86 So. 2d 485 | Miss. | 1956
On the 4th day of May, 1955, the chancery court rendered a decree at Rosedale, Mississippi, modifying its former decree of May 15, 1953, which had awarded the permanent custody of Carolyn Gene Litton, now nearly ten years of age, to her father, the appellant Michael B. Litton, and provided that the child should he permitted to visit her mother, the appellee Katherine Wagner Litton, “for one month in each calendar year, the said month to he either the month of July or the month of August, whichever month is more suitable to the complainant and defendant; and thát the said child be permitted to visit her said mother at other intervals which will be suitable and convenient to the said defendant Michael B. Litton.” This former decree had proved to be unworkable so far as the visits of the child to its mother “at other intervals” were concerned, since it seems that it was never convenient with the father for the child to visit her mother except in July or August. The decree of May 4, 1955, now appealed from, left the permanent custody of the child with its father, but extended the period of the summer visit to its mother who lives at Water Yalley, Mississippi, from one month to three months; that is to say, for the months of June, July and August of each year. The father took a direct appeal from the said decree. The mother took a cross-appeal upon the theory that by reason of material changes in the circumstances of the parties since the rendition of the decree of May 15, 1953, coupled with the consequent best interest of the child, she was entitled to the permanent custody thereof, as prayed for in her petition for the modification.
When this cause was heard on May 3rd and 4th, 1955, the child had not visited her mother since the summer of
The chancellor stated, after hearing the testimony of the petitioner and of her numerous witnesses, including the testimony of the defendant as an adverse witness, and in response to a motion of the defendant to exclude the evidence, that “I see no material change in the parties. This is the same testimony, practically the same except for the fact that Mike Litton had remarried and Mrs. Litton had moved away. None of it would warrant the court in changing the stipulations of the prior decree, * * But the court overruled the motion to exclude in order that he might hear all of the testimony, and whereupon the defendant testified again and introduced numerous witnesses to show that he was likewise a person of good character and standing, and suitable to have the continued care and custody of - the child.
At the conclusion of all of the evidence the chancellor made a finding of fact, copied in the' record, in which he again found among other things, that “there have been
After a careful examination and study of all of the testimony in the case, we have concluded that there had been such material changes in the circumstances of the parties between the rendition of the decree of May 15, 1953, and May 4, 1955, as would have warranted and authorized the chancellor from a legal standpoint to have changed the permanent custody of the child if he had thought that her best interest and welfare would have been thereby promoted; also, that there had been no abandonment of the child by its mother in a legal sense, .in view of her circumstances following the granting of the first decree of divorce to her on September 28, 1948, and the second decree of divorce to her on January 18, 1949, on the ground of alleged habitual cruel and inhuman treatment of her by the child’s father.
At the time of the 1953 decree the father of the child was living with his own father and mother and of course they were having a part in the care and custody of the child. He remarried on December 29, 1953, and moved to Rosedale, and has since resided in an upstairs garage apartment which has only one bedroom, and the child has since that time slept in the living room of this apartment. It.contains.only a show;er bath so far .as bathing
Prior to the decree of May 15,1953, the mother and her second husband had lived in one room, took their meals elsewhere, and because of the mother’s employment she could not then devote the time to the child’s welfare that she is now able to do.
Since the removal of the child’s mother to the home of her great-aunt the second husband is engaged in the business of operating a fleet of ten or more aluminum boats on the backwaters of the Enid Dam where he earns on an average from $20 to $30 per day, and he owns a one-fourth interest in 320 acres of Delta farm land, all in cultivation. The testimony of numerous witnesses who went from Water Valley to Rosedale to attend the hearing gave testimony as to the high esteem in which Mr. Robert Litton, the second husband, and Mrs. Litton and Miss Wagner are held in Water Valley,
When the child’s mother consented to the custody of the child being awarded to its father when each of the two divorces were granted, she had neither a job nor a place to take care of the child. After her marriage to her second husband she had a baby which was born dead and she was in ill health for sometime thereafter. This testimony is undisputed. While the case of Mayfield v. Braund, et ux, 207 Miss. 514, 64 So. 2d 713, was an adoption proceeding, nevertheless the question of what constitutes an abandonment of a child by its natural parent was therein discussed and the Court there said: “While it is true that any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child will import an abandonment, it is stated in 1 Am. Jur., Adoption of Children, 643, Section 42, that ‘It does not follow that the purpose may not be repented of and, in proper cases, all parental rights again acquired, including that of preventing adoption by withholding consent, but when abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated, or can be, consistently with the welfare of the child.’ ”
We would unhesitatingly affirm the. case on direct ap.peal except for the fact that our action in so doing would also affirm the right of the father to have the permanent
In reaching this conclusion we have considered the cases of Boswell v. Pope, 213 Miss. 31, 56 So. 2d 1; Conrad v. Fountain, 202 Miss. 237, 30 So. 2d 803; White v. Brocato, (Miss.) 35 So. 2d 455; Savell v. Savell, (Miss.) 49 So. 2d 726; Sparks v. Sparks, 249 Ala. 352, 31 So. 2d 313; Evans v. Evans, 195 Miss. 320, 15 So. 2d 698; Garner v. Garner, 143 Okl. 183, 288 p. 298; and the numerous other decisions cited both on behalf of the appellant and the appellee.
It follows that the decree must be affirmed in part on both direct appeal and cross-appeal, but only to the extent that it awards to the mother the right to have the child visit her for the months of June, July and August of each year, but without prejudice to her right to a rehearing as to its custody during the remainder of each year; and that the decree must be reversed in part on both direct appeal and cross-appeal and remanded for the purpose of a rehearing on the issue as to what is the best interest of the child in the matter of its permanent custody, leaving out of consideration the finding of the chancellor that there has been no material change in the circumstances of the parties and that there had been a legal abandonment of the child by its mother.
Pending the determination of that issue on remand, the natural mother is entitled to have the child visit her
Affirmed in part and reversed in part on both direct appeal and cross-appeal, and remanded.