Summary
In Taliaferro v. Ferguson, 205 Miss. 129, 143, 38 So.2d 471, 473 (1949), another domestic case wherein a former spouse, the husband, was found to be in contempt but nevertheless was awarded a favorable modification, the Court said that, a "court of equity will never interfere and lend its aid to one whose own conduct in connection with the same transaction has been so unconscientious and unjust, and has so violated the principles of equity and righteous dealing which it is the purpose of the very jurisdiction of the court to sustain."
Summary of this case from Shelton v. SheltonOpinion
January 14, 1949.
1. Equity — he who seeks equity must render to opposite party all that the latter is in equity entitled to receive.
When a party seeks the aid of a court of equity, he must show that in good faith and to the best of his ability and understanding he on his part has rendered unto the opposite party all the rights to which the latter is entitled in respect directly to the subject matter of the suit, unless he presents and substantiates such a complete and well founded excuse that his default may for the time be postponed or substituted.
2. Equity — maxim that he who seeks equity must do equity — applies when.
The maxim that he who seeks equity must do equity applies where the equity to be secured or awarded to the defendant grows out of the very controversy before the court, or out of such transaction as the record shows to be a part of its history or is so connected with the cause in litigation as to be presented in the pleadings and proofs with full opportunity afforded to the party thus recriminated to explain or refute the charges.
3. Equity — clean hands — scope of maxim.
The maxim that he who comes into equity must come with clean hands is confined to misconduct in regard to, or at all events connected with, the matter in litigation so that it has in some measure affected the equitable relations subsisting between the two parties and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation.
4. Equity — he who seeks equity — applies to party who refusing to abide by decree seeks at same time a modification of it.
Where a husband in a divorce suit has refused and still refuses to abide by the terms of the decree therein, he will not be heard as petitioner to have the decree modified.
5. Equity — no aid to complainant whose conduct in the transaction involved is violative of equitable principles.
Equity will not interfere in behalf of a complainant whose own conduct in connection with the same matter or transaction has been unconscientious or unjust, or marked by want of good faith, or who has violated any of the principles of equity and righteous dealing.
6. Divorce — custody of children — decree for support monthly — no modification of until paid.
Where a divorce decree granted custody of children to wife and required husband to pay monthly sum for their support and husband later acquired actual custody of children although in disregard of decree, wife would be entitled to the payments only while child or children were in her custody and husband would be entitled to credit while they were in hs custody of which an account should be required to be stated and no petition by husband to modify decree will be heard until he has paid amount chargeable to him under the decree as thus ascertained.
7. Divorce — custody of children — bond when child to be taken to another state.
Although in a divorce proceeding the custody of a child has been awarded to the wife she may be required to give bond payable to her former husband when her purpose is to take the child to another state, conditioned to produce the child before the court in this state in case any modification of the custody decree is subsequently made.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Loundes County, J.R. GILLIS, Chancellor.
John H. Holloman, John E. Carruth, D.C. Stone, for appellant.
Appellee was not entitled to a modification of the former decree, changing the custody of James Smith Ferguson, unto him, under the pleadings, the law and the facts.
(a) Under the pleadings — according to appellee's answer, he, in legal effect, denied nothing but admitted everything.
In Griffith's "Mississippi Chancery Practice", "answers", 350, page 355, the rule is laid down that "He must set up, whether it be by denial or by affirmation, every material ground and circumstance on which in point or points of fact he intends to rely as a defense, and facts not so set up cannot be availed of although proved at the hearing" (citing Solomon v. Compress Co., 69 Miss. 326, 10 So. 446, 12 So. 339; Spears v. Cheatham, 44 Miss. 72; Bacon v. Ventress, 32 Miss. 158; Wilkinson v. Flowers, 37 Miss. 584; and Nixon v. Biloxi, 76 Miss. 812, 25 So. 664).
A decree for defendant when a vital fact charged in the bill is nowhere denied in the answer must be reversed. Nixon v. Biloxi, supra.
Nowhere in appellee's answer did he deny the vital allegations of appellant's petition that (1) he had deliberately and willfully refused to pay the child support ordered by the former decree and that he was then and had been for a long period in arrears thereasto, although fully able financially to comply therewith; (2) he had conspired and succeeded in alienating the oldest child from her; (3) he had deliberately, and in flagrant violation of said former decree, through secretive means, spirited the youngest child away from appellant's custody, and from the school which he was attending, and refused to permit his return; and (4) he had purposely taken from appellant the custody of said youngest child, James Smith Ferguson, with the intent to keep him from appellant's custody and to deprive her of the rights granted unto her by said former decree.
