Cox v. Cox

• Decision Date: 14 March 1966
• Docket Number: No. 43840,43840
• Citation: 183 So.2d 921
• Parties: J. C. COX v. Ellen Irene COX.
• Court: Mississippi Supreme Court

Page 921

183 So.2d 921

J. C. COX v. Ellen Irene COX.

No. 43840.

Supreme Court of Mississippi.

March 14, 1966.

T. Fred Wicker, Pontotoc, for appellant.

Jesse L. Yancy, Jr., Bruce, for appellee.

RODGERS, Justice.

This case came to this Court from the Chancery Court of Pontotoc County, Mississippi, where Mrs. Ellen Irene Cox, appellee, sued her husband for a divorce, custody of their children and for a division of the farm belonging to appellant, J. C. Cox. The appellant answered, denying the charges made by appellee, and denying that she had a right to a division of the home and personal property. He filed a cross bill, charging that the appellee had left her home and family and was guilty of adultery.

After having heard the evidence, the chancellor denied the complainant and cross-complainant a divorce. He entered a decree granting the cross-complainant permanent care and custody of their children. The decree adjudicated Ellen Irene Cox to be the owner of a one-half interest in the land comprising the homestead, and certain personal property, including $1,800 on deposit in the bank in the name of J. C. Cox.

The appellant has appealed from the decree of the chancery court and assigns as error the action of the trial court in adjudicating appellee to be the owner of an undivided one-half interest in the real and personal property involved in this case, and in failing to find that appellee was not entitled to support because she was guilty of adultery.

The record reveals that Mr. and Mrs. Cox were very young when they married on January 26, 1947. He was twenty-two and she was fourteen years of age. They have three children: Jessie Ray Cox, aged fourteen; Rockey Lane Cox, aged eight; and Jeffery Lynn Cox, aged fourteen months. The parties had no property and very little money when they married, but appellant was able to purchase a farm from the Veterans' Farm and Home Board. He gave a purchase money mortgage on the farm, and through hard work on the part of Mr. and Mrs. Cox, they paid for the home, and accumulated furniture, livestock and $1,800 cash.

Early in this marriage, Mrs. Cox worked in the field with her husband. She operated a tractor, and did other manual labor on the farm, but as time passed she confined her work to their home. The parties had several quarrels during their marriage and Mrs. Cox had gone back to her father's home from time to time, but she would always return to her husband and children until their final separation.

There lived in that neighborhood a certain William Gates. He knew appellee when she was a school girl. Sometime after Mr. and Mrs. Cox were married, he began to stop at their home to take their milk to the market. It later developed that William Gates and Mrs. Cox had become friends. He separated from his wife and family, and was divorced.

On July 14, 1964, William Gates took Mrs. Cox to Memphis with him on a trip to get a load of lumber. Mrs. Cox has a sister in Memphis, but they did not go to her house. Mrs. Cox testified that she called her sister several times but was unable to contact her on the telephone. The testimony shows that they stayed in the truck all night; that they drove over into Arkansas. When they returned to Mississippi, Mr. Cox had them arrested and they spent the night in jail. Mrs. Cox told her mother and father that she hated her husband and loved William Gates, and she told her husband that if she returned to his home, she would continue to see William Gates. After she was released from jail, she went to her sister's home in Memphis. She contacted William Gates, and he arranged to rent an appartment for her at Tupelo, Mississippi. He told the landlady that Mrs. Cox was his wife. Since that time William Gates has been a constant visitor in her apartment and she has been seen sitting very close to him in his truck on several occasions. She uses his automobile to go to her husband's home to visit their children. William Gates testified that the reason he did so much for Mrs. Cox was because he felt that he owed her that much, but denied he had illicit relations with her.

Jeffery Lynn Cox, the youngest child of the parties, has been staying with the mother and father of Mrs. Cox while the appellant worked at a local factory. Although the decree of the court permitted the children to visit their mother, the chancellor decided as a matter of fact that it was for the best interest of the children that they should live with their father.

In the outset, we are confronted with the issue as to whether or not the chancery court erroneously adjudicated the appellee, Mrs. Cox, to be the owner of a one-half undivided interest in the homestead of the parties, and a one-half interest in the livestock and money owned by Mr. Cox.

The original bill does not seek separate maintenance, but alleges that the property held in the name of Mr. Cox was accumulated by the joint efforts of Mr. and Mrs. Cox, and for that reason she should be declared to be the owner of an undivided one-half interest in the property described in the original bill of complaint. The original bill prays for an injunction to prevent the sale of the home, and lis pendens notice, and asks that a lien be impressed on the described property for temporary alimony.

Conceding for the purpose of this discussion that Mrs. Cox worked in the field with her husband (the record shows beyond question that she is a willing worker); nevertheless, the fact that she worked with her husband on the farm would not entitle her to a one-half interest in the property accumulated and held in the name of her husband.

This statement is true, under the facts in the instant case, for two reasons: First: The mere fact that Mrs. Cox worked with her husband, as his wife, to pay off the mortgage on their homestead did not establish a resulting trust in her favor. Under the common law, the right of the husband to the services of his wife is a reciprocal marital obligation to that of the wife's right to the support from her husband.

It is pointed out in 26 Am.Jur. Husband and Wife section 9 at page 637 (1940) that:

'Consortium includes the husband's right to the services of his wife as a wife, and this involves her duties to be his helpmeet, to love and care for him in such role, to afford him her society and her person, to protect and care for him in sickness, and to labor faithfully to advance his interests. Consortium includes the performance by a wife of her household and domestic duties, in the sense of whatever is necessary in such respect according to their station in life, without compensation therefor. * * * It has been said that by entering into the marriage she impliedly agrees to perform such services without compensation. * * *

The appellant purchased their homestead on credit. The deed was made to him, but it was necessary for his wife to sign the purchase money mortgage and the notes. There is no record that Mrs. Cox put any money into the purchase of the homestead at the time of the purchase.

Quoting from 54 Am.Jur. page 159 section 204, we have pointed out in the case of Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955) that:

"A resulting trust arises, if at all, in the same transaction in which the legal title passes, at the time that legal title passes, on consideration advanced before or at that time, and not from matters thereafter occurring or on consideration thereafter advanced unless occurring or advanced immediately thereafter so as to be in fact a part of the transaction. The fundamental reason for the rule is that the resulting trust is one implied by law from the circumstances of consideration at the...