Gramelspacher v. Gramelspacher

• Decision Date: 20 January 1964
• Docket Number: No. 5687,5687
• Citation: 204 Va. 839,134 S.E.2d 285
• Parties: KENNETH E. GRAMELSPACHER v. PHYLLIS J. GRAMELSPACHER. Record
• Court: Virginia Supreme Court

Page 285

134 S.E.2d 285

204 Va. 839

KENNETH E. GRAMELSPACHER v. PHYLLIS J. GRAMELSPACHER.

Record No. 5687.

Supreme Court of Appeals of Virginia

January 20, 1964.

Thomas L. Woodward, for the appellant.

J. Samuel Glasscock (Mills E. Godwin; Jr.; Lloyd W. Littell; Godwin & Godwin; Littell & Carey, on brief), for the appellee.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Phyllis J. Gramelspacher filed her bill in the court below against her husband, Kenneth E. Gramelspacher, praying for a divorce a vinculo on the ground of desertion. She alleged that the defendant husband was domiciled in and had been an actual bona fide resident of this State for more than one year preceding the commencement of the suit and that without justification he had deserted her and their four children on July 25, 1959. While there was no specific prayer that she be awarded the custody of the children, she alleged that since the date of the desertion they had been living with her and prayed for an award of a sufficient amount for their support and maintenance as well as alimony for herself.

There was personal service of process on the defendant husband who appeared and filed an answer and cross-bill. He denied the wife's allegation of desertion and right to alimony, alleging that their separation had been caused by her acts of cruelty which were tantamount to desertion. He prayed that he be awarded a decree of divorce. While he alleged that he did 'not object to supporting his children in a manner suitable to their station in life, reasonably within his means,' he did not ask that their custody be awarded to him.

After the evidence had been heard partly on depositions and partly ore tenus, the lower court entered a decree awarding the wife a divorce a vinculo, custody of the children, support money for them, alimony for herself, and counsel fees. From this decree the defendant husband has appealed. The parties will be referred to as they appeared in the court below.

The defendant husband does not contest the validity of the decree insofar as it awarded the wife a divorce. Indeed, he concedes in his brief that the evidence was sufficient to support the decree in this respect. In his assignments of error he contends: (1) the lower court was without jurisdiction to enter a decree for the custody, maintenance and support of the infant children because, he says, at the time of the institution and prosecution of the suit the children were domiciled in and residents of the State of Indiana; (2) the lower court erred in 'refusing to respect an existing order' entered by a court of competent jurisdiction in the State of Mississippi with respect to the maintenance and support of the plaintiff wife and the children; (3) the amount of the award for alimony and for the maintenance and support of the children was excessive.

The parties were married at Lafayette, Indiana, in September, 1949. Of this marriage four children were born, now aged from five to twelve years. The couple own as tenants by the entireties a substantial residence at Jasper, Indiana, where the husband was employed by a corporation owned or controlled by his father. Later the family moved to Newton, Illinois, where the husband was similarly employed by a corporation in which his father was interested.

On July 25, 1959, the husband deserted his wife and children and moved to Waynesboro, Mississippi. In November of that year he was joined there by Norma Jean Cox of whom he had become enamoured. They have since lived together as husband and wife and have a son. In 1960 the defendant and Norma Jean Cox and their son moved to Nansemond county, Virginia, where they have since resided. He is employed as plant superintendent of a manufacturing concern in Suffolk. The present divorce suit was filed on February 8, 1962.

In the meantime the plaintiff wife has resided with her four children in the home which she and her husband own at Jasper, Indiana. The wife is not employed but receives a monthly drawing account of appoximately $229 from certain businesses controlled by her father-in-law, Claude Gramelspacher. The father-in-law has been keeping up the payments on the mortgage, the repairs and taxes on the home in which the plaintiff wife and her children live.

