Summary
In Nowell v. Nowell, 250 Miss. 805, 809-810, 168 So.2d 301, 303 (1964) custody of a fifteen month old girl was divided between the mother and father at one month intervals.
Summary of this case from Gardner v. PettitOpinion
Nos. 43187, 43453.
November 2, 1964.
1. Child custody — factor of age.
Age of child at date of custody decree was the controlling date insofar as reviewing it was concerned.
2. Child custody — shifting custody — only under exceptional circumstances.
In absence of exceptional circumstances warranting departure from rule, it is not in the best interest of young child that it be shifted alternately from parent to parent.
3. Child custody — material change in conditions.
If there was material change in conditions relating to child custody, Chancellor could reconsider question of custody as determined by divorce decree.
4. Child custody — shifting custody — decree reversed and full custody awarded mother.
Where daughter of parties being divorced was only fifteen months of age at time of Chancery Court's decree, and father had evidenced little interest in child, portion of decree shifting custody between two parents were reversed, and judgment rendered awarding full custody to mother, subject to right of reasonable visitation by father.
5. Contempt — refusal, in Chancellor's discretion.
Chancellor's refusal to find father guilty of civil contempt for failure to make child support payments was within Chancellor's discretion where father was without property or funds except forty dollar bank account and his wages were insufficient to pay child support.
6. Child support — decree withholding execution on accrued child support payments until reviewing court's decision affirmed without prejudice.
Decision of appeal pending in custody case, and considerations pertinent to father's ability to pay support, and method of payment were relevant considerations, and decree withholding execution on accrued child support payments until reviewing court's decision of custody case was affirmed without prejudice to mother's right to apply to Chancery Court for further relief.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Oktibbeha County, R.P. SUGG, Chancellor.
William G. Burgin, Jr., Columbus, for appellant.
I. Custody of a child of young and tender age should be awarded to the mother, if she is living and competent to care for such child. Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Brown v. Brown, 237 Miss. 53, 112 So.2d 556; Johns v. Johns, 57 Miss. 530; Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375; McShan v. McShan, 56 Miss. 413; Mitchell v. Mitchell, 218 Miss. 537, 65 So.2d 265; O'Neal v. O'Neal, 95 Miss. 415, 48 So. 623; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; Turner v. Turner, 93 Miss. 167, 46 So. 413; 17A Am. Jur., Divorce and Separation, Sec. 819; Bunkley and Morse, Amis, Divorce and Separation in Mississippi, Sec. 8.05 p. 217.
II. The Chancellor erred in refusing to enter judgment against appellee for past due support and attorney's fees. Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263; Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608; Ramsey v. Ramsey, 125 Miss. 185, 87 So. 491; Redding v. Redding, 167 Miss. 780, 150 So. 776; Robertson v. Robertson, 220 Miss. 308, 70 So.2d 620.
III. The failure to find appellee guilty of civil contempt constitutes an abuse of the discretion of the trial court. Lide v. Lide, 201 Miss. 849, 30 So.2d 51.
James E. Brown, Starkville, for appellee.
I. The best interest of the child is the pole star in cases of this nature, and under the circumstances shown by the testimony of this case, the best interest of the child would be served by permitting it to enjoy the association, love and care of each of the parents. Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Dickerson v. Dickerson, 245 Miss. 370, 148 So.2d 510; Shoffner v. Shoffner, 244 Miss. 557, 145 So.2d 149.
II. The Chancellor did not commit error, or abuse his discretion in refusing to enter judgment against appellee for delinquent child support, and such action is supported by the evidence presented.
III. The Chancellor's failure to find appellee guilty of civil contempt did not constitute an abuse of discretion in view of the evidence presented.
These two cases, consolidated for hearing, involve custody of a child under a divorce decree, and a subsequent proceeding for a judgment for accrued child-support payments and civil contempt in failure to make them.
NO. 43,187
James I. and Shirley Arney Nowell were married in 1958. Rhonda Leigh Nowell was born to them on December 7, 1959. In February 1961 Mr. Nowell filed his bill for divorce against his wife, and prayed for custody of their minor child. She answered, and by cross bill asked for a divorce and custody. After a hearing, the Chancery Court of Oktibbeha County, on April 6, 1961, denied the cross bill, and granted a divorce to Mr. Nowell on the ground of desertion. The court found both parties were morally qualified to have the care and custody of their child; that each of these young people were living in the homes of their respective parents, which were fit and suitable places for the child to be reared. It ordered the father to pay to Mrs. Nowell for the support of their child $30 per month while Rhonda was in her custody, and to pay attorneys' fees.
