Henderson v. Henderson

• Court: Virginia Supreme Court
• Writing for the Court: SPRATLEY
• Citation: Henderson v. Henderson, 187 Va. 121, 46 S.E.2d 10 (1948)
• Decision Date: 12 January 1948
• Parties: HENDERSON . v. HENDERSON.

46 S.E.2d 10

187 Va. 121

HENDERSON .

v.HENDERSON.

Supreme Court of Appeals of Virginia.

Jan. 12, 1948.

Appeal from Circuit Court, Loudoun County; J. R. H. Alexander, Judge.

Suit by John R. Henderson, III, against Doris Lushbaugh Henderson for divorce and custody of a minor child, wherein defendant filed a cross-bill for divorce, custody of the child, and maintenance and support of the child and herself, and plaintiff by special plea asked that his marriage to defendant be declared void and evidence taken to determine which of the parties should have custody of the child. From a decree declaring the marriage void but adjudging that court was without jurisdiction to determine custody of the child, award support money for child's benefit or require plaintiff to pay all counsel fees, plaintiff appeals.

Decree reversed in part and cause remanded with instructions.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

J. H. Rives, Jr., of Richmond, Albert F. Anderson, of Leesburg, and E. W. McCaul, of Richmond, for appellant.

E. B. White, of Leesburg, and James C. Goodwin, of Clifton Forge, for appellee.

SPRATLEY, Justice.

John R. Henderson, III, hereinafter referred to as appellant, and Doris Virginia Lushbaugh, hereinafter referred to as the appellee, entered into a ceremony of marriage on July 4, 1942, in Montgomery, Alabama. This was the first marriage for the appellant and the second for the appellee, as indicated by their statements in the application for the marriage license. One child, John R. Henderson, IV, was born of the said union.

In May, 1946, the appellant instituted this proceeding. He filed his bill of com plaint praying for a divorce from the appellee on the grounds of desertion, and asking for the custody of the infant child of the parties. The appellee answered and filed a cross-bill praying that she be granted a divorce from the appellant on the grounds of cruelty and desertion, for custody of the child, and maintenance and support of the child and herself.

After depositions of witnesses for the appellant had been taken, and the evidence of witnesses for the appellee was in the process of being taken, it was discovered by counsel that the marriage of the parties was entered into within less than four months from March 30, 1942, the date of a decree entered by the Circuit Court of the city of Clifton Forge, granting James N. Tucker a divorce from the appellee. By that decree, it was adjudged that, "the marriage heretofore existing between said parties is hereby dissolved and annulled; but neither of said parties shall remarry for a period of six (6) months from the date of the entry of this decree."

Virginia Code, 1942 (Michie) section 5113 in effect when this decree was entered, was amended by Acts 1944, chapter 142, page 181, and the six months period reduced to four months.

The taking of evidence was suspended until the new information could be presented to the trial court. Subsequently, the appellant filed what he termed a "special plea, " setting out the newly discovered fact, and praying that his marriage to the appellee be declared void and of no legal effect, and that evidence be taken to determine which of the parties should have the custody of the infant child, born of their marriage, then about three years of age. The appellant filed, in addition, a petition asking for the temporary custody of the child. The appellee filed an answer to the said "special plea, " admitting the fact that she had entered into the marriage with appellant prior to the expiration of six months from the date of the entry of the decree of divorce terminating her former marriage. She joined in his prayer that the marriage be declared null and void; but averred that the appellant had no right to the custody of the child. She also filed a demurrer to the petition of the appellant, stating that, asthe child was born out of wedlock, the appellant had no right to the custody of him.

The case came on to be heard on the pleadings, the evidence, and on the exhibits consisting of a certified copy of the decree of divorce entered in the cause of James N. Tucker v. Doris Lushbaugh Tucker, and a certified copy of the marriage certificate issued to the parties in Montgomery, Alabama, on July 4, 1942.

On October 29, 1946, the trial court entered a final decree holding that the attempted marriage between the parties in Alabama, on July 4, 1942, "was at that time, and now is contrary to law, null and void,

and not binding upon either party thereto, * * *."

