Phillips v. Phillips.

• Decision Date: 20 September 1884
• Citation: 24 W.Va. 591
• Court: West Virginia Supreme Court
• Parties: Phillips v. Phillips.

24 W.Va. 591

Phillips

v.Phillips.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1884

Decided September 20, 1884.

1. Where a petition is tiled in a divorce case under section 11 of chapter 64 of the Code as amended by chapter 60 Acts of 1882, unless the defendant to the petition appear thereto in court, it should be sent to rules for process to be issued thereon and to be matured for hearing, (p. 594.)

2. If such petition should be filed and no appearance be nade thereto, and no process issued thereon it would be error upon such petition to enter any new decree against the petitioner or in his favor, (p. 594.)

The facts of the case are stated in the opinion of the Court. H. C. Shoioalter for appellant. P. W. Morris for appellee. Johnson, President:

In May, 1881, Sarah E. Phillips instituted her suit in equity against her husband, A. R. Phillips, in the circuit court of Ritchie county for a divorce a vinculo for adultery. The defendant did not answer the bill. The charges being duly proved, on October 19, 1881, the court pronounced a decree divorcing the parties and providing that the mother should have the care and custody of their infant daughter, about five years old, and that the defendant should pay thirty dollars annually to the mother until the further order of the court toward the support of the child. Leave was reserved in the decree to either party to apply by petition to the court from time to time for such further orders respecting the care, custody and maintenance of said child, as might be proper.

In 1883 the defendant filed his petition in said cause, referring to the former proceedings had therein and alleging that he had not only annually paid the thirty dollars required of him by said decree, but that he had given liberally to the plaintiff for her own individual use; that the said child is now about seven years old, and that her mother had taken her to Jackson county out of reach of defendant and placed her in the care and custody of strangers, and that the money he had paid under the requirement of said decree has not been appropriated to the maintenance of said infant child but the plaintiff has appropriated it to her own use and leaves the child uncared for and neglected in a great measure. Petitioner represents that he is well able to care for said child and is much better able to maintain her and give her an education than the plaintiff is; that the child is now coming to that age, when she should be sent to school. Petitioner is compelled to pay out of his hard earnings for the purpose of maintaining the child; and the same is being misapplied by the plaintiff, and the plaintiff is not competent for the care, custody and maintenance of the said child; that he lives in the county of Ritchie, within the jurisdiction of the court, has a home and property in said county, and can well furnish a good home for his infant child, and provide for all her j wants and see that she receives a good education. He prays that said Sarah E. Phillips be required to answer the petition, and that the said decree may be so changed as to give him the care and custody of Anne L. Phillips, his infant child, and for general relief.

The court did not send the petition to rules to have pro-j cess sued out thereon; nor did the said plaintiff answer said petition, and no appearance was made to the same, yet on the 27th day of June, 1883, the court entered a decree, in which it...