Opinion
No. 35406.
June 7, 1943.
1. DIVORCE.
A decree, entered in vacation over husband's objection, modifying divorce decree, not only as to alimony awarded wife, but also as to custody and care of parties' minor children and parties' rights as to husband's realty and life insurance, was not authorized by statutory provision that chancellor, in vacation on notice, may hear, and make proper orders and decrees on, petitions for temporary alimony and temporary custody of children in urgent cases (Code 1930, sec. 1420).
2. DIVORCE.
A provision of divorce decree that court might modify it as to alimony, property settlement, and minor children's custody and control, on five days' notice to either party, did not authorize vacation hearing and decree modifying original decree as to alimony, children's custody and care, and parties' rights as to husband's realty and life insurance (Code 1930, secs. 320, 1420, 1421).
APPEAL from chancery court of Coahoma county, HON. R.E. JACKSON, Chancellor.
W.B. Miller and Dan C. Brewer, both of Clarksdale, for appellant.
Section 1420 of the Code of 1930 gives, but also restricts, the jurisdiction of the chancellor, acting in vacation, to the temporary custody of the children of the parties to a divorce proceeding, and the temporary alimony of the wife, her suit money and counsel fees, pendente lite.
With deference, we respectfully submit that the learned chancellor misinterpreted Section 1420 of the Code of 1930 with respect to the authority conferred on him to act in vacation on the petition of appellee to alter the final decree entered at a former term of the chancery court.
It is unnecessary to cite authorities on the proposition that matters of divorce and alimony are statutory, and the jurisdiction of the chancellor, acting in vacation, and of the chancery court in term time, are limited by the statutes.
The petition and the order thereon, and herein appealed from, make no reference and have no relation to the temporary custody of the children of the parties, or temporary alimony of the wife. A final decree of divorce had been entered at a former term of the chancery court, and the order herein appealed from was not authorized by that provision of Section 1420 which reads as follows: "provided, however, the Chancellor, in vacation, may, upon reasonable notice, in urgent and necessitous cases, hear petitions for temporary alimony and temporary custody of children, and make all proper orders and decrees thereon."
Section 1421 of the Code of 1930 gives no jurisdiction to the chancellor, acting in vacation, to alter or change a final decree entered at a former term of the chancery court.
And, with deference, we also respectfully submit that the learned chancellor misinterpreted Section 1421 of the Code of 1930. The order herein appealed from attempts to alter and change a final decree entered at a former term, by the chancellor, acting in vacation.
Section 1421 authorizes the chancery court to change a decree and make from time to time such new decrees as the case may require touching the care, custody and maintenance of the children of the marriage and also touching the maintenance and alimony of the wife, or any allowance to be made to her. Jurisdiction conferred upon the chancery court which sits and acts at a term, regular or special, is not authority to the chancellor to act in vacation.
The original jurisdiction of the chancery court is derived from Section 164 of the Constitution of 1890.
Its special jurisdiction to act in matters of divorce and alimony is derived from Sections 1414 to 1425, inclusive, of the Code of 1930, and amendments thereto.
A court cannot confound its original jurisdiction and its jurisdiction confered by the special act even though it is to be enforced in the same mode of procedure, nor will it deviate from the exercise of its powers under the private statute and make orders founded partly upon such express specific authority and partly on its original jurisdiction.
15 C.J. 815, Courts, Sec. 113, and cases cited.
Where exclusive jurisdiction to act is conferred upon the judge as distinguished from the court, an order by the court is void for want of jurisdiction, and conversely, a judgment or order made by the judge at chambers or in vacation is void for want of jurisdiction in cases where action by the court is required.
15 C.J. 815, Courts, Sec. 114, and cases cited.
An examination of Section 1421 discloses no authority to the chancellor to hear and determine property rights or adjudicate the title to property in dispute between the parties, in vacation.
Court terms for the chancery court are fixed by Section 321 of the Code of 1930, and amendments thereto. Section 731 of the Code of 1930 authorizes special terms of the chancery court when the business of the court may require.
Section 320 of the Code of 1930 authorizes the chancellor to make and enter orders and decrees in certain cases by consent of the parties, or their solicitors of record. But such order or decree cannot be made and entered in vacation against a party not agreeing thereto.
Yazoo M.V.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; J.J. Newman Lumber Co. v. Pace, 137 Miss. 504, 102 So. 570.
We therefore respectfully submit that the demurrer which directly challenged the authority of the chancellor to receive and consider the petition for alteration of the decree should have been sustained.
A chancellor acting in vacation is without authority to adjudicate the title to property, without consent of all parties in interest.
