Ethredge v. Yawn

• Decision Date: 29 July 1992
• Docket Number: No. 90-CA-1177,90-CA-1177
• Citation: 605 So.2d 761
• Parties: James Kenneth ETHREDGE, Jr., Natural Father of Joseph Patrick Ethredge, a Minor v. Willie Dean YAWN.
• Court: Mississippi Supreme Court

Page 761

605 So.2d 761

James Kenneth ETHREDGE, Jr., Natural Father of Joseph

Patrick Ethredge, a Minor v. Willie Dean YAWN.

No. 90-CA-1177.

Supreme Court of Mississippi.

July 29, 1992.

Penny Jones Alexander, Petal, for appellant.

Larry Buffington, Collins, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appeal arises from a battle for the custody of a now eight-year-old boy fought between the boy's natural father and his step-grandmother. Principally at issue is whether the father legally abandoned his child. The Chancery Court held that he did but, in so doing, misapprehended our legal standards and the proof they demand.

We reverse and render.

II.

Joey came into this troubled universe on February 11, 1984. His mother, Theresa Maria Yawn Stapleton ("Theresa"), and his father, James Kenneth Ethredge, Jr. ("Jim Ethredge"), were not married. Joey's original birth certificate reflected he was "Joseph Patrick Stapleton," as his mother was a single parent. His birth certificate was later changed to "Joseph Patrick Ethredge," reflecting his father's last name.

At the time, Theresa was living with her father and step-mother, Jim Yawn and Willie Dean Yawn ("Dean"). Upon leaving the hospital, Theresa brought young Joey into this home where he has lived ever since, though she has not.

Ethredge said when Joey was born, he had wanted to marry Theresa but she refused and went her way. After Joey's birth, the Yawns called Ethredge and told him of the child, and since Joey was several months old, Ethredge has seen him on most alternate weekends and one week out of each month during the summer. While Joey was young, Ethredge even stayed in the Yawns' home overnight while visiting. Ethredge gave Jim and Dean Yawn some financial support for Joey, much of which was in kind such as clothes and toys.

In 1985, Theresa petitioned the Chancery Court of Covington County, Mississippi, that her father and step-mother be appointed guardians for Joey. On April 17, 1985, Ethredge, as Joey's father, executed a waiver of process and entry of appearance in the guardianship action and thereafter made no contest. Ethredge says Jim Yawn was a friend he could trust and respect. On June 17, 1985, the Chancery Court entered its decree, appointing Jim Yawn, Joey's maternal grandfather, and Dean Yawn, Joey's step-grandmother, as co-guardians for Joey. For reasons not entirely explained, however, the guardians never took nor posted a guardianship bond and, of course, no letters of guardianship issued.

Jim Yawn died in April of 1988. Back in August of 1985, Jim Ethredge had married Susan Norwood. In time, Ethredge became dissatisfied that Joey was remaining with his step-grandmother only and began to importune her that Joey be allowed to come and live with Susan and him. Dean Yawn resisted, citing what was undeniably the fact, that she was the only mother Joey had ever known and that she had been the maternal figure in his life since he was a week old. This did not satisfy Ethredge, who returned to Chancery Court on May 1, 1990, and demanded that the incompleted guardianship, such as it was, be dissolved and that as Joey's natural father, he be awarded permanent custody of Joey, at the time, a little shy of six years, three months old.

Ethredge had process issue for Dean Yawn, the step-grandmother, and for Theresa Eubanks, Joey's mother. Somewhere along the way, Theresa had married and divorced a man named Ronnie Eubanks, but had kept his last name. Dean Yawn answered and denied the essential allegations of the complaint but rather urged that the Court order "that the custody of said child remain with her to insure a fit and stable environment." Theresa answered and urged that Joey be allowed to remain "in the custody of his grandmother and his natural mother." It appears Theresa had moved back home with her mother once Ethredge commenced the present proceedings. At trial, however, it became clear the contesting parties were Jim Ethredge, Joey's natural father, and Dean Yawn, his step-grandmother.

In the end, the Chancery Court held that Ethredge had legally abandoned his son and placed this upon a single ground: the filing of the waiver in the guardianship. Because the point is important, we quote from the Court's ruling:

The Court finds that Mr. Ethredge gave up Joey and signed a waiver and Joey--or rather, signed a waiver and a guardianship was established and that by itself constituted abandonment of Joey.

In the final judgment entered October 26, 1990, the Court reiterated the point, holding that James K. Ethredge, Jr. "signed a waiver" and

that by the execution of said document this action taken by the natural ... father voluntarily relinquishing the custody of the child constituted an abandonment of Joseph Patrick Ethredge.

The Court proceeded to provide Ethredge with visitation rights.

Unhappy with this judgment, Ethredge now appeals.

III.

No one disputes that the natural parents of children have a predominant and primary interest in their nurture, care and custody. See, e.g., White v. Thompson, 569 So.2d 1181, 1183 (Miss.1990); Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). This interest rises to the level of a legal presumption that custody be with him or her, though one that may be rebutted. This presumption is of long standing and is available to Jim Ethredge, though he was not married to Joey's mother at the time of Joey's birth, nor has he ever enjoyed actual custody. See Aycock v. Hampton, 84 Miss. 204, 36 So. 245 (1904); Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900).

Grandparents have no right of custody of a grandchild, as against a natural parent, a premise reflected in our frequent statements, in custody contests between a parent (or parents) and grandparents, the parent(s) prevail absent a showing they have abandoned the child or are otherwise totally unfit. See Milam v. Milam, 509 So.2d 864, 866 (Miss.1987); Rutland v. Pridgen, 493 So.2d 952, 954-55 (Miss.1986); Owens, By and Through, Mosley v. Huffman 481 So.2d 231, 242 (Miss.1985); Stoker v. Huggins, 471 So.2d 1228, 1229 (Miss.1985); Thomas v. Purvis, 384 So.2d 610, 612-13 (Miss.1980); Pace v. Barrett, 205 So.2d 647, 649 (Miss.1968). If this be true where the party claiming custody is a grandparent, it is more so where, as here, the contestant is a step-grandmother. In those cases where the Court places custody with the grandparent, that judgment arises from sequential findings of legal forfeiture by the natural parent(s) and that the best interests of the child suggest such custody. No grandparent has a right to custody.

Courts may intervene and deny a parent his child under quite limited circumstances. No one contends here that Jim Ethredge is mentally or morally unfit to have custody of his child. The charge is abandonment, and the Chancery Court found Ethredge had in law abandoned Joey. Our law defines "abandonment" as