Cobb v. Cobb, 11068

• Decision Date: 08 March 1960
• Docket Number: No. 11068,11068
• Citation: 145 W.Va. 107,113 S.E.2d 193
• Court: West Virginia Supreme Court
• Parties: Earl W. COBB v. Rose COBB.

Page 193

113 S.E.2d 193

145 W.Va. 107

Earl W. COBB v. Rose COBB.

No. 11068.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1960.

Decided March 8, 1960.

Syllabus by the Court

1. 'Jurisdiction of courts of equity to entertain suits for divorce exists only by virtue of the statute which confers such jurisdiction.' Point 1, Syllabus, State ex rel. Cecil v. Knapp, W.Va. .

2. Lack of jurisdiction may be raised at any time during the course of a proceeding either in the trial court, or in this Court, upon the court's own motion.

3. Where it appears in a suit for divorce that neither of the parties, at the time the suit was brought, had been a bona fide resident of this State for a period of at least one year, pursuant to the provisions of Code, 48-2-8, an allegation of adultery in the bill of complaint, unless sustained by proof of the fact, does not give a court jurisdiction of the 'subject matter'.

4. When it becomes apparent during the course of a proceeding that a court is without jurisdiction, the court has no authority but to dismiss the proceeding, anything further being coram non judice.

William L. Jacobs, Parkersburg, for appellant.

Richard F. Pence, Parkersburg, for appellee.

BROWNING, President.

An appeal and supersedeas was granted by this Court on June 9, 1959, to a decree of the Circuit Court of Wood County of March 6, 1959, declaring void and of no effect two prior decrees of that court, one, entered June 4, 1954, granting a divorce to the plaintiff, Earl W. Cobb, on the ground of cruelty, and the custody of a child born to the marriage between him and the defendant, Rose Cobb, and the other, entered October 18, 1954, amending the decree of June 4, 1954, so as to award custody of the child, with support and maintenance payments of $22 weekly to the defendant, on the ground that the Circuit Court of Wood County had no jurisdiction of the 'subject matter' in the original suit for divorce. The decree of March 6, 1959, further awarded the custody of the two children, one born subsequent to the divorce decree of June 4, 1954, and required plaintiff to make weekly payments of $30 for their support and maintenance.

The facts pertinent to the instant decision will be hereinafter related.

The principle that courts of equity have jurisdiction in suits for divorce only by virtue of the authority conferred upon them by statute is laid down in many decisions of this Court. They are cited in the opinions in the recent cases of State ex rel. Hammond v. Worrell, W.Va., 106 S.E.2d 521, and State ex rel. Cecil v. Knapp, W.Va., 105 S.E.2d 569. Code, 48-2-8, insofar as pertinent provides:

'No suit for divorce shall be maintainable:

'(a) If the cause for divorce is adultery, whether the cause of action arose in or out of this State, unless one of the parties, at the commencement of suit, is a bona fide resident of this State; or

'(b) If the cause for divorce is other than adultery, unless one of the parties was at the time the cause of action arose, a bona fide resident of this State and has been such a resident for at least one year next preceding the commencement of suit; or * * *.'

The grounds for divorce from the bonds of matrimony in this State are enumerated in Code, 48-2-4, as amended, and four of those grounds were alleged in the plaintiff's bill, to-wit: adultery, desertion, habitual drunkenness and cruelty. The bill alleged that the defendant deserted the plaintiff on the ___ day of September, 1953, and the suit was brought on February 9, 1954. Code, 48-2-4, as amended, provides that desertion shall be a ground for divorce only after it has continued for a period of at least one year. The allegation as to adultery was to the effect that: '* * * the said defendant at divers and sundry times in the City of Parkersburg and also at Camp Lejeune in North Carolina, within the last three years, has been guilty of adultery with different men the names of whom now to this plaintiff was unknown.' There was no evidence adduced by the plaintiff upon this allegation at the hearing, pursuant to a decree of reference, by a Special Commissioner. In his report, the Special Commissioner was of the opinion, and so recommended, that the charge of cruelty had been established by the evidence and that upon that ground the plaintiff was entitled to a divorce from the defendant, and on June 4, 1954, the Circuit Court of Wood County entered a decree granting a divorce to the plaintiff, upon allegations and proof of jurisdiction, on the ground of cruel and inhuman treatment, as disclosed by the record then before the court.