That appellee was and continued to be in absolute and deliberate contempt as to each and every allegation of appellant's petition, is evidenced not only by the pleadings and the proof, but is confirmed by the court's finding, in its decree, that ". . . The said Verell Pennington Ferguson, defendant-petitioner, was guilty of contempt of this court in respect to said former decree, as set out in said petition for contempt citation . . ."
(b) Under the law, according to the facts, and in the face of the court's finding above stated that appellee was in every respect guilty of contempt, and until he should stand purged thereof, it was not only unjust, but grievous and reversible error for the lower court to deny the prayer of appellant's petition and modify the former decree in accordance with the prayer of appellee's petition.
"It is one of the oldest and most universal of the principles required to be observed by the court of chancery that, when a party seeks the interposition and aid of that court, such a party must show that in good faith and to the best of his ability and understanding he on his part has rendered unto the opposite party all the rights to which the latter is entitled in respect directly to the subject-matter of the suit or petition, and this is true even as to many of those things which the defendant could not compel by an independent suit." Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197.
In Lide v. Lide, 201 Miss. 849, 30 So.2d 51, it was held that a father was subject to a proceeding for, and guilty of, contempt of court for not complying with requirement of divorce decree fixing support of minor child of parties notwithstanding the mother and custodian of said child had failed to comply with a provision or requirement of the divorce decree permitting the father to see said child.
In Blanton v. Blanton (Florida 1944) 18 So.2d 902, it was held that under the "clean hands" doctrine a decree for the payment of alimony or child support generally will not be vacated unless petitioner has paid up all alimony or support money due under such decree or by his petition shows his inability to do so.
See also Pomeroy's Equity Jurisprudence, Vol. 2, 5th Edition, 51 to 143, paragraphs 385 to 404, treating exhaustively of the equitable principles of the "clean hands" doctrine and of the principle that "he who seeks equity must do equity".
According to the pleadings, undisputed proof, and appellee's own admissions, appellee clearly had the ability to pay the sums ordered for the support of his children.
The record is equally clear and undisputed that appellee deliberately, and in open defiance of the former decree, took away from appellant the custody of James Smith Ferguson which had been adjudged against him and given unto appellant by the court. Not only that, but in so doing caused said child to lose a year's school credits and suffer dishonorable dismissal from Augusta Military Academy.
Having been indicted and convicted by the lower court on every charge made in the original Contempt Citation, appellee nevertheless secured an order from the very court which had found him guilty on every charge of willful, deliberate and contumacious defiance, disregard and utter contempt of its orders and decrees, whose dignity he had flaunted, the sanctity of whose decree he had defied and defiled, not only completely exonerating him as to all of his wilful, deliberate and contumacious acts of contempt, (telling him in effect, "to go sin no more"), but revised the decree in exact conformity with his previously defiantly expressed desires, thereby permitting the appellee to accomplish, without any order of court but in deliberate disregard of the existing decree, his design and scheme to alienate the children from the mother and to take and keep by force and without authority of law the children whose custody he had forfeited in the breaking up of the home by his habitually cruel and inhuman treatment.
It ill-becomes the appellee now to complain, and to undertake to justify his illegal and contemptuous acts on the basis that appellant permitted the children "to stay with the appellee after the decree, for long periods of time, and that during these periods the appellee provided for all needs and necessaries for said children" (brief for appellee, page 5). Such complaint and contention completely overlooks the fact that the children were placed, in the first instance, in school at French Camp, for the remainder of the school session, by agreement of the parties had before Judge T.P. Guyton.
In accordance with the agreement before Judge Guyton, appellant agreed, while she was continuing her education, to permit V.P., Jr. to remain with his father for the duration of the school year, to put Betty Ann in school at French Camp, and to place Jimmie with her sister. Not only did appellee take Betty Ann out of school at French Camp, but went to appellant's sister's home and took Jimmie away with him, against their protest. Not only that, but when appellant discovered the facts and undertook to locate the children, found that the appellee had not only secreted them, but when located refused to give them up.
