Logan v. Rankin, 40457

• Decision Date: 22 April 1957
• Docket Number: No. 40457,40457
• Citation: 94 So.2d 330,230 Miss. 749
• Parties: Mrs. Ruth LOGAN v. Z. T. RANKIN.
• Court: Mississippi Supreme Court

Page 330

94 So.2d 330

230 Miss. 749

Mrs. Ruth LOGAN v. Z. T. RANKIN.

No. 40457.

Supreme Court of Mississippi.

April 22, 1957.

Adams, Long & Adams, Tupelo, for appellant.

Brown & Elledge, Fulton, for appellee.

McGEHEE, Chief Justice.

This case involves the custody of two minor children, Ronald Rankin and Patsy Rankin, who are now approximately seven and five years of age, respectively. Their parents were formerly husband and wife, both of whom have now remarried. This appeal also involves the question as to whether or not full faith and credit should be given to a decree of the District Court of the Thirty-fourth Judicial District of the State of Texas, rendered in El Paso County, Texas, on December 13, 1955 where the jurisdiction of the Texas court was invoked on September 18, 1954, by the appellee on the instant appeal, Z. T. Rankin, or whether the Chancery Court of Itawamba County, Mississippi, where the parents lived at the time of their divorce, on April 14, 1954, still has the jurisdiction of the custody of the children.

During the latter part of the year 1953, the appellant, Mrs. Ruth Logan (nee Ruth Rankin), filed her bill for separate maintenance, for alimony, for the custody of the children and for their support, against their father, Z. T. Rankin. He filed in that cause an answer and cross bill, and in the cross bill he sought a divorce from the complainant on the grounds of habitually cruel and inhuman treatment of him by the complainant, and on the ground of her alleged adultery.

On April 14, 1954, the Chancery Court of Itawamba County granted unto the cross-complainant a divorce on the ground of habitually cruel and inhuman treatment alone, awarded the custody of the children to their mother with the right of the father to have them with him during the months of June and July of each year, with the right of visitation of the children in the home of the father from Friday at 3:00 P.M. until Monday at 8:00 A.M. of the first week in each month during which their mother had their custody; and gave the right to the mother to have the children with her for the same period of time during the months of June and July of each year; awarded to the mother a lump sum of $175 as alimony in full, and awarded unto her the sum of $35 for the remainder of the month of April 1954 and the sum of $60 per month thereafter for the support of the said children during the ten months of each year in which she was to have their custody, together with attorney's fees to her attorney, the alimony to the wife and the fee to the attorney to be paid within sixty days from the date of said decree of April 14, 1954.

On April 21, 1954, the cross-defendant, Mrs. Ruth Rankin, was married to Darrell B. Logan, and on April 27, 1954, she took the children with her on a visit to the home of her said second husband, the decree of April 14, 1954, having provided that neither of the parties to the suit in Itawamba County could remove the children from the jurisdiction of that court for more than one week at a time. On her journey to the home of her husband at El Paso, Texas, Mrs. Ruth Logan (nee Ruth Rankin) became involved in an automobile accident wherein she was rendered unconscious for a few days and had to be hospitalized. While she was in the hospital the children were taken to the home of Mr. Logan's parents at El Paso, Texas. She had to be placed in a cast while in the hospital and was unable to return to Mississippi as contemplated. The automobile wreck occurred at or near Jacksboro, Texas, while she was en route back to Mississippi where she claims that she intended to turn the children over to their father, Z. T. Rankin, for a week-end visit during the first week in May 1954, and to have them available to be with him during the months of June and July of that year. The automobile accident occurred on May 2, 1954.

On May 5, 1954, she wrote a letter to her attorney, George F. Adams of Tupelo, Mississippi, who had been employed, (after the divorce and custody decree of April 14, 1954, had been rendered), to negotiate with the attorneys of her former husband with reference to some different arrangement as to the custody of the children. In that letter she advised her said attorney of the automobile accident, etc., but she didn't communicate with either the judge of the Chancery Court of Itawamba County or with her former husband as to the whereabouts of the children. This attorney did not advise the attorneys of Z. T. Rankin of this letter until May 28, 1954. The father of the said children was not able to locate the children until September 18, 1954.

