Loeb v. Loeb

• Decision Date: 03 May 1955
• Docket Number: No. 1113,1113
• Citation: 118 Vt. 472,114 A.2d 518
• Parties: Eleanore M. LOEB v. William LOEB.
• Court: Vermont Supreme Court

Page 518

114 A.2d 518

118 Vt. 472

Eleanore M. LOEB v. William LOEB.

No. 1113.

Supreme Court of Vermont.

May 3, 1955.

Gannett & Oakes, Brattleboro, Harold I. O'Brien, Rutland, for plaintiff.

A. Luke Crispe and Orrin B. Hughes, Brattleboro (Ralph Chapman, Brattleboro, on the brief), for defendant.

Before CLEARY, ADAMS and CHASE, JJ., and HULBURD and SYLVESTER, Superior Court Judges.

ADAMS, Justice.

This cause involves the care, custody, support and maintenance of the minor child of the parties, the support of the petitioner and the awarding of counsel fees and disbursements in connection with the litigation. It was heard by the court, findings of fact were made and filed and a judgment order entered. It awarded the care, custody and control of the minor child to the petitioner, ordered the petitionee to pay to the petitioner $450 each month toward the care, support and maintenance of the minor child, $350 each month for the support of the petitioner, $5,000 to the attorneys for the petitioner for counsel fees and the sum of $1,289.39 to said attorneys for their disbursements. The case is here on exceptions to certain findings and to the judgment order on behalf of both parties.

It will be helpful and seems to be necessary to review the pleadings before we discuss the case and consider the questions involved.

The petitioner brought her petition to the Windham County Court setting forth therein that in 1942 she and the petitionee were married and had been ever since husband and wife and had been for some time living separate and apart; that there had been one child, Katherine Penelope Loeb, born of said marriage in 1948; that said minor child had always lived with the petitioner and was then living with her at her home in South Windham, Vermont; that the petitionee had no residence in Vermont and could not be located at his last known residence in Manchester, N. H. The prayer of the petition was that under the provisions of V.S.1947, sections 3253 and 3254 as amended, the court order and decree that the care and custody of said minor child be committed and entrusted to the petitioner during the remainder of the minority of said child. The petition is dated November 15, 1952.

The petitionee through his attorney entered a special appearance and filed a motion to dismiss the petition. The grounds of the motion were that the petitionee was divorced from the petitioner by virtue of a decree of the Second Judicial District Court of the state of Nevada on the 11th day of July 1952, wherein the petitionee was granted a final and absolute divorce from the petitioner; that at that time the petitionee was and still is a bona fide resident of the state of Nevada and that the petition could not be maintained for the reason that the petitionee and petitioner are no longer husband and wife as alleged in the petition and as required by V.S.1947, § 3253.

Later the petitionee waived his special appearance and filed an answer setting forth therein the same matters alleged in the motion and asking for judgment in his favor. He also filed with the answer a cross petition in which he set forth with more particularity his divorce in Nevada from the petitioner; the facts in regard to his bona fide residence therein; a subsequent marriage there; his purchase of a home in Reno and his intention to continue to reside in Nevada; the suitability of his home and other advantages there for the minor child. He then asked the court to grant him custody of the minor child during the school year and the right to visit and have her with him at reasonable times and places.

The petitioner filed a replication to the petitionee's answer. In that she denied the validity of the petitionee's Nevada divorce; alleged that it was not entitled to full faith and credit in Vermont; that she was not personally served with the process in Vermont; that she did not in any way appear in the Nevada proceedings and that the court there had no jurisdiction over her. She further alleged that the petitionee had no intention of establishing a bona fide residence in Nevada; that he falsely stated in the Nevada proceedings that he was a bona fide resident of that state and intended to remain there permanently and that he obtained his Nevada divorce by deceiving the court in regard to his domicile and that whether or not the Nevada divorce is binding, the court in which her petition is pending has jurisdiction to make an order and decree concerning the care, custody, maintenance and education of the minor child.