At the time of the decree, Rhonda was fifteen months of age. However, the court set up an elaborate system of divided custody between the parents. For April and May 1961, on Wednesday of each week, from 8:00 A.M. to 5:30 P.M., Rhonda's custody was vested in the father, and during the remainder of the months, in the mother. During June and July 1961, the father's custody was extended to two days in each week, Wednesday and Thursday, same hours, and for the remainder of the months in the mother. For August and September 1961, her custody was granted to the father for one week out of each month, designating those weeks, and the mother had her for the remainder of the months. Beginning with October 1961, custody of the child would be alternated between the parents by the month, each of them having her on alternate months, "arranged so that the child shall spend the month of December and Christmas with the defendant, . . . on the even years, and with the complainant . . . on the odd years, that is, years whose numbers end in even numbers and in odd numbers, respectively."
Rhonda had lived exclusively with her mother for her entire life up to the time of the decree, when she was fifteen months of age. The chancellor denied supersedeas, but a Judge of this Court, on April 21, 1961, granted it as to the custody provisions of the decree, pending decision by this Court on an appeal. Although the proper appeal bonds were filed, the transcript and record in this case were not prepared until early this year. Mrs. Nowell appealed from that part of the decree alternating Rhonda's custody, but does not complain of the divorce granted to appellee.
(Hn 1) Custody of a child of young and tender age should be awarded to the mother where she is competent to care for it. Rhonda was only fifteen months of age at the time of the decree of the chancery court, which is the controling date insofar as reviewing it is concerned. This rule has long been established in this State. Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375 (1954); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879); McShan v. McShan, 56 Miss. 413 (1879); Bunkley and Morse, Amis on Divorce and Separation in Mississippi, sec. 8.05 (1957).
We see no reason here for deviating from this rule, since no special circumstances warrant such departure. In fact, the evidence reflects that appellee evidenced little interest in the child for her first fifteen months of life, and that he had made only a minimum contribution to her support. Rhonda had been living exclusively with her mother since birth. The maternal grandmother took care of her during the day while the mother worked.
(Hns. 2-4) The chancellor found that Mrs. Nowell was fit to have her custody, and could supply a proper home. In the absence of exceptional circumstances warranting departure from the rule, it is not to the best interest of a young child that it be shifted alternately from parent to parent. Kennedy v. Kennedy, supra; Turner v. Turner, 93 Miss. 167, 46 So. 413 (1908). If there is a material change in conditions, the chancellor may reconsider this question.
Accordingly, that part of the decree of the chancery court shifting custody between the two parents is reversed, and judgment is rendered here awarding full custody to appellant, the mother, subject to the right of reasonable visitation of the child by her father. In other respects the decree is affirmed.
Reversed in part, and judgment rendered for appellant as to custody of child; in other respects, the decree is affirmed.
NO. 43,453
In November 1963, Mrs. Nowell filed a petition to cite appellee for contempt of court, because of his failure to make the child support payments. She requested a decree for accrued payments.
The chancery court found that Mr. Nowell had paid only $150 in child support, and he owed $840, plus $200 attorney's fees. The court said that apparently the animosity between the parties had continued, and failure of appellant to accord appellee reasonable visitation rights was one cause of his failure to make the child support payments. No. 43,187, the divorce and custody case, was then on appeal to this Court. Although adjudicating the arrearage of child support payments, the court stated that it would pretermit disposition of any judgment as to them, until the first term of court after the decision of the Supreme Court, and no execution would be allowed until that time. Its decree of February 27, 1964 ordered Mr. Nowell to pay immediately to appellant for support of the child $30, to pay thereafter each month $30, and to make monthly payments on the attorney's fees. It authorized an appeal to this Court. It declined to find Mr. Nowell in contempt of court because the "facts (do not) justify such a holding." The chancellor apparently concluded that Nowell's lack of income during the intervening period, and at the time of the hearing, when he had a job as a laborer in Georgia making relatively small wages, did not justify a finding of wilful refusal to comply with terms of the decree.
(Hn 5) Since the chancellor found that appellee was without property or funds, except a $40 bank account, and that he had only a laborer's job at wages insufficient to pay child support at the time, we affirm the chancellor's refusal to find appellee guilty of civil contempt of court. This was largely in his sound discretion.
(Hn 6) The chancery court will also be affirmed on that part of its decree withholding execution on accrued child support payments, until this Court decided the custody case. The decision of the appeal pending at that time, and considerations pertinent to appellee's ability to pay and the method of payment were relevant considerations. Events intervening between the custody decree and this Court's judgment may also be pertinent. After the judgments of this Court in the two consolidated cases are rendered, appellant may apply to the chancery court for any further relief she may be entitled to have. The decree in No. 43,453 is affirmed.
Affirmed. Kyle, P.J., and Gillespie, Brady and Patterson, JJ., concur.