Kern v. Lindsey

Citation30 S.E.2d 707, 182 Va. 775
Case DateJune 22, 1944
CourtSupreme Court of Virginia

30 S.E.2d 707
182 Va. 775


Supreme Court of Appeals of Virginia.

June 22, 1944.

[30 S.E.2d 707]

Appeal from Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Suit for divorce by Cecelia McKenna Lindsey Kern against Henry Dorsey Lind-sey wherein a divorce decree was awarded, and wherein the defendant thereafter filed a petition seeking to obtain custody of the parties' 13 year old son. From the decree rendered, the plaintiff, Cecelia McKenna Lindsey Kern, appeals and the defendant assigned cross-error.

Decree modified and, as so modified, affirmed.


Cutler May, of Richmond, for appellant.

Florance & Florance, of Richmond, for appellee.


This is a controversy between a divorced couple over the custody and control of their thirteen-year-old son, Carroll Scott Lindsey.

Henry Dorsey Lindsey of Richmond, Virginia, and Cecelia McKenna Utsey of

[30 S.E.2d 708]

Columbia, South Carolina, were married in May, 1928. Their life together was begun under inauspicious circumstances. She was young, only nineteen, and had recently recovered from a nervous disorder. The husband was about thirty-three years old and had not had a successful business career. The home in Richmond to which he took his bride and the manner in which it was furnished seems to have been a shock both to her and to the members of her family. The couple frequently quarreled. The wife claimed that he neglected her, treated her cruelly, and at times struck her, while he in turn claimed that she showed no affection for him.

On September 1, 1930, their only child was born. A month later, as soon as the mother was able to travel, she left her husband and returned to her people, at Columbia, claiming that the conditions under which she had been living were no longer bearable. In November, 1930, she filed a suit for divorce against her husband on the ground of cruelty and constructive desertion, and prayed for the custody of her infant son. The husband filed an answer and cross-bill alleging desertion. The court granted the wife a decree a mensa on the ground of constructive desertion and awarded to her the custody of the child. On January 8, 1935, the decree was enlarged into a divorce a vinculo and the mother was given exclusive custody of the child.

On June 12, 1940, the father filed a petition in the cause alleging that Mrs. Lindsey had remarried and was living in Florida with her then husband, Frank Kern; that the child was in the care and custody of his maternal grandmother, Mrs. Mary Utsey of Columbia, who was not a fit person for the purpose; and that he (the petitioner) was now in a position to support and maintain his son in a fit and proper manner. He prayed that he be awarded the custody of the child.

Mrs. Kern made a special appearance and contested the jurisdiction of the court on the ground that both she and the child had not lived in Virginia since the institution of the original divorce proceeding, in November, 1930; that they had changed their residence and domicile first to South Carolina, and later to Florida, where they now resided and were domiciled; and that, therefore, the Virginia court had no jurisdiction either of her or of the child, and no power or authority to enter a decree awarding the child's custody to the father. The lower court overruled this contention and its action in so doing is made a major assignment of error.

Mrs. Kern then moved to abate the proceeding because of the failure of her former husband to pay the alimony decreed against him in the divorce suit. This motion was likewise overruled, and the action of the court thereon is likewise assigned as error.

When these preliminary matters had been disposed of, Mrs. Kern filed an answer to the petition contesting any modification in the terms of the decree which had given her exclusive custody of the child. To protect the interests of the child the court appointed a guardian ad litem who filed an answer and attended the subsequent proceedings.

After several hearings, extending over a period of two and one-half years, during which considerable testimony was taken, mainly ore tenus, the court entered the decree here complained of. It decreed that the appellee father pay into court to the credit of the cause, for the benefit, maintenance, education and support of the child, the sum of $2,520, with interest, representing the total of the accumulated and unpaid alimony which the appellee had been directed to pay under the former decrees. It found and further decreed that the best interests of the child would be served by allowing him to remain in the custody of the mother, but that he should be given the opportunity of knowing and establishing the proper relationship with his father; that since she had refused to allow the father to visit, see, or correspond with, the child, the latter should be allowed to visit his father from July 15 to August 25, in each year, and for a period of ten days during the Christmas holidays; that the father and son should be allowed to correspond with each other; and that the father should be allowed to pay him monthly visits "at reasonable times, from time to time." The decree also required the husband appellee to pay the cost of the proceeding in the lower court, including a fee of $245 to the guardian ad litem, and a fee of $400 to counsel for his former wife.

From this decree Mrs. Kern has appealed, and the appellee has assigned cross-error.

The first assignment of error is to the action of the lower court in overruling the appellant's contention that both she and the child are residents and citizens of, and

[30 S.E.2d 709]

domiciled in, the State of Florida, and that, therefore, the Virginia court had no jurisdiction of them and no power or authority to enter a decree affecting her custody of the child.

Code, § 5111 (as amended by Acts 1926, ch. 107, p. 105, Acts 1927, Ex.Sess., ch. 85, p. 184, Acts 1934, ch. 329 p. 515, Acts 1938, ch. 418, p. 784), provides: "Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, * * * 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; and the court may, from time to time afterwards, on petition of either of the parents, revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require; * * *"

Statutes of this character are found in many of the States, and under the great weight of authority the power of the court to modify the decree is not affected by a removal of the child from the jurisdiction by the parent to whom its custody was awarded, or by the fact that such parent and the child have changed their domicile to another...

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17 cases
  • Meade v. Meade, 86-1574
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 3 Marzo 1987
    ...314 S.E.2d at 367. The court retains this modification jurisdiction even when the child no longer lives in the state. Kern v. Lindsey, 182 Va. 775, 30 S.E.2d 707 (1944). This modification jurisdiction continues so long as any one of four "grounds for jurisdiction" in the Virginia UCCJA cont......
  • Verrocchio v. Verrocchio, 2199-91-4
    • United States
    • Court of Appeals of Virginia
    • 27 Abril 1993
    ...litem for a child involved in a contested custody dispute, Virginia courts have frequently done so. See, e.g., Kern v. Lindsey, 182 Va. 775, 779-80, 30 S.E.2d 707, 708 (1944) (trial court appointed a guardian ad litem for child and ordered the "husband appellee to pay the cost of the procee......
  • Delk v. Gonzalez
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 13 Diciembre 1995
    ...jurisdiction to change or modify its decree as to the custody and maintenance of minor children [emphasis added]." Kern v. Lindsey, 182 Va. 775, 781, 30 S.E.2d 707 (1944), quoting Gloth v. Gloth, 154 Va. 511, 551, 153 S.E. 879 (1930). In 1979, Virginia adopted the UCCJA, see 1979 Va. Acts c......
  • Lutes v. Alexander
    • United States
    • Court of Appeals of Virginia
    • 25 Agosto 1992 change or modify its decree as to their custody." Id. 227 Va. at 93, 314 S.E.2d at 367. See Code § 20-108; Kern v. Lindsey, 182 Va. 775, 780-81, 30 S.E.2d 707, 709 (1944). In the companion case of Lyons v. Lyons, 227 Va. 82, 314 S.E.2d 362 (1984), the mother left the marital home without......
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