State v. Goudy
| Decision Date | 09 October 1923 |
| Docket Number | 4792. |
| Parties | STATE v. GOUDY. |
| Court | West Virginia Supreme Court |
Submitted October 2, 1923.
Syllabus by the Court.
Chapter 51, Acts 1917, Barnes' Code 1923, § 16c (1 to 8) of chapter 144, does not authorize a trial upon a complaint and warrant charging nonsupport. As a criminal proceeding, a preliminary examination may be had thereon, and if proper the defendant may be held to answer an indictment; but the court or judge has no jurisdiction to try him upon either the complaint or warrant, or both, for nonsupport, and enter judgment thereon for support pendente lite.
To authorize the entry of a valid judgment for temporary support, in a nonsupport proceeding under the statute, a petition for that purpose must be filed therein and notice thereof given the defendant. A petition alone is not sufficient. Both petition and notice are necessary.
Under the statutes of Colorado, except in certain instances, in a suit for divorce in that state, it must be shown that plaintiff has been a citizen and bona fide resident of the state for one year prior to the commencement of the suit, and that the suit is brought in the county where the plaintiff or defendant resides, or where the defendant last resided; but where the fact of such citizenship and residence is not alleged in the complaint but that fact is affirmatively shown by the evidence adduced at the trial, and is ascertained and adjudged in the decree granting the divorce, such decree under the decisions of the Supreme Court of that state, is not void, though it may be erroneous, and hence it is not open to collateral attack there.
The decree not being open to collateral attack there, it is not open to collateral attack here, as under section 19, chapter 130, Barnes' Code 1923, it is entitled to the same faith and credit in the courts of this state as it is entitled to in the courts of Colorado.
Error to Circuit Court, Marshall County.
Proceeding by the State against Harry Goudy for nonsupport of his wife. Judgment requiring defendant to pay complainant a stipulated sum and costs, and a further monthly sum until further order of court, and he brings error. Reversed and remanded.
Martin Brown, of Moundsville, for plaintiff in error.
E. T England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., and J. Howard Holt, of Moundsville, for the State.
Defendant complains of a judgment of the circuit court of Marshall County, entered June 5, 1922, by which he was ordered to pay Minnie Goudy, his first wife, the sum of $120 and costs, and the further sum of $25 per month thereafter, beginning July 1st for the month of June, and monthly thereafter on the first day of each month, until the further order of the court.
The order was entered in a nonsupport proceeding, instituted January 6, 1922, under chapter 51, Acts 1917, section 16c (1 to 8) chapter 144, Barnes' Code 1923. It was begun by his former wife filing a verified complaint showing that defendant had deserted her and his child, Helen Goudy, and alleging that they were in destitute circumstances. A warrant was issued, defendant was arrested, and arraigned before the court, February 10, 1922. His motion to quash the warrant being overruled, he pleaded "not guilty," and also filed, over the state's objection, a special plea to the effect that the complainant, Minnie Goudy, was not his wife; that they had been absolutely divorced by a decree of the county court of Pueblo county, Colo., May 8, 1915; that their daughter Helen was 17 years of age May 4, 1921; and for these reasons he alleged he was not bound to support either of them. To this the state replied specially, alleging that defendant deserted the complainant and her child, and went to parts unknown; that if he had procured a divorce in Colorado or elsewhere, he had done so fraudulently and without notice to complainant. Defendant's demurrer to the special replication was overruled. The matter was then tried upon the warrant, pleas, and replication. The court took until June 5th following to consider its judgment. On that day, without further notice to defendant, complainant filed her petition, praying that $25 per month be awarded her as temporary support. Thereupon the court found defendant guilty, and the judgment complained of was entered; in addition thereto, defendant was required to enter into a recognizance to appear on the first day of the next term of the court to answer any indictment, should one be preferred against him, though the amount of the recognizance, if any, is not disclosed by the record.
There are three assignments of error: (1) The overruling of defendant's motion to quash the warrant; (2) entering judgment for temporary support without notice to defendant of the filing of complainant's petition; (3) entering any money judgment against him for support or costs, because defendant had been absolved from all duty to support his former wife by decree of divorce granted him in Colorado.
As the complaint and warrant are substantially in accord with the statute, we hold them sufficient, and it was not error to overrule his motion to quash. Attention, however, should be called to the fact that neither complaint nor warrant shows that the child, Helen Goudy, is under the age of 16 years, the age limit provided in the statute; as a charge for neglect as to the child, the warrant is defective; but it being shown that at the time the warrant issued, she was over 16 years of age, the state waived this charge. However, the defective charge as to the child does not vitiate the charge of desertion or nonsupport of the wife.
The second assignment is well taken. Section 3 provides:
"At any time before the trial, upon petition of the complainant and upon notice to the defendant, the court or a judge thereof in vacation, may enter such temporary order as may seem just, providing for the support of the deserted wife or children, or both, pendente lite, and may punish for violation of such order as for contempt."
In this case no notice was given defendant of the filing of the petition for temporary support. In this respect the case is similar to the case of State v. Harris, 88 W.Va. 97, 106 S.E. 254. There the court tried the defendant upon the warrant, found him guilty, adjudged that he pay his wife $15 per month for her support until the further order of the court, committed him to jail for the period of one year, with hard labor upon the public roads, unless he should give bond with approved security to make his personal appearance in court when so ordered and to comply with the order respecting support and any subsequent modification thereof. We held the jail sentence void, because the court could not try him upon any criminal charge upon the warrant. It could only do this upon a presentment or indictment of a grand jury, in which event the defendant is entitled to a trial by jury. Fisher v. Sommerville, 83 W.Va. 160, 98 S.E. 67. In the Harris Case the money judgment was also held erroneous because no petition was filed or notice given that complainant would ask for temporary support. In the present case a petition was filed, but no notice was given. Under section 3 both are necessary. We should not be too technical about matters of procedure under this statute, but notice and opportunity to be heard are vital to the validity of all judgments; they are never mere technicalities. Counsel for the state say that he had notice, and was heard when he was tried upon the warrant; but not so. As was pointed out in State v. Harris, supra, the court had no right or jurisdiction to try him on the warrant; it could give him a preliminary examination, and, if satisfied, hold him to answer an indictment for the offense of desertion or willful neglect of his wife or child, a misdemeanor under section 1. If the complainant would have support pendente lite, that is, support in advance of a trial upon the indictment, a petition therefor must be filed, and notice thereof given the defendant, with opportunity to be heard.
As practically all the difficulties in the application of the nonsupport statute arise upon matters of procedure, it is proper to point out briefly the different steps provided in the statute and those necessarily implied therefrom. The proceeding is begun by a verified complaint; upon this a warrant issues, commanding the officer to arrest the defendant, and bring him before the court or judge to answer the complaint, and further to be dealt with according to law. When arrested and brought before the court, it cannot try him on the warrant or complaint.
"Said statute does not vest jurisdiction in any court to try, convict or sentence any person accused of such offense, on the complaint therein prescribed and authorized." Point 2 of syllabus, State v. Harris, supra.
At this stage there are two courses open. The state may give defendant a preliminary hearing, and, if there is reasonable ground to believe him guilty, he may be required to give bail to answer any indictment which may be found by the grand jury; in default of bail he may be committed, as in other criminal proceedings. But he...
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