Duncan v. Duncan

• Decision Date: 24 February 1919
• Citation: 80 So. 697,119 Miss. 271
• Court: Mississippi Supreme Court
• Parties: DUNCAN ET AL. v. DUNCAN

80 So. 697

119 Miss. 271

DUNCAN ET AL. v. DUNCAN

Supreme Court of Mississippi

February 24, 1919

October 1918

APPEAL from the chancery court of Alcorn county, HON. A. J MCINTYRE, Chancellor.

1 DIVORCE. Custody of children.

The right of the father under the common law to the custody of his legally begotten minor child as against its mother, in a contest between them, has been modified by our statute, Code of 1906, section 1673 (Hemingway's Code, section 1415) to the extent that, while due regard should be paid thereto, the best interest of the child is now the question for prime consideration, and it should be placed in the custody of the parent best calculated, under all the circumstances, to promote its welfare.

2. DIVORCE. Custody of child.

The fact that a father drinks whiskey and plays poker to a limited extent, does not make him an unsuitable person to intrust with the custody of his child.

3. DIVORCE. Custody of minor child.

Where a father is financially able to take care of his minor child and the mother is not, the father will be given the custody of the child, if he is a suitable person.

4. SAME.

The fact that if the mother is given the custody of the child, it will be taken out of the state and thus render the courts of this state powerless to afford the father any relief, he might become entitled to under changed conditions, while not controlling, should be considered along with the other facts in the case.

5. SAME.

Where a husband obtained a divorce on the ground of adultery and hardships will necessarily follow any decree awarding the custody of the child, still justice demands that such hardspips shall fall lightest on the unoffending party.

HON. A. J. MCINTYRE, Chancellor.

Habeas corpus proceedings by Harmon Duncan by next frend, Amanda Duncan, against Geo. B. Duncan, and others. From a decree granting the petition, Geo. B. Duncan and others appeal.

Habeas corpus proceedings by Harmon Duncan by next friend, Amanda Duncan, against Geo. B. Duncan, and others. From a decree granting the petition, Geo. B. Duncan and others appeal.

The facts are fully stated in the opinion of the court.

Decree reversed and dismissed.

W. C. Sweat, for appellant.

J. M. Boone and Thos. H. Johnston, for appellant.

SMITH, C. J. HOLDEN, J. dissenting. ETHERIDGE, J., joins in the above dissenting opinion.

OPINION

SMITH, C. J.

George B. and Amanda Duncan were formerly husband and wife, and have one child, Harmon Duncan, a boy, to determine the right to the custody of which this habeas corpus proceeding was instituted, and who, when the decree appealed from was rendered, was seven years of age. In September, 1916, trouble arose between Mr. and Mrs. Duncan, because of which they finally separated in March following; George suing for and obtaining a divorce from Amanda on the ground of adultery on the 11th day of February, 1918, in the circuit court of Madison county, Tenn., the decree then entered reciting:

"That defendant is guilty of adultery as charged; though complainant has condoned one offense, there are others proven, and he has not condoned the same, or been guilty of a like offense, and the conditions of his condonation were not complied with."

The child was taken charge of by George, and was placed by him in the care of his (George's) father and mother, J. R. and Sallie Duncan, who live at Corinth, Miss. In July, 1917, a writ of habeas corpus was sued out before Hon A. J. McIntyre, judge of the chancery court of Alcorn county, Miss., by Harmon Duncan, by his mother as his next friend, by which it was sought to have his custody transferred to his mother, and to which his father and grandparents were made defendants. The decree rendered on the trial thereof on August 1, 1917, recites:

"Came on for hearing this cause on petition of Harmon Duncan, by his mother and next friend, Amanda Duncan, answer of respondents, George B. Duncan, J. R. Duncan, and Sallie Duncan, cross-petition of the said respondents, answer to cross-petition, and oral proof before the chancellor in vacation on the 1st day of August, 1917; and, after hearing the case on said date, and taking the same under advisement, and after due consideration, it appearing to the satisfaction of the court from the proof that the little boy, Harmon Duncan, whose custody is in controversy in this case, will for the present be under better influences at Corinth, Miss., than at Cairo, and that it is for the best interest of the child that his care, custody, and control be awarded to the respondents, Geo. B. Duncan, his father, and his paternal grandparents, J. R. Duncan and Mrs. Sallie Duncan:

"It is therefore ordered, adjudged, and decreed that, so long as circumstances remain practically as they are at present, the care, custody, and control of the said minor, Harmon Duncan, be awarded to the respondents, George B. Duncan, J. R. Duncan, and Mrs. Sallie Duncan; and

"It is further ordered that the care and control of the said minor be and is hereby reposed in his paternal grandparents, J. R. Duncan and Mrs. Sallie Duncan, to be supported and provided for by his said father, George B. Duncan.

