Hill v. Briggs
Hill v. Briggs
Opinion of the Court
Appellant and appellee were man and wife and were residents of Mobile County, Alabama, when, on April 3, 1946, they were divorced by a decree of the Alabama court. Appellant, the father, was awarded custody of the two minor sons and appellee, the mother, was awarded custody of the minor daughter. No provision was made in the Alabama decree for any support for the minor daughter. Thereafter, on August 8,1953, appellee,
To that petition appellant filed an answer and stated therein that an agreement had been, reached between him and the appellee, which was to the effect that appellee, the mother, was to have the custody of all of the children and that appellant would pay the sum of $50 per month to appellee for the support of the three children, and in said answer, appellant requested the court to enter a proper decree. This decree was entered on November 24, 1953, and the court retained jurisdiction of the cause for further orders, etc.
The present proceedings were instituted by appellee on November 7, 1957, by petition to the Chancery Court of Noxubee County in the same cause which resulted in the decree of November 24, 1953, seeking an increase in the allowance for the support, maintenance and education of the three minor children. She charged sufficient changed conditions to justify an increase in the allowance for the support, maintenance, and education of said children. Personal service was had on the appellant, who filed a motion to dismiss because of want
If the court had jurisdiction to enter the decree of November 24, 1953, it still has jurisdiction to change that decree. It is appellant’s first contention that the original decree of the Chancery Court of Noxubee County dated November 24, 1953, was void because the court did not have jurisdiction. Appellant contends that since the children were then living with their mother in Kemper County, the Chancery Court of Noxubee County did not have jurisdiction to entertain the petition. He cites and relies on Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, Section 8.08, and on McAdams v. McFerron, 180 Miss. 644, 178 So. 333. In all the cases cited in Footnote 32 to Section 8.08, Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, the child involved was not in the State where the custodial decree was rendered, or sought to be rendered, hence the judicial power of the State did not attach and the court in each instance did not have jurisdiction. Once the child involved is actually within the State, the courts of that State may determine matters regarding its custody. Latham v. Latham, 223 Miss. 263, 78 So. 2d 147. Then the question is one of venue, and appellant’s contention is therefore directed to the question of venue rather than jurisdiction. Venue may be waived and was specifically waived in the instant case because appellant, after having .been personally served with process, entered his appearance in the Chancery Court of Noxubee County and specifically requested the court to enter the decree of November 24, 1953, and he may not now claim that that decree was void. Cf. Duvall v. Duvall, 224 Miss. 546, 80 So. 2d 752. This is true even though he may have been a resident of another county, as he now claims.
Appellant also contends that the decree of November 24, 1953, was void because appellee, the mother,
Appellant also contends that since the original decree in the Alabama divorce case made no provisions for the support of the children, the Chancery Court of Noxubee County could only award judgment against appellant, the father, in favor of appellee, the mother, for such sums as she had reasonably theretofore expended for the children’s support, education and maintenance, and that she would have to bring successive suits for such sums as may from time to time become due her. He cites Section 9.03 of Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, as authority for the proposition that where the mother has custody of a minor child and no allowance has been made in the divorce action for the child’s support, maintenance and education, the moth
Appellee’s original petition in the Chancery Court of Noxubee County was one seeldng the allowance of a regular sum to be paid monthly for support, education and maintenance. The chancery courts have general jurisdiction over minor’s business under Section 159 of the Constitution, and we think the cases of Schneider v. Schneider, 155 Miss. 621, 125 So. 91; Bass v. Ervin, 177 Miss. 46, 170, So. 673; and Turnage v. Tyler, 183 Miss. 318, 184 So. 52, are authority for the proposition that the chancery court of the proper county may, in a proceeding by the mother who has custody of a minor child, award judgment against the father for the allowance of a weekly or monthly sum for the support, education and maintenance of such child, notwithstanding the parents are divorced and the divorce decree made no provision for such allowance. Otherwise there would be no appropriate and practical remedy for the enforcement of the father’s duty to support his minor children.
Affirmed and Remanded.
Reference
- Cited By
- 1 case
- Status
- Published