Summary
In Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375 (1954), the mother was denied a divorce, and the trial court alternated custody of their four-year old son between the mother and father.
Summary of this case from Brown v. BrownOpinion
No. 39325.
December 13, 1954.
1. Divorce — properly denied — cruel and inhuman treatment.
In suit by wife for divorce, on ground of habitual cruel and inhuman treatment, Chancellor was not manifestly wrong in denying divorce, nor was his decision against the overwhelming weight of the evidence.
2. Parent and child — mother awarded child.
The paramount consideration in awarding the custody of a child was its welfare, and it was not to the best interest of a young child that it be alternatively shifted from parent to parent, as the custody of a child of young and tender age should be awarded to the mother where she was living and competent to care for child.
Headnotes as approved by Arrington, J.
APPEAL from the chancery court of Rankin County; ROY P. NOBLE, Chancellor.
Colin L. Stockdale, V.J. Stricker, Jr., Jackson, for appellant.
I. The Court erred in failing to grant appellant full custody of the minor child of the parties. Black v. Black, 205 La. 861, 18 So.2d 321; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Ellis v. Johnson, 218 Mo. App. 272, 260 S.W. 1010; Harmon v. Harmon, 264 Ky. 315, 94 S.W.2d 670; Johns v. Johns, 57 Miss. 530; Koehler v. Koehler, 219 Minn. 536, 18 N.W.2d 312; Long v. Long, 239 Ala. 156, 194 So. 190; Maley v. Maley, 18 Wn.2d 766, 140 P.2d 262; Martin v. Martin (Tex.), 132 S.W.2d 426; Mitchell v. Mitchell, 218 Miss. 37, 65 So.2d 265; Turner v. Turner, 93 Miss. 167, 46 So. 413; Vol. 30, Oklahoma Statutes of 1941, Sec. 11; 17 Am. Jur., Sec. 683; 27 C.J.S., Sec. 309(c) p. 1172; Amis on Divorce and Separation in Miss., Secs. 107, 111, 115-6, 219.
II. The decree denying appellant a divorce is against the overwhelming weight of the evidence and testimony in this cause. Cummings v. Cummings, 213 Miss. 863, 58 So.2d 39; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Hoffman v. Hoffman, 213 Miss. 9, 56 So.2d 58; McBroom v. McBroom, 214 Miss. 360, 58 So.2d 831; Pierce v. Pierce (Miss.), 38 So. 46; Price v. Price, 181 Miss. 539, 179 So. 855; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257; Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144; Smith v. Ritter, 292 Mich. 26, 289 N.W. 316; Smith v. Smith (Miss.), 40 So.2d 156; Teague v. Brown, 199 Miss. 262, 24 So.2d 726; Amis on Divorce and Separation in Miss., Secs. 107, 111, 115-6, 219.
III. The Court erred in failing to provide counsel fees for appellant as prayed for in the original bill and to make provisions for the support of said minor child while in the custody of appellant.
W.E. McIntyre, Jr., Brandon, for appellee.
I. The Court did not err in granting temporary custody of the minor child of the parties to both of the parents. Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Johns v. Johns, 57 Miss. 530; Mitchell v. Mitchell, 218 Miss. 37, 65 So.2d 265; Turner v. Turner, 93 Miss. 167, 46 So. 413; Amis on Divorce and Separation in Miss., Sec. 219.
II. The decree of the Court denying both the appellant and the appellee a divorce on the bill of complaint and cross-bill, respectively, was the only course of action open under the evidence. Hamrick v. Cook (Miss.), 40 So.2d 267; Hember v. Hember, 109 Miss. 216, 68 So. 161; Long v. Long, 160 Miss. 492, 135 So. 204; McBroom v. McBroom, 214 Miss. 360, 58 So.2d 831; Stevens v. Magee, 81 Miss. 644, 33 So. 73; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Sec. 1390, Code 1942; Amis on Divorce and Separation in Miss., Sec. 104.
III. The matter of counsel fees and support not being allowed by the Court. Amis on Divorce and Separation in Miss., Sec. 170.