In the meantime the father of the children had petitioned for a modification of the decree of April 14, 1954, in the Chancery Court of Itawamba County, Mississippi. He had process issued for his former wife directed to the sheriff of Itawamba County whose return thereon showed that she was not found in his custody.

Section 8681, Code of 1942, provides: 'Any notice required in the progress of a suit or action, in any court of this state, shall be as valid and effectual when served on the attorney or solicitor of the party in that cause as if served on the party himself.' We think that this statute means, as it expressly provides, that 'any notice required in the progress of a suit or action' shall be as valid and effectual when served on the attorney or solicitor of the party in that cause as if served on the party himself, shall be valid and effectual during the progress of the cause that the attorney has been employed to handle; that it does not mean that when a subsequent proceeding is filed in vacation, even though in the same cause, it is a sufficient service on a litigant when served on the attorney who is under no obligation by virtue of his employment to represent the party without a new and different arrangement being made with the litigant as to his fee for handling the subsequent litigation, and especially where a subsequent petition seeks to take from such litigant, on behalf of his or her adversary, the exclusive custody of the children, and also the alimony theretofore allowed to the party against whom the subsequent petition is filed, and which alimony has already become due, and to take from her the monthly support money allowed for the maintenance and support of her children both accrued and to accrue, and in which accrued installments she has a vested right at the time the subsequent petition is filed. In other words, we think that Section 8681, supra, has reference to a notice to an attorney during the progress of a trial until that particular litigation has been tried and a judgment or decree rendered which is final until further order of the court upon proper service of process upon the litigant who is to be affected by such subsequent litigation.

Subsequent to the filing of the petition for the modification of the decree of April 14, 1954, which was not heard until August 3, 1954, the only notice to the attorney of the defendant to the petition for modification was a letter from the petitioner's attorney inquiring as to when and where the children were to be surrendered to him, and notifying the attorney for the defendant to the petition that the petitioner would insist upon the terms of the former decree being obeyed. The letter itself did not advise the attorney for the defendant to the petition for modification as to what modification would be sought. The letter relied upon as process was served on both W. Herman Camp, the attorney of record for the mother of the children at the time the decree of April 14, 1954, was rendered, and upon the attorney subsequently employed or retained by her to negotiate with opposing counsel as to whether some different arrangement might be agreed upon as to the custody of the children in view of the then existing circumstances. We are of the opinion that the decree of August 3, 1954, which awarded the complete custody of the children exclusively to their father, and which eliminated from the decree of April 14, 1954, the provision for alimony to the mother and the support money for the children, was void for want of legal process upon the party to whom the custody of the children had been largely awarded, and to whom the payment of alimony had been provided for.

In the case of Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238, it was held that before a parent can be deprived of the custody of his minor child, there must be a hearing before a court of competent jurisdiction in which he has been served with process or entered an appearance, and no court has the right to deprive him of the custody or to adjudge him to be unfit for such custody without an opportunity for him to appear and be heard. And further that to do so would be to deprive him of his legal rights without due process of law. The decree of April 14, 1954, insofar as it awards the custody of the children to the mother, had the effect of adjudging her to be a suitable person to have their custody, whereas the decree of August 3, 1954, insofar as it awarded the exclusive custody of the children to the father, had the effect of depriving the mother of the custody of the children theretofore awarded to her, and all without notice and an opportunity to be heard. If Section 8681, Code of 1942, were given the application contended for by the appellee in the instant case, it would be unconstitutionally applied in that it would be denying the appellant herein due process of law under the facts and circumstances of this case.

When the appellee in the instant case, Z. T. Rankin, ascertained the whereabouts of the children on September 18, 1954, he went to El Paso, Texas, and filed a habeas corpus petition in the District Court of El Paso County, to obtain the possession of the children. He exhibited to his petition the decree of April 14, 1954, and its modification on August 3, 1954, by the Chancery Court of Itawamba County,...