Hollie G. Gates v. Josie Gates
| Decision Date | 01 February 1921 |
| Docket Number | No. 4070.,4070. |
| Citation | 87 W.Va. 603 |
| Court | West Virginia Supreme Court |
| Parties | Hollie G. Gates v. Josie Gates |
1. Divorce Court Dissolving Marriage and Providing for Custody of Children May Modify Decree as to Custody.
By virtue of sec. 11 of ch. 64 of the Code, a court in which a marriage has been dissolved and provision made for the custody of the children of the parties to the suit, may properly entertain a petition for revision or alteration of the decree, in so far as it pertains to the custody of the children or any of them, provided it discloses conditions different from those obtaining at the date of the decree and showing the interests of the child or children will be promoted by such revision or alteration, notwithstanding the appropriateness of some other remedy, (p. 605).
2. Same Habeas Corpus Writ of Habeas Corpus and. Rule in Divorce Cause Without Adjudication Held Not to Effect Court's Right to Entertain Petition to Change Custody of Children.
The previous award of a writ of habeas corpus at the instance of one of the parties, on which the custody of the child was changed, without an adjudication thereon, and of a rule in the divorce cause, at the instance of the other, to show cause against a change of custody, on which no adjudication was had, do not, nor does either of them, preclude right to entertain such a petition, (p. 605).
3. Samk Rule as to Plea of Another Suit Pending Held to Have No Application in Proceeding to Change Custody of Children.
Such rule having been awarded, and such petition filed, in the cause, the rules and principles governing a plea of another suit pending have no application, (p. 605).
4. Same Application for Change of Custody of Children Held Addressed to Sound Discretion of Trial Court. Within the limitations of the law, an application for a change of the custody of a child, as between divorced parents, is addressed to the sound discretion of the trial court, and its award thereof will not be disturbed by the appellate court, unless it constitutes an abuse of or departure from such discretion, (p. 605).
Appeal from circuit court, Nicholas County, Suit by Hollie G. Gates against Josie Gates for divorce. Decree for plaintiff, and subsequently defendant petitioned for a modification as to the custody of children. From a decree for petitioner, plaintiff appeals.
Affirmed.
G. G. Duff, for appellant.
Brown, Wolverton dl Ayres, for appellee.
poffenbarger, j cjdge:
The decree complained of on this appeal wTas entered upon a petition filed, in a suit in which an absolute divorce of the parties to it had been pronounced more than two years before the decree under review was entered. Tt awards the custody of a female child of the parties to the mother.
By a motion to quash the summons and a demurrer to the petition on which process had issued and been served as if it were a bill, the validity and appropriateness of the procedure were challenged. These attacks were predicated in part upon alleged former adjudication against the petitioner on a writ of habeas corpus and the pendency of a rule to show cause why the custody of the child should not be awarded to the mother, sued out some time before the petition was fded.
The decree of divorce was entered, June 4, 1917, and, by it, the custody of the three children was awarded to the father. Two of them were then with him, but this child was with the mother, and shortly afterward, a writ of habeas corpus was awarded the father for recovery of possession thereof. There never was an adjudication upon it. Armed therewith, a constable took the child from the mother and delivered it to the father.
The decree of divorce obtained by the husband restrained and forbade marriage by the divorced wife for a period of five years. After the lapse of more than two years, she applied to the court for modification of the decree so as to permit her to marry again and obtained it. The order making this modification awarded a rule against the former husband to show cause as aforesaid, which was served. A few days after the award and service thereof, the mother filed the petition above referred to and it was remanded to rules with leave to sue out process on it, and a summons issued on it and was served.
As the remedy by petition is expressly given by statute in such cases, sec. 11, ch. 64, Code, the appropriateness of another, habeas corpus, manifestly does not preclude resort to it. Tire T egislature may validly provide more than one remedy for a wrong.
No defect in the summons is perceived and none is pointed out.
Even, if-there had been an adjudication on the writ of habeas corpus, it would not bar a subsequent proceeding for a change of the custody of the child,.upon new and altered conditions, for the statute above referred to expressly authorizes the court in which a marriage has been dissolved, fo ...
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