duPont v. duPont

• Decision Date: 27 January 1966
• Citation: 59 Del. 206,216 A.2d 674
• Parties: , 59 Del. 206 William Henry duPONT, Defendant Below, Respondent Below, Appellant, v. Deborah Eldredge duPONT, Plaintiff Below, Petitioner Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 674

216 A.2d 674

9 Storey 206, 59 Del. 206

William Henry duPONT, Defendant Below, Respondent Below, Appellant, v. Deborah Eldredge duPONT, Plaintiff Below, Petitioner Below, Appellee.

Supreme Court of Delaware.

Jan. 27, 1966.

Appeal from the Superior Court in and for New Castle County.

James L. Latchum and Charles S. Crompton, Jr., of Berl, Potter & Anderson, Wilmington, for William Henry DePont.

Laurence H. Eldredge, Philadelphia, Pa., and S. Samuel Arsht and Richard L. Sutton of Morris Nichols, Arsht & Tunnell, Wilmington, for Deborah Eldredge duPont.

WOLCOTT, C. J., CAREY, J., and SHORT, Vice Chancellor, sitting.

WOLCOTT, Chief Justice.

This is an appeal by the defendant, William Henry duPont, hereafter 'father', from a final order entered in consolidated proceedings in the Superior Court. The plaintiff, Deborah Eldredge duPont, hereafter 'mother', former wife of the defendant, filed a petition on September 7, 1965, seeking to have the father adjudged in contempt tempt in violation of the final decree of October 20, 1961 divorcing the parties and purporting to award custody of the parties' children to the mother. On September 10, 1965 the mother filed a separate petition for a writ of habeas corpus for the purpose of regaining custody of the parties' two older children, then living with the father.

The Superior Court denied motions to dismiss both petitions on the ground of lack of jurisdiction of the subject matter, and consolidated both causes for trial. After trial, on November 12, 1965, a final judgment was entered adjudging the father in contempt of court, imposing sanctions upon hom for contempt, and ordering him to deliver the parties' two older children to the custody of the mother within four days. This appeal followed and, on application, a stay pending final determination was granted, conditioned on accelerated briefing and argument.

We take up first that portion of the final judgment adjudging the father to be in contempt and imposing sanctions upon him.

The father was held in contempt, and costs and the payment of the mother's counsel fees were imposed as sanctions for that contempt. The father argues that the order adjudging him in contempt is a nullity because of lack of jurisdiction in the court.

The matter arises thus: In July, 1961, the mother commenced divorce proceedings against the father, alleging desertion. The father appeared in the divorce action but made no contest. The action culminated in a decree nisi. Prior thereto, in March, 1961, the parties had entered into a separation agreement which, inter alia, provided for support of the mother and the maintenance of their three children. By the agreement, the father agreed that the mother should have sole custody of the children. Until February, 1965 the parties' three children lived with the mother in Pennsylvania.

In October, 1961, the decree nisi became final. Shortly thereafter, the mother requested the father to stipulate that the final decree be revised nunc pro tunc so as to make it approve and incorporate by reference the separation agreement. The final decree was so revised by approved stipulation.

In February, 1965, the mother was admitted to a mental hospital for a condition which proved to be temporary since she was discharged as cured on March, 10, 1965. On February 20, at the request of the mother's father, the father took custody of the two youngest children and brought them from Pennsylvania to his home in Delaware. The oldest daughter became a boarding student at the school she had been attending but came to her father's home on weekend visits. In June, 1965, the youngest daughter, at her own request, was returned to the custody of the mother in Pennsylvania. The father has retained custody of the two older children despite requests by the mother for their return. As a matter of fact, since June, 1965, the father and mother have been engaged in litigation involving the custody and maintenance of the two oldest children.

In September, 1965, the mother petitioned the Superior Court that the father be held in contempt of court by reason of the retention of custody by him of the two children in violation of the final decree of divorce which had incorporated by reference the separation agreement agreeing that the mother should have sole custody of the children.

The Superior Court held the father in contempt for willful violation of the final divorce decree. The Superior Court held it had jurisdiction to award custody of children in a final decree of divorce and to hold in contempt a party who willfully violated that award. The rationale for the decision was that the Delaware Constitution establishes one Superior Court as a state-wide court, and that, therefore, 15 Del.C., § 1510, which conferred jurisdiction upon the Superior Court to award custody of children in a divorce proceeding, was not legally amended in 1958 by 51 Laws, Ch. 29 purporting to eliminate that jurisdiction of the Superior Court sitting in New Castle County. While it is not expressly so stated, it seems apparent that implicitly it was held that 51 Laws, Ch. 29 was unconstitutional.

