Leishman v. Bird

Decision Date12 February 1963
Docket NumberNo. CC,CC
Citation129 S.E.2d 440,147 W.Va. 525
CourtWest Virginia Supreme Court
PartiesMarguerite Helen LEISHMAN v. James Norman BIRD. 864.

Syllabus by the Court

1. 'Questions of law arising under an appealable decree may not be certified.' Point 2, Syllabus, Slater v. Slater, 118 W.Va. 645, 191 S.E. 524.

2. The statutory procedure relating to certifiable questions as provided in Chapter 58, Article 5, Section 2, West Virginia Code, 1931, being in derogation of the common law, must be strictly construed.

Charles E. Hurt, Charleston, for plaintiff.

Franklin W. Kern, Charleston, for defendant.

CAPLAN, Judge.

This case is here upon certificate from the Circuit Court of Kanawha County. By complaint filed in August, 1960, the plaintiff, Marguerite Helen Leishman, sought legal custody of and support for two of her minor children born of her marriage to the defendant, James Norman Bird. She alleged therein that she and the defendant had been married in the State of Kentucky; that four children had been born of said marriage; that the two younger children had been legally adopted by her present husband; and that the relief sought was on behalf of the remaining two minor children.

She further alleged that on February 1, 1957, the defendant obtained a decree of divorce in the Circuit Court of Jackson County, Michigan; that she was not served with process in that suit and had no knowledge thereof until a copy of the decree was mailed to her; that neither she nor her children were within the jurisdiction of the Michigan court during the divorce proceedings; and that notwithstanding the foregoing, the court granted the defendant a divorce, awarded custody of the children to the plaintiff, but made no provision for the support and maintenance of said children.

The defendant, answering the complaint, did not resist the plaintiff's motion for custody of the children. On the ground, however, that his economic status was far inferior to that of the plaintiff, he demanded that he not be required to pay money for the support and maintenance of the two minor children.

On January 4, 1961, counsel for the respective parties caused to be entered in the Circuit Court of Kanawha County an agreed order, under the provisions of which the defendant agreed that the plaintiff shall have custody of the children and that he shall pay to the plaintiff, for the support and maintenance of said children, the sum of fifty dollars each and every month until the children shall have reached the age of twenty one years.

The defendant failed to continue to make the payments provided for in the foregoing order. In December, 1961, the plaintiff filed her petition alleging that no payment had been made since April, 1961, that the sum of four hundred fifty dollars was due and owing her from the defendant, and moved that the defendant be adjudged in contempt for failure to obey the order of the court. After mailing proper notice to the plaintiff, the defendant filed a motion to set aside the order of January 4, 1961, and all subsequent orders. His ground therefor was that the Circuit Court of Kanawha County did not have jurisdiction over the subject matter of this civil action.

The Circuit court, by order dated March 31, 1962, overruled the defendant's motion and, on its own motion, certified the following question to this Court: 'May the former wife, the plaintiff herein, bring a civil action against her former husband, the defendant herein, for the custody of said children and the award of money to the plaintiff for support and maintenance of said children, upon a complaint which alleges that the plaintiff and defendant were divorced by a final decree of the Circuit Court of Jackson County, Michigan, a certified copy of said decree being made a part of the complaint, said decree showing that the plaintiff was awarded custody of the infant children of plaintiff and defendant, until further order of said Court, and that no provision was made therein for payment of alimony nor for the payment of any sum of money for support, maintenance and education of said children, or is the plaintiff's remedy, if any, exclusively that of either, (a) petitioning the said Circuit Court of Jackson County, Michigan, for modification of said decree and for provisions for support, maintenance...

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3 cases
  • Union Underwear Co. v. Aide
    • United States
    • West Virginia Supreme Court
    • November 14, 1967
    ...by the trial court and by it certified here. Means v. Kidd, 136 W.Va. 514, 67 S.E.2d 740.' To the same effect are: Leishman v. Bird, 147 W.Va. 525, 129 S.E.2d 440; W.Va. Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891; Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.......
  • State v. Brown
    • United States
    • West Virginia Supreme Court
    • March 23, 1976
    ...must, on its own initiative, determine whether the requirements of the statutory procedure are met in given case. Leishman v. Bird, 147 W.Va. 525, 129 S.E.2d 440 (1963). In the present case we conclude that certification was improper for two Appealable judgments, orders and decrees are not ......
  • Toler v. Shelton, CC896
    • United States
    • West Virginia Supreme Court
    • March 30, 1976
    ...Court will examine and decide it Sua sponte. Bennett v. General Assur. Corp., 148 W.Va. 338, 135 S.E.2d 96 (1964); Leishman v. Bird, 147 W.Va. 525, 129 S.E.2d 440 (1963); State v. DeSpain, 139 W.Va. 854, 81 S.E.2d 914 (1954); Carper v. Montgomery Ward & Co., 123 W.Va. 177, 13 S.E.2d 643 Our......

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