During the entire time, appellant was trying to finish her education and to establish herself in a job by means of which she would be able to give the children the advantages educational and otherwise to which she thought they were entitled, and as to which appellee, had not seemed concerned, — except to feed them when, and only when, he had their illegal possession.
W.L. Sims, for appellee.
A court has the power to change or modify a former decree if after a hearing he is satisfied the former decree is too harsh or that conditions have changed since the rendering of the former decree.
In some jurisdictions there are statutes which empower the court, in entering a decree of divorce, to make an order fixing the right to the custody of children, and to alter or modify the same from time to time, as the circumstances may require. The question whether, under such a statute, or, in the absence of statute, in the exercise of its inherent powers, a court may later alter or modify its decree of divorce as to the custody of children, in the absence of the parent of the child from its territorial jurisdiction, has been resolved, by the great weight of decisions, in favor of the existence of such power in the court.
In State ex rel. Nipp v. District Court, (1912), 46 Mont. 425, 128 P. 590, Annotated Cases, 1916B, 256, the parties were divorced in Nebraska under a decree awarding the custody of their child to the father, with permission to the mother to visit the child. Subsequently the father moved to the State of Montana, and the mother instituted in Nebraska a proceeding to modify the decree of divorce as to the custody of the child. The father answered, resisting the petition on the ground, that, since his and the child's domicile had been changed to Montana, the court was without jurisdiction of the subject matter of the proceedings. The Nebraska court modified the decree and awarded the custody of the child to the mother. Subsequently, in a proceeding in Montana to recover the custody of the child from the father, the Montana court held that, notwithstanding the removal of the child from Nebraska, the Nebraska court retained its jurisdiction, and it was competent for it so to amend the decree that the mother could enforce the rights thereby accorded to her.
The finding of a trial court will not be reversed unless plainly wrong. The original divorce decree in which the custody of the children was awarded to the appellant must be presumed to have been right. It settled all questions in issue between the parties at the time it was rendered. It was designed to endure until facts brought to the attention of the court required a change. At the time this original decree was entered, the principal child in controversy, that is, Jimmie Ferguson, was only five years old and without a doubt should have been under the care, custody and control of the appellant, the mother, but for about five years after the decree was rendered, the appellant let the child, in fact all of the children, remain with their father, due to the fact that she was moving around all over the United States, jumping from job to job. During this time the child, Jimmie, became very devoted to his father and desires to remain with his father.
Jimmie is now thirteen years old and is entitled to live with the parent that he chooses, if that parent is a proper and fit person to have the care and control of said child. The appellee is a person of good character and habit, engaged in business as a college professor and earning enough for comfortable support, for him and the two boys. The child is contented and as the appellee expressed in his own words, "Radiantly happy, except for the shadow of further controversy".
The theory of most courts in that a decree of divorce awarding the custody of the children of the divorced parents to a designated party is, so far as the custody of the children is concerned, one of provisional or interlocutory character, subject to modification or change as the welfare of the child may demand, and the proceedings to modify such a decree are, in a sense, ancillary to the suit for divorce in which jurisdiction of the parties has been properly acquired. In such cases, the jurisdiction so acquired will be regarded as furnishing the scintilla of jurisdiction necessary in the subsequent proceeding for the modification of the original decree.
In the case of Hersey v. Hersey, 171 N.E. 815, 70 A.L.R. 518, the jurisdiction of the court to modify the decree of divorce as to the custody of the child, in the absence of the child from the state, was upheld, on the grounds that such a decree is in its nature interlocutory and subject to modification at any future time during the lives of the parents and the minority of the child.
In several instances the appellant stated that she wanted no money from the appellee, and that her present husband was providing for all her needs, so it seems then that the primary purpose of this suit was to harass the appellee and to try to gain custody of the child, Jimmie.
It is the contention of the counsel for appellee that the case at bar can be summed up in no better words than the following language of the trial judge: "The court finds that the mother and father are each competent to have the care and custody of the children, but that the father is more competent to have the care and custody, rearing and education of the boys, and the mother, since the young lady is almost eighteen years of age and desires to stay with her mother, should have the care and custody of her, and she should remain with her mother, her mother being a competent person to have the care and custody and education of the minor, Betty Ann Ferguson.
