Rakes v. Ferguson, No. 12212

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation147 W.Va. 660,130 S.E.2d 102
PartiesEdith RAKES, Petitioner, v. Charles W. FERGUSON, Judge of the Circuit Court of Wayne County, and Emerly Eugene Rakes, Defendants.
Decision Date19 March 1963
Docket NumberNo. 12212

Page 102

130 S.E.2d 102
147 W.Va. 660
Edith RAKES, Petitioner,
v.
Charles W. FERGUSON, Judge of the Circuit Court of Wayne
County, and Emerly Eugene Rakes, Defendants.
No. 12212.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 26, 1963.
Decided March 19, 1963.

Page 104

Syllabus by the Court.

1. The provision of Section 15, Article 2, Chapter 48, Code, 1931, as amended, which confers jurisdiction upon the trial court to revise or alter installments for the support of the children or to make a new decree concerning them, pertains to future installments for the support of the children of the parties to a suit for divorce or annulment of a marriage and does not authorize such [147 W.Va. 661] court to alter or cancel accured installments for the support of the children.

2. As the statute does not authorize or empower the trial court to alter or cancel accrued installments for the support of the children of the parties to a suit for divorce or annulment of a marriage, such court does not have jurisdiction to alter or cancel any award of support for the children that has accrued under a prior final decree.

3. In a suit for divorce the trial court has the power and the authority to determine the amount due and unpaid upon accrued installments for the support of the children of the parties, when such amount is in dispute; and the action of the court in determining and entering judgment for the amount of the accrued installments does not alter or cancel such installments.

4. A decree which provides that a judgment for the payment of money shall not bear interest violates Section 31, Article 6, Chapter 56, Code, 1931, and is, in that respect, invalid.

5. A void judgment, being a nullity, may be attacked collaterally or directly at any time and in any court whenever any claim or right is asserted under such judgment.

6. Though a court has jurisdiction of the subject matter in controversy and of the parties, when it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question the writ of prohibition will lie under general law and under the statute to prevent the enforcement of the invalid portion of the judgment of the court.

7. Under Section 15, Article 2, Chapter 48, Code, 1931, as amended, which provides that the court, in a suit for divorce or annulment of a marriage, may from time to time afterward, on the petition of either party, revise or alter a decree concerning the care, custody, education and maintenance of the children and make a new decree concerning the same as the circumstances of the parents or other proper person or persons and the benefit of the children may require, such court has jurisdiction to require accrued and past due support and maintenance to be paid by the judgment debtor in such amounts and installments as the court may determine.

[147 W.Va. 662] William K. Napier, Huntington, for petitioner.

Greene, Morgan & Ketchum, Huntington, for defendants.

HAYMOND, Judge.

In this original proceeding in prohibition, instituted in this Court on January 15,

Page 105

1963, the petitioner, Edith Rakes, seeks a writ to prohibit the defendants, the Honorable Charles W. Ferguson, Judge of the Circuit Court of Wayne County, West Virginia, and Emery Eugene Rakes, from enforcing certain provisions of a decree entered August 2, 1960 by the defendant Charles W. Ferguson, as Judge of the Circuit Court of Wayne County, West Virginia, in a suit in equity then pending in that court, in which Emery Eugene Rakes was plaintiff and the petitioner Edith Rakes was defendant. The portions of the decree, the enforcement of which the petitioner seeks to have prohibited, are the provision which rendered judgment against Emery Eugene Rakes in favor of Edith Rakes in the sum of $825.00, which the petitioner contends undertook to modify, alter and set aside a judgment entered by the Circuit Court of Wayne County in the above styled suit in equity on July 16, 1951, which required Emery Eugene Rakes, the plaintiff in that suit, to pay to Edith Rakes, the defendant in that suit, for the support of their infant children the sum of $80.00 on August 1, 1951, and on the first day of each month thereafter until the further order of the court; the provision that the judgment for $825.00 should not bear interest; and the provision that such judgment shall be paid at the rate of $5.00 per month until that last of the two children becomes twenty one years of age, emancipated or gainfully employed and thereafter at the rate of $25.00 per month until such judgment shall have been paid in full.

[147 W.Va. 663] Upon the filing of the petition this Court awarded a rule, returnable February 12, 1963. At that time this proceeding was continued until February 26, 1963, and on that date it was submitted for decision upon the petition, the separate answers of the defendants, and the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

The material facts are not disputed and the questions presented for decision are questions of law.

