Opinion
No. 42072.
April 2, 1962.
1. Child custody — Chancery Court will look through form of pleading to determine best interest of child.
Chancery Court will look through the form of pleading in child custody cases to determine best interests of child. Sec. 2737 (3), Code 1942.
2. Child custody — best interest of child required award of custody to mother.
Best interests of child required that mother have permanent care and custody of child.
3. Child support — reduction in support award not an abuse of Court's discretion.
Court had authority to reduce support award allowed to wife in original divorce decree and he did not abuse his discretion in making a new award following remarriage of wife reducing the award from $150 per month to $100 per month. Sec. 2743, Code 1942.
Headnotes as approved by Rodgers, J.
APPEAL from the Chancery Court of Marshall County; WILLIAM H. ANDERSON, Chancellor.
L.G. Fant, Jr., Holly Springs, for appellant.
I. The formal admissions of the appellee in her pleadings required the lower court to enter a decree awarding the custody of James Hayes McIntosh to appellant. Noe v. Gully, 189 Miss. 1, 193 So. 36; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Sec. 1291, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 348.
II. With the admissions of appellee, the weight of the evidence for appellant was overwhelming. Hulitt v. Jones, 220 Miss. 827, 72 So.2d 204; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311; Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567.
III. The principle, res judicata, has no application to the case at bar. Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; McManus v. St. Dizier, 174 Miss. 344, 164 So. 407.
IV. The Court erred in applying Amendment I of the Constitution of the United States to this case. Church of the Holy Trinity v. United States, 143 U.S. 457, 36 L.Ed. 226, 12 S.Ct. 511; 27B C.J.S. 553.
Hugh N. Clayton, New Albany, for appellee.
I. The reviewing court should consider as true all evidence in appellee's favor together with all reasonable inferences which can be drawn therefrom. Buford v. O'Neal, 240 Miss. 883, 128 So.2d 553; Illinois Cent. R. Co. v. Williams, 242 Miss. 586, 135 So.2d 831.
II. Chancellor's findings of fact are not reversible unless manifestly wrong. Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440, 15 So.2d 213; Griffith's Mississippi Chancery Practice, Sec. 674 p. 741.
III. Chancellor's decision must be affirmed if sustained by substantial evidence. Savell v. Savell (Miss.), 49 So.2d 726; Sullivan v. Keller, 239 Miss. 458, 123 So.2d 695.
IV. Discretion of Chancellor with regard to custody of child will not be disturbed unless manifestly wrong. Earwood v. Cowart, 232 Miss. 760, 100 So.2d 601; Latham v. Latham, 223 Miss. 262, 78 So.2d 147.
V. Appellant and cross-appellee, the father, has the burden with regard to seeking to have the original decree modified. Jones v. Jones, 227 Miss. 1, 85 So.2d 580.
VI. Each case tried and appealed must be determined upon its own facts and circumstances, applying the basic legal principles. Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Honeywell v. Aaron, 228 Miss. 284, 87 So.2d 562.
VII. The appellant, on appeal, may not question the legal sufficiency of the pleadings where the point was not raised in the trial court. Griffith's Mississippi Chancery Practice, Sec. 676 p. 745.
VIII. The appellant may not argue in his brief any error not assigned. Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654, 14 A.L.R. 2d 710; Rule 6(2), Supreme Court Rules.
IX. Doctrine of res judicata. Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918.
X. The Supreme Court has the authority on the cross assignment of errors, to restore the monthly award of support and maintenance for the child to $150 as agreed to in 1956 and adjudicated in the final decree of November 14, 1956. Lowry v. Lowry, 229 Miss. 376, 90 So.2d 852.
XI. Reply of appellee and cross-appellant to Point I contained in appellant's brief. Brown v. Metropolitan Life Ins. Co., 212 Miss. 675, 55 So.2d 415; Christopher v. Brown, 211 Miss. 322, 51 So.2d 579; Fatheree v. Griffin, 153 Miss. 570, 121 So. 570; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 494, 121 So. 114; Smith v. Strickland, 139 Miss. 1, 103 So. 782; Rule 11, Supreme Court Rules.
