Smith v. Smith

Decision Date09 June 1953
Docket NumberNo. 10545,10545
Citation138 W.Va. 388,76 S.E.2d 253
PartiesSMITH, v. SMITH.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. A return of service of process in a suit for divorce upon a defendant which shows that such process was personally served outside this State but which does not show that the defendant is a nonresident is defective and upon such process bearing such defective return of service the court from which the process issued does not have jurisdiction to try and determine such suit or to enter in it any binding decree against such defendant.

2. A plea in abatement filed in a suit for divorce which states that the defendant appears specially and challenges the jurisdiction of the court only to the limited extent that the court is without jurisdiction to determine in such suit the single issue of the custody of the children of the parties does not challenge, but in effect admits, the jurisdiction of the court to entertain the suit and to adjudicate the other issues involved in such suit, and the defendant, by filing such plea in abatement, makes a general appearance in the case.

3. 'An appearance in a suit or action for any purpose other than to question the jurisdiction of the court, or to set up lack of process, or defective service thereof, is a general appearance.' Point 1, Syllabus, Stone v. Rudolph, 127 W.Va. 335 .

4. 'By appearance to the action in any case, for any other purpose than to take advantage of the defective execution, or non-execution, of process a defendant places himself precisely in the situation in which he would be, if process were executed upon him, and he thereby waives all objection to the defective execution or non-execution of process upon him.' Point 2, Syllabus, Mahany v. Kephart, 15 W.Va. 609.

5. If an appearance is in effect general its designation as a special appearance will not change its real character.

6. A motion for a continuance constitutes a general appearance in an action or a suit.

7. 'A divorce decree that lacks evidence to establish the ground upon which divorce was sought will be reversed.' Point 1, Syllabus, Harbert v. Harbert, 130 W.Va. 704 .

8. Under the provisions of Section 15, Article 2, Chapter 48, Code, as amended, a court having jurisdiction of the subject matter of a suit for divorce and jurisdiction of the person of the parties may, in the exercise of its discretion, determine the custody of the minor children of the marriage and, if a divorce is decreed, or if a divorce is denied and the parties are living separate and apart, may award the custody of such children to either party; and the matter of the custody of such children remains in the discretion of the court by virtue of its continuing jurisdiction of the case.

9. When a court has jurisdiction of the subject matter of a suit for divorce and jurisdiction of the person of the parties, one of whom has the custody of the minor children of the marriage, it is not deprived of its power to award the custody of such children to either party by reason of the absence of such children from its jurisdiction at the time of the institution of the suit or the entry of the decree.

10. The provision of Section 11, Article 2, Chapter 48, Code, that no decree shall be granted on the uncorroborated testimony of the parties or either of them, does not apply to the testimony of a party to a suit for divorce upon the issue of the custody of the minor children of the marriage and, as to that issue, the testimony of a party, whether or not corroborated, if otherwise sufficient, will sustain an award of the custody of such children in such suit.

11. The exercise of discretion by a trial court in awarding the custody of minor children will not be disturbed on appeal unless it clearly appears that such discretion has been abused.

Alan G. Bolton, Elkins, for appellant.

Bonn Brown, Elkins, for appellee.

HAYMOND, President.

In April, 1952, the plaintiff Cyrus S. Smith instituted this suit in the Circuit Court of Randolph County to obtain a divorce from his wife, the defendant Elizabeth M. Smith, on the ground of cruel or inhuman treatment. Upon a hearing of the case, at which the only evidence introduced consisted of testimony in behalf of the plaintiff, the circuit court, by decree entered December 5, 1952, granted the divorce as prayed for by the plaintiff and awarded him the custody of the two infant children of the plaintiff and the defendant, a girl three and one half years old and a boy one year old at the time of the hearing in October, 1952. From that decree this Court granted this appeal upon the application of the defendant.

