Buchanan v. Buchanan

• Decision Date: 10 March 1938
• Citation: 170 Va. 458
• Court: Virginia Supreme Court
• Parties: JOHN R. BUCHANAN v. RUTH LESTER BUCHANAN.

Page 458

170 Va. 458

JOHN R. BUCHANAN v. RUTH LESTER BUCHANAN.

Supreme Court of Virginia, Richmond.

March 10, 1938.

Present, All the Justices.

1. JUDGMENTS AND DECREES — Collateral Attack — Successful Attack Must Show Judgments to Be Void. — A successful collateral attack made upon a judgment of a court of general jurisdiction must show the judgment to be void, not merely voidable.

2. HABEAS CORPUS — Primary Object. — The primary object of habeas corpus is to determine the legality of the restraint under which a person is held.

3. HABEAS CORPUS — Custody of Child — Primary Object. — As applied to infants, the primary object of habeas corpus is to determine in whose custody the best interests of the infants will probably be advanced.

4. PARENT AND CHILD — Custody of Child — Natural Rights of Parents Entitled to Consideration. — In determining the custody of infants, the natural rights of the parents are entitled to due consideration.

5. HABEAS CORPUS — Aim Is Swift and Summary Justice. — The aim of habeas corpus is a justice that is swift and summary.

6. PARENT AND CHILD — Custody of Child — Determination of Collateral Issues Not to Be Attempted. — The 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.

7. HABEAS CORPUS — To Determine Guardianship Contest. — A contest for guardianship cannot be properly determined upon a writ of habeas corpus.

8. HABEAS CORPUS — Judgment — Order Must Be Made for Custody of Person Not of Age of Discretion. — While the proper office of the writ of habeas corpus 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.

9. HABEAS CORPUS — Only Matters Necessarily Connected with Detention or Imprisonment Considered. — Only those matters which have a necessary connection with the question of the validity of the detention or imprisonment will be considered in a habeas corpus proceeding, and all other matters will be uniformly rejected.

10. HABEAS CORPUS — Judgment — Noney Award for Maintenance of Wife and Children Void. — In a habeas corpus proceeding to determine the custody of an infant, the single issue is the proper custody of the infant, and obedience to the judgment is enforced by seizure and restraint of the person, while obedience to a judgment or decree for money, in the absence of statute, is imposed by seizure of defendant's property, so that a money award for the future maintenance of a wife and children given in a habeas corpus proceeding is void.

11. HABEAS CORPUS — Judgment — Order Making Money Award — Consent of Parties — Case at Bar. — In the instant case, after a husband and wife had entered into a written contract of separation, the husband obtained a divorce in a foreign state. Thereafter he filed a petition for a writ of habeas corpus alleging that the wife was not a suitable person to have custody of the children. The lower court entered an order by consent of the parties which made little change in the provisions of the separation contract as to the custody of the children, but substantially decreased the monthly payments to be made. From an order of the trial court holding the husband in contempt for failure to comply with such order the husband appealed.

Held: That the order modifying the agreement of the parties regarding their property rights and making a money award, entered in a habeas corpus proceeding, was not pertinent to the allegations, prayer or issue presented, and hence, as a judgment settling property rights in a habeas corpus proceeding, the order, to the extent indicated, was void, but, having been entered by consent, it was evidence of binding contractual obligations.

12. PARENT AND CHILD — Duty of Parent to Support Child — Child's Right to Maintenance Is Perfect Right. — The duty of maintenance on the part of fathers in respect to their infant children is a principle of natural law, the right to which, on the part of such children, is a perfect right.

13. PARENT AND CHILD — Duty of Parent to Support Child — Similar to Husband's Obligation to Wife. — The obligation of a father to support his minor children is similar to a husband's obligation to support a blameless wife.

14. PARENT AND CHILD — Actions by Child against Parent Not Encouraged. — Actions or suits by or in behalf of a child against its parent should not be encouraged.

