Kern v. Lindsey

• Decision Date: 22 June 1944
• Citation: 30 S.E.2d 707,182 Va. 775
• Court: Virginia Supreme Court
• Parties: KERN . v. LINDSEY.

30 S.E.2d 707

182 Va. 775

KERN .

v.LINDSEY.

Supreme Court of Appeals of Virginia.

June 22, 1944.

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.

Before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Cutler May, of Richmond, for appellant.

Florance & Florance, of Richmond, for appellee.

EGGLESTON, Justice.

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

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, anddomiciled 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 State. See 17 Am.Jur., Divorce and Separation, § 686, p. 520; 27 C.J.S., Divorce, § 317, p. 1187; Annotation, 70 A.L.R. 526, collecting a number of cases. Among the leading cases on the subject are Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518; Tinker v. Tinker, 144 Okl. 97, 290 P. 185; Morrill v. Morrill, 83 Conn. 479, 77 A. 1; Stetson v. Stetson, 80 Me. 483, 15 A. 60. More recent cases are Hatch v. Hatch, 192 A. 241, 15 N.J. Misc. 461; White v. Shalit, 136 Me. 65, 1 A.2d 765; Reynolds v. Reynolds, 21 Cal. 2d 580, 134 P.2d 251.

The theory of these cases is that a decree of divorce awarding the custody of a child to a designated party is, so far as such custody is concerned, interlocutory in character and is subject to modification and change as the welfare of the child may demand.

This accords with the view expressed by this court in Gloth v. Gloth, 154 Va. 511 551, 153 S.E. 879, 892, 71 A.L.R. 700, where, speaking of Code, § 5111, as amended, we said: "The statute expressly gives the court the continuing jurisdiction to change or modify its decree as to the custody and maintenance of minor children." (Italics supplied.)

For cases supporting the contrary view of the appellant, see Milner v. Gatlin, 139 Ga. 109, 76 S.E. 860, cited by her, and Dorman v. Friendly, 146 Fla. 732, 1 So.2d 734.

The case of Ex parte Alderman, 157 N. C. 507, 73 S.E. 126, 39 L.R.A., N.S., 988, and other cases relied on by the appellant, do not involve the precise question here under review. In each of these cases the court of the new domicile of the child and of the parent to whom its custody had been awarded, was concerned with how far and to what extent it would recognize the decree entered in the court of the sister State where the original proceeding was instituted. We have no such question before us.

In the case before us the appellant sought and invoked the jurisdiction of the Virginia court to obtain a divorce and a decree awarding to her the custody and control of the child. So far as the custody and control of the child are concerned, under the statute (Code, § 5111, as amended) such jurisdiction continued, notwithstanding the fact that both she and the child had removed to and lived in another State for a number of years.

The appellant next contends that the lower court erred in overruling her motion to abate the proceeding until the appellee had "purged himself of contempt" for his failure to pay temporary alimony and support money as ordered by the decree entered during the divorce proceeding.

The record discloses that on November 20, 1930, the appellee husband was ordered to pay to his wife, for the support of herself and the child, the sum of $15 per week. On August 17, 1931, he was adjudged guilty of contempt for failure to make the required payments and was ordered to be confined in jail. He appealed and the decree was affirmed....