Harloe v. Harloe

Fox, Judge: On the 28th day of August, 1943, Weldon M. Harloe instituted his suit for divorce against Edith Peck Harloe, in the Circuit Court of Mercer County, and in his bill prayed for an absolute divorce, and the custody of the children of the marriage sought to be dissolved. Defendant, Edith Peck Harloe, appeared in said suit and filed her answer, and such proceedings were had in the cause as that on December 22, 1943, a decree was entered awarding to plaintiff an absolute divorce, and the care and custody of the four infant children of the marriage, until the further order of the court, with certain rights to defendant to visit said children. Shortly after the entry of said decree of divorce, Weldon M. Harloe was inducted into the military service of the United States, and remained there until some time subsequent to May 4, 1945. During his absence from this State, Edith Peck Harloe filed her petition in said cause, in which she sought the custody of one of said children. In that proceeding an attorney appeared in the cause for Weldon M. Harloe, in what he termed a special appearance,- and informed the court that his client was then in the military service of the United States, sug *3 gested a stay of proceeding, and the same was stayed for a time. Thereafter, on August 17, 1944, an order was entered in the cause directing that the custody of one of said children, Sarah Elizabeth Harloe, be awarded to the petitioner. This order was suspended for a period of ninety days, but no appeal was taken therefrom. Thereafter, Edith Peck Harloe filed another petition, in which she sought the custody of two of said children, Walter Weldon Harloe and William Peck Harloe, but no action appears to have been taken thereon. At May rules, 1945, the said Edith Peck Harloe filed another petition, in which she asked for the custody of the two children mentioned above, and on April 27, 1945, there was issued, out of the oifice of the Clerk of the Circuit Court of Mercer County, a summons, in which Weldon M. Harloe was required to appear before the Judge of the Circuit Court of Mercer County, at rules to be held on the first Monday of May following, to answer a petition in chancery exhibited against him in said court, praying for the custody of the infant children, whose custody had theretofore been granted to him by said court in the cause in which the petition was filed, designating said children as Walter Weldon Harloe and William Peck Harloe. This summons was served on Effie Harloe, as attorney in fact for Weldon M. Harloe, on May 4, 1945, and no other or further service thereof was had on him. To this summons or writ, the said Weldon M. Harloe filed his plea in abatement, in which he raises the question of the effect of service of process on his attorney in fact, who happened to be his mother, setting up the fact that he was a bona fide resident and citizen of Mercer County, residing in Ma-toaka in said county, and temporarily stationed in the State of California, by reason of his military service in the armed forces of the United States, and that he desired personally to contest the case, but was unable to do so at that time because of his military service. To this plea in abatement Edith Peck Harloe filed her answer, in which she admits the fact of her former husband’s service in the military forces, and avers that service as to him had *4 been obtained by delivery of a copy of the summons in the proceeding- to his attorney in fact, and attached to said answer what purports to be a true copy of the power of attorney, under which it is contended good service of said summons was obtained by delivery of a copy thereof to the attorney in fact named therein. The clause in the power of attorney, granting powers which, it is contended, authorized the service of process on the attorney in fact reads as follows: “To institute, prosecute, defend, compromise, arbitrate, and dispose of legal, equitable, or administrative hearings, actions, suits, attachments, arrests, distresses or other proceedings, or otherwise engage in litigation in connection with the premises”. ' The' power of attorney was duly executed and recorded in Mercer County. On June 18, 1945, the circuit court entered an order filing the answer to the plea in abatement and holding as follows: “And the matters arising upon the plea in abatement filed herein are overruled and this cause is continued generally.” In September, 1945, the matter was heard, evidence introduced on behalf of petitioner, and she was accorded the custody of the two children mentioned above during the annual school period of nine months, and their custody during the three summer months was awarded to their father, Weldon M. Harloe. There was no appearance on the part of Weldon M. Harloe at the hearing, he electing to rely upon his plea in abatement. He prosecutes this appeal on the theory that the order of the circuit court aforesaid was void for lack of jurisdiction to hear and determine the case, for the reason that no legal notice of the said petition had. been given him. The power and jurisdiction of the court, where due and proper notice