The petitioner also filed what she denominated an answer to the petitionee's cross-petition. In that she denied the same matters that she denied in her replication, neither admitted nor denied some of the allegations of the cross-petition; denied that it would be for the best interests of the child that the petitionee have her custody at any time and alleged various facts pertinent to that allegation concerning the petitionee, his home and its nature. She then alleged that the petitionee had substantial financial means and was well able to provide adequate and complete support for the petitioner and the child. The answer concluded with a prayer for further relief and also that the court (1) make a suitable and proper order for the support of the child, (2) a suitable and proper order for the support of the petitioner and (3) an order awarding the petitioner a suitable sum as counsel fees, she being without funds to finance the litigation. It should be noted that here for the first time did the petitioner in this so-called answer allege anything about the petitionee's financial means or ability to provide support for the child and the petitioner. Here for the first time as there any specific prayer for an order for the support of either the child or the petitioner or for counsel fees.

The petitionee filed a replication to the petitioner's answer. In that he relied on his Nevada divorce and again alleged that it was entitled to full faith and credit in Vermont. He then denied the allegations of the answer and further by way of defense to the matters set forth in the answer he alleged that because he had procured a valid divorce from the petitionee the court did not have jurisdiction to award the petitioner any sum for support and that the proceedings instituted by the petitioner under statutory authority did not provide for the remedy sought in her answer to the petitionee's cross-petition.

It has not been called to our attention that the petitionee raised below nor does he here raise any question in regard to the right of the petitioner, after having obtained jurisdiction over the petitionee by his general appearance on her petition for custody of the child, to enlarge this original matter then pending by a prayer for support for herself which she included in her answer to the petitionee's cross-petition relating to the custody of the child.

V.S.1947, § 3253 reads as follows: 'When parents of minor children are living separately, on the petition of either parent, the county court may make such decree concerning the care, custody, maintenance and education of the children, as in cases where the court grants a divorce. Thereafter, on the petition of either of the parents, such courts may annul, vary or modify such decrees.' Section 3254 as amended has to do with the summons and service thereof and is not here material.

The petitionee does not brief the point and he conceded in oral argument that the Windham County Court had, by virtue of the foregoing statute and the general appearance of the petitionee, jurisdiction to make a decree concerning the care, custody and support of the minor child of the parties.

Both parties in their briefs claim certain questions are not before the court because of the record or by failure to brief. A careful examination of the record called to our attention and a thorough study of the original and reply briefs satisfies us that the parties have raised and presented for our consideration the following questions: (1) The validity of the divorce procured in Nevada by the petitionee. (2) The jurisdiction of the court to make an order for the support of the petitioner. (3) The reasonableness of the award made for the support of the petitioner. (4) The reasonableness of the award for the support of the minor child. (5) Did the court err in making the award to take effect from April 1, 1954 only? (6) The right of the court to award attorney's fees and disbursements. (7) Should the motion of the petitionee to strike the judgment order have been granted?

Under our system of law, judicial power to grant a divorce,--jurisdiction, strictly speaking--is founded on domicile. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Shain v. Shain, 324 Mass. 603, 88 N.E.2d 143. In the instant case, the petitioner by her pleadings raised the question of the bona fide residence and domicile of the petitionee in Nevada at the time he procured his divorce there. However, the trial court found that since the petitionee first went to Nevada in April 1952 that he had maintained no other residence except in that state; that he had purchased a home there and 'is presently living * * * at said address.' The findings also show that the Nevada court when it granted the divorce found as a fact that the petitionee, the petitioner there, for the required period of time prior to the commencement of the action, 'continuously had been and still and now is an actual and bona fide resident of, domiciled within and physically present within the State of Nevada, with the intention to remain indefinitely and to make Nevada his home for an indefinite period of time.' The petitioner excepted to some of the findings in regard to the residence and domicile of the petitionee in Nevada but she does not brief them so they are waived. E. A. Strout Realty Agency, Inc., v. Wooster, 118 Vt. 66, 71, 99 A.2d 689, and...