We disagree with the Superior Court in this respect. The jurisdiction of the Superior Court over divorce and annulment depends solely upon statute and not upon any provision of the Constitution. Potter v. Potter, 9 W.W.Harr. 489, 2 A.2d 93; Brown b. Brown, 3 Terry 157, 29 A.2d 149. This being so, the General Assembly is at liberty to confer jurisdiction over divorce in such manner as it may desire. This is made plain by Article 4, § 1 of the Constitution which authorizes the General Assembly to create such statutory courts as it may desire.

In 1907, therefore, when the General Assembly recodified divorce and annulment law, it had a free hand. It was not required to confer such jurisdiction in the Superior Court. By 24 Laws, Ch. 211, however, it did confer such jurisdiction upon the Superior Court sitting in any of the counties of the State. This act contained no provision to authorize the Superior Court in a divorce action to award custody of children. In 1906 this was remedied by 25 Laws, Ch. 214, providing that the Superior Court 'within any of the Counties of the State' in a divorce action could provide for custody of children. This act later appears as 13 Del.C., § 1510.

In 1958, the General Assembly by 51 Laws, Ch. 329, amended 13 Del.C., § 1510, by providing that only in Kent and Sussex Counties could the Superior Court award custody of children in divorce proceedings. The effect was to eliminate that power of the Superior Court sitting in New Castle County. The reason, apparently, was that jurisdiction over custody of children had been conferred upon the Family Court of New Castle County by 10 Del.C., § 952. There was at that time no similar court in Kent and Sussex Counties.

The Superior Court relied upon Article 4, § 7 of the Constitution, Del.C.Ann., when it held that this power could not partially be taken from it in New Castle County. Article 4, § 7 provides that: 'The Superior Court shall have jurisdiction of all cause of a civil nature, real, personal and mixed, at common law and all other the jurisdiction and powers vested by the laws of this State in the formerly existing Superior Court; * * *.' By Article 4, § 17, the General Assembly is empowered to repeal or alter any 'Act of the General Assembly giving jurisdiction' to the Superior Court.

We think reading the two sections together, it is clear that the General Assembly is prohibited from repealing or altering the common law civil jurisdiction of the Superior Court, but is authorized to change of alter the statutory jurisdiction of that Court at will. Indeed, this Court has so held with respect to the jurisdiction of the Court of Chancery, Du Pont v. Du Pont, 32 Del.Ch. 413, 85 A.2d 724. This decision, by analogy, is pertinent in the case at bar. This is made clear by the dictum of Justice Tunnell in his dissent in that case.

We are concerned in this case with an Act of Assembly which purports to take away with respect to one county a statutorily conferred power which had theretofore with respect to that county been conferred upon the Family Court. We have no doubt that Article 4, § 17 authorizes the General Assembly to do precisely this. It was dealing with an Act of Assembly conferring jurisdiction and not with the constitutionally solidified common law jurisdiction of the Superior Court. It follows therefore that the Superior Court had no jurisdiction in the divorce action between these parties to enter an order awarding custody of the children to either. Therefore, the father could not have been in contempt since the custody provision in the order was a nullity. Mayer v. Mayer, 36 Del.Ch. 457, 132 A.2d 617. The approval and incorporation by reference of the separation agreement accordingly served no legal purpose since parties may not confer jurisdiction over subject matter upon a court by consent. Annotation, 154 A.L.R. 445.

As an alternative reason for the decision, the Superior Court held that it was immaterial whether or not the Superior Court of New Castle County had jurisdiction in a divorce proceeding to enter an order as to custody of children, because it would admittedly have had jurisdiction to enter such an order in a habeas corpus proceeding at the time of the divorce decree. Accordingly, it was held the father was still guilty of contempt because the order actually entered was valid as an equivalent of an order of custody entered in a habeas corpus proceedings.

At the time of the divorce decree, the father was a resident of Delaware and the mother was a resident of Pennsylvania. All three children at the time were residents of Pennsylvania in the home of the mother. It is obvious that the Superior Court could not have obtained personal jurisdiction over the mother. The fact of her presence in Delaware in connection with the divorce action did not...