Rasch v. Rasch

• Decision Date: 16 November 1964
• Docket Number: No. 43185,43185
• Citation: 168 So.2d 738,250 Miss. 885
• Parties: Mrs. Willie Faye Smith RASCH v. Herbert Joseph RASCH.
• Court: Mississippi Supreme Court

Page 738

168 So.2d 738

250 Miss. 885

Mrs. Willie Faye Smith RASCH v. Herbert Joseph RASCH.

No. 43185.

Supreme Court of Mississippi.

Nov. 16, 1964.

Cooper & Allen, Indianola, for appellant.

Brewer, Deaton & Evans, greenwood, for appellee.

KYLE, Presiding Justice:

This case is before us on appeal by Mrs. Willie Faye S. Rasch, cross-defendant, from a decree of the Chancery Court of Sumflower County, dated November 1, 1963, dismissing her petition for citation of Herbert Joseph Rasch, cross-complainant, for contempt of court for his alleged failure to obey the final decree of said court rendered on October 12, 1959, directing him to pay to the cross-defendant the sum of $50 per month as support for their minor child, Thomas Frederick Rasch.

The record shows that on June 30, 1959, the appellant Mrs. Willie Faye S. Rasch, as complainant, filed in the Chancery Court of Sunflower County a bill of complaint for divorce against the appellee, Herbert Joseph Rasch, who at that time was a legal resident of the State of Louisiana. The complainant alleged as ground for divorce habitually cruel and inhuman treatment. The complainant alleged hat she and the defendant were lawfully married on May 13, 1956, and had lived in the State of Louisiana as husband and wife until May 1, 1959, when, on account of the defendant's habitually cruel and inhuman treatment, she was forced to leave him and return to her people in Sunflower County, Mississippi. The complainant further alleged that one child was born of said marriage, a boy two years of age, whose name was Thomas Frederick Rasch, who at the time of the filing of her bill of complaint was with her in Indianola, Mississippi. The complainant further stated in her bill that the defendant's place of residence at the time of the filing of her bill was in Bunkie, Louisiana, but the defendant was actually in the City of Indianola, Mississippi, where process could be served on him. The complainant prayed that upon the hearing of the cause the complainant be granted a divorce from the defendant, and that she be awarded the custody of said child and that the defendant be ordered to make regular monthly or weekly contributions to her for the support of the complainant and said child, and to pay to the complainant a reasonable sum for her solicitor's fee. The appellant also prayed for general relief. In the bill of complaint there was no allegation that either party to the suit had been an actual bona fide resident within this state for one year next proceding the commencement of the suit.

The defendant Herbert Joseph Rasch filed an answer to the bill of complaint on September 14, 1959. In his answer the defendant admitted that he and the complainant were legally married on May 13, 1956, at Indianola, Mississippi, and that one child was born of said marriage, namely, Thomas Frederick Rasch, 2 years of age. The defendant denied that the complainant and the defendant had lived in the State of Mississippi as husband and wife, and by way of affirmative defense averred that the legal domicile of the complainant and the defendant was 2921 Dennis Street, Alexandria, Rapides Parish, Louisiana, where he maintained a home. The defendant denied that he had been guilty of habitually cruel and inhuman treatment of the complainant. The defendant averred in his answer that, at the time of the filing of the complainant's bill, he was temporarily in the State of Mississippi earnestly seeking to bring about a reconciliation with the complainant who had theretofore deserted his bed and board. The defendant, having answered the complainant's bill, asked that the same be dismissed.

The defendant incorporated in his answer a cross-complaint in which he averred that, while the court was without jurisdiction to determine the marital differences between the parties, the court was not without jurisdiction to enter a decree concerning the care and custody of the minor child. The cross-complainant admitted that the cross-defendant, the mother of the child, was a fit and proper person to have the custody of the child. The cross-complainant, however, charged that the cross-defendant had deserted him and had attempted to deprive him of his enjoyment of companionship with the child; and the cross-complainant therefore asked that upon the final hearing of the cause the custody of the child be awarded to him until such time as the child was of sufficient age to select his own guardian.

