Stilley v. Stilley, 4-9652

• Decision Date: 14 January 1952
• Docket Number: No. 4-9652,4-9652
• Citation: Stilley v. Stilley, 244 S.W.2d 958, 219 Ark. 813 (Ark. 1952)
• Parties: STILLEY v. STILLEY.
• Court: Arkansas Supreme Court

Page 958

244 S.W.2d 958

219 Ark. 813

STILLEY v. STILLEY.

No. 4-9652.

Supreme Court of Arkansas.

Jan. 14, 1952.

Dissenting Opinion Jan. 21, 1952.

Milham & Weid, Eureka Springs, for appellant.

No brief for appellee.

McFADDIN, Justice.

Appellant questions the correctness of a Chancery decree which sustained a demurrer and dismissed both her original complaint and amended complaint against appellee. For convenience we will refer to the parties as they were styled in the trial court.

On March 21, 1951, Myrtle Stilley, as plaintiff, filed her 'Complaint in Equity' in the Carroll Chancery Court against McClory Stilley, as defendant, alleging: (a) that on December 15, 1950, plaintiff obtained a divorce decree from McClory Stilley in the District Court of Cowley County, Kansas; (b) that in said decree plaintiff was awarded the custody of five minor children of the parties; (c) that in said decree McClory Stilley was ordered to pay plaintiff $50 per month for the support of the children; (d) that since January 4, 1951 plaintiff and the five children had resided in Carroll County, Arkansas; and (e) that McClory Stilley was in arrears in the sum of $175 on the said monthly support payments. A copy of the Kansas decree was exhibited; and the prayer of the complaint in the Carroll Chancery Court was: 'Wherefore, plaintiff prays that a citation be issued by this court against the defendant, to appear and show cause why, if any he has, that he is not in contempt of court for failure to pay said sums of money to plaintiff for support of said minor children.'

While the said complaint was pending in the Carroll Chancery Court, the plaintiff, Myrtle Stilley, on April 9, 1951, also filed in the same cause a pleading entitled 'Amended Complaint' which made no reference to the original complaint but stated:

'That plaintiff and defendant were unlawfully married in Eureka Springs, Arkansas, on the 17th day of May, 1941, and lived together as husband and wife until the ___ day of November, 1950, at which time they separated; that during said time there were born to plaintiff the following children: Floyd, a boy, 8 years old; Thelma, 6 years old; Dortha, 4 years old; Shirley, 3 years old; and Donnie, 2 years old.

'That on the date of said marriage plaintiff was under the age of fifteen years, and that said alleged marriage was illegal and absolutely void, and plaintiff desires that said marriage and all proceedings therein be by the court held to be void, annulled and of no effect.

'Wherefore, plaintiff prays that the alleged marriage be declared absolutely void, cancelled and forever held for naught, and that plaintiff be awarded the custody of the above named minor children. For any and all general and proper relief that in equity she may be entitled to.'

On May 1, 1951 there was a hearing on the defendant's motion to quash service and also on defendant's demurrer; and, at the conclusion of the hearing, the Carroll Chancery Court entered a decree dismissing both of plaintiff's complaints. Since no evidence was offered going to the merits of either of the complaints, we must necessarily conclude that the Chancery Court (a) treated the defendant's demurrer as going to both complaints and (b) dismissed them when plaintiff refused to plead further. We hold that the trial court was correct in so doing, because the original complaint, as well as the amended complaint considered with it, failed to state a cause of action for the consideration of the Carroll Chancery Court. We elucidate on this conclusion:

I. The original complaint merely prayed that the Carroll Chancery Court punish the defendant, McClory Stilley for the contempt that he was alleged to have committed against the Kansas District Court. The courts of one state do not punish for contempt committed against the courts of another state. In 17 C.J.S., Contempt, §§ 51, 65, cases from many jurisdictions are cited to sustain these general rules: 'It is a well established rule that the power to judge a contempt rests exclusively with the court contemned, and that no court is authorized to punish a contempt against another.' Plaintiff could have filed suit in the Carroll Chancery Court on the Kansas judgment, as was done in Tolley v. Tolley, 210 Ark. 144, 194 S.W.2d 687; but the plaintiff could not have the Carroll Chancery Court punish the defendant for contempt for failing to obey the orders of the Kansas court. Therefore the original complaint, in praying that McClory Stilley be punished for contempt, failed to pray for relief affordable by the Carroll Chancery Court.

II. The 'Amended Complaint' also failed to state a cause of action because it asked that the marriage between Myrtle Stilley and McClory Stilley be annulled, whereas the Kansas divorce decree showed that at all events the marriage of the parties had been ratified in that State.

Plaintiff relies on our case of Ragan v. Cox, 210 Ark, 152, 194 S.W.2d 681 wherein we held that a marriage of a female under sixteen years of age and a male under eighteen years of age was 'absolutely void'. From that holding plaintiff argues that the marriage of Myrtle Stilley and McClory Stilley was 'absolutely void' and could not be ratified by the participants even after a...