Jackson v. Jackson

• Decision Date: 18 July 1962
• Docket Number: No. 17944,17944
• Citation: Jackson v. Jackson, 241 S.C. 1, 126 S.E.2d 855 (S.C. 1962)
• Parties: Carol JACKSON, Respondent, v. Robert L. JACKSON, Appellant.
• Court: South Carolina Supreme Court

Page 855

126 S.E.2d 855

241 S.C. 1

Carol JACKSON, Respondent, v. Robert L. JACKSON, Appellant.

No. 17944.

Supreme Court of South Carolina.

July 18, 1962.

Harvey & Harvey, Beaufort, for appellant.

Keith M. Kinard, Walterboro, for respondent.

LEGGE, Acting Justice.

Defendant in an action for divorce appeals from a circuit court order adjudging him in contempt for his failure to obey a previous order directing him to deliver the infant daughter of the parties into the temporary custody of its maternal grandparents.

In the divorce action Judge Bussey issued, on March 21, 1961, an ex parte order awarding the custody of the child during the pendency of the action to the plaintiff, its mother, and directing the defendant to place the child in plaintiff's custody forthwith. On March 30, this order, together with the summons and complaint, were served upon the defendant at the United States Marine Corps Air Station in Beaufort, South Carolina, where he was stationed. On the same day, March 30, 1961, upon the plaintiff's petition, Judge Bussey issued his order directing the defendant to show cause before him on April 3, 1961, why he should not be adjudged in contempt for having failed to deliver the child into plaintiff's custody. At the hearing on April 3, 1961, the defendant did not appear in person, but was represented by counsel; and as the result of the hearing Judge Bussey issued his order dated April 3, 1961, ordering the defendant to deliver the child, within ten days, into the custody of the plaintiff's parents pending the further order of the court. On April 21, 1961, the defendant having failed to comply with the order of April 3, Judge Bussey issued an order requiring him to appear in person before the Honorable William L. Rhodes, Jr., Resident Judge of the Fourteenth Judicial Circuit, on April 25, 1961, to show cause why he should not be adjudged in contempt therefor. From Judge Rhodes' order adjudging him in contempt and sentencing him to imprisonment in the Beaufort County jail for a period of ten days unless he should sooner purge himself of contempt by delivery of the child in accordance with Judge Bussey's order of April 3, 1961, this appeal is taken.

At the hearing before Judge Rhodes appellant was present in person with his attorney, the Honorable W. Brantley Harvey, of the Beaufort bar. Respondent was represented by Mr. Keith M. Kinard, of the Walterboro bar. No oral testimony was offered, but a written return to the order to show cause was submitted to the court by appellant's counsel, together with certain exhibits, which, without objection, were admitted into the record. To these documents we shall now refer.

Appellant's return alleged in substance:

That he is and was at the time of his marriage to the respondent a citizen of Illinois, his presence in South Carolina for the past three years being as a member of the United States Marine Corps;

That during said three-year period he lived in barracks at the Marine Corps Air Station until his marriage; after hus marriage they lived for some three months in Beaufort with her parents; and thereafter he lived at the Air Station, where he had quarters for himself and her;

That prior to the institution by respondent of the action for divorce, he and she had on numerous occasions discussed the matter of their divorce and had agreed that he was to have custody of the child and she was to be given a sum of money to enable her to study cosmetology;

That about March 1, 1961, respondent rented an apartment outside of the Air Station, and on March 17 she began to move her personal possessions there, for that purpose borrowing appellant's automobile and leaving the child at the home of a neighbor;

That on the morning of March 18, respondent having nor returned to the neighbor's home to get the child, and having conducted herself improperly during the previous evening, appellant decided to apply for leave and take the child to his mother's home in Illinois, which he did;

That after his return to Beaufort from this trip he was served with the summons and complaint and a petition and order in the divorce action, the order (dated March 21) directing him to place the child in respondent's custody forthwith, which he was unable to do because the child was in Illinois;

That later, by order dated March 30, he was directed to show cause before Judge Bussey on April 3 why he should not be adjudged in contempt for having failed to obey the order of March 21;

That upon the return day, April 3, appellant's counsel appeared before Judge Bussey, and as the result of the hearing Judge Bussey issued his order dated April 3, 1961, directing appellant to deliver the child to respondent's parents within ten days.