The court finds, and does not consider any more than has been necessary the desires of the parents, it being the duty of the court to look to the best interest of the minors, and he, therefore, awards the custody, maintenance and education of Betty Ann Ferguson to her mother, the expenses to be borne by her mother, and the care, custody, maintenance and education of the boys, Verell Ferguson and James Smith Ferguson, to their father, V.P. Ferguson he to bear the expenses of the support, maintenance and education of the two boys. Under the facts in this case the court does not feel that he should punish V.P. Ferguson for whatever contemptuous acts he might have done in this matter in disregarding the order of the court, since the children were permitted to stay with him after the decree, for long periods of time.
The court finds that V.P. Ferguson did not comply with the orders of the court in making the payments for the support of the children as directed in the decree, but that he made a substantial compliance by furnishing money for them to go to school at French Camp. The court further finds that Mrs. Ferguson, now Mrs. Taliaferro, did not follow the decree of the court in that she did not take and keep the custody of these children, but agreed to and did permit them to stay with their father, and in view of such acts on her part, together with his contributions to their education, the court does not feel he should charge him in contempt of court for failing to comply with the decree."
The appellant and the appellee were formerly husband and wife. Three children were born of the marriage. On October 15, 1940, appellant was granted a decree of divorce from her husband, which decree gave to her the care, custody, and control of said minor children, with the right to the father to have them visit him at reasonable times when not in school, and requiring the father to pay $75 per month as his contribution to the care, custody, and control of said children. On August 17, 1945, Mrs. Ferguson married Mr. Walton Taliaferro and took up her home is Harrisonburg, Virginia, where she now resides.
On August 19, 1947, Mrs. Taliaferro filed here petition in the Chancery Court of Lowndes County, wherein the decree of divorce had been rendered, setting up that Ferguson had contemptuously disregarded the decree by refusing to let her take the children from his home; had attempted to alienate the affections of the children against her; had wilfully detained the children in his home and refused to let the children visit her; had contemptuously failed and refused to pay for the support, maintenance and education of the children while in her custody; and contemptuously and surreptitiously removed James Smith Ferguson from Augusta Military Academy, where she had placed him in school at her own expense, causing him to lose the credits for a year's work, and praying that Ferguson be cited for contempt, be adjudged to be in contempt of court, be ordered to return James Smith Ferguson into her custody immediately, and that he be enjoined to strictly obey and comply with the orders of the court as to the custody of the children.
By order of the court, citation issued and was served on Ferguson on August 27, 1947, returnable before the court on September 3, 1947. On September 3, 1947, Ferguson answered the petition, and on the same day filed his petition to modify the decree, hereinabove referred to, and award to him the custody of James Smith Ferguson.
The petition of Mrs. Taliaferro was heard on the return day of the citation, and the chancellor heard testimony and took the matter under advisement for decision at the next term of court, when an agreed decree was entered setting the matter for November 3, 1947, and on that day Mrs. Taliaferro filed her answer to Ferguson's petition to modify the former decree. The chancellor then heard the matter and, upon the conclusion of the testimony, rendered his decision on both of the above mentioned petitions. In his opinion, he found Ferguson "was guilty of contempt of this court in respect to said former decree, as set out in said petition for contempt citation . . .", but entered a decree granting the custody of Verell Pennington Ferguson, Jr. and James Smith Ferguson to the father, and granting the custody of Elizabeth Ann Ferguson to the mother, relieving her father of all responsibility for her support and, at the same time, relieving Mrs. Taliaferro of all responsibility for the support and maintenance of the two boys, and giving to Mrs. Taliaferro the right to visit the boys and have them visit her provided the visits are within the jurisdiction of the court.
