parties who were divorced in another state. Subsequently Ruth Lester Buchanan and others moved that the habeas corpus proceeding be placed on pending docket and filed a petition at law against John R. Buchanan who filed a cross-complaint. An order was entered in the action at law and to review a subsequent order of the trial court holding John R. Buchanan in contempt for failure to comply with the court's orders, John R. Buchanan brings error.

Reversed and remanded, with direction to release John R. Buchanan from custody.

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

Walter H. Robertson, of Warrenton, and Thomas B. Gay and Lewis F. Powell, Jr., both of Richmond, for plaintiff in error.

John S. Barbour, of Fairfax, for defendants in error.

HUDGINS, Justice.

The first major question to be determined in this case is whether a money award for the future maintenance of a wife, divorced in another state, and children, rendered in a habeas corpus proceeding, is voidable or void.

John R. Buchanan and Ruth Lester were married on January 15, 1916. The three children, a daughter and two sons, born to this union, were, on September 29, 1933, 16, 14, and 11 years' of age, respectively. The husband and wife separated, and on May 18, 1931, entered into a written contract settling their financial affairs and making provision for the custody, maintenance, and education of the children. Within 2 months after this agreement was executed, John R. Buchanan instituted divorce proceedings in the Second judicial district court of Nevada. Ruth L. Buchanan filed an answer denying the allegations of the complaint, but offered no evidence to support the allegations in her answer. The Nevada court, on July 27, 1931, entered a decree approving and ratifying the contract of separation, and granting John R. Buchanan an absolute divorce on the ground that the wife had treated the plaintiff with extreme cruelty.

John R. Buchanan, on June 27, 1933, filed, in the Circuit Court of Fauquier County, a petition for a writ of habeas corpus, alleging, among other things, that his divorced wife, Ruth L. Buchanan, was not a suitable person to have the custody of her minor children; that pursuant to his promise in the contract of separation he had paid her $1,500 a month for the upkeep of "Leny Manor, " their country estate in Fauquier county, as a home for herself and children; and that she had failed to expend these monthly payments according to the provisions of the contract. He further alleged that it was impossible for him, on account of his contract with his wife, to maintain a home for his children at "Leny Manor." He offered to secure other property in Fauquier or Loudoun counties for this purpose.

To this petition, respondent filed an answer attacking the decree of the divorce obtained in Reno, Nev, admitting the execution of the contract of separation, but denying that any part of its terms had been broken or that she was an improper person to have the custody of her minor children.

After issue was thus joined in the habeas corpus proceedings, the court on September 29, 1933, by consent of the parties, entered an order making very little change in the provisions of the contract of separation so far as the custody of the children was concerned, but making substantial changes in the property rights of the parties. The monthly allowance of $1,500 was reduced to $375 per month, and ordered to be paid Ruth L. Buchanan "on the first of each month towards the establishment of a home suitable for herself and children other than the said 'Leny Manor.'"

John R. Buchanan now seeks a review by this court of a subsequent order of the trial court holding him in contempt for failure to comply with that part of the order of September 29, 1933, directing him to pay to Ruth L. Buchanan the sum of $375 a month.

A successful collateral attack made upon a judgment of a court of general ju-risdiction must show the judgment to be void, not merely voidable.

The primary object of habeas corpus is to determine the legality of the restraint under which a person is held. As applied to infants, the primary object is to determine in whose custody the best interests of the infants will probably be advanced. In determining such custody, the natural rights of the parents are entitled to due consideration. "By immemorial tradition the aim of habeas corpus is a justice that is swift and summary." People ex rel. McCanliss v. McCanliss, 255 N.Y. 456, 175 N.E. 129, 82 A.L.R. 1141. This speedy determination of the illegality of restraint, or the custody of infants, should not be hindered or delayed by attempting in one proceeding to determine other collateral issues.

In Armstrong v. Stone and Wife, 9 Grat. 102, 50 Va. 102, the court said: "It is further argued that it is not the function of a writ of habeas corpus to try lights of property or settle questions of guardianship, but simply to release from improper confinement; and if it appear there is no improper restraint upon the minor, the court should not interfere.

