Opinion
No. 39950.
February 13, 1956.
1. Child custody — custodial decree — petition to modify dismissed.
Where wife obtained a divorce, and custody of daughter was awarded wife, and custody of son was awarded to husband, on divorced wife's petition to modify custodial decree so as to award her custody of son and to require divorced husband to pay for support of both children, under facts of case, evidence warranted dismissal of divorced wife's petition.
Headnote as approved by Lee, J.
APPEAL from the Chancery Court of Rankin County; ROY P. NOBLE, Chancellor.
Curt W. McKewen, Jackson, for appellant.
I. The Trial Court erred in not making a final, full, and complete award, that would be res judicata as to the custody and care of Donald James Boone, where there had been such substantial changes in the conditions of the parties, as to warrant the granting of such custody to appellant. More v. Smead, 89 Wis. 558, 62 N.W. 426; People v. Wright, 70 Ill. 388, 399; Mitchell v. Mitchell, 218 Miss. 37, 65 So.2d 265.
II. The Trial Court erred in continuing to keep the little boy, Donald James Boone, separated from his little sister, Sylvia Jean Boone, where the Trial Court found as a matter of fact that appellant was a fit and suitable person for his care and custody and would be a good mother to Donald James like she had been a good mother to Sylvia Jean. Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243, 246; Simmons v. Simmons, 22 Cal.App. 448, 134 P. 791; Smith v. Frates, 107 Wn. 13, 180 P. 880; Gibons v. Gibons, 156 Ark. 30, 245 S.W. 32; Howard v. Howard, 307 Ky. 452, 211 S.W.2d 412; Brown v. Brown, 66 Idaho 625, 165 P.2d 886; Hoogland v. Hoogland, 67 Idaho 67, 170 P.2d 609; Nichols v. Nichols, 222 Mich. 119, 192 N.W. 671; 27 C.J.S., Divorce, Sec. 308 (E).
III. The Trial Court erred in not granting the full and complete custody of Donald James Boone to appellant, and in not requiring the appellee to support said child according to his ability. McManus v. St. Dizier, 177 Miss. 469, 171 So. 23; Brashear v. Brashear, supra.
IV. The Trial Court erred in not requiring the appellee to pay a definite sum every month for the support and maintenance of his daughter, Sylvia Jean Boone. The Trial Court erred in holding that the appellee wasn't in a position to support his daughter. Lee v. Lee, 135 Miss. 865, 101 So. 345; Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414.
V. The Trial Court erred in not changing the rights of visitation in part, or as a whole, as sought in the petition to amend former decree. Stansbury v. Stansbury, 237 Ky. 664, 36 S.W.2d 54.
VI. The opinion of the Court and the decree rendered thereon is against the overwhelming weight of the evidence. Holmes v. Holmes, 154 Miss. 713, 123 So. 865-66; Royals v. Royals, 205 Miss. 695, 39 So.2d 311, 317.
VII. The decree of the Court is contrary to the law in the case. Gresham v. Gresham, supra; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; Kartman v. Kartman, 163 Md. 19, 161 A. 269; Dunnigan v. Dunnigan, 182 Md. 47, 31 A.2d 634; Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Sec. 399, Code 1942; 27 C.J.S., Divorce, Sec. 289 pp. 1111, 1264; Amis on Divorce and Separation in Miss., Sec. 219 p. 296.
W.E. McIntyre, Jr., Brandon, for appellee.
I. In order to overturn the decision of a Chancellor on questions of fact, there must be so little evidence on a proposition that the appellate court can clearly see that he was manifestly wrong. This is a universal rule in Chancery, and has been followed in our Mississippi jurisdiction from the earliest cases. Hember v. Hember, 109 Miss. 216; Stevens v. Magee, 81 Miss. 644, 33 So. 73.
This was an action in the chancery court by Mrs. Joyce Gray Boone, Jr., against James B. Boone, and arose out of the following circumstances: The parties were married when they were very young. Two children were born of the union, Donald James, a boy, and Sylvia Jean, a girl. The marriage went upon the rocks; and in September 1952, when they were both still under 21 years of age, Mrs. Boone obtained a divorce. The parties at the time agreed that the mother should have custody of the girl, and the father custody of the boy. The decree so awarded custody until the further order of the court. The couple, before their divorce, had lived in the rural home of the husband's parents, and the boy and his father continued to live in that home. Mrs. Boone moved to the home of her mother, and she and the little girl lived there. Both children, it seems, were well cared for.
In April 1953, Boone married again; and in May 1953, Mrs. Boone married U.S. Harmon, Jr., who was in the armed forces and stationed in California. Several months later Mrs. Harmon visited her husband and did not return to Mississippi until his discharge in November 1954.
On January 19, 1955, Mrs. Harmon filed a petition to modify the former custodial decree so as to award her also the custody of Donald James, now about six years of age, and require Boone to pay for the support of both children.
The proof showed that the Harmons were renting a place in Jackson for $30 a month, and that the husband was earning about $40 a week. Boone had been unsuccessful in the operation of a partnership filling station. Other work which he did was temporary. A child had been born to each of the second marriages. The parties were equally competent to have the custody of the children. The learned chancellor, after a full hearing dictated his finding of facts into the record, and thereupon dismissed both the petition and cross petition with prejudice. Boone and his parents were taking care of Donald James, although he had contributed little, if anything, for the support of Sylvia Jean, but the court, evidently realizing Boone's inability at that time to contribute to the support of Sylvia Jean, did not then require him to do so; but admonished him that a father must support his children, and indicated that, when his financial ability will permit, the court will require such contribution from him.
(Hn 1) Taking into consideration all of the facts and circumstances in the record, the court was fully warranted in its disposition of the case. Consequently Mrs. Harmon is not entitled to any relief on her appeal, and the decree of the court below must be affirmed.
Affirmed.
McGehee, C.J., and Hall, Holmes and Ethridge, JJ., concur.