The parties were married in 1946 at Duluth, Minnesota, and shortly after their marriage they came to Elkins, in Randolph County, West Virginia, where they lived together as husband and wife until February 6, 1952, when the wife, at night and without the prior knowledge of her husband, left their home in Elkins, took the two children with her, and went to the State of Minnesota where they appear to have been living when the case was heard.

The bill of complaint alleges that the plaintiff is and for more than one year next preceding the institution of this suit has been a citizen and resident of Randolph County, West Virginia; that the plaintiff and the defendant were married at Duluth, Minnesota, on June 28, 1946; that the defendant is a resident of Randolph County; and that the plaintiff and the defendant last lived together and cohabited in Elkins, Randolph County, West Virginia. The acts and the conduct of the defendant relied on as constituting cruel or inhuman treatment by her of the plaintiff, as charged in the bill of complaint, are that the defendant, a woman of high temper and mean and irritable disposition, has on numerous occasions struck the plaintiff and thrown dishes and various other articles at him; that she has threatened to do him bodily harm and to kill him; that on several occasions she has 'locked the Plaintiff out of the home' and sent his clothes to the home of his mother; that she has refused to cook for him and care for the home; that she is extravagant and has incurred excessive bills against the plaintiff; and that she has associated with immoral persons against the wishes of the plaintiff. The bill of complaint also alleges that in January, 1952, the defendant, without the knowledge or consent of the plaintiff, took their two children and certain articles of personal property and left 'in the middle of the night' during the absence of the plaintiff; that her whereabouts is unknown to him; that he 'has been very much upset' by the absence of his wife and children whose 'whereabouts' is unknown to him; and that 'as a result of all these acts of cruelty * * * he does not believe he can any longer safely live with Defendant without jeopardizing his health and safety.' The prayer is that the plaintiff be granted a divorce, that the custody of their children be awarded to him, and that he be granted both general and special relief.

The summons in this suit, directed to the sheriff of Randolph County, West Virginia, issued April 1, 1952, and returnable to the first Monday in April, 1952, which was April 7, 1952, was not served upon the defendant in this State. Instead it was served upon her in person at Duluth, Saint Louis County, Minnesota, on April 5, 1952. No order of publication against the defendant was sought or awarded.

The defendant did not interpose a demurrer or file an answer to the bill of complaint. She did, however, on April 8, 1952, tender a pleading designated as a plea in abatement in which she alleged that the defendant appeared specially by counsel for the purpose of contesting the jurisdiction of the court insofar as this suit relates to the custody of her children and for no other purpose; that before and at the commencement of this suit has and her two children were and still are residing in Saint Louis County, in the State of Minnesota, and not in Randolph County, or in the State of West Virginia; that before and at the time of the commencement of this suit there was and still is pending in the District Court of Saint Louis County, Minnesota, a suit instituted by the defendant for the custody of the children; that the children are residents of that county and State; and that the District Court has jurisdiction to try and determine all issues relating to the custody of the children. This plea, which contains no allegation concerning service of process upon the defendant in the State of Minnesota, or the return of such service, was filed by a decree entered in vacation on April 8, 1952, in which it is recited that the defendant appeared specially by her attorney for the purpose of filing her plea in abatement to the jurisdiction of the court and that the defendant appeared specially 'for no other reason.'

Another decree, entered April 28, 1952, in vacation recites the appearance of the plaintiff and his counsel, the special appearance of the defendant by her counsel, and the filing of a notice by the plaintiff that he would move at that time for temporary custody of the children. The decree also contains these statements: 'Thereupon the Defendant, by her attorney who appeared specially, moved that the matter be held in abeyance pending a decision by the Court on the Plea in Abatement heretofore filed in this cause. Thereupon the Court does take this matter under advisement and does continue this cause until the May Term of Court on a date to be fixed for a hearing on the notice for custody of the children and the Plea in Abatement.'

On May 29, 1952, a day of the May Term of the circuit court, the defendant tendered another plea, also designated as a plea in abatement, which alleges that the defendant appeared specially by counsel for the purpose of filing additional objections to the jurisdiction of the circuit court, and for that purpose only, and...

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