The defendant husband testified that while he was living in Waynesboro, Mississippi, he was directed by an order of a 'domestic relations court' of that State to contribute the sum of $150 per month for the support of his family at Jasper. However, the record in the present case contains no copy of that order nor are we further enlightened as to the precise nature of the proceedings and their present status.

During the trial of the present case the mother was accompanied by three of her children who came to Suffolk on the evening preceding the trial. They had not previously been in Virginia. The mother testified that it was her intention to return with these children to their home at Jasper immediately after the trial. The fourth and oldest child was at the time of the trial attending a school in Tennessee.

There is a conflict of authority as to whether it is essential to the court's jurisdiction to enter a decree for the custody of an infant child in a divorce action that the child be domicided or present within the state. 17A Am. Jur., Divorce and Separation, § 811, p. 8 ff.; 27B C.J.S., Divorce, § 303-b, p. 427 ff.; Anno: 4 A.L.R.2d 7; Jackson v. Jackson, 241 S.C. 1, 126 S.E.2d 855, 860.

Some courts hold that a child must have a domicide within the state in order that a divorce court may gain jurisdiction to award custody. And this is so even though the defendant appears in the action and the child is brought into the courtroom at the hearing on the merits. 17A Am. Jur., Divorce and Separation, § 811, pp. 8, 9. This is upon the theory that a divorce action, as it relates to the custody of a minor child, is in the nature of an in rem proceeding and the court must have jurisdiction over the res, the child, before it can enter a valid order. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798, 800. However, in that case it was said: 'If both parents are in court and subject to its jurisdiction, an order may be entered, in proper instances, binding the parties and enforceable through its coercive jurisdiction.' 47 S.E.2d, at page 801.

In other states it is held that the court has the power to award custody of a minor child in a divorce proceeding if it has jurisdiction in personam of both parents. 17A Am. Jur., Divorce and Separation, § 811, p. 9; 27B C.J.S., Divorce, § 303-b, p. 428; Anno: 4 A.L.R.2d, p. 30; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253, 263; Anderson v. Anderson, 74 W.Va. 124, 81 S.E. 706, 707; Jackson v. Jackson, supra, 126 S.E.2d, at page 862; Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52, 55; James v. James (Fla.), 64 So.2d 534, 536; State v. Rhoades, 29 Wash. 61, 69 P. 389, 391; Bowman v. Bowman, 101 Ohio App. 400, 139 N.E.2d 679. From our investigation and consideration of the matter we deem this to be the better view. It is in accord with the weight of authority that insofar as the proceeding involves the custody of a child it is an action in personam. 27A C.J.S., Divorce, § 7, p. 24; 17 Am. Jur., Divorce and Separation, § 9, pp. 260, 261.

A decree in a divorce proceeding requiring the husband to contribute a stipulated amount for alimony or support for his wife and their children is, of course, a decree in personam. Bailey v. Bailey, 172 Va. 18, 21, 200 S.E. 622, 623.

In the present case, since the defendant husband was domiciled in and had been an actual bona fide resident of this State for at least one year preceding the commencement of the suit, the lower court had jurisdiction under Code, §§ 20-97 and 20-98, to entertain the suit for divorce. 6 Mich. Jur., Divorce an Alimony, § 36, pp. 299, 300.

Code, § 20-107, as amended by Acts of 1954, ch. 234, p. 270, in effect at the time of the institution of this suit, provided:

'Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, and upon decreeing that neither party is entitled to a divorce the court may make such further decree as it shall deem expedient concerning the estate and the maintenance of the parties, or either of them, and the care, custody and maintenance of their minor children, and may determine with which of the parents the children or any of them shall remain, * * *.'

It will be observed that there is no limitation or requirement in this statute that the decree for the custody, maintenance and support of the minor children of the parties to the proceeding shall be operative only if the children are domiciled in or residents of this State or present at the trial. On the contrary, the statute vests in the court which has jurisdiction of the divorce proceeding wide discretion to provide for the 'care, custody and maintenance' of the minor...