Opinion
No. 36489.
June 2, 1947.
DIVORCE.
Where decree awarded husband divorce for habitual drunkenness of wife and awarded husband custody of two children but husband was permanently hospitalized because of progressive paralysis and was unable to care for children personally, evidence that wife had remarried and was now fit and able to care for children justified modification of original decree so as to award custody of children to wife.
APPEAL from the chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
White Morse, of Gulfport, for appellant.
The court erred in awarding the custody of the children to appellee. The welfare of the children is always the paramount consideration in cases of this sort. The evidence given on behalf of appellee in this case does not establish that the welfare of these two children will best be promoted by placing them in her custody.
Hardships will necessarily follow any decree that could be herein rendered, and justice demands that, if possible, they be so distributed as to bear lightest on the unoffending party.
Duncan v. Duncan, 119 Miss. 271, 80 So. 697; Hulett v. Hulett, 152 Miss. 476, 119 So. 581.
Gaston H. Hewes, of Gulfport, for appellee.
The chancery court in this cause found as a matter of fact that appellee was no longer guilty of the drinking evil but had completely cured herself and had reformed and rehabilitated herself to such an extent that she was entitled to have her children. Courts of review have uniformly held that it will not disturb a finding of fact of the trial court unless manifestly wrong conclusions have been given the facts by the court.
Smithson v. Smithson, 113 Miss. 146, 74 So. 149; Sarphie v. Sarphie, 180 Miss. 313, 177 So. 358.
Nothing is known of this half-sister of appellant as to her fitness to have these children in her custody; but it has been determined that appellee is fit and proper, and under such circumstances the natural parent is always the proper party to be selected.
Nickle v. Burnett, 122 Miss. 56, 84 So. 138; Ainsworth v. Boykin et al., 198 Miss. 756, 23 So.2d 297.
The parties herein were divorced on June 7, 1946, the proved ground for divorce being the habitual drunkenness of the wife. By that decree the custody of their two children was granted to the father, but with a provision that their immediate care should be in the hands of their maternal grandmother, the fact being that the father was and is permanently hospitalized because of a progressive paralysis, rendering him unable to care for the children personally.
Upon the decree of the divorce and the loss by it of any part in the custody of her children, the mother immediately broke from the drink habit, and has at all times since totally abstained from intoxicants and has otherwise conducted herself as a respectable person. She has married again, and with the approval of her present husband, against whom no word of disparagement appears in the record, she filed, on October 30, 1946, her petition praying a modification of the original decree so that she would have the custody of the two children with the right of visitation by them to their father in the hospital. The petition was contested by answer, and on November 26, 1946, the matter was heard on pleadings and proof and a modified decree was entered as prayed in the petition.
Were the father physically able personally to look after the children or to have the proper care of them taken under his actual personal supervision, doubtless the original decree would not have been modified by the chancellor. But the father is not able, and will not be, although through no fault on his part, so that the question before the chancellor was whether the children should still be deprived of the mother's care and custody when she has shown by the proof that she is now fit and able and is anxious to have them, in which she is joined by her present husband who has a suitable home, and no other children.
Appellant urges that inasmuch as the mother was for a period of five or six years, next before the decree of divorce, a victim of drunkenness, during which period she was treated at a public institution but relapsed within about three months after being discharged therefrom, it is too great a risk to conclude that her recent period of sobriety will be permanent, and that it may be expected that she will return to her cups in the not distant future.
We know of no yardstick by which the probabilities may be definitely calculated in a case such as this. We are mindful, however, that in Smithson v. Smithson, 113 Miss. 146, 74 So. 149, L.R.A. 1917 D, 361, the wife did in four months time completely escape, by her own efforts, from the drug habit of eight years standing, when she realized that because of it she was about to lose her family and home. In the present case the loss of her children by the original decree had produced a five months' period of complete sobriety next before the modified decree, and the knowledge that she will again lose them unless she keeps herself fit ought to furnish sufficient assurance as a reasonable probability that she will leave intoxicants alone — that she will prefer her children, since she can now see in a vivid way that she cannot have both.
Affirmed.