The appellant, Mrs. Jeanine Kennedy, filed suit in the Chancery Court of Rankin County against appellee, Dan Henry Kennedy, Sr., wherein she sought a divorce upon the ground of habitual cruel and inhuman treatment and for the custody of the only child of their marriage, Dan Henry Kennedy, Jr. She also asked for alimony, support money for the child, and attorney's fees. The appellee answered and filed a cross-bill, praying for a divorce and custody of the minor child. From a decree denying appellant a divorce, full custody of the minor child, support for said child, and attorney's fees, the appellant appeals. There is no cross-appeal.
The child, who was born on December 6, 1949, and was less than four years of age when the case was heard, resided with his mother after the separation of the parents in August, 1952. On April 13, 1953, a temporary order was entered permitting appellee to have the minor child one week out of each month. Appellant was employed at a salary of $30 a week and lived with her mother in Jackson, Mississippi. Appellee lived with his parents in Brandon, Mississippi, and according to his testimony, was making $75 a month at the time of the hearing. Upon final hearing on September 23, 1953, the court held that neither the complainant nor the defendant had shown facts that would entitle them to a divorce, and the custody of the child was alternated between the parents each month until further ordered by the court. No support money for the child or attorney's fees were allowed. Costs were assessed equally against the parties.
(Hn 1) By alternating the custody of the child between the parents, the court necessarily found that each parent was a fit and suitable person to have the custody of the child, and that each home was a fit and suitable place for the child. We have carefully examined the testimony of the witnesses in this case and can not say that the chancellor was manifestly wrong in denying the divorce, nor that his decision was against the overwhelming weight of the evidence. (Hn 2) However, the paramount consideration in awarding the custody of a child is its welfare. We are of the opinion that it is not to the best interest of a young child that it be alternatively shifted from parent to parent. It has long been the rule in this State that the custody of a child of young and tender age should be awarded to the mother where she is living and competent to care for the child.
In the recent case of Boswell v. Pope, 213 Miss. 31, 56 So.2d 1, this Court said: "Neither father nor mother has any paramount right over the other concerning the custody of a minor, where such custody would not adversely affect the child's welfare. Code of 1942, Sec. 399. The paramount consideration is the child's welfare. And the chancery court has a broad discretion in determining that factual issue. Code Sec. 2743. But that discretion should be exercised in the light of an established rule of this and other courts in such cases. It is well stated in Amis, Divorce and Separation in Mississippi (1935), Sec. 219, page 296: `In all cases where any child is of such tender age as to require the mother's care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'
"Judge Amis discusses a number of decisions so holding, beginning with Johns v. Johns, 1879, 57 Miss. 530. For example, in Turner v. Turner, 1908, 93 Miss. 167, 46 So. 413, the controversy was over the custody of a two year old boy. Each parent had been given the child's custody alternately for a term of three months. It was there said: `We cannot concur in the decree of the learned chancellor in dividing the custody of this boy, less than two years old when this decree was entered, between his mother and his father. No child of that age should have his custody thus alternatively shifted, especially where the mother is living and a competent person to care for the child. * * * on the case made as to the right of the father or mother to the custody of this child, we think the best interests of the child will be subserved by awarding its custody to the mother * * *.' This seems to be the rule uniformly adopted also in other states. 17 Am. Jur., Divorce and Separation, Sec. 683; 27 C.J.S., Divorce, Sec. 309(c), page 1172."
The decree of the chancellor in denying a divorce to either party is affirmed; decree is here entered awarding custody of the child to the mother; and the cause is remanded for the chancellor to determine upon another hearing reasonable rights of visitation by the father with the child at the home of the mother, and to determine the amount that the father should pay for the support and maintenance of the child. Costs are assessed against the appellee.
Affirmed in part, reversed in part, and decree here, and remanded.
Roberds, P.J., and Lee, Ethridge, and Gillespie, JJ., concur.
ON SUGGESTION OF ERROR
January 10, 1955 76 So.2d 850
Point two of the suggestion of error is well taken, insofar as it asserts that the father is unduly limited in his rights of visitation by the phrase in the last paragraph of our original opinion confining his visitation rights with the child "at the home of the mother." That quoted phrase is hereby withdrawn from our original opinion and the judgment thereon. To that extent only the suggestion of error is sustained.
Suggestion of error overruled in part, and sustained in part.
Roberds, P.J., and Lee, Arrington and Gillespie, JJ., concur.