"It is further ordered that this order be and is hereby a temporary order, so long as conditions and circumstances remain the same; and should circumstances change, so as to make it proper and advisable to change this decree and change the custody of the said minor, the same may be done on proper petition for that purpose, or by this court of its own motion, but for the present the care, custody, and control of the said minor is awarded as hereinabove stipulated.

"It is further ordered that Mrs. Amanda Duncan is hereby permitted to visit said child at the home of the said J. R. and Mrs. Sallie Duncan, and that she shall be treated courteously and considerately while on said visits."

On March 16, 1918, a petition was filed in the chancery court of Alcorn county, in the name of Harmon Duncan, by his mother as his next friend, to which George, J. R., and Sallie Duncan were made parties defendant, praying that the custody of the child be awarded to its mother. This petition sets forth the decree entered on the former trial, and avers that Amanda is a proper person to and should have the custody of the child; that "the conditions and circumstances are different from those shown to the court to exist at the former trial;" but does not aver wherein they are different, except an averment, not supported by the evidence, that "George Duncan has since the trial of this case brought whiskey into the state of Mississippi, contrary to the laws of the United States and the laws of the state of Mississippi, to be sold in the state of Mississippi, contrary to the laws of said state." The petition contained a further averment that:

"The defendants have violated said decree heretofore rendered in this cause in a manner to be shown on the hearing hereof. Petitioner further avers, on information and belief, that J. R. Duncan and Mrs. Sallie Duncan, two of said respondents, and the paternal grandfather and grandmother of said child, or both or one of them, have been exercising their influence since the former trial of this cause over said child to destroy its love and affection for its mother, the said Mrs. Amanda Duncan."

On April 14th the prayer of this petition was granted; the decree then entered, and from which this appeal was taken, reciting that:

"Be it remembered that the above-styled cause came on for hearing and was heard on the 23d day of March, 1918, it being the sixth day of the regular March term, 1918, of the chancery court of Alcorn county, on the petition of Mrs. Amanda Duncan, mother and next friend, to set aside the temporary decree made and entered on the 7th day of August, 1917, in said cause, and to award the care and custody of the said Harmon Duncan to the said Mrs. Amanda Duncan, his mother answer of J. R. Duncan, Sallie Duncan, and George Duncan to said petition, oral proof in open court, the stenographer's notes of the testimony taken at the former hearing of said cause, and said temporary decree, and the court, after hearing said cause, by order duly made and entered on the said 23d day of March, 1918, took said cause under advisement for a decree is vacation; and it appearing to the satisfaction of the court from the proof that the petitioner is entitled to the relief prayed for in said petition, and that said cause should be reopened and said temporary decree, made on the 7th day of August, 1917, be vacated and set aside, and that the care, custody and control of the said Harmon Duncan should be awarded to the said Amanda Duncan, his mother; and it further appearing to the satisfaction of the court that the said George Duncan, father of said Harmon Duncan, should have the privilege of visiting the said Harmon Duncan at the home of his said mother at reasonable times, and should have the privilege, if he so desires, of having said child visit him in the home of the said J. R. Duncan and Sallie Duncan for two months each summer at Corinth, Miss.:

"It is therefore ordered, adjudgel, and decreed that said temporary decree, made and entered on the 7th day of August, 1917, be and the same is hereby vacated and set aside, and the care, custody, and control of the said Harmon Duncan be, and the same is, hereby awarded to the said Amanda Duncan, his mother.

"It is further ordered, adjudged and decreed that the said George Duncan shall have the privilege of visiting the said Harmon Duncan in the home of the said Amanda Duncan at all reasonable times, and that the said Harmon Duncan shall be permitted to visit him for two months each summer in the home of the said J. R. Duncan and Sallie Duncan at Corinth, Miss.,...