Watts v. Smylie, 76 So. 684

76 So. 684 | Miss. | 1917

Smith, C. J.,

delivered the opinion of the court.

Appellant was formerly the wife of Jóhn A. Smylie, now deceased, of which marriage there was born in April, 1908, one child, John A. Smylie, Jr., the subject of this controversy. In May, .1912, she was granted a divorce from Smylie, the decree so adjudging containing no provision relative to the custody of the child, which was then about four years old, but the father retained its custody, by agreement with appellant, and placed it with appelees, his brother and sister, who gave him its board, he. bearing its other expenses. The separation of appellant and Smylie occurred in the city of Jackson, where, she continued to live during most if not all, of the time thereafter and prior to Smylie’s death; but he removed to Amite county, taking the child with him, in which county appellees also reside. After their separation Smylie carried the child to see its mother three or four times. Smylie died on the 17th day of March, 1914, and on the 28th day of March appellant sued out a writ of habeas corpus before the chancellor, praying for the custody of the child, to which its uncle, Mack Smylie, only, was made defendant, resulting in a decree on the 3d day of the following month reciting that:

“The minor, John A. Smylie, be and for the present remain in the custody, charge, and care of the said Mack Smylie, the respondent herein. It is ordered further by the court, however, if it shall in the future appear that the relator is able -.financially, and so situated and proves herself a fit and proper person to have the charge, custody of the said minor and to care for it, in such manner as is best suited for the welfare, and future training, and nurture of the said minor,, then in that event, the court orders further that the order this day given may be.modified, changed, and altered so as to meet the law and facts that may be brought -out in case said matter is reheard.”

At that time appellant was without means of support except her own labor, but shortly thereafter she married E. H. Watts, her present husband, and thereupon filed another petition before the chancellor who rendered the former decree, setting up that fact, and praying that she be given the custody of the child, but which was again denied her by decree rendered on July 7, 1914. On the 10th day of june, 1916, she filed a third petition before the same chancellor, praying for, and was again denied, the custody of the child, and from the decree then rendered this , appeal is taken.

Appellees, the child’s parternal uncle and aunt, in whose care the father placed it, are people of high character, are properly caring for the child, and seem to earnestly and honestly desire to continue so to do. The child, who at the time of the trial was eight years old, is happy and contented and desires to remain with them.

Appellant and her husband are also people of equally high character, are happily married, and have a comfortable and well-regulated home. The desire of the wife to have the child with her meets with the husband’s» approval, and there is nothing in the record to indicate that this desire on the part of appellant for the custody of the child is promoted by any motive other than parental affection and the desire to discharge that duty to rear and care for it which is imposed upon her by the laws of both God and man.

Upon the death of the father the duty of supporting the child devolves upon its mother, unless it is possessed in its own right of property sufficient for.that purpose, or is old enough and capable of earning its own living, and she also is entitled to its custody unless her character or surroundings are such as to unfit her therefor.

“A parent who is of good character and a proper person to have the custody of the child and reasonably able to provide for it is entitled to the custody as against other persons, although such others are much attached to the child, and the child is attached to them, and prefers to remain with them, and they are in all respects suitable to have the custody of the child and able to support and care for it, and even though they are of larger fortune or able to provide for the child more comfortably than the parent, or to care for it better, or to give it a better education than the parent can afford.” 29 Cyc. 1590; Moore v. Christian, 56 Miss. 408, 31 Am. Rep. 375; Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L. R. A. 839.

But it is said by counsel for appellees that appellant abandoned her child and thereby not only waived her right to, but demonstrated her unfitness for, its custody-The conduct of appellee cannot be so construed. All she did was to surrender the custody of the child to its father, whose right thereto was, to say the least, equal to hers, who, in addition, was charged by law. with its support and maintenance, and who in the absence of evidence to the contrary, she had the right to presume would properly care for and support it. But even if she did fail to discharge her duty to the child during its father’s lifetime, that fact would not absolve her from her moral and legal duty to support and care for it after its father’s death, nor of itself alone deprived her of her right to its custody; which right she attempted to assert immediately after the father’s death.

It is true:

“That the welfare and best interests of the child are the controlling elements in the determination of all disputes as to the custody. But nevertheless the court should always give the custody to the person having the legal right thereto, unless the circumstances of the ease justify it, acting for the welfare of the child, in decreeing the custody elsewhere.” 29 Cyc. 1594; Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L. R. A. 839.

It follows from the foregoing views that appellant is beyond doubt entitled to the custody of her child unless, as claimed, by counsel for appellees, the former decrees are res judicata of her claim thereto.. Even though the first decree rendered herein had not reserved to the court the power to thereafter modify its decree, under all of the authorities the former decrees rendered herein are res judicata only of the rights of the parties hereto as the facts then existed, and not as they exist two years afterwards when appellant’s circumstances have changed, at least to the extent that it has now been demonstrated that the home which her present husband has made for her is and will continue to be such as will justify the court in awarding her the custody of the child.

Reversed, and 'decree here for appellant.