70 Vt. 430 | Vt. | 1898
The parties are husband and wife. The petition is for the custody of their minor children. The petitionee left the state immediately after the petition and summons were served upon him, taking the children with him; and for this the court below forthwith adjudged him in contempt and not entitled to participate by counsel in the hearing, until he should be present in person and have the children within the jurisdiction of the court. It does not appear that the court, after refusing to allow the petitionee to participate in the hearing by counsel, proceeded to hear the petitioner, or that it made any order respecting the custody of the children; and the case might properly be disposed of in this court upon the ground that it does not appear that the petitionee has been harmed by the refusal of the court to allow him to participate in the proceedings. But, inasmuch, as this question is not raised by the petitioner’s counsel, and the case has been argued upon the assumption that the court below, in effect, held that it had the power, after refusing to allow the petitionee to participate in the hearing by counsel, to proceed and grant the prayer of the petition, we will consider the question as presented.
V. S. 2699, provides, that, when the parents of minor children are living separate, the county court, on petition of either parent, may make such decree concerning the care, custody, maintenance and education of the children, as it can in cases where the court grants a divorce. Y. S. 2700, provides, that, when such petition is made, a summons shall be issued to the other party to appear at the court to which the petition is returnable, and show cause why the prayer of the petition should not be granted, which summons and petition shall be served on said party twelve days prior to the session of the court. In compliance with this statute, the petitionee was summoned to appear before the court and show cause why the custody of his minor children
The right to be heard in person, or by counsel, in defense of parental rights is a sacred legal right, and ought not to be denied because of constructive contempt, which can in no way hinder or embarrass such hearing or degrade the authority of the court. In Gordon v. Gordon, 141 Ill. 160: 33 Am. St. 294, it is held, that, when a defendant in a suit for divorce is in contempt in failing to obey the order of the court for the payment of temporary alimony, the court has no power to prevent him from interposing a defence to the merits of the bill, by striking out his answer. In Haldane v. Eckford, L. R. 7 Eq. 425, where the doctrine contended for was attempted to be applied, the vice-chancellor1 said, “Although the contempt committed by the defendants had been of the most flagrant kind, yet as what they asked was for the purpose of defending themselves, he had no jurisdiction to refuse the order.”
We think, also, that the petitionee could not be adjudged in contempt and punished, without an order to show cause and an opportunity to be heard. He had committed no offence in the presence of the court, and the court could not assume, without giving him an opportunity to be heard, that his conduct out of court was not justifiable. In Langdon, Ex parte, 25 Vt. 680, the relator was, without hearing or an order to show cause, adjudged in contempt for disobeying an order respecting the custody of his children; and it was held that the proceedings for contempt must be
The order adjudging the petitionee in contempt and denying him the right to participate in the hearing by counsel is vacated, and cause remanded.