"It is true that a contest for the guardianship could not properly be determined upon a writ of habeas corpus. The law has prescribed another form for settling such controversies. * * *

"Whilst, therefore, it is undoubtedly true that the proper office of the writ is to release from illegal restraint, and, where the party is of years of discretion and sui juris, nothing more is done than to discharge him; yet, if he be not of an age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody." (Italics supplied.) See Merritt v. Swimley, 82 Va. 433, 3 Am.St.Rep. 115; Coffee v. Black, 82 Va. 567; Slater v. Slater, 90 Va. 845, 20 S.E. 780; Taylor v. Taylor, 103 Va. 750, 50 S.E. 273; Wyatt v. Gleason, 117 Va. 196, 83 S.E. 1069, and Parrish v. Parrish, 116 Va. 476, 82 S.E. 119, L.R.A.1915A, 576.

This court has consistently held the issue in a habeas corpus proceeding to the narrow limits stated above. In Hayes v. Strauss, 151 Va. 136, 142, 144 S.E. 432, 434, it appeared that a habeas corpus proceeding had been instituted to determine the custody of an infant. The lower court revoked the appointment of a guardian and appointed a new guardian for the infant. We held this error. Mr. Justice Holt, speaking for the court said: "The court did go on to revoke the guardianship of Charlotte Hayes, and to appoint in her place and stead Steve Strauss. Of course, the court always has the power in a proper case to remove one guardian and appoint another, but this cannot be done in habeas corpus proceedings (Mathews v. Wade supra), and so the order in this case in this particular was erroneous."

In Foulke v. People, 4 Colo.App. 519, 526, 36 P. 640, 642, this is said: "The rule as stated in Church on Habeas Corpus (section 170), appears to be concise and definite and in harmony with all leading English and American decisions. It is 'that only those matters which have a necessary connection with the question of the validity of the detention or imprisonment will be considered; and all other matters will be uniformly rejected.'

"It will therefore be seen that the proceeding is confined in very narrow limits, and cannot be extended to the adjudication of claims or money demands and unsettled accounts between the parties; the only jurisdiction of the court was to determine whether the father or aunt had the better right to the child, and decree it to such custody." See, also, People v. Porter, 1 Duer [8 N.Y.Super.Ct] 709; State v. Baird, 18 N.J.Eq. 194; State v. Banks, 25 Ind. 495; People v. Wilcox, 22 Barb. [N.Y.] 178. See Ferguson v. Ferguson, 36 Mo. 197; 29 C.J. 109; Lowrey v. Lowrey, 108 Ga. 766, 33 S.E. 421.

The precise question was decided adversely to the contention of defendant in error in People v. Prior, 112 Misc. 208, 182 N.Y.S. 577. The facts in that case appear to be that, in a habeas corpus proceeding, the custody of a minor child had been taken from the father, and he was ordered to make weekly payments toward its support. He failed to make the payments and was cited for contempt. In disposing of the case, the court said: "One of the answers of the husband to the motion is that the court had no jurisdiction in this proceeding to make an order providing for the payment by him of a sum of money for the maintenance and support of his child, even though the father consented to the order. * * * Since the court has no power under the statute to make a money provision, the question arises as to whether or not thereis an inherent power in the court to make such a provision. * * * Aside from statutory enactment, however, the court surely has no power under a writ of habeas corpus to make a money award. Attention has not been called to a case in this state where a court of law or equity has undertaken to make a money provision for the support of a child, except in matrimonial actions. * * * I conclude, therefore, that there is no inherent power in the court to make any such money provision."

In People ex rel. Klee v. Klee, 202 App. Div. 592, 195 N.Y.S. 778, 780, this is said: "The only question in dispute here is whether the court at Special Term had jurisdiction to compel the father, from whose custody the child was taken, to pay a fixed sum per week for the separate maintenance and education of the child. Neither before nor since the adoption of the statute, in any contested case of record, has the court assumed jurisdiction as a condition, regulation, or restriction...