Prior to July 16, 1951, Emery Eugene Rakes and Edith Rakes were husband and wife and on that date, in the divorce proceeding of the husband, emery Eugene Rakes, against the wife, Edith Rakes, a decree was entered which dissolved the marriage previously existing between the parties to that suit. The decree of divorce provided that the defendant Edith Rakes should have the care, custody and control of their two infant children, Edward Lee Rakes and Barbara Jean Rakes; that the parties to the suit had agreed upon the amount of support to be paid for the children; that the plaintiff Emery Eugene Rakes should pay to the defendant as support for their children the sum of $80.00 on the first day of August, 1951, and on the first day of each month thereafter until the further order of the court; that the defendant should have the use and occupancy of the plaintiff's home for the benefit of the children; that the plaintiff, the father, should be permitted to see and visit the children at all reasonable andseasonable times and to take them for daytime visits to the home of his parents in Wayne County, West Virginia; and that neither party should remarry for a period of 60 days from the entry of the decree, except to each other.

On July 26, 1960, the plaintiff in that suit, Emery Eugene Rakes, filed a petition in the Circuit Court of Wayne County, in which he sought, because of change of conditions, to have the decree of July 16, 1951, amended to give the custody and control of Barbara Jean Rakes to him, to set aside the portion of the decree which required him to make payments for the support of the children, and to award him possession of his property which by the former decree the defendant in [147 W.Va. 664] that suit was permitted to occupy. By her answer to the petition, the defendant Edith Rakes denied the right of the plaintiff Emery Eugene Rakes to obtain any change or alteration of the prior decree and, asserting a claim for affirmative relief, alleged that the petitioner was delinquent in the payment of the monthly

Page 106

installments required by the decree for the support of the children, and that the amount past due and owing by him was the sum of $1,650.00. The prayer of the answer was that the petition be dismissed, that judgment be rendered against the plaintiff for $1,650.00, with costs including a reasonable attorney fee, and that the defendant be granted general relief.

After hearing evidence of the parties concerning the issues presented by the foregoing pleadings the circuit court, by its judgment of August 2, 1960, decreed that the defendant should have the right to occupy the home of the plaintiff until the youngest child became 21 years of age or emancipated; that the defendant should have judgment against the plaintiff for $825.00 instead of the past due amount of $1,650.00 claimed by the defendant; and that such judgment should not bear interest and should be paid in installments of $5.00 per month until the youngest child became 21 years of age, emancipated or gainfully employed, after which the installments should be $25.00 per month until the judgment was fully paid. The court also decreed that the future monthly payments for the support of the children should be $50.00, instead of $80.00 per month, until either child became 21 years of age, emancipated, or employed, after which the installments should be $25.00 per month until the youngest child should become 21 years of age, emancipated or gainfully employed and that at that time all payments for the support of the children, other than the payments of $25.00 per month on the judgment, should cease.

The petitioner...

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29 practice notes
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...Article 1, Chapter 53, Code, 1931; State ex rel. Heck's, [152 W.Va. 357] Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369; Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102; State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851, 94 A.L.R.2d 1033; State ex rel. Cecil v. Knapp, 143 W.Va. 8......
  • State ex rel. Hamstead v. Dostert, No. 16121
    • United States
    • Supreme Court of West Virginia
    • March 9, 1984
    ...Peacher v. Sencindiver, 233 S.E.2d 425 (1977); State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Norfolk & Western Ry. v. Pinnacle Coal. Co......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...170 Va. 458, 197 S.E. 426 (1938); Mihalcoe v. Holub, 130 Va. 425, 107 S.E. 704 (1921). See [158 W.Va. 788] also, Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963). The infant plaintiff was not adopted by Mr. Conley until 1966-- some three years after the accident. Under the circumstan......
  • State ex rel. Heck's Inc. v. Gates, Nos. 12374-12379
    • United States
    • Supreme Court of West Virginia
    • April 13, 1965
    ...exceeds its legitimate powers. State ex rel. Heck's Discount Centers, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374; Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102; State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; Whit......
  • Request a trial to view additional results
29 cases
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...Article 1, Chapter 53, Code, 1931; State ex rel. Heck's, [152 W.Va. 357] Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369; Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102; State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851, 94 A.L.R.2d 1033; State ex rel. Cecil v. Knapp, 143 W.Va. 8......
  • State ex rel. Hamstead v. Dostert, No. 16121
    • United States
    • Supreme Court of West Virginia
    • March 9, 1984
    ...Peacher v. Sencindiver, 233 S.E.2d 425 (1977); State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Norfolk & Western Ry. v. Pinnacle Coal. Co......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...170 Va. 458, 197 S.E. 426 (1938); Mihalcoe v. Holub, 130 Va. 425, 107 S.E. 704 (1921). See [158 W.Va. 788] also, Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963). The infant plaintiff was not adopted by Mr. Conley until 1966-- some three years after the accident. Under the circumstan......
  • State ex rel. Heck's Inc. v. Gates, Nos. 12374-12379
    • United States
    • Supreme Court of West Virginia
    • April 13, 1965
    ...exceeds its legitimate powers. State ex rel. Heck's Discount Centers, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374; Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102; State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; Whit......
  • Request a trial to view additional results

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