Fondren v. Batton, 50028
| Decision Date | 27 July 1977 |
| Docket Number | No. 50028,50028 |
| Citation | 348 So.2d 431 |
| Court | Mississippi Supreme Court |
| Parties | Charles Richard FONDREN v. Barbara BATTON. |
John T. Haltom, Indianola, for appellant.
Clark, Davis & Belk, Howard Q. Davis, Jr., Indianola, for appellee.
Before GILLESPIE, WALKER and BROOM, JJ.
WALKER, Justice, for the Court:
Appellee filed her bill of complaint for divorce against appellant in which she prayed for a divorce and restoration of her maiden name and for general relief. Personal process was had on appellant, who, having no objection to appellee obtaining a divorce and changing her name, did not answer the bill of complaint. The cause came on for hearing and the chancellor granted the divorce and change of name as requested, and additionally provided that appellant was to pay appellee the sum of $100 per month alimony, suit money (but fixed no definite sum), and directed appellant to take immediate steps to remove appellee's name from the title to a certain automobile.
The sole question presented is whether the chancery court had authority under a prayer for general relief, but in the absence of a specific prayer for alimony, suit money, etc., to make an award in the decree of divorce for these items. That question must be answered in the negative.
In the case of Wansley v. Schmidt, 186 So.2d 462 (Miss.1966), Justice Smith, speaking for the Court, said:
(T)he chancery court has the inherent power, and it is its duty, where the issue is before the court by proper pleadings, supported by competent evidence, in proceedings in which it has jurisdiction of the parties and subject matter, to make such orders and decrees from time to time as will protect and promote the best interests of minor children. (Emphasis added). (186 So.2d at 465).
In that case, the chancellor had increased a child support award without any pleading requesting it. All parties were before the court on a petition for change of custody due to an alleged change of circumstances. This Court concluded:
Although the allowance as fixed by the chancellor does not appear excessive . . . due process required that appellant have fair notice from an appropriate pleading that an increase in the amount of the support award was being sought and was under consideration, so that he might have reasonable opportunity to offer evidence touching both the needs of the children and his ability to pay. (186 So.2d at 465).
In Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976), this Court said:
It is true that the chancery court is authorized under Mississippi Code Annotated section 93-5-23 (1972) to make such order as is deemed equitable and just with respect to the support of minor children of a marriage. However, this may only be done after a full and complete hearing, after due...
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Queen v. Queen, 58701
...a function of our case law and was in no way mandated by statute. Diamond v. Diamond, 403 So.2d 129, 131 (Miss.1981); Fondren v. Batton, 348 So.2d 431, 432 (Miss.1977). The statute merely empowers the court to "make all orders ... touching the maintenance and alimony of the wife or the husb......
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Mitchell v. Mitchell
...issue was not specifically raised by the pleadings in the divorce suit. See Moore v. Moore, 363 So.2d 286 (Miss.1978); Fondren v. Batton, 348 So.2d 431 (Miss.1977). In Diamond v. Diamond, 403 So.2d 129 (Miss.1981), the Mississippi Supreme Court denied permanent alimony to a wife who filed a......
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Morris v. Morris, 50424
...based upon proper pleadings in a proceeding for that purpose . . .." Wansley v. Schmidt, 186 So.2d 462, 465 (Miss.1966). Fondren v. Batton, 348 So.2d 431 (Miss.1977), held that due process entitled one situated as appellant in this case to have fair notice that some aspect of child support ......
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Diamond v. Diamond, 52833
...of the parties, this may be done only after the question of alimony is presented to the court by proper pleadings. In Fondren v. Batton, 348 So.2d 431 (Miss.1977), we held the chancery court was without authority to award a wife alimony in a divorce proceeding where the wife's bill only pra......