24 W. Va. 591 | W. Va. | 1884
In May, 1881, Sarah E. Phillips instituted her suit in equity against her husband, A. R. Phillips, in the circuit court of Ritchie county for a divorce a vinculo for adultery. The defendant did not answer the bill. The charges being duly proved, on October 19, 1881, the court pronounced a decree divorcing the parties and providing that the mother should have the care aud custody of their infant daughter, about five years old, and that the defendant should pay thirty dollars annually to the mother until the further order of the court toward the support of the child. Leave was reserved in the decree to either party to apply by petition to the court from time to time for such further orders respecting the care, custody aud maintenance of said child, as might be proper.
The court did not send the petition to rules to have process sued out thereon; nor did the said plaintiff answer said petition, ancT no appearance was made to the same, yet on the 27th day of June, 1883, the court entered a decree, in which it is recited that “this cause came on this day to be heard upon the petition of the defendant, and having been argued by counsel and having been maturely considered by the court, aud it appearing as -well from the petition filed as the proceedings in the former case of Sarah E. Phillips v. Archibald R. Phillips, that the said Sarah E. Philips was divorced from the said Archibald R. Phillips on the ground of adulteiy, which charge was fully proved against the said
Erom this decree an appeal with supersedeas was granted.
Section 11 chapter 64 of the Code, (and chapter 60 of the Acts of 1882 does not change it in the matter in question here,) provides, that “ upon decreeing the dissolution of a marriage and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree, as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them, and the care, custody and maintenance of the minor children, and may determine, with which of the parents the children or any of them may remain; and the court may from time to time afterwards, on the petition of either oí the
It never was contemplated, that any such change should he made in favor of the one side upon the petition of the other without any appearance to the petition. Here the petition set up strong reasons, which, if true, might he sufficient to warrant a decree, that the wife should not have the custody of the child, even if it would not be proper to commit the child to the custody of the father. It had been a considerable time from the entry of the first decree before the petition was filed, and the father’s circumstances as well as his character might materially have changed in that time. It certainly was without authority, that the court entered the second decree without any investigation into the truth of the petition. The court should have sent the petition to rules for process to be served and for the petition to he regularly matured for hearing, unless the defendant had appeared thereto in court, thus waiving the issuance of process.
The decree entered on June 27, 1883, is erroneous and must he reversed with costs to the appellant; and this cause must he remanded with instructions to send said petition to rules for process to issue thereon and to be matured for hearing, unless the said Sarah E. Phillips shall appear to the same.
Reversed. Remanded.