The complainant, Mrs. Willie F. Smith Rasch, as cross-defendant, filed her answer to the cross bill on September 29, 1959, and in her answer denied that her legal residence was in the State of Louisiana. The cross-defendant averred in her answer that she left the cross-complainant in Louisiana during the spring of 1958 and brought her child to Indianola, Mississippi, where she took up a permanent residence and domicile, which she was forced to do on account of the habitually cruel and inhuman treatment accorded to her by the cross-complainant; that she informed the cross-complainant of her intention in due course to file a suit for divorce; that thereafter her legal residence and domicile had been in Indianola, Sunflower County, Mississippi. The cross-defendant averred in her answer that, after she established a residence and domicile in Indianola, Mississippi, cross-complainant came to Indianola and pleaded with her to return to his home in Louisiana, and relying on the cross-complainant's promise to refrain from further mistreatment of her cross-defendant returned to the cross-complainant's home in Louisiana; that cross-complainant did not change his ways and mistreatment of her, and for that reason she thereafter left him again and came back to Indianola, Mississippi, and filed her suit against him for divorce. The complainant filed with her answer to the defendant's cross bill a petition for temporary support and solicitor's fee.

On October 12, 1959, the defendant, Herbert Joseph Rasch, filed a motion to dismiss the complainant's bill of complaint and motion for suit money, on the ground that, on the face of the sworn answer of the cross-defendant to the defendant's cross-bill, it appeared that the court was without jurisdiction to hear the complainant's bill for divorce or the motion for suit money.

The cause was heard at the October 1959 term of the court on the defendant's motion to dismiss the complainant's bill for divorce. The court after hearing arguments on behalf of the respective parties was of the opinion that on the face of the pleadings the court was without jurisdiction to hear the original bill of complaint or the motion for suit money. A decree was therefore entered dismissing the original bill of complaint and the motion for suit money. The cause was then heard on the defendant's cross-bill and answer thereto filed by the cross-defendant. The court, after hearing the evidence, found that it was to the best interest of the minor child that the child remain with its mother subject to the rights of visitation by the father. A decree was therefore entered on October 12, 1959, ordering that the cross-complainant pay to Mrs. Willie Faye Smith Rasch, the cross-defendant, the sum of $50 per month as support for the child until further order of a court of competent jurisdiction. The court also provided in said order that the father be given the privilege of visiting the child at all reasonable times and to have the child visit him within the State of Mississippi on the first week end of each calendar month, and to have the child visit him in the State of Louisiana during the Christmas holidays and in one of the summer months each year upon the cross-complainant entering into bond in the penal sum of $200 conditioned for the return of the child.

The record shows that after the rendition of the above mentioned decree the cross-complainant made monthly payments to the cross-defendant as ordered by the court, for the support of the child for a period of approximately five months; but a reconciliation was effected between the parties sometime during the months of February and March 1960, and the cross-defendant returned to the home of her husband in Louisiana. The martial relations between the parties were resumed, and the parties lived together as husband and wife, in the cities of Baton Rouge and Alexandria, for a period of approximately three years. The child lived in the home of his parents as a member of the reunited family during that time and was maintained and supported out of the earnings of the father; and the monthly payments of money to the mother for the support of the child were discontinued.

The record shows that the marriage relations of the parties were again disrupted during the early part of the year 1963, and the cross-defendant returned to her mother's home in Indianola sometime during the month of March 1963, bringing with her the child; and on August 30, 1963, the cross-defendant filed her petition in the Chancery Court of Sunflower County asking that a citation be issued for the cross-complainant, and that he be adjudged in contempt of the court for his refusal to abide by the terms of the decree of October 12, 1959, directing him to pay to the cross-defendant the sum of $50 per month for the support of the child. The cross-defendant alleged in her petition that the total amount that should have been paid to her for the support of the child since February 1963 was $300 and of that amount the cross-complainant had paid only $10; that the cross-complainant had made default in said payments in the amount of $290.

On October 7, 1963, the cross-complainant filed a motion to dismiss the petition for citation for contempt and enforcement of the decree of October 12, 1959, and as grounds for said motion alleged the following: (1) That after the rendition of the decree of October 12, 1959, the cross-defendant and the cross-complainant returned to the State of Louisiana and lived together as...