is given, to enter a decree concerning the care, custody, education and maintenance of the children of divorced persons, in cases such as is here presented, is not questioned. Code, 48-2-15, as amended by Chapter 35, Acts of the Legislature, 1935, provides that: “* * * the court may also from time to time afterward, on the petition of either of the parties, revise or alter *5 such decree concerning the care, custody, education and maintenance of the children, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.” The circuit court properly applied the principle that, in any case involving the custody of children, their interest was paramount ; but that merely provides a rule for the guidance of courts, and presupposes that the parties interested have had reasonable notice to appear in court and present any matters bearing upon the question in issue. We do not understand that a trial- court, which has entered a decree of divorce and adjudged the custody of children, can thereafter arbitrarily, and without notice, enter an order in which the custody of the children is changed. To us that appears to deny to a litigant the benefit of constitutional provisions which insure to everyone due process of law in any matter affecting his or her interest. Our Constitution provides: “No person shall be deprived of life, liberty, or property without due process of the law, and the judgment of his peers”, and due process of law requires notice and opportunity for hearing. That notice need not necessarily be -personal service, but it must be •notice of some character provided by law, either personal service, or by delivery of a copy to a member of his family over sixteen years of age, or posting, or by publication. While Section 10, Article III of our Constitution, refers only to deprivation of life, liberty,' or property, we have held that these provisions are broad enough to embrace all character of rights, whether or not they may technically be called property rights. Simpson v. Staunton, 119 W. Va. 235, 193 S. E. 64. In that case we discussed at length the necessity for notice before hearing. We cannot bring ourselves to believe that in so important a matter as that affecting the custody of children, a parent does not have the right to notice before his or her right thereto can be changed by any court, under any circumstances, even though the statute quoted does not specifically provide that notice must accompany or precede the filing of a petition. While a petition is required to *6 be filed in the suit in which the divorce was granted, and, it may be contended, that the parties to a divorce proceeding having been served with the process initiating the suit, may be considered as having notice of any procedures which may follow therein, yet we adhere to the view that, in any proceeding by a circuit court following a decree of divorce, whether the same relates to alimony, or the custody, education and maintenance of children, there must be reasonable notice, in some form provided by the statute, of the filing of any petition or other pleading by which the terms of the decree relative to custody is sought to be changed. Counsel for Edith Peck Harloe do not seem to question the requirement of notice. They attempted to give notice, through service of the summons aforesaid. Instead of following the methods which might have been open to them to obtain service of said summons, they elected to serve the same on an attorney in fact, and place their sole reliance upon the sufficiency and legality of that service. The clause of the power of attorney on which they rely has been quoted above. That clause confers upon the attorney in fact power to defend, settle, and compromise suits, and generally to protect the interests of the person executing the power of attorney; but the powers granted to the attorney in fact were intended to enable her to protect the interests of the grantor of the powers. Clearly, the paper was' executed for the purpose of placing the attorney in fact in position to protect the party who executed it. We do not think it should be construed to include the right, on the part of the attorney in fact, to embroil the maker thereof in litigation in which vital interests might be conclusively determined against him. If this were true, a person in the military service, or absent for a long period of time, might have his property and other rights absolutely destroyed by the reéovery of personal judgments against him, a decree of divorce, in which the custody of his children could be determined to the prejudice of his rights, and in many other ways that might be mentioned. For *7 this reason, we are of the opinion that service of the summons issued at the date of the filing of the petition, on which the decree under attack was entered, was not legally had on Weldon M. Harloe, and did not warrant the court in entering any order affecting the custody of the children involved in this proceeding. We therefore reverse the order of the Circuit Court of Mercer County,, and remand the case to that court for any further proceedings that the petitioner may be advised to take. Reversed' and remanded.