State ex rel. Summa v. Starke Circuit Court, 29625
| Decision Date | 21 April 1958 |
| Docket Number | No. 29625,29625 |
| Citation | 238 Ind. 204,149 N.E.2d 541 |
| Parties | STATE of Indiana, on the Relation of Carmella SUMMA, Relator, v. The STARKE, CIRCUIT COURT, Jack Murray, Judge of the Starke Circuit Court, Respondents. |
| Court | Indiana Supreme Court |
Robert Salek, LaPorte, for relator.
Robert H. Moore, Gary, for respondents.
On February 1, 1956, in the Starke Circuit Court, Carmella Weinberg (now Summa, relator herein) was granted a divorce from Joseph Weinberg and custody of their five-year-old son, and an order to pay support for said child was made against the defendant-husband.
On August 21, 1956, the ex-husband filed a petition asking among other things for modification of the order of support and the fixing of visiting privileges. (On August 28, 1956, relator herein remarried and thereafter moved to Chicago taking said child with her.)
On March 30, 1957, the said court entered a judgment and, among other things, granted the ex-husband 'possession' of said minor child for a period of 30 days during the month of July of each year thereafter. (An appeal from this judgment is being prosecuted to the Appellate Court by the ex-husband.)
Thereafter, on the 3rd day of December, 1957, this relator filed in the Starke Circuit Court her petition for citation of the ex-husband who was in arrears $475 in support payments, as ordered at the time of their divorce, since the last week in June, 1957. At the hearing held on January 7, 1958, it developed that the relator had refused visiting privileges to the father and ex-husband during the month of July 1957, as ordered.
The court found that the ex-husband was in contempt of court by reason of his failure to pay the support as ordered. It thereupon ordered said ex-husband to deliver a check for $475 to the court. However, payment of said sum to relator was made contingent upon her delivery of their child from her home in Chicago to the court, to be 'transferred' to his father for a period of 30 days. The order of the court in this particular is as follows:
'Upon the defendant's manually investing this Court with a check in said amount, within the time specified, the Court will proceed to deliver said check to Carmella Summa upon her delivering in open court the actual physical custody of Jerome Weinberg at which time the custody of said child is to be transferred for 30 days to the defendant and the defendant is ordered to abide this order in all respects and during said 30 days period the defendant is to arrange for suitable and adequate tutoring facilties for his son, so he won't fall behind in his school work and the defendant is ordered to re-deliver said son to the plaintiff at the end of said 30 days to the plaintiff at her residence in Chicago. * * *
'If the defendant complies with the court's order herein by manually tendering to the judge a check in the amount of $475.00 within the time specified, the Court will immediately notify the plaintiff (thru her attorneys of that fact) and if the plaintiff fails to deliver said Jerome Weinberg into open court with necessary clothing and his school books, within one week after the Court has so notified the plaintiff as aforesaid--the Court indicates that it will return the check to the defendant and said defendant will be deemed to have purged himself of the contempt heretofore adjudged herein this date.'
Relator now asks this court to mandate respondent to expunge from the records of court that part of its decree as quoted above. It is relator's position that the court has no jurisdiction to make that part of the decree for the reason that in effect it modified the judgments of February 1, 1956 and March 30, 1957 after the term of court in which said judgments were entered, and that no pleading to so modify the prior decrees had been filed and no notice of a hearing upon said issue had been served upon the relator.
We are here presented with one of the most vexing problems growing out of divorce, namely, the support of children and the right of both parents to enjoy the affection and share the companionship of their children. The problem is particularly acute under circumstances where, as here, the opportunity of such companionship is either denied to or made untenable for the father who nevertheless is required to pay support under threat of contempt of court.
Admittedly, in all such cases the welfare of the child must receive first consideration by the court, and this is true even though its parents are unreasonable,...
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K. B. v. S. B.
...Our Supreme Court also recognized the importance of contact with the child by both parents in State ex rel. Summa v. Starke Circuit Court, (1958) 238 Ind. 204, 207, 149 N.E.2d 541, 543 where Judge Achor stated: "Admittedly, in all such cases the welfare of the child must receive first consi......
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Bays v. Bays
... ... No. 4-185A9 ... Court of Appeals of Indiana, ... Fourth District ... Colleen Bays were divorced in Harrison Circuit Court on January 15, 1979. Colleen was granted ... concealed his whereabouts, or has left the state, and shall prepare the contents of the summons to ... State of Indiana ex rel. Summa v. Starke County Circuit Court (1958), 238 ... ...
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Bayless v. Bayless
...parent in withholding visitation rights can be considered by the trial court as a mitigating factor. State ex rel. Summa v. Starke Circuit Court (1958), 238 Ind. 204, 149 N.E.2d 541. Here, the request for fees was made after the petition had been withdrawn so there was no evidence before th......
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Allee v. State, 1-1083A334
...courts have held that in determining questions of support, the child must receive first consideration. State ex rel. Summa v. Starke Circuit Court, (1958) 238 Ind. 204, 149 N.E.2d 541; Sullivan v. O'Sullivan, (1959) 130 Ind.App. 142, 162 N.E.2d 315. Paternity gives rise to the duty of a fat......