The court further adjudged and decreed "that the child mentioned in the bill and proceedings, to-wit, John R. Henderson, IV, is legitimated under the laws of Virginia; but that as the said child was born out of wedlock, this court has no jurisdiction, under any Virginia statute, to determine the custody thereof, and that under the prevailing rule of the common law, said custody is, and shall be, with the defendant, Doris Virginia Lushbaugh, * * * and the court is without jurisdiction under the laws of Virginia to award any support and maintenance money to the said defendant for the benefit of the said infant child or to require the complainant to pay any counsel fees for the defendant's attorneys."

The appellant duly excepted and objected. The cause was then dismissed from the docket.

The appellant's assignments of error present the following issues:

(1) Whether a court, upon decreeing a marriage null and void, has jurisdiction and power under Virginia Code, 1942 (Michie) section 5111, to further decree as to the care and custody of children of such marriage; and

(2) Whether Virginia Code, 1942 (Michie) section 5270 declaring that "The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate, " is merely a statute of inheritance or a broad statute legitimating such children for all purposes.

Further assignments of error were abandoned in the argument before us.

The issue for our determination may be summed up as follows:

Did the trial court, in decreeing the marriage to be null and void, because one of the parties was incapable of contracting a valid marriage, have jurisdiction to enter a further decree concerning the custody, maintenance and support of the infant child born to the parties?

By Virginia Code, 1942, (Michie) section 5087, it is provided that "all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living, shall be absolutely void, without any decree of divorce, or other legal process." No court proceedings are necessary to declare the nullity of such a marriage. Its invalidity may be relied upon at any time and in any proceeding between the parties or others.

Although there may be no doubt in the minds of the parties, it is often desirable and sometimes of highest importance, both to individuals and to the community, that there should be a judicial decision in reference to a void marriage, for then the status of the parties and their children is set at rest, and the parties are justified in the eyes of the public in entering into a second marriage.

Virginia Code, 1942 (Michie), sections 5100 and 5105, make provision for this situation. The fact that the marriage is void does not take away the power of the courts to declare it invalid.

Section 5100, defining and establishing the rights of the parties, reads as follows: "When a marriage is supposed to be void for any of the causes mentioned either in section five thousand and eighty-seven * * *, either party may, * * * institute a suit for annulling same; and, upon due proof of the nullity of the marriage, it shall be decreed to be void by a decree of divorce and nullity."

By Code, section 5105, jurisdiction is conferred on "the circuit and corporation courts, on the chancery side thereof, and every court of this State exercising chancery jurisdiction, shall have jurisdiction ofsuits for annulling or affirming marriage and for divorces."

In Heflinger v. Heflinger, 136 Va. 289, 118 S.E. 316, 32 A.L.R. 1088, and in Pretlow v. Pretlow, 177 Va. 524, 14 S.E.2d 381, we held that the remedy afforded by Code, section 5100, is, by reason of public interest, not confined to the causes therein specifically stated. In view of these decisions and the provisions, of the statutes cited, the jurisdiction of the court over causes of nullity of marriage, both as to the parties and subject matter, is too clear to be open for discussion.

It would seem that the holding of the learned chancellor that the trial court was without jurisdiction to award any support and maintenance money to the appellee for the benefit of the child was based upon the absence of the word "nullity" after the word "dissolution" in the first sentence of Virginia Code, 1942 (Michie) section 5111.

The pertinent portion of that section reads as follows: "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; * * *."

Code, section 5111, provides four situations in which the court may further decree concerning the estate and maintenance of the parties and the care, custody and maintenance of their minor children. These situations arise when there is (1) a decree dissolving the marriage; (2) a decree of divorce from the bond of matrimony; (3) a decree of divorce from bed and board; and (4) a decree that neither party is entitled to a divorce.

In Code, section 5100, it is provided that "upon due proof of the nullity of the marriage, it shall be decreed to be void by a decree of divorce or nullity...