Opinion
No. 41136.
April 27, 1959.
1. Child custody — modification of custodial decree — Chancellor not required to interview children involved — matter within Chancellor's discretion.
In proceeding for modification of custody provisions of divorce decree, Chancellor is not required as a matter of law to interview the children involved, but whether to interview them is a matter in his discretion in considering their ages and ability to make a choice which would be to their best interests in the long run.
2. Child custody — record revealed no error in Chancellor's permitting children to remain in custody of their father.
In proceeding brought by divorced wife for modification of provisions of divorce decree granting custody of children of marriage to divorced husband, record revealed no error in Chancellor's conclusion that it was in best interests of the children to remain in home of their father and stepmother.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Panola County; LESTER G. FANT, Special Chancellor.
Pierce Waller, Jackson; James Stone Sons, Oxford, for appellant.
I. The Chancery Court erred in its refusal to grant custody of the minor children of the parties to appellant as prayed for in her petition.
II. The Court erred in failing to find that the father, the appellee, had abandoned the children since he failed to assume his right to custody from January 26, 1954 to July 23, 1957.
III. The Court erred in failing to consider that the original custody decree of January 26, 1954 granted "temporary custody".
IV. The Court erred in admitting and primarily basing its decree upon evidence by appellee regarding facts and circumstances arising after the filing of the petition by appellant.
V. The Court erred in refusing to talk with the children and to gain from them direct evidence materially essential to the rendition of a decree touching their custody.
VI. The Court erred in failing to award the custody of two female children of tender years to their mother especially since the Court found all other factors to be equal.
VII. The Court erred in failing to spell out reasonable visitation.
Collation of authorities: Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918; Conrad v. Franklin, 202 Miss. 237, 30 So.2d 803; Duncan v. Duncan, 119 Miss. 271, 80 So. 697; Fullilove v. Banks, 62 Miss. 11; Hibbette v. Baines, 78 Miss. 695, 29 So. 80; Litton v. Litton, 227 Miss. 569, 86 So.2d 485; Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713; McShan v. McShan, 56 Miss. 413; O'Neal v. O'Neal, 95 Miss. 415,48 So. 623; Smithson v. Smithson, 113 Miss. 146, 74 So. 149; Thames v. Thames, 233 Miss. 24, 100 So.2d 868; White v. Brocato (Miss.), 35 So.2d 455; Sec. 2743, Code 1942; Amis on Divorce and Separation in Miss., Secs. 216, 220.
Robert T. Riser, Batesville, for appellee.
I. In consideration of modication of a custody decree, when a change of conditions and circumstances of either parent is established, the Court then inquires into what is for the best interest of the child.
II. Appellee properly discharged his parental responsibilities since appellant left him and the children in January 1954.
III. When a divorce shall be decreed the Chancery Court may in its discretion make all orders touching the care, custody and maintenance of the children of the marriage, and may afterwards, on petition, change the decree and make from time to time such new decrees as the case may require.
IV. Objections not taken to the action of the court below cannot be raised in the appellate court.
V. Recognition of the preferences of children in determination of custody is in discretion of Chancery Court.
VI. The children of the parties have passed the age of tender years when the mother is given a legal preference in a determination of custody.
VII. No modification of the original decree with respect to the right of reasonable visitation of appellant with the children was necessary.
Collation of authorities: Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Duncan v. Duncan, 119 Miss. 271, 80 So. 697; Hibbette v. Baines, 78 Miss. 695, 29 So. 80; Litton v. Litton, 227 Miss. 593, 86 So.2d 485; Prussel v. Knowles, 5 Miss. 90; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443; Secs. 404, 2743, Code 1942; Bunkley Morse, Amis on Divorce and Separation in Miss., Secs. 8.04, 8.05, 8.06; Griffith's Miss. Chancery Practice, Secs. 58, 677.
In this case the appellant, Mrs. Gene Newman Correll, sought the modification of a divorce and custody of children decree rendered in 1954 in the Chancery Court of Panola County. The two children, Myra Janette Newman and Deborah Fay Newman, were born on December 3, 1947, and May 19, 1951, respectively, and they were born of the marriage of the appellant and the appellee, Charles S. Newman. She did not contest the suit for divorce or the award of the custody of the children to appellee in the suit in 1954. In fact, she was financially unable to have then cared for the children, and she came to Jackson and obtained employment with the Mississippi Workmen's Compensation Commission at a salary of $200 per month, which was insufficient to enable her to rent an apartment sufficiently large enough for her and the children and to support herself and them.
The parties were residing at Batesville, where the appellee was serving as band director in the school. He kept the little girls with him there for about two months and they were then placed in the home of the appellee's mother in Jackson, where the appellant visited them from time to time and helped them as much as she could under the circumstances. The appellee bought a home for his mother in Jackson and contributed money to the support of the children. The appellant took a course in shorthand and prepared herself for stenographic work during off hours from her employment with the Workmen's Compensation Commission, and she was later able to earn a salary of $305 per month at her employment with the said Commission. She later married Edward Kingston Correll of Jackson, who is now an attorney in the legal department of the Ohio Oil Company at Shreveport, Louisiana.
Due to the change in appellant's financial condition and ability to support and maintain the children she filed a second petition for a modification of the custodial decree, and the hearing was had in August of 1958.
In the meantime the appellee had also remarried and had become the band director in the school at Picayune, Mississippi. The proof disclosed that both the father and mother of the children were of exemplary character as found by the chancellor from the proof of numerous witnesses who testified at the hearing on behalf of the respective parties.
The proof also disclosed that both the appellee and the appellant had acquired modern three bedroom homes at Picayune, Mississippi, and Shreveport, Louisiana, respectively, but on which there were mortgage indebtednesses payable in monthly installments, but that the mortgagors were earning a sufficient income to meet the payments on their respective homes and to support and maintain the two little girls involved in this controversy.
After consideration of all of the testimony in the case the special chancellor found that it was to the best interest of the little girls to remain in the home of their father and stepmother at Picayune, Mississippi, where the children had become adjusted in their new home and had been residing for approximately a year prior to the hearing. The special chancellor found that the children would be fortunate to be reared in either of the homes and would have been welcome at either, and that their custody was much desired by both the mother and the father and by the husband of the appellant and the wife of the appellee.
(Hn 1) Among the errors assigned is the refusal of the special chancellor to interview the little girls. In the case of Forbes, et al v. Warren, 184 Miss. 526, 186 So. 325, where the child was more than 14 years of age and desired to remain with her maternal grandparents who had reared her since birth, it was held that the wishes of the child should be respected as against the demands of the father who had remarried, although the father and his second wife were also fit persons to have the care and custody of the child, but we do not think that in view of the difference in the ages of that child and those involved in the present case the Forbes v. Warren case would be controlling here. Moreover, there is no requirement of law that a chancellor shall interview the children involved. It is a matter within his discretion in considering their ages and ability to make a choice which would be to their best interest in the long run. (Hn 2) After a careful study of the record of the hearing and a consideration of the briefs on behalf of the respective parents, we are unable to say that the chancellor erred in discharging the grave responsibility that rested upon him in this case. Most assuredly we are unable to say that he was manifestly wrong in the conclusion that he reached and that therefore the decree leaving the care and custody of the children with their father and his present wife was not manifestly erroneous.
The decree appealed from must therefore be affirmed.
Affirmed.
Hall, Lee, Holmes and Gillespie, JJ., concur.