Kern v. Lindsey

Decision Date22 June 1944
Docket NumberRecord No. 2798.
Citation182 Va. 775
CourtVirginia Supreme Court
PartiesCECELIA MCKENNA LINDSEY KERN v. HENRY DORSEY LINDSEY.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. DIVORCE — Custody of Children — Modification of Decree — Effect of Change of Domicile to Another State. — Under section 5111 of the Code of 1942, empowering a court, after decreeing a divorce, to alter such decree concerning the custody of the children, 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.

2. DIVORCE — Custody of Children — Decree Subject to Modification. — 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.

3. DIVORCE — Custody of Children — Modification of Decree — Statute Gives Continuing Jurisdiction. Section 5111 of the Code of 1942 expressly gives the court the continuing jurisdiction to change or modify its decree as to the custody and maintenance of minor children.

4. DIVORCE — Custody of Children — Modification of Decree — Removal of Mother and Child to Another StateCase at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, appellant contended that both she and the child were residents and citizens of, and 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.

Held: That, so far as the custody and control of the child were concerned, under section 5111 of the Code of 1942, the jurisdiction of the Virginia court continued, notwithstanding the fact that both appellant and the child had removed to and lived in another state for a number of years.

5. DIVORCE — Custody of Children — Effect of Default in Payment of Alimony and Support Money — Case at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, appellant contended that the lower court erred in overruling her motion to abate the proceeding until appellee had purged himself of contempt for his failure to pay temporary alimony and support money as ordered by a decree entered during the divorce proceeding.

Held: That appellee's default in the payment of alimony and support money was only a circumstance to be considered on the motion to deny him the right to be heard on his petition and the decision of that question was a matter within the sound discretion of the trial judge.

6. DIVORCE — Custody of Children — Modification of Decree — Sufficient Showing of Change of Condition and Circumstances — Case at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, appellant contended that the court erred in modifying a decree which gave her the exclusive custody of the child so as to permit appellee to visit and correspond with him and to permit the child to visit his father. Following the separation of the parties the child lived with his maternal grandmother until his mother remarried, after which time the child divided his time between his grandmother and his mother and stepfather. For some years after the separation of the parties, the father was in impecunious circumstances, but thereafter his financial situation had considerably improved, he was a man of good habits and character, was able and desirous of providing for his son, and the atmosphere of his household was good and wholesome. The trial court decreed that the child be allowed to visit his father during the summertime and during the Christmas holidays.

Held: That the trial court correctly held that the evidence showed a sufficient change of condition and circumstances to justify the modification to the decree awarding exclusive custody of the child to appellant.

7. DIVORCE — Custody of Children — Modification of Decree — Discretion of Court as to Payment of Accumulated Support Money — Case at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, appellant contended that the court erred in not requiring appellee to pay support money for the child from the date of the a mensa decree until the date of the decree appealed from. Both the a mensa and the a vinculo decrees expressly relieved appellee, because of his financial condition, of the payment of such support money, and appellant had not requested a modification of these decrees. The decree appealed from, modifying the former decree as to custody of the child, required appellee to pay into court, for the benefit of the child, the full amount of the alimony and support money accumulated against him under a decree antedating the a mensa decree.

Held: That whether more should have been required of appellee was within the sound discretion of the trial court.

8. DIVORCE — Custody of Children — Counsel Fees — Amount — Case at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, the trial court decreed that appellee should pay a fee of $400 to appellant's counsel, and appellant contended that this allowance was too small. The issue in the proceedings was confined to the right to the custody of the child, although much of the testimony taken consisted of a rehash of the original divorce proceeding and the record included the entire proceedings in the original divorce case.

Held: That, in view of the issue involved and the circumstances of the case, it could not be said that the amount of the allowance was unreasonably small.

9. DIVORCE — Custody of Children — Modification of Decree — Counsel Fees and Support Money — Requiring Bond by Nonresident Mother to Abide by Decree — Case at Bar. — In the instant case, a controversy between a divorced couple over the custody of their son, the trial court modified a decree awarding exclusive custody of the child to appellant so as to permit the child to visit his father at least twice a year. The decree also required appellee to pay a fee to appellant's counsel and to pay a monthly sum for the support and maintenance of the child. Appellee contended that he should not be required to pay any fee to appellant's counsel or to pay the support money because appellant had plainly indicated an intention not to abide by the terms of the decree appealed from. Appellant and the child were domiciled in Florida, and appellant was unwilling to execute a bond conditioned upon her abiding by the decree of the lower court or any decree of the appellate court.

Held: That appellee should not be required to make either the payment for counsel fees or for support money until appellant executed a bond conditioned upon her abiding by the terms of the decree appealed from.

Appeal from a decree of the Law and Equity Court of the city of Richmond. Hon. Willis D. Miller, judge presiding.

The opinion states the case.

Cutler May, for the appellant.

Florance & Florance, for the appellee.

EGGLESTON, J., delivered the opinion of the court.

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...

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