Zirkle v. Zirkle

• Citation: 172 N.E. 192,202 Ind. 129
• Decision Date: 27 June 1930
• Docket Number: 25,834
• Parties: Zirkle v. Zirkle
• Court: Supreme Court of Indiana

172 N.E. 192

202 Ind. 129

Zirkle v. Zirkle

No. 25,834

Supreme Court of Indiana

June 27, 1930

From Henry Circuit Court; John H. Morris, Judge.

Proceeding by Hermance Zirkle against Carl Zirkle to compel him to make payments for the support of his child as ordered in a divorce decree and to punish him for contempt in not making such payments. From an unsatisfactory decree, the plaintiff appealed to the Appellate Court. (Transferred to the Supreme Court under § 1359 Burns 1926 for want of jurisdiction.)

Reversed.

Bingham & Bingham and Barnard & Jeffrey, for appellant.

Evans & DeWitt, for appellee.

OPINION

Gemmill, J.

Appellant was granted a divorce from the appellee by the Henry Circuit Court, on January 5, 1923. It was ordered and adjudged by the court that the custody of the minor child of the parties be awarded to the appellant, and the appellee was to have the right to visit the child at all reasonable times. The appellee was ordered to pay to the clerk of the court for the use of the defendant for the support of the child the sum of $ 5 each week, beginning January 8, 1923, and continuing until the further order of the court. The court later modified this order by reducing the amount until such time as the child should reach the age of six years.

On October 13, 1928, the appellant filed her verified motion and petition to redocket said cause and to have citation issue against appellee to show cause why he should not be punished for contempt for failure to comply with the order of the court to pay to the clerk of the court support money for said child. The petition stated that he had not made any payments for this purpose since December 3, 1926, when the child became six years old; that, since said date, the child had been supported by the appellant, and although the appellee was amply able to make the payments ordered by the court, he had failed and neglected to do so since that time. The prayer was that an order issue against appellee to show cause why he should not be punished for contempt for violation of the order and why he should not be compelled to pay immediately to the clerk the sum of $ 480, the amount she claimed was due. To the petition and writ of citation issued thereupon appellee filed a sworn response and answer, in which he alleged that appellant, in violation of her legal right to do so, had removed said child from the jurisdiction of the court and kept her in the State of Michigan, and, by reason thereof, appellant was not entitled to enforce said order and judgment against him.

The appellant excepted to the return or answer to the petition and later filed a demurrer to said answer, for the reason that sufficient facts were not stated therein. The exception and demurrer were each overruled. The petitioner then filed a general denial. The matter was submitted to the court and evidence heard, and the court ordered and adjudged that the appellant recover from the appellee the sum of $ 125 as arrears in the payment of support money for said child, and that payment be made within 10 days. Appellant filed a motion for a new trial, which was overruled.

On appeal, the appellant has assigned errors as follows: Overruling appellant's exception to the return of appellee to the petition and the citation; overruling appellant's demurrer to answer of appellee to the petition and the citation; and overruling appellant's motion for a new trial on the petition. Another error is assigned, but same is covered by the motion for a new trial.

The question presented in this appeal is whether the appellee was relieved from making the weekly payments to the clerk for the support of the child, ordered by the court, when the appellant took the child out of the state, so that the child was not where it could be readily visited by the appellee. The answer of appellee shows that, when the appellant was given the custody of the child, she was living in Indianapolis and without the jurisdiction of the court, and that the appellee lived in Henry County.

Section 1112 Burns 1926 is as follows: "The court, in decreeing a divorce, shall make provision for the guardianship custody, support and education of the minor children of such marriage." In several cases, it has been held that it is the imperative duty of the court, in decreeing a divorce, to make such provision.

In divorce cases, the court has continuing jurisdiction with respect to children, and may modify its decree at any time during the minority of the children. Stone v Stone (1902), 158 Ind. 628, 64 N.E. 86; Julian v. Julian (1916), 60 Ind.App. 520, 111 N.E. 196. The order of the court as to children in a divorce case is binding upon the parties until the same is modified or set aside. Williams v. Williams (1859), 13 Ind. 523; Leming v. Sale (1891), 128 Ind. 317, 27 N.E. 619; Hardin v. Hardin (1907), 168 Ind. 352, 81 N.E. 60. In Stone v. Stone, supra, this court said: "The court granting the divorce must be deemed to have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders and modifications thereof, with respect to their care, custody, and control, as are deemed expedient; the interests of society and welfare of the children, in all such inquiries, being the paramount and controlling consideration." If, after a decree of divorce, awarding the custody of the children to the successful party, matters are so conducted as to deprive the other parent of the right to...