Calhoun v. Calhoun

• Decision Date: 10 December 1970
• Docket Number: 3 Div. 28
• Citation: 243 So.2d 37,46 Ala.App. 381
• Parties: , 63 A.L.R.3d 414 J. Richard CALHOUN v. Lee B. CALHOUN.
• Court: Alabama Court of Civil Appeals

Page 37

243 So.2d 37

46 Ala.App. 381, 63 A.L.R.3d 414

J. Richard CALHOUN v. Lee B. CALHOUN.

3 Div. 28.

Court of Civil Appeals of Alabama.

Dec. 10, 1970.

Rehearing Denied Jan. 6, 1971.

Richard M. Jordan, Montgomery, for appellant.

Fred Ball, Montgomery, for appellee.

WRIGHT, Judge.

This is an appeal from a decree denying a motion to set aside three decrees of the Montgomery County Circuit Court, in Equity. The basis of the motion is that the decrees are void for lack of jurisdiction as shown on the face of the record. The motion was not filed within thirty days from the rendering of the decrees, but it was long ago established that a decree, void for want of jurisdiction, either of the parties or cause of action, may be set aside either on motion or by the court, ex mero motu at any time. Capps v. Norden, 261 Ala. 676, 75 So.2d 915. It is further the rule that an appeal will lie from a decree denying such motion. Doby v. Carroll, 274 Ala. 273, 147 So.2d 803; Maner v. Maner, 279 Ala. 652, 189 So.2d 336.

This matter originally came before the circuit court on sworn bill of complaint filed by appellee against appellant seeking a divorce, alimony, custody and support of children. The complaint alleged that appellee and the children were residents of Alabama and that appellant was a non-resident, residing in Wisconsin. It further alleged that appellant had obtained a decree of divorce against appellee in the court in Wisconsin based upon service on appellee in Alabama. Appellee made no appearance in Wisconsin. The Wisconsin decree granted custody of the children to appellee with visitation rights given appellant with the children in Alabama. Support with awarded dependent upon the children being returned to Wisconsin. A copy of the Wisconsin decree was attached to appellee's bill of complaint.

Personal service of the bill of complaint filed by appellee in Alabama was had upon appellant in Alabama on Sunday, April 24, 1966. There was also served at the same time a temporary order rendered ex parte on the sworn bill of complaint. By this order, the court assumed jurisdiction of the mother and children. Appellant was directed not to attempt to visit or communicate with the appellee or the children in Montgomery.

On May 12, 1966, appellant filed a plea in abatement to the bill of complaint as a whole, and to the aspect of the bill seeking custody and support of the children. There was also filed a motion to quash an injunction issued by the court on May 5, 1966. The injunction was issued upon sworn petition and bond after ex parte hearing. Appellant was enjoined from proceeding with a petition and show cause order against appellee set for hearing in the Wisconsin Court, May 25, 1966. Service of the petition and order was directed to be served upon an attorney of record in Birmingham, Alabama, and by registered mail upon appellant at his residence address and at his place of employment. The record does not disclose delivery of any of the registered mail, nor that there was an attorney of record.

The grounds of appellant's plea in abatement were (1) that service of the bill of complaint upon appellant on Sunday was invalid; (2) that the Alabama court was without jurisdiction of the action for divorce because it affirmatively showed that appellant was a non-resident, and that appellee had not been a resident for one year next preceding the filing of the bill; and (3) that the court had no jurisdiction of custody and child support because these matters were under prior adjudication in the Wisconsin court.

Demurrer was filed to the plea and motion to quash. On May 17, 1966, appellee amended her bill of complaint to request alimony, child support and custody pendente lite. Hearing on the request was set for June 7, 1966, with notice to appellant's attorney in Birmingham.

On May 25, 1966, appellee filed a request for citation of appellant for contempt, alleging violation of the restraining order of December 17, 1965. Notice of hearing on June 7, 1966, was served upon appellant's attorney in Birmingham.

Appellant refiled his plea and motion to quash the injunction of May 5, 1966. Appellee refiled demurrer.

At the hearing on June 7, 1966, attorneys for both parties were present. After hearing on the pleadings and oral testimony by appellee on the petition, the matter was taken under advisement by the court. On June 13, 1966, the court rendered a decree. Demurrer was sustained to the plea in abatement. Motion to quash was denied and appellant was given twenty days to plead to the bill of complaint. After noting that counsel for appellant cross-examined appellee on her testimony for child support, the decree directed payment of temporary child support. All other matters were reserved.

