Chandler v. Chandler

• Citation: 77 So.2d 255,222 Miss. 759
• Decision Date: 17 January 1955
• Docket Number: No. 39397,39397
• Parties: Allen CHANDLER, Jr. v. Mary Belle Terry CHANDLER.
• Court: Mississippi Supreme Court

Page 255

77 So.2d 255

222 Miss. 759

Allen CHANDLER, Jr. v. Mary Belle Terry CHANDLER.

No. 39397.

Supreme Court of Mississippi.

Jan. 17, 1955.

Frank A. Critz, West Point, for appellant.

B. H. Loving, West Point, for appellee.

McGEHEE, Chief Justice.

There are quite a number of questions raised on this appeal and the record is about as much complicated as those on appeal from the average trial an a replevin suit. We are treating the case as being an appeal from a decree of August 12, 1953, adjudging the appellant guilty of a civil contempt, and ordering him to jail unless he pays the amount awarded under that decree within the time therein provided for, and also as an appeal from the action of the trial court on November 13, 1953, again ordering him to jail without hearing a petition at the November 1953 term of the chancery court to change the terms of the decree of August 12, 1953, on account of the alleged changed conditions intervening between August 12, 1953, and November 13, 1953.

On September 28, 1953, which was prior to the expiration of the six months then allowed by law for an appeal to this Court from the decree of August 12, 1953, there was a petition presented by the appellant, Allen Chandler, Jr., to a member of this Court to grant him a supersedeas of the punishment provided by the decree of August 12, 1953, to extend to the November 1953 term of the trial court.

It was alleged in the petition to a member of this Court that the appellant was only earning about $600 per annum with which to support his second wife and two minor children and that the appellee, Mary Belle Terry Chandler, to whom the appellant had been ordered to pay money for the support of her child, Bettie Mae Chandler, was earning approximately $1,800 per annum. It was further alleged in the said petition that the appellant, Allen Chandler, Jr., 'has a defense to this proceeding, which will be in the nature of a Bill of Review which can not be heard until the regular term of court, and the evidence and the facts under said Bill of Review can not be introduced under the present proceedings', the pleadings being those in Cause No. 6054 in which the decree of August 12, 1953, has been rendered. It was further alleged in this petition to a member of this Court that the petitioner, Allen Chandler, Jr., 'was defrauded by a statement in the pleading (in Cause No. 5668 of the Chancery Court of Clay County wherein the apppellee had sued the appellant for a divorce) that he was the father of the child of the complainant, as if said child were born in wedlock, when the fact is, as shown by the official record of births, said child was born November 8, 1939, and the complainant and defendant were not married until October 14, 1940, as shown by Mrriage Record 31, page 25 of the marriage records of Clay County, Mississippi. That the minor child Bettie Mae is not the daughter of the defendant, but the stepdaughter of the defendant, and by error of which the defendant had no knowledge, in some of the proceedings it was stated that said minor was the daughter of the defendant, when in fact she was only the stepdaughter of the defendant.' It was further alleged in said petition that 'the defendant, Allen Chandler, Jr., is now, on this the 28th day of September, 1953, incarcerated in the Clay County jail, and is thus unjustly punished.'

After due notice to the mother of the said child that the petition would be heard on October 6, 1953, before a member of this Court, and upon a failure of the appellee to get her answer thereto mailed in time to reach the judge here before that date, an order was entered on the said 6th day of October, 1953, by a member of this Court who granted a supersedeas to the effect that the execution of the provisions of the decree of the Chancery Court of Clay County of August 12, 1953, be suspended 'until a further and final hearing of this cause at the regular term thereof, commencing on the second Monday of November 1953.'

We construe the above-mentioned order as one sustaining the petition presented, and for the purpose of allowing the petitioner to file a bill of review, or a bil in the nature of a bill of review, as prayed for therein, and that the supersedeas was granted until a further and final hearing of the cause could be heard at the November 1953 term of the chancery court on such bill of review, or bill in the nature of a bill of review; and that the supersedeas expired when the petitioner failed to file either of such bills in the term of court which convened on November 9, 1953, due to the fact that the attorney did not have a transcript of the testimony heard at the August 1953 term and had decided to file a petition instead to ask for a modification of the said formed decree on account of the alleged changed conditions in the meantime as to the then financial ability of the appellant; that the chancellor was therefore warranted in holding that the supersedeas had expired and in ordering the petitioner into the custody of the sheriff to be placed in jail for having failed to pay any sum whatsoever on the amount allowed for the support of his child, for which he was adjudged in willful contempt of the court on August 12, 1953. But we are of the further opinion that the petitioner upon being ordered back into jail was entitled to be heard upon a petition after proper process on the appellee thereon, as to whether or not he had been since August 12, 1953, and was then able to pay the amount awarded under the former decree or any part thereof. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712; Collins v. Collins, 171 Miss. 891, 158 So. 914; Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368; McArthur v. McArthur, Miss., 32 So.2d 695; Lewis v. Lewis, 213 Miss. 434, 57 So.2d 163.

A decree of November 12, 1952, fixed a lien on the 1/6th undivided interest owned by the appellant in 363 acres of land, but such interest was never sold under the provisions of that decree. If he was residing on said land with his second wife and their child or children at the time of the rendition of the decree of November 12, 1952, the lien fixed by the decree would be subject to their homestead rights. If he was not residing on the same under those circumstances at the time the lien was fixed in favor of his former wife for the support of the child by his first marriage, then his interest in said land would be subject to sale under the said lien fixed by the decree of November 12, 1952. Felder v. Felder's Estate, 195 Miss. 326, 13 So.2d 823, which holds that the ex-husband cannot move on the land subsequent to the fixing of a lien thereon for alimony and prior to a sale under the lien, and thereby prevent the former wife from enforcing such lien against the same.

As to whether or not Bettie Mae Chandler was a child born of the marriage between the appellant and the appellee, that issue was adjudicated by the decree of divorce in Cause No. 5868 of the Chancery Court of Clay County on November 1, 1948, and that decree was not appealed from. The bill of complaint in that cause alleged that the complainant, Mary Belle Terry Chandler, and the defendant, Allen Chandler, Jr., had one child, Bettie Mae Chandler, then six years old. The answer and cross bill of the defendant in that cause admits 'that there was one child born to this marriage, Bettie Mae Chandler.' It was further admitted therein that he (the defendant) 'is responsible and liable to contribute to the support and maintenance of his minor child, and this he is willing to do within the limits of his ability and means.'

It is difficult to conceive how the defendant could have been misled and defrauded as to whether he was then the father or stepfather of the said child as he now contends in the present proceeding. Moreover, if the adjudication in the decree of November 1, 1948, to the effect that 'there was born to this marriage one child, Bettie Mae Chandler, who is in the custody and care of her mother, Mary Belle Terry Chandler, and that the permanent care and custody of said minor should be awarded to her mot...