XII. The appellee and cross-appellant denies the weight of the evidence was overwhelming for the father, appellant and cross-appellee.
XIII. The appellant is in error when he alleges that the Chancellor relied on the principle of res judicata and stated that there had been no material change in the circumstances of the parties.
XIV. Appellant's Point IV has a rather vague title but it deals with the religious issue. Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 394; In re Faust Guardianship, 239 Miss. 299, 123 So.2d 218; Paolella v. Phillips, 209 N.Y.S.2d 165.
XV. The Chancellor erred in reducing the monthly support award from $150 to $100 and the same should be restored by an order to that effect in this Court. Lowry v. Lowry, supra.
This is a child custody proceeding brought in the Chancery Court of Marshall County, Mississippi. Appellant and appellee were husband and wife and had one child born unto them, James Hays McIntosh, a son. The parties were divorced and custody of their minor child was awarded to the mother. The father was directed to pay to the mother the sum of $150 per month for support of the child. Both appellee and appellant remarried. About the time appellee was to go on her honeymoon, appellant filed an application in vacation in the chancery court requesting the chancellor to grant him temporary custody of James Hays McIntosh. The petition alleged that conditions had changed since the granting of the original decree awarding custody of the child to appellee, and that it was urgent that custody of the child be changed to appellant. Many witnesses were offered by both sides at the vacation hearing. At the conclusion of the hearing, the chancellor awarded temporary custody of the child to the mother, with liberal visitation privileges to the father.
The case was finally heard at the regular term of court. The evidence on the temporary hearing was, by agreement, incorporated in the final hearing, and additional witnesses were introduced. The chancellor again entered a decree awarding permanent custody of the child to the mother, but permitted visitation of the child with the father. The support for the child was reduced to $100. From this decree, the father appealed, and the mother cross-appealed on the ground that support of the child fixed by the court was an agreement between the parties in the original decree and should not have been reduced.
(Hn 1) Appellant argues that appellee admitted the allegations of his petition requesting modification of the original divorce decree because she denied the charges in general terms throughout her answer to the original and supplemental petitions. We are of the opinion, however, that the authorities cited by appellant with reference to answers in chancery generally are not applicable in this case for the reason that the chancery court will look through the form of pleading in child custody cases to determine the best interest of the child. See Randall v. Randall, 28 So. 19 (Miss.); Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289. It will also be noted that Sec. 2737, Miss. Code 1942, Rec., expressly states that "(3) admissions made in the answer shall not be taken as evidence."
(Hn 2) The chancellor heard the testimony of many witnesses introduced in this case, and from a review of this evidence, it is apparent that he carefully examined all of the evidence, not only as to allegations of the petition with reference to the physical welfare of the child but also scrutinized the testimony with reference to the religious training of the child, and we cannot say that he was in error in reaching the conclusion and determination that the best interest of the child required that the mother have his permanent care and custody. The guiding star in child custody cases is that the court determine the best interest of the child. See Earwood v. Cowart, 232 Miss. 760, 100 So.2d 601; 66 A.L.R. 2d 1410; In the Matter of the Guardianship of Faust, 239 Miss. 299, 123 So.2d 218.
(Hn 3) We are also of the opinion that the chancellor had authority to reduce the support award allowed to appellee in the original divorce decree, and that he did not abuse his discretion in making a new award for the support of the child. Sec. 2743, Miss. Code 1942, Rec.; Crum v. Upchurch, 232 Miss. 74, 98 So.2d 117.
The decree of the chancery court will therefore be affirmed on direct and cross-appeals.
Affirmed on direct and cross-appeals. McGehee, C.J., and Kyle, Ethridge and Jones, JJ., concur.