Opinion
No. 32459.
December 14, 1936.
1. DIVORCE.
Decree transferring, in view of changed conditions, custody of child from father, to whom it was awarded by divorce decree, to mother who had remarried held sustained by evidence and proper where decree provided that father should have right to see child and have it visit him at reasonable times and places.
2. DIVORCE.
Reversal of decree transferring custody of child from father to whom custody was awarded by divorce decree carried with it mother's bond, conditioned that she comply with future orders or decrees relating to custody of child, and rendered necessary a new bond upon mother's procurement of subsequent decree awarding her custody of the child whom mother wished to take outside the state.
APPEAL from the chancery court of Pike county. HON. R.W. CUTRER, Chancellor.
F.D. Hewitt, of McComb, for appellant.
There were no new facts proven, and there were no new circumstances and no substantial changes in the status of the parties that would justify the court in taking from the father this child, that had been reared by him from infancy up to the present time without the aid or assistance of the mother. Then when she has arrived at that age of six to be so cruelly torn from his custody without reason or excuse and given over to the mother to be carried beyond the jurisdiction of the court, is an injustice to the child and father.
Duncan v. Duncan, 80 So. 697, 119 Miss. 271.
If the father was good enough to rear this child from practically an infant to the present time, holding a position for eight years as a trusted employee of the city of McComb, he certainly is entitled to keep the custody of his child and to the protection of the law in the enjoyment of this most precious gift, the love, association and laughter of his baby.
Roach Jones, of McComb, for appellee.
This case presents but one simple issue, and that is whether or not there has been such a change of conditions or circumstances since the decree of April 18, 1933, that the chancellor was justified in disregarding that decree and awarding the custody of the child to appellee.
Section 1421, Code of 1930; Campbell v. Lovgren, 166 So. 365; Watts v. Smylie, 116 Miss. 12, 76 So. 684.
We submit that the proof clearly shows that there has been a material change of conditions and circumstances.
When there has been such a change of conditions and circumstances as have been proven in this case, a former decree granting the custody of her child to a particular person cannot be plead as res adjudicata of the issue of the custody of the child and the question of what is for the best interest of the child again comes into play and the decision of the lower court on that question will not be disturbed unless there has been a clear abuse of discretion.
Campbell v. Lovgren, 166 So. 365.
The appellee is at this time under bond conditioned that she will obey orders and decrees of the chancery court of Pike county in reference to the custody of the child. When the chancellor granted the appellee the custody of the child in April, 1935, the decree provided that she execute a bond in the sum of five hundred dollars conditioned as above mentioned. This bond is still outstanding in full force and effect, and for this reason when the decree in this cause was rendered, no additional bond was required.
Argued orally by F.D. Hewitt, for appellant, and by Gordon Roach, for appellee.
The parties hereto were formerly husband and wife, one child was born of their marriage in 1929, and the parties thereto separated in 1932. In 1933 the court below rendered a decree by which the parties were divorced and the custody of the child awarded to the husband, the appellant here. In April, 1935, the appellee filed a petition in the court below setting up an alleged change of circumstances since the decree awarding the custody of the child to the appellant was rendered, and praying that she be given the custody thereof. A decree was rendered in accordance with the prayer of this petition, but on appeal to this court it was reversed because of the erroneous admission of evidence, and the case was remanded. 174 Miss. 344, 164 So. 407. After it returned to the court below it was again heard on evidence, and a decree rendered awarding the custody of the child to its mother, the appellee. One of the provisions of the decree awarded the appellant the right to see the child "and have it visit him at reasonable times and places." This appeal is from that decree.
The circumstances surrounding the parties when this decree was rendered seem to be sufficient to justify the court below in changing the custody of the child. At all events, we are unable to say that it erred in so doing. The appellee, who has married again, resides at Baton Rouge, La., and intends to remove the child thereto. The court below did not require her to enter into a bond to comply with the requirements of the decree, and such future orders, if any, as the court might hereafter make relative to the care and custody of the child. The first decree rendered on this petition awarding the appellee the custody of the child does not appear in this record, but counsel in their briefs say that it contained a provision requiring the appellee to execute a bond in the penalty of five hundred dollars, conditioned that she obey the decree and future orders and decrees of the chancery court of Pike county, Miss., in reference to the custody of the child, which bond counsel for the appellee say she executed, and that it is still in force, and, consequently, it was not necessary that the court make any provision therefor in the second decree, from which this appeal is taken. Assuming that this bond was given pursuant to a requirement therefor in the first decree, that decree, as hereinbefore stated, was reversed by this court and the right of the appellee to the custody of the child is now governed by the decree thereafter rendered and here in question, which does not require the execution by her of such a bond, and the evidence discloses nothing that would relieve the appellee from the obligation to execute such a bond before taking the child out of the jurisdiction of the court.
The decree of the court below will be set aside, and a decree will be rendered here in exact accord therewith, except there will be added thereto a provision requiring the appellee to execute a bond in the penalty of five hundred dollars that she will faithfully observe the requirements of the decree and such other orders and decrees as to the care and custody of the child that the chancery court of Pike county, Miss., may hereafter render.
So ordered.