Swift v. Leary

185 N.W.2d 816 (1971)

Robert F. SWIFT, Plaintiff, v. J. R. LEARY, as Judge of the District Court of Iowa in and for Lee County at Fort Madison, Defendant.

No. 54702.

Supreme Court of Iowa.

April 9, 1971.

*817 D. W. Harris, Bloomfield, for plaintiff.

Joseph L. Phelan, Fort Madison, for defendant.

PER CURIAM.

Certiorari was granted to review the legality of the order of J. R. Leary, Judge of District Court of Lee County, entered January 7, 1971 in In re the Dissolution of Marriage of Janie Swift and Robert F. Swift. The respondent Robert F. Swift and his attorney were duly notified but did not appear for a hearing on January 7, 1971 on "alimony, support, attorney fees and costs". At such hearing Judge Leary, without notice to respondent, took evidence on behalf of petitioner Janie Swift relative to the temporary custody of Gary Allen Swift who was then living with his father in the home of the paternal grandparents and awarded her temporary custody. Judge Leary denied respondent's motion to set aside the ex parte order on January 27, 1971.

We hold the order granting temporary custody to Janie Swift under these circumstances is illegal and void for lack of proper notice and hearing.

Writ sustained.