Subsequently, on October 18, 1954, the court entered an order, agreed to by the plaintiff and the defendant, amending the decree of June 4, 1954, in that custody of the only child of the parties was changed from the plaintiff to the defendant, and the plaintiff was required to pay to the defendant for support and maintenance of herself and the child the sum of twenty-two dollars a week; on November 13, 1957, the defendant filed her petition asking that the plaintiff be adjudged to be the father of a second child born to her on August 10, 1955, and that the plaintiff be required to provide for the support and maintenance of both children; and the plaintiff answered denying that he was the father of the second child, asking for custody of the one child whose paternity was not denied, and that he be relieved from further payments to the defendant. Extensive testimony was taken upon the petition and answer, but neither of the parties questioned the jurisdiction of the court, nor attacked the validity of any of the former decrees.

As heretofore stated, the trial court, of its own motion, upon the facts related in the testimony of the witnesses at this last hearing found that it was without jurisdiction to enter the decree of June 4, 1954, granting the defendant a divorce, or enter the subsequent decree of October 18, 1954.

In a long line of decisions, this Court has established the rule that it will ex mero motu take notice of lack of jurisdiction of a trial court if such is apparent upon the record before this Court. State ex rel. Hammond v. Worrel, W.Va., 106 S.E.2d 521; Backus v. Abbot, 136 W.Va. 891, 69 S.E.2d 48; Grottendick v. Webber, 134 W.Va. 798, 61 S.E.2d 854; Blosser v. State Compensation Commissioner, 132 W.Va. 112, 51 S.E.2d 71; Whited v. State Compensation Commissioner, 131 W.Va. 646, 49 S.E.2d 838; Gapp v. Gapp, 126 W.Va. 874, 30 S.E.2d 530; Morris v. Gates, 124 W.Va. 275, 20 S.E.2d 118; Dawson v. Dawson, 123 W.Va. 380, 15 S.E.2d 156; Charleston Apartments Corporation v. Appalachian Electric Power Company, 118 W.Va. 694, 192 S.E. 294; Arnold v. Mylius, 87 W.Va. 727, 105 S.E. 920; Buskirk v. Ragland, 65 W.Va. 749, 65 S.E. 101; Thompson v. Adams, 60 W.Va. 463, 55 S.E. 668; Gall v. Tygart's Valley Bank, 50 W.Va. 597, 40 S.E. 390. The 3rd Syllabus Point in Charleston Apartments Corporation v. Appalachian Electric Power Company, 118 W.Va. 694, 192 S.E. 294, reads as follows: 'Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion.'

In several cases this Court has reviewed upon appeal or writ of error the action of a trial court in holding, at some point in the proceeding, it was without jurisdiction to determine the matters in issue although the jurisdiction of the trial court had not been attacked by a plea in abatement. McKinley v. Queen, 125 W.Va. 619, 25 S.E.2d 763; Charlotton v. Gordon, 120 W.Va. 615, 200 S.E. 740; Cresap v. Kemble, 26 W.Va. 603.

In the opinion in the Charlotton case is this pertinent comment: '* * * Was a jurisdictional question thus raised? Want of jurisdiction of subject matter need not be raised in any particular manner. But when there arises in a case disclosure of want of jurisdiction, the case will be dismissed. * * *' [120 W.Va. 615, 200 S.E. 742.]

In the opinion in the McKinley case is this statement: '* * * Having in mind the limited time for filing a plea in abatement, an instance may occur wherein it is disclosed that a court is devoid of jurisdiction but such disclosure comes too late for a litigant to avail himself of the plea. We ask: Will a court be required to pronounce a final decree or render a final judgment which is undoubtedly void? We think not. Lack of jurisdiction of the subject matter may be...