The remainder of the return we quote verbatim:

'VII. That although this defendant did not feel that the court had jurisdiction to grant the custody of the infant, Theresa Sue Jackson, to Mr. and Mrs. Frank Canene because the infant was beyond the borders of this State and had been so before the institution of this action, he agreed upon the advice of his counsel to bring the infant back to South Carolina, and made application to his commanding officer for leave to enable him to go to Illinois to get his daughter, but that leave was refused as will appear by the statement of Major Wilbourn Waller, this defendant's commanding officer, hereto attached.

'VIII. That since this defendant could not get leave to go to Illinois and return the infant to South Carolina, he requested his mother, Mrs. Ruby L. Jackson to bring his daughter to South Carolina and she promised to bring the infant, but the infant was exposed to measles and Mrs. Jackson asked that the hearing on the matter be postponed until April 20th or April 24th, and that she would have the infant here at that time. Attached to this Return and made a part thereof is a letter from Mrs. Jackson to Mr. Felix B. Greene, Jr., the counsel for this defendant, together with certificate of Dr. Dan B. Foley.

'IX. That on or about the 17th day of April, 1961, this defendant received a telephone call from his mother in which she indicated that she was not going to bring the infant to South Carolina, although she did not say so positively; and defendant immediately reported that fact to his attorney, Mr. Felix B. Greene, Jr.

'X. That on yesterday, the 24th day of April, 1961, this defendant received by registered mail from one Eldon M. Durr, Attorney at Law, Edwardsville, Illinois, an exemplified copy of Letters of Guardianship issued by the Probate Court of the County of Madison, State of Illinois, appointing Ruby L. Jackson, defendant's mother, as guardian for the infant, Theresa Sue Jackson. That since receipt of the exemplified copy of the Letters of Guardianship above mentioned, he has again telephoned his mother requesting her to bring the infant, and she refuses either to bring the infant or to let the infant come to South Carolina.

'Wherefore, this defendant having shown that the infant, Theresa Sue Jackson, was legally domiciled in the State of Illinois at and before the commencement of this action, and that it is beyond the power of the defendant to obey the order of the court, and it further appearing that the court was without jurisdiction to issue the order directing that this defendant deliver the infant, Theresa Sue Jackson, to Mr. and Mrs. Frank Canene, this defendant prays that the citation and contempt be discharged and the defendant exonerated of any contempt.'

Attached to the return were the follwing:

1. A statement by Major Waller to the effect that because of a shortage of available military personnel he would not grant leave to Sergeant Robert L. Jackson to go to Illinois or elsewhere beyond the local liberty area after April 1, 1961.

2. A letter, sent on April 8, 1961, by Mrs. Ruby L. Jackson to Mr. Felix B. Greene, Jr., then attorney for the appellant, enclosing a doctor's certificate to the effect that the child had been exposed to measles and should not travel before April 15. In this letter Mrs. Jackson requests that Mr. Greene try to have the hearing set for either April 20 or April 24, and states: 'I will guarantee that the child and I will be there.'

The exhibits offered by appellant at the hearing before Judge Rhodes were:

1. The following letter, dated April 18, 1961, from Mr. Felix B. Greene, Jr., then appellant's counsel, to Mr. Keith M. Kinard, respondent's counsel, showing copy sent to Judge Bussey:

'Dear Mr. Kinard:

'I am writing to you because I believe that Sgt. Jackson will be unable to comply with the order of the court directing him to turn the custody of his daughter over to Mr. and Mrs. Canene. I had a conversation yesterday morning with his mother in Illinois and she stated that she would make arrangements to have the child in Beaufort in my office on the 20th. Late yesterday afternoon Sgt. Jackson came in and advised that his mother was unable to make the trip to South Carolina by herself and that the party who was to accompany her was unable to come with her. He further stated that he did not now believe that his mother intended to bring the child to Beaufort at any time.

'As I told you previously, Sgt. Jackson has applied for leave and the Marine Corps has denied this leave. He apparently has been advised that the South Carolina court has no jurisdiction over the child in Illinois.

'I had told Jackson's mother that unless she returned the child to South Carolina I did not see how I could continue to represent him. I certainly do not feel that I can come into court and ask to set aside the orders of the court when my client has not complied with the most important order. I turned over to Jackson the various papers which were concerned with his case. Since then he has talked to several other lawyers in Beaufort. If I find that one of them it representing him I will be glad to let you know.

'Very truly yours,

'Felix B. Greene, Jr.'

2. An exemplified...