Property rights, once adjudicated in a divorce proceeding, where a divorce is granted, and a final decree is approved by all parties, should not be disturbed after the term at which the decree is entered, except upon a clear showing of fraud.
Griffith's Mississippi Chancery Practice: Sec. 589, p. 656; Sec. 614, p. 693.
Parties to litigation may not enact a law, or change an existing law by agreement. The jurisdiction of the court, and of the chancellor, in vacation, being founded on Sections 1420 and 1421 of the Code of 1930, the provision was an attempt to enlarge the provisions of the Code sections and give to the court a jurisdiction not conferred by law.
Clark v. Clark, 133 Miss. 744, 98 So. 157.
Except for fraud, consent decrees are binding upon the parties, and neither party will be permitted to impeach the same as to a part only and retain such decree to such parts as are favorable to him.
Thompson v. Stehli (Fla.), 10 So.2d 123; Hill v. Phelps et al., 101 Fla. 650; 53 C.J. 968, Sec. 105, and cases cited; 9 Am. Jur. 384, et seq.
Courts have the inherent power to enforce their orders. Such power is also provided by statute. Excepting fraud, the grounds alleged in appellee's petition for alteration of the final decree are not recognized by the law as sufficient to reopen or set aside such decree, and the reasons advanced by appellee for such alteration were either settled by the decree or easily remedied by virtue of it.
Code of 1930, Sec. 367; Griffith's Mississippi Chancery Practice: p. 774, Sec. 665; p. 777, Sec. 668.
A decree of divorce fixing alimony will be altered or changed as to the alimony only upon a showing that the circumstances of the parties have changed since the rendition of the decree.
Clark v. Clark, supra; Williams v. Williams, 127 Miss. 627, 90 So. 330. Holcomb Curtis and W.W. Venable, all of Clarksdale, for appellee.
Appellant attacks the decree modifying the original decree on the ground that the court was without any jurisdiction to hear and try the bill for the modification of the decree in vacation, counsel for appellant claiming that there was no authority for the court to act in vacation.
Counsel cites Section 1421, Code of 1930, making the statement in connection therewith that it gives no jurisdiction to the chancellor acting in vacation to alter or change a final decree entered at a former term of the chancery court. This is conceded, and if this were the only section dealing with the jurisdiction of the court, the position of the appellant would be well taken. In this connection, however, attention is called to the fact that this section does contain this provision among others, "and the court may afterwards, on petitions, change the decree and may from time to time make such new decree as the case may require."
We are familiar with the ruling of this court that an alimony decree, once entered, cannot be changed unless the circumstances have altered.
Clark v. Clark, 133 Miss. 744, 98 So. 157.
We do not think, however, that this principle covers the case where by misrepresentation of facts a consent decree has been entered, for the reason that such misrepresentations would be a fraud. Certainly under the power given by Section 1421 of the Code, the chancellor would have the power to alter a decree which was not right or just and which was obtained by misrepresentation under the authority to change a decree at any time. If a court has the right to change an alimony decree to fit certain circumstances occurring after its entry, we see no reason why he could not change an erroneous decree after it was entered where error occurred by the court and the opposite party being misled by false representation.
Moore v. Moore, 163 Miss. 15, 140 So. 526.
In the case at bar a consent decree was entered as far as alimony was concerned and property and it was consented by the parties then and there that the chancellor should retain jurisdiction to alter, change or modify the decree with reference to alimony, property settlement and control of the children upon five days' notice to either party and by proper showing of either party of a good and valid reason for such alteration, modification or change.
It will be seen that the appellant consented that any petition or bill could be heard by the chancellor at any time, or during vacation, upon five days' notice whether the bill was signed either by him or by appellee. By Section 320, Code of 1930, it is provided that the court or chancellor in vacation shall have the power by consent of the parties or their solicitors of record to try causes, deliver opinions and make and sign decrees in vacation. The appellant contends that he did not consent and makes this his ground of objections of the vacation hearing. It is obvious that he did consent in the decree on the original bill. It is true that after the bill to modify the original decree was filed by appellee and after he had been served with process, he undertook to withdraw his consent or state that he did not give it. That he had given consent is a fact that cannot be disputed, and the only question remaining is whether after the appellee and the chancery court had acted within the jurisdiction, a petition had been filed, and process issued thereon and served on him, he could withdraw consent.
We think there are two reasons in principle why he could not do so. First, acting upon the consent contained in the decree, the court had taken and begun the exercise of jurisdiction. At the time the court took jurisdiction, set the case for hearing and ordered the issuance of process, the court had jurisdiction. Having acquired and taken jurisdiction it could not be deprived of it, because it was against the will of the defendant. No litigant can say to a court in a pending matter of which the court had jurisdiction when it was begun, "You cannot proceed with this case, because I do not want you to."