It is one of the oldest and most universal of principles required to be observed by the court of chancery that, (Hn 1) when a party seeks the interposition and aid of that court, such a party must show that in good faith and to the best of his ability and understanding he on his part has rendered unto the opposite party all the rights to which the latter is entitled in respect directly to the subject matter of the suit or petition, and this is true even as to many of those things which the defendant could not compel by an independent suit. Thus, when two parties have entered into a contract containing reciprocal covenants, or where such duties are required by a decree of court, particularly where that part of the decree involving the reciprocal duties has been entered by consent, one party may not successfully call upon the other to perform the duties and obligations imposed upon the latter, unless the petitioning party shows that on his or her part he or she has done those things which the contract or decree requires of him or her, or else presents and substantiates such a complete and well-founded excuse that the petitioner's default may for the time be postponed or substituted; and the case, when an excuse will be recieved and the other party nevertheless required to perform, will be rare and under only the most compelling and exceptional circumstances. Such was the clear holding of this Court in Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197. This is but a manifestation of the principles underlying the equitable maxim "He who seeks equity must do equity." (Hn 2) The rule applies where the adverse equity to be secured or awarded to the defendant grows out of the very controversy before the court, or out of such transaction as the record shows to be a part of its history, or where it is so connected with the cause in litigation as to be presented in the pleadings and proofs, with full opportunity afforded to the party thus recriminated to explain or refute the charges. Pomeroy's Equity Jurisprudence, (4th Ed.) Sec. 387, Vol. 1, page 720. Where this maxim of "He who seeks equity must do equity" leaves off another maxim "He who comes into equity must come with clean hands" begins. (Hn 3) The maxim, considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation. Pomeroy's Equity Jurisprudence, (4th Ed.) Vol. 1, Sec. 399, page 741.
While the decision in Williams v. Williams, supra, involved a situation where both the right claimed by the one, and the duty charged against the other, grew out of the same decree, and was therefore a proper case for the application of the maxim of "He who seeks equity must do equity", (Hn 4) so with equal degree here, where Ferguson is in the attitude of contemptuously refusing to abide by the terms of the decree while at the same time seeking its modification, there is a proper case for the application of that companion maxim, "He who comes into equity must come with clean hands."
Whatever may be the strictly accurate theory concerning the nature of equitable interference, the principle was established from the earliest days, that while the court of chancery could interpose and compel a defendant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law, or even in contradiction of those rules, while it could act upon the conscience of a defendant and force him to do right and justice, (Hn 5) it would never thus interfere on behalf of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust, or marked by a want of good faith, or had violated any of the principles of equity and righteous dealing which it is the purpose of the jurisdiction to sustain. Pomeroy's Equity Jurisprudence, (4th Ed.) Sec. 398, Vol. 1, page 739; Mullins v. Taylor, 132 Miss. 551, 97 So. 5.
The court below found, and properly so, that at the time Ferguson filed his petition for a modification of the decree, he was in contempt of court because of his willful and contemptuous refusal to comply with the terms of the decree, and he was still in contempt of court at the time of the granting by the lower court of the prayer of his petition for a modification of the said decree. A court of equity will never interfere and lend its aid to one whose own conduct in connection with the same transaction has been so unconscientious and unjust, and has so violated the principles of equity and righteous dealing which it is the purpose of the very jurisdiction of the court to sustain. (Hn 4) The court below should have refused to hear Ferguson's petition to modify the decree and should have dismissed it, so long as he remained in contempt of the court.
Under the decree of October 15, 1940, Mrs. Ferguson, who is now Mrs. Taliaferro, was entitled to the custody of the children until that decree has been properly modified by the court that rendered it.
(Hn 6) Mrs. Taliaferro is entitled to the support for the children as provided for in said decree, for the period while the children were in her custody. Ferguson is entitled to credit of the time the children were in his custody. Schlom v. Scholm, 149 Miss. 111, 115 So. 197; Floyd v. Floyd, 173 Miss. 1, 161 So. 752. The court below should state an account between the parties, charging Ferguson at the rate of $25 per month for each child, up to the time of the alleged adoption, while in the custody of their mother, and then credit Ferguson with such sums as he shows he has paid on account thereof to his former wife, and then judgment should be rendered against Ferguson, in favor of Mrs. Taliaferro for this amount; and Ferguson has no right to invoke the jurisdiction of the court on a petition to modify the decree until he shall have paid the amount so adjudged by the court to be due.
Mrs. Taliaferro does not now seek the custody of Verel Pennington Ferguson, Jr. She now has the custody of Elizabeth Ann Ferguson. (Hn 7) Under the decree of October 15, 1940, she is entitled to, and this Court awards her, the custody of James Smith Ferguson, with the proviso, however, that she enter into bond in a penalty of $7,500, payable to her former husband, conditioned to have the child before the Chancery Court of Lowndes County to abide any order that court may, in the future make, by any modification of its former decree of October 15, 1940, changing the custody of said child.
The decree of the lower court is reversed and remanded for proceedings in accordance with this opinion.
Reversed and remanded.