The first decree sought to be set aside by appellant's motion is the decree of June 13, 1966. We now consider the matters raised by the plea in abatement as to jurisdiction of the court to enter the decree.

The first ground was that no valid personal service was had upon appellant because he was served with the bill of complaint on a Sunday. We do not agree. 'Dies Dominicus non est juridicus'--the Lord's Day is not a court day--is recognized in this state as a maxim of the Common Law. It was stated in Shade v. Shade, 252 Ala. 134, 39 So.2d 785, as follows: 'Consonant with the maxim, it is generally declared that except as otherwise prescribed by statute, no judicial proceeding, as distinguished from acts ministerial, can be done or had on Sunday and if so transacted is void.' There is no statute in this state forbidding service of a complaint on Sunday.

Although not expressly deciding if service of process on Sunday violated common law, the court in Comer v. Jackson, 50 Ala. 384, said:

'* * * The Sabbath is sacred for the preservation of the peace and good order of the State; but it is only sacred for sacred purposes. It is very evident that it is not the policy of the law of this State to make the Sabbath an opportunity of escape for an absconding debtor. He whose great name sanctifies the Sabbath for the holy purposes of religion and of morals, also approved its disregard when a proper necessity requires it. If it may be allowed to gather corn and eat it on that day, it may also be found legal, in a proper case, for like reason, to serve a reluctant debtor with process on the Sabbath, who might not be able to be found on Monday, and bring him into court to compel him to pay what he owes. * * *'

We now hold that service of a summons and complaint on Sunday is a ministerial and not a judicial act, and thus is not violative of the Sabbath and common law. Pedersen v. Logan Square State & Saving Bank, 377 Ill. 408, 36 N.E.2d 732; Lucas v. Belcher, 20 Ala.App. 507, 103 So. 909 (cert. denied); Ex parte Belcher, 212 Ala. 597, 103 So. 912.

The second ground of the plea, referring to the absence in the bill of complaint of an averment that appellee had been a resident of Alabama for more than one year prior to the filing of the bill of complaint, is not good for two reasons. First: because there had been personal service upon appellant in Alabama. Title 34, Sec. 29, Code of Alabama 1940, as amended by Acts of 1945, does not require any specific period of residency by a domiciled complainant if the non-resident respondent is personally before the court. Sachs v. Sachs, 278 Ala. 464, 179 So.2d 46; Levy v. Levy, 256 Ala. 629, 56 So.2d 344; Maner v. Maner, supra. Second: the bill of complaint, while praying for divorce, also contained averments as to the custody and support of the children, sufficient to invoke the jurisdiction of the court for that purpose. The original order of the court of December 17, 1965, found and accepted jurisdiction only for that purpose. The decree of June 13, 1966, was in fact, only for temporary support of the children.

It has long been settled in this state that a court of equity is the inherent guardian and protector of minor children within its jurisdiction, and no technical requirements of pleading are necessary to invoke such jurisdiction. Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867; Butler v. Butler, 254 Ala. 375, 48 So.2d 318; Scott v. Scott, 247 Ala. 598, 25 So.2d 673.

The third ground of the plea in abatement was that the Alabama court had no jurisdiction to render a decree for custody and child support because these matters were being adjudicated in the court in Wisconsin. We cannot agree that such ground is well taken.

The case of May v. Anderson, 73 S.Ct. 840, 345 U.S. 528, 97 L.Ed. 1221, which involved a Wisconsin decree, determined that a court had no power to determine custody of children not within the state without personal service upon the mother rightfully in custody. The United States Supreme Court there stated that a judgment against a mother as to her rights of custody of her children was a judgment in personam and affected rights far more precious to her than property rights. The following quotation appeared in that case--

'It is now too well settled to be open to further dispute that the 'full faith and credit' clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound. Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, and see 403, 37 S.Ct. 152, 155, 61 L.Ed. 386.'

It is a fact that appellee and her children were residents and domiciled in Alabama at the time of the filing of appellant's bill of complaint and the rendering of the Wisconsin decree. Appellee was not personally served in Wisconsin with the bill of complaint. Therefore, the Wisconsin decree as it applied to custody of the children was not required to be given full faith and credit in Alabama. May v. Anderson, supra; Maner v. Maner, supra.

Therefore, we hold the decree of June 13, 1966, was not void.

The next decree alleged void for want of...