Gordon (Marx) v. Gordon

• Decision Date: 28 February 1944
• Docket Number: 35564.
• Citation: 17 So.2d 191,196 Miss. 476
• Court: Mississippi Supreme Court
• Parties: GORDON (MARX) v. GORDON et al.

17 So.2d 191

196 Miss. 476

GORDON (MARX) v. GORDON et al.

No. 35564.

Supreme Court of Mississippi

February 28, 1944

Cooper & Thomas, of Indianola, for appellant.

Stovall Lowrey, of Clarksdale, and Ernest Kellner, of Greenville, for appellee.

GRIFFITH Justice.

On May 12, 1942, a decree of divorce was granted by the chancery court of Claiborne County in the suit between Loretta H Gordon and William P. Gordon, then both residents of that county, and by the decree the custody of Betty Gordon, then about four years old, the child of the parties, was awarded as follows: To the mother for six months beginning on said date, and to the father for six months beginning on November 12, 1942, and thence alternately for periods of six months each until the child should arrive at school age. Apparently it was expected that the father would soon enter the armed services, and it was further provided in the decree that the father might designate some person to have the custody for him during the respective six-month periods wherein he would have the dominant custody. Jurisdiction was expressly retained in regard to the custody of the child.

Under the decree the mother was entitled to the custody from May 12 to November 12, 1943. During this period the mother went to reside in Mobile, Alabama, and took the child with her. On August 1, 1943, the grandmother of the child, Josie B Gordon, a resident of Washington County, went to Mobile and requested the mother to permit the child to visit with the grandmother in Washington County for a short time, which request was granted; and it may be here mentioned that in the meantime the father had enlisted in the armed services and had designated his mother, Josie B. Gordon, to have custody of the child for him under the stated decree.

While the child was thus in Washington County she became indisposed but not seriously so, and in any event was not returned to the mother. The mother therefore went to Washington County in September to get the child but failed to see the grandmother or the child, and received information to the effect that the child would not be surrendered. The mother thereupon went to Claiborne County, and on September 21, 1943, filed in the original case a petition setting forth the aforestated facts and prayed in her petition that a decree be entered awarding the permanent custody of the child to petitioner, the mother, and that the grandmother be adjudged in contempt.

On this petition a citation was issued by the clerk addressed to the sheriff of Washington County and by which the sheriff was directed to summon the grandmother, Josie B. Gordon, to appear before the chancery court of Claiborne County in vacation on October 1, 1943, to show cause why the immediate and permanent custody of the child should not be awarded to the mother, and why the grandmother should not be adjudged in contempt. The father of the child was not made a party to the petition and no effort was made by petitioner to notify him in any way of its pendency.

Acting evidently on the advice of counsel, the grandmother took the position that the stated citation was void and on the ground that the citation had not been authorized by the Chancellor of the Claiborne County Court, and the grandmother did not appear, although the citation had been duly served upon her. The Chancellor was present in the vacation court in Claiborne County on the return day, and proceeded to a vacation hearing and thereupon made a decree in vacation which although not certain in its terms is subject to the interpretation that thereby the permanent custody of the child was attempted to be awarded to the mother, and the decree further provided that a writ be issued by the clerk directed to the sheriff of any county, wherein the grandmother and the child might be, commanding the sheriff to take the child and deliver her to the mother, and to take the grandmother into custody and to have her before the chancery court of Claiborne County on November 8, 1943, to answer the charge of contempt.

This writ came into the hands of the sheriff of Washington County on October 2, 1943, having in fact been brought there by the mother personally. But before the writ was served, the father and the grandmother filed their bill that day in the chancery court of Washington County for an injunction against the execution of the writ, and, on the fiat of the Chancellor of that district, an injunction writ was served upon the sheriff and upon the mother then present in the county.

The bill for injunction alleged that the decree made on October 1, 1943, by the Claiborne County Court was void as to the father for two reasons, first because the father had not been in any manner made a party to the petition on which the decree was attempted to be made, and second because made in vacation, and that it was void as to the grandmother for the reason already heretofore stated. The bill further alleged that the mother was then residing in Mobile under such conditions and in such manner of living as to make her grossly unfit to have the custody of the child, and that the real and ultimate purpose of the writ which the mother had procured was to permanently take the child into that surrounding and into another state beyond the jurisdiction of the courts of this state. The allegations of unfitness were direct and specific and are admitted by the demurrer later to be mentioned.

The mother did not move promptly to dissolve the injunction but waited until November 9, 1943, when she filed her motion to dissolve, and then upon the bill and demurrer thereto. At that time, the day for the grandmother to appear in the Claiborne County Court had passed and before the statutory notice of the motion to dissolve could be given the period for the custody of the child to return to the father would intervene which as already stated was November 12, 1943. The motion was not to modify the injunction but to dissolve it in toto. The motion to dissolve was heard on November 27, 1943; was overruled and an interlocutory appeal was allowed.

If the decree of the Claiborne County Court was one awarding the permanent custody of the child to the mother the decree in that respect was void on the two grounds stated, and first because no notice was given to the father. The authorities are in general accord that when in substantial or major aspects a decree of custody is to be made or modified a proper notice and opportunity to be heard must be given to the adverse party. 17 Am.Jur. pp. 519, 520; 27 C.J.S., Divorce, § 317, p. 1193, and see the cases annotated in 76 A.L.R. at p. 253, and particularly Gitsch v. Wight, 61 Utah 175, 211 P. 705. We are not here concerned as to how the notice may be served, or whether such a notice or citation or summons may be served on a party in the armed services. It is sufficient here that none whatever was attempted.

And in the second place a decree of permanent custody cannot be made in vacation. The only statute which allows vacation decrees in respect to the custody of a child is Section 1420, Code 1930, and this by its express terms limits the vacation action to orders of temporary custody, and being temporary would expire with the convening of the next term of the court regular or special, which in this case...