Ex parte Dunlap
| Decision Date | 06 August 1953 |
| Docket Number | 8 Div. 674 |
| Parties | Ex parte DUNLAP. |
| Court | Alabama Supreme Court |
G. Ernest Jones, Birmingham, for petitioner.
Marion F. Lusk, Guntersville, and J. K. Jackson, Birmingham, for respondent.
This is an original petition filed in this court by Charlotte Fern Dunlap for a writ of mandamus to the Hon. J. S. Stone as Judge of the Circuit Court of Marshall County, Alabama, in Equity, to require him to vacate and set aside an order made by him striking the answer and cross-petition filed by Charlotte Fern Dunlap to the petition of Charles Winfree Rudolph. The case is submitted here on the demurrer and answer of Judge Stone to the petition for a writ of mandamus.
On April 29, 1952, Charles Rudolph filed a verified petition in the Circuit Court of Marshall County, in Equity, addressed to the Hon. J. S. Stone, as Judge of that court. The petition alleged in substance that on June 2, 1950, the Circuit Court of Richmond, Virginia, awarded him a divorce from bed and board from his wife Charlotte on the ground of her willful desertion and abandonment of him on December 14, 1949. According to the allegations of the petition this limited divorce was granted to be effective as of the date of her desertion (December 14, 1949), with leave to merge it into an absolute divorce two years thereafter. In this decree the exclusive custody of their infant daughter Vicky was given to Charlotte, who was permitted under the terms of the decree to take the child to Alabama. Further according to the allegations of the petition, jurisdiction of the cause was expressly reserved.
The petition further alleges that Charlotte returned to Alabama taking up her residence at Cullman, Alabama, where on June 12, 1951, under her maiden name she pretended to marry one J. R. Dunlap of Cullman, Alabama, and since that time has lived in adultery with J. R. Dunlap, pretending to be his wife.
It is further alleged that on January 18, 1952, a final decree was granted Charles Winfree Rudolph by the Circuit Court of the City of Richmond, Va., dissolving his marriage to Charlotte Fern Rudolph on the ground of her adultery with J. R. Dunlap. In this decree the custody of the infant daughter of the parties, namely, Vicky Lynn Rudolph, born December 10, 1948, was awarded to the petitioner Charles Winfree Rudolph, who was then and at all times since, has been gainfully employed in a responsible position with an income ample to support and maintain the child in healthful and wholesome surroundings. The petition further alleges that the child is now living in the home of J. R. Dunlap in Guntersville, Alabama, Charlotte Fern Dunlap still claiming to be married to the said J. R. Dunlap.
The petition further alleges that on April 28, 1952, Charles Winfree Rudolph demanded of his divorced wife that she surrender to him the custody of the child in obedience to the mandate of the aforesaid Virginia Court and was told by her that he would obtain custody of the child only over her dead body and his.
The petition prayed for an order directing the register to issue a writ to the Sheriff of Marshall County, Alabama or to any other lawful officer of the state, requiring such officer forthwith to take into his possession the person of the said Vicky Rudolph and bring the child before the court at the hearing of the petition and it was further prayed that upon a hearing the court would decree that the child Vicky Lynn Rudolph be returned to the custody of petitioner in obedience to the decree of the aforesaid Virginia Court. The court granted the petition and directed the register to issue a writ as prayed for in the petition and set the cause for hearing on May 1, 1952, and directed Charlotte Fern Rudolph to show cause why the care and custody of the infant Vicky Lynn Rudolph should not be given to the petitioner.
To the aforesaid petition Charlotte Fern Lassiter Dunlap, formerly known as Charlotte Fern Rudolph, filed the answer and cross-petition which was stricken by the court. In substance the allegations of the answer and cross-petition, among other things, show the following. It is admitted that Charles Winfree Rudolph is an adult person, a resident citizen of Richmond, Virginia and it is further admitted that on June 2, 1950, a decree of divorce from bed and board was granted in the Circuit Court of the City of Richmond, Virginia, wherein Charles Winfree Rudolph was complainant and the respondent and cross-petitioner was defendant. It is further admitted that the allegations of the petition with regard to the terms and provisions of the decree of June 2, 1950, set out in the petition of Charles Winfree Rudolph, are true and correct. It is admitted that she had gone to Cullman, Alabama, on December 23, 1949, after the commencement of divorce proceedings against her in Virginia on December 14, 1949. It is further alleged that prior to June 1, 1950 Charlotte signed an acceptance of service of the time and place of taking of depositions in the Virginia divorce case, which she admitted were taken and filed on that date. She admitted that in August 1950 she wrote to Virginia for a copy of the decree which she further stated she received shortly thereafter. She further alleges that being unlearned in the law she mentioned the Virginia decree of June 2, 1950 to her brother-in-law one Hornsby, who reported back to her that he had consulted an attorney who advised that she was free to marry again. So, according to the allegations of her answer and cross-petition, she married J. R. Dunlap. There was a license, a preacher and a ceremony was had according to the sacraments of the Baptist Church. It is further alleged that she and J. R. Dunlap took up their residence in Guntersville, living there in a good neighborhood and demeaning themselves in a proper manner, while J. R. Dunlap practiced his profession as a veterinarian. She describes this period as the happiest period of her life until it was shattered by the appearance of Charles Winfree Rudolph on April 28, 1952, who then made known to her the decree of ...
To continue reading
Request your trial
- Tampa Electric Company v. Nashville Coal Company
-
Alabama Great Southern R. Co. v. Bishop
... ... therefrom furnish 'a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' and 'smallest trace'--'a scintilla" in support of the theory (Ex parte Grimmett, 228 Ala. 1, 152 So. 263), we are constrained to hold that the question of contributory negligence was for the jury and that there was no ... ...
-
Watkins v. Brannon
...this case should not have exercised jurisdiction and cites as authority Sappington v. Fort, 258 Ala. 528, 63 So.2d 591; and Ex parte Dunlap, 260 Ala. 52, 63 So.2d 533. To this court it is clear that the Houston County Court had jurisdiction. The equity courts in this state are always open f......
-
State ex rel. Speer v. Haynes
...jurisdiction arises only when the circumstances create an emergency as to the immediate welfare of the child. Ex parte Dunlap, 260 Ala. 52, 68 So.2d 533 (1953). Our courts will give relief upon a showing of changed circumstances or upon peculiar circumstances which create an emergency as to......