15. PARENT AND CHILD — Duty of Parent to Support Child — Common-Law Action by Child to Compel Payments for Future Support and Education — Case at Bar. — The instant case was an independent action at law, instituted by minor children and a divorced wife to compel the husband and father to pay out of his income a definite sum each month for the future maintenance and education of the children. The lower court ruled that the divorced husband should pay a certain sum per month to the divorced wife, to be held and applied by her at her discretion in providing proper tuition and all school expenses incident thereto for her two sons at such schools as she might select.

Held: That the judgment of the court on its common-law side, so far as it attempted, in this action by minors, to compel their father to provide them an income out of his estate for their future support and education, was void.

16. PARENT AND CHILD — Custody of Child — Bill in Equity Usual Remedy to Try Right to Custody. — A bill in equity is the most direct, usual, and eligible remedy, in general, to try the right of the parent to the custody of the child.

17. GUARDIAN AND WARD — Parent and Child — Jurisdiction of Equity. — Under section 5326 of the Code of 1936, the court of chancery, as representing the parental and protecting power of the Commonwealth, has jurisdiction to determine controversies concerning the guardianship of a minor; to make orders for his support, if any property capable of being so applied be within the reach of the court; and in extreme cases even to control the right of a father to the custody of his child.

18. PARENT AND CHILD — Duty of Parent to Support Child — Jurisdiction of Equity — Independent Action at Law by Child without Property — Case at Bar. — The instant case was an independent action at law, instituted by minor children and a divorced wife to compel the husband and father to pay out of his income a definite sum each month for the future maintenance and education of the children. On appeal, the mother contended that the proceedings should be regarded as invoking the parental and protecting power of the Commonwealth in a chancery court to determine controversies concerning minors, their persons and property.

Held: That there was no merit in this contention, since the minors had no property subject to the control of the court and the pleading did not purport to be a bill in equity.

19. DIVORCE — Modification of Decree as to Custody and Maintenance of Children — Jurisdiction of Independent Action by Child Not Given by Section 5111 of the Code of 1936 — Case at Bar. — The instant case was an independent action at law, instituted by minor children and a divorced wife to compel the husband and father to pay out of his income a definite sum each month for the future maintenance and education of the children. On appeal, the mother contended that a court of equity had power to enforce the common-law obligation of the father as to future support, by virtue of section 5111 of the Code of 1936, authorizing a court of equity, in a divorce suit, on the petition of either party, after final decree, to revise and alter such decree concerning the care, custody and maintenance of the children.

Held: That there was no merit in this contention for the reasons that the suit was not one for divorce, so that there was no decree to be revised, and the pleading did not purport to be a bill in equity.

20. JURISDICTION — Jurisdiction of Subject Matter Not Given by Consent. — Consent does not give jurisdiction of the subject-matter.

21. PARENT AND CHILD — Duty of Parent to Support Child — Independent Action at Law by Child — Consent of Father's Attorney to Order Fixing Monthly Payments — Case at Bar. — In the instant case, an independent action at law instituted by minor children and a divorced wife to compel the husband and father to pay out of his income a definite sum each month for the future maintenance and education of the children, the court ordered the father to pay to the divorced wife $375 per month, in addition to a like sum previously ordered to be paid in a habeas corpus proceeding. It was contended that the award was made at the suggestion of the father's attorney, but it appeared that the suggestion made was that the mother be paid $200 per month, and that the attorney filed objections to the entry of the order fixing the monthly payments at $750.

Held: That there was no consent to this order.

22. COURTS — Powers — Must Act Judicially. — A court, whether acting under its common-law powers or under its chancery powers, must act judicially in all cases, and cannot transcend this power.

23. HABEAS CORPUS — Equitable Relief Cannot Be Granted. — The distinctions between common-law and chancery jurisdiction have not been modified to the extent that equitable relief can be granted, even with the consent of the parties, in a habeas corpus proceeding — a proceeding confined to investigating the validity of restraint of the person, or custody of infants.

24. JURISDICTION — Retention of Jurisdiction Once Acquired — Conclusiveness of Judgment or Decree upon Collateral Attack. — The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however...