Summary
In Campbell v. Lovgren, 171 Miss. 385, 157 So. 901 (1934), the chancellor awarded custody of a child to the mother, for two months, after which she was to return the child to the father.
Summary of this case from Wilson v. MallettOpinion
No. 31412.
December 10, 1934.
DIVORCE.
Father's appeal from decree modifying divorce decree by awarding child's custody to mother for two months should be dismissed, where such two-month period had expired.
APPEAL from the Chancery Court of Noxubee County.
Geo. T. Chas. S. Mitchell, of Tupelo, for appellant.
Judge Sturdivant awarded the custody of the child in question to the father, appellant here. There was no appeal from this judgment, and therefore, same became final and absolute, and was binding upon father and mother alike.
Dawson v. Dawson, 57 W. Va. 520, 50 S.E. 613, 110 A.S.R. 800.
The only way that the judgment of the circuit court can be modified is to show that material changes have occurred since the rendition of that judgment, and such material changes as the law contemplates. Mere incidental changes, not affecting the welfare of the child, are not such changes as the law contemplates and are not to be considered. The whole inquiry is directed at what is for the best interest of the child. The selfish interests of the father and mother are purely secondary and not to be considered where the welfare of the child is concerned.
Reily Parker, of Meridian, and W.B. Lucas and L.L. Martin, both of Macon, for appellee.
The award of the custody of children upon or after a divorce is within the discretion of the court, to be exercised with due regard to the welfare of the children and the rights of the parties.
14 Cyc. 808.
A parent against whom an adverse judgment of divorce has been rendered possesses certain natural rights with respect to his child whose custody is given to the other parent. One of these is the right of access to his child.
Jacquet v. Disimone, 143 So. 710.
Argued orally by George T. Mitchell, for appellant, and by W.B. Lucas, for appellee.
This is an appeal from a decree modifying a former order of the court below in a divorce proceeding awarding the custody of a child to its father, with the right to its mother to visit it at intervals. The father of the child lives in Macon, Mississippi, and its mother in Chicago, Illinois. The decree appealed from modified the former decree to the extent that the father was directed to deliver the custody of the child to its mother on June 15, 1934, in the city of Macon, and the mother was authorized to retain its custody for a period of two months, at the end of which period she was to redeliver it to its father. The appeal is by the father, and there is no cross appeal by the mother.
The period of time during which the custody of the child was changed by the decree appealed from having expired, the questions presented by the record have become purely academic, and therefore no actual controversy is presented for the decision of this court, from which it follows that the appeal should be dismissed. McDaniel v. Hurt, 92 Miss. 197, 41 So. 381; Pafhausen v. State, 94 Miss. 103, 47 So. 897; Kemper County v. Neville, 95 Miss. 56, 48 So. 727; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Hughes v. Ball, 140 Miss. 812, 106 So. 626.
Though earnestly requested by counsel to depart from this rule and to say whether or not the decree of the court below should have been rendered, in order that the court may be guided thereby should another petition be filed for the modification of the decree rendered in the divorce proceeding, we do not feel at liberty to do so. Such an opinion would be merely advisory, and the rendering of opinions of that character are not within the province of this court. Moreover, whether or not that decree should be modified will depend on facts and circumstances that may exist when a petition for that purpose is heard by the court.
Appeal dismissed.