Cassell v. Cassell, 37973

• Decision Date: 11 June 1951
• Docket Number: No. 37973,37973
• Citation: 52 So.2d 918,211 Miss. 841
• Parties: CASSELL v. CASSELL.
• Court: Mississippi Supreme Court

Page 918

52 So.2d 918

211 Miss. 841

CASSELL v. CASSELL.

No. 37973.

Supreme Court of Mississippi, Division A.

June 11, 1951.

Brewer & Brewer, Clarksdale, John W. Dulaney, Tunica, for appellant.

W. W. Simmons, Clevland, for appellee.

LEE, Justice.

Mrs. Mildred Isaacson Wasserman, formerly Mrs. Mildred Isaacson Cassell, and Phillip Cassell were divorced by a decree of the Chancery Court of Coahoma County on November 20, 1945. The exclusive care and custody of the sole offspring of the marriage, Sidney Lee Cassell, a boy six months of age, was awarded to the mother.

On December 29, 1949, at a time when the boy was less than 5 years of age, Cassell filed his petition for a modification of the custodial decee so as to permit him to visit the boy and take him to his home in New York City at stated intervals. The answer objected to the modification, denied that there had been any change justifying it, and averred that the boy's removal to New York would be against his best interests. On final hearing, the court modified the original decree so as to authorize Cassell to have the custody of the boy on the 1st day of July of each year for a period of thirty days, and to take him to New York. The court required the execution of bond in the sum of $1,000 conditioned for the return of the boy to his mother on the 1st day of August of each year. From the decree entered, Mrs. Wasserman appealed.

The record discloses that the father and mother of this boy are of the Jewish faith. The former is Orthodox, and the latter is Reformed. Deep-seated differences exist between these sects. The Orthodox Jews teach and practice the ancient rituals, while the Reformed branch does not practice such observances. For instance, there is the practice of Mikvah, a cleansing ordinance which is observed following the menstrual period. Religious differences were the underlying cause for the disruption of the marriage. Cassell was in the Army, and came home on furlough in July 1945. At that time, the boy was about two months old. The mother and boy lived with the mother's parents at Clarksdale. Cassell obtained his discharge at San Antonio, Texas, on September 8 following. However, he did not return to his wife and son, but went instead to his home in New York City. Shortly afterward, he was served with process in a divorce action but he made no contest.

Cassell successfully contended in the court below, and contends here, that the modification should be granted for three reasons: (1) The age of the child had increased from six months to five years at the time of trial. (2) Mrs. Cassell had remarried. (3) He had become adjusted to civilian life, and is now in position to provide a proper home for his boy.

On these propositions, the proof was as follows: Cassell has never seen his son since he was two months old. He has never written or visited him, nor has he sought the right to do so. He did contribute to the boy's support for about a year after his discharge from the Army, and at times, sent him presents. His excuse for failure to visit after his discharge, when he was nearby, was his eagerness to get to New York and prepare a home. He testified that he was earning $45 a week; that he had investments of $9,500, with savings of $3,000, and $500 in stocks; and that he had started an educational fund for his son. He has a room in his brother's three room apartment, in an average neighborhood, in the Bronx. He at one time practiced law, but had been disbarred. A brother, who is a practicing attorney, testified that Cassell's honesty is beyond reproach, and that he is a suitable person to have the custody. A deposition by another brother and his wife was to the effect that they would be happy to have the nephew in their home. The desire is that the father and son shall become acquainted.

For the appellant, it is contended that the evidence, and the inferences therefrom, show the following facts: (a) Her fitness and suitability to the continued custody of the child is admitted. (b) The record does not show that the welfare of the boy requires a change in his environment at this time. (c) The drastic change in environment from a rural community to the world's largest city would not be for the best interest of the boy. (d) The absence of maternal affection, under such circumstances, for thirty days would be hurtful and result in great heartaches to him. (e) Although appellee is the father, actually he is a rank stranger to his son. The same is true of the relatives where he would live. (f) Appellant's remarriage has had no deteriorating effect on her custodial care, or the best interest of her son. In fact, her present husband has such affection for the boy that he offered to adopt him as his own son. (g) If there had been previous visits so that the boy had some conception of paternal love and care from his father, a different situation would exist. But the father has not seen his son since the latter was two months old, and the son has never known his father. (h) The sudden taking of this small boy by a rank stranger--although actually his father--away from his mother, who, in his eyes, is doubtless the suum bonum of his life, to a large city 1,000 miles away, for thirty days among rank strangers--although his actual kin--could be catastrophic upon his life.

It must be kept in mind that it is not, and cannot be, said dogmatically that the proposed change will be for the best interest of the boy. The greatest persuasion is that it will gratify the father's desire to become acquainted with his son.

Likewise, it must be remembered that, while bond for the return of the child to the State is required, we must not shut our eyes to the possibility of its forfeiture, with the attendant consequences. It was recognized in Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, 367, that the Court had power to modify a custodial decree so as to permit the mother to take an eleven year old child out of the State from July 1 to August 15 of each year. The opinion said however that 'such power should be exercised with caution, and under proper restrictions,' though that feature should not be permitted to defeat, by its denial, the controlling consideration of conserving the best interest of the child.

In that case, this Court said that such a decree is entitled to full faith and credit in another state, under Section 1, Article 4, U. S. Constitution. But for a contrary view compare Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, and the cases there cited.

In awarding custody of a minor child, the welfare and best interests of such child are of chief importance and the prime considerations. 39 Am.Jur. 607, Section 20, Parent and Child; 67 C.J.S., Parent and Child, Sec. 12a, page 646; Duncan v. Duncan, 119 Miss. 271, 80 So. 697; Evans v. Evans, 195 Miss. 320, 15 So.2d 698; Haynie v. Hudgins, supra.

It is generally recognized that...