We think also that the appellant would be estopped. Having agreed that either he or his wife could file a bill and have it heard on five days' notice at any time, he would not be permitted to withdraw this permission after she had filed a bill, incurred expense, had process issued and had changed her position for the worse. It seems to the writer of the brief that on principles of equitable estoppel he would not be permitted to do this.
Argued orally by Dan C. Brewer, for appellant.
Appellant and appellee were man and wife. The wife filed a bill against her husband in the chancery court of Coahoma County for divorce and alimony, temporary and permanent. The ground for divorce was habitual drunkenness and cruel and inhuman treatment. At the return term of the court a trial was had resulting in a decree for divorce and fixing the wife's alimony.
Approximately two months from the entry of the decree the wife filed a bill in this case, seeking to have the court make radical changes in the first decree. The bill was filed and process was made returnable in vacation and the cause was heard and decree entered in vacation over the husband's objection. The question for decision, and the only question, is whether or not the chancellor had the right under the law to hear and dispose of the cause in vacation without the consent of the husband. The husband and wife owned a homestead and about one hundred acres of land as tenants in common. In addition the husband owned a one-half interest in the capital stock of the insurance corporation of Boyle Lanham, and was earning an annual salary of approximately $2,400 for his services as rural mail carrier. He had $15,000 life insurance. The decree as to alimony was agreed on. In substance it provided that the husband should pay the wife monthly $75, and that she should have the use of the home until sold. She was given the custody of their minor children, a son eight years of age and a daughter six years of age, with the right of the father to visit them with the consent of the mother under the latter's supervision, "the children not to be removed from the State without reasonable notice and order of the court"; the husband was to pay all taxes and the mortgage indebtedness on the property owned by them with the right of the wife to rent out the home and have the revenue therefrom until it should be sold or abandoned as a home; the husband was to keep in order and have the revenue and profits from the one hundred acres of land jointly owned by them; he was to keep in force his life insurance of $15,000; and it provided that he should pay the $150 fee of his wife's solicitor. There were other provisions in the decree unnecessary to mention.
In the vacation decree among the material changes made in the original decree were the following: The allowance was increased from $75 to $125 per month while the wife remained in the home and if she removed therefrom he was to pay her $175 per month; she was given the right to remove the children from the State of Mississippi without notice to her husband or further order of the court; the decree further adjudged that she was owner of certain household furniture and an automobile which was not referred to in the original decree. The first decree had this provision: "It is further ordered, adjudged and decreed that the Court reserves the right to alter, modify or change the above decree with reference to alimony and property settlement and custody and control of the children upon five days notice to either party and by proper showing by either party of a good and valid reason for such alteration, modification or change."
In deciding this question the statutes to have in view are Sections 320, 1420 and 1421 of the Code of 1930. Section 320 provides, among other things, that by the consent of the parties or of their solicitors of record the chancellor may try causes and deliver opinions and make and sign decrees in vacation.
Section 1420 is in this language: "The proceedings to obtain a divorce shall not be heard or considered nor a decree of divorce entered except in open court at a regular or special term of the court, save in cases heard in term time and taken under advisement. Any decree made or entered contrary to the provisions of this section shall be null and void. Nothing herein shall be construed as limiting the right of the chancellor in vacation to dismiss such proceedings upon the application of the complainant or by agreement of the parties; provided, however, that the chancellor in vacation may, upon reasonable notice, in urgent and necessitous cases, hear petition for temporary alimony and temporary custody of children and make all proper orders and decrees thereon."
Section 1421 provides, among other things, that the court may in its discretion make all orders touching the care, custody and maintenance of the children of the marriage and the maintenance and alimony of the wife, or any other allowance that should be made to her, and "afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require."
It is manifest that the decree appealed from does not come within the last clause of Section 1420, which provides that the chancellor may in vacation on notice "in urgent and necessitous cases, hear petitions for temporary alimony and temporary custody of children and make all proper orders and decrees thereon." This decree deals with the rights of the parties not only with reference to alimony but in addition to the custody and care of the children and the rights of the parties as to the real estate and insurance.
Nor did the original decree providing that changes might be made therein with reference to alimony and property rights and custody of the children on five days' notice, authorize the vacation hearing and decree appealed from. The provision therein of five days' notice was mere surplusage unnecessary in the absence of a provision that the hearing might take place in vacation. In other words, to authorize the vacation proceeding it was necessary for the original decree to expressly so state.
Reversed and remanded.