Elkins v. Elkins, 4018.

• Decision Date: 05 May 1924
• Docket Number: 4018.
• Citation: 299 F. 690
• Parties: ELKINS v. ELKINS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

299 F. 690

ELKINS v. ELKINS.

No. 4018.

United States Court of Appeals, District of Columbia.

May 5, 1924

Submitted March 5, 1924.

Appeal from the Supreme Court of the District of Columbia.

James S. Easby-Smith and David A. Pine, both of Washington, D.C for appellant.

Charles A. Douglas, Hugh H. Obear, Charles S. Douglas, and Jo. V Morgan, all of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, Presiding Judge of the United States Court of Customs Appeals.

MARTIN Acting Associate Justice.

This appeal arises from a divorce case, in which the appellant was the defendant. He was ordered to pay certain sums of money for the maintenance of his minor child, and upon his failure to comply with the order he was adjudged guilty of contempt of court, and was subjected to a penalty. He prays for a reversal of the judgment.

In January, 1919, Mary Kenna Elkins brought suit against her husband, Blaine Elkins, for an absolute divorce upon a charge of adultery, praying also for the custody of their minor child and for permanent alimony. The defendant answered denying the charge. The court granted an interlocutory decree of divorce to the plaintiff, with custody of the minor child, but made no provision therein for alimony or the maintenance of the child. Afterwards a final decree of absolute divorce was granted, which, however, was silent as to alimony and the custody and maintenance of the child. Neither the interlocutory nor the final decree contained any provision for keeping the case open for further proceedings of any kind.

Afterwards, to wit, in November, 1920, the plaintiff filed a petition in the case, praying for an allowance for the maintenance of the child, stating that the defendant had provided for her own support, and had stipulated that the amount to be paid by him for the support of the child should be left open for agreement, or should be determined by the court, if no agreement could be reached. The defendant answered, alleging that he had settled upon the plaintiff a certain large sum, invested in productive securities, and claimed that the income therefrom was sufficient for the support of both the plaintiff and the child. Thereupon, in December, 1920, the court passed a decree requiring the defendant to pay the plaintiff the sum of $250 per month for the maintenance of the child. This decree contained no reservation, except the provision that it was made without prejudice to the right of the defendant to renew his application respecting the company of the child. The defendant has fully complied with the foregoing decree.

Afterwards, to wit, on November 22, 1922, the plaintiff filed another petition in the case, alleging that the allowance of $250 per month for the maintenance of the child had become insufficient, and praying that it be increased to $500 per month, alleging also that the defendant had married again since the decree of divorce, and had become a resident of the state of New Jersey. At the same time the plaintiff filed a written motion for the allowance of the increase named in the petition.

Plaintiff thereupon undertook to serve the defendant with notice of the motion and of the time set for the hearing thereof. First, a notice was served upon the attorney who had represented the defendant in the prior proceedings in the case, but proof was immediately filed to the effect that he was no longer acting for the defendant and was not qualified to accept service of notice for him. The plaintiff then placed a formal notice of the motion and the date of hearing in the hands of the United States marshal, district of New Jersey, where the defendant at the time was residing. A deputy marshal attempted to serve the same personally upon the defendant, but upon going to defendant's residence he was informed, first by servants, and afterwards by defendant's second wife, that defendant was ill and could not be see, either by the marshal or any one else. He then made 'residential service,' and reported the same to the court as follows:

'Served within notice on Blaine Elkins by delivering to and leaving with an adult member of his family at his residence on December 11, 1922, at Ventnor City in the district of New Jersey, and at the same time showing said person this original, with the seal of the court attached, and informing said person of its contents.

Jas. H. Mulheson, U.S. Marshal, 'By Geo. J. Healey, Deputy.'

Concurrently with the foregoing, the plaintiff sent a notice to the defendant by registered letter, addressed to him at his aforesaid residence, a postal receipt for which was returned signed, 'Blaine Elkins, by Ben Coleman.' Proof of these proceedings was duly made to the court and entered upon the record.

The defendant made no appearance to the petition, and on December 15th, the day named in the notices, the trial court passed an order increasing the sum allowed for the maintenance of the child to $500 per month. The defendant failed to comply with this order, and on February 9, 1923, a petition was filed for a contempt rule, notice whereof was served upon defendant personally. The defendant responded, appearing specially for the purpose of objecting to the jurisdiction only, and averred that the order for the increased allowance was void, having been passed and entered by the court without any legal service of a motion, notice, or other process in the case sufficient to give the court jurisdiction for the purpose of passing the order, all of which defendant averred appeared upon the records of the court in the case. The court overruled this contention, and adjudged defendant guilty of contempt, assessing a penalty upon him, from which he now appeals.

It is, of course, manifest that the only question now before us is whether the court had jurisdiction over the defendant for the purpose of passing the decree in question; for, if there was no jurisdiction, the decree would be void, and the defendant would not be bound to obey it. When the suit was begun, the court duly acquired jurisdiction over the person of the defendant for the purpose, not only of the divorce and alimony issues, but also those relating to the custody, care, and maintenance of the child. That jurisdiction continued so long as was necessary to make effective the court's orders and decrees in the determination of the latter issues.

This conclusion is founded upon the principle that, when chancery once acquires jurisdiction over a subject-matter, it will continue to exercise that jurisdiction so long and so often as occasion shall require for the purpose of making its decree effective and of granting full and final relief in the premises. Accordingly it has become the established practice in divorce cases for courts, after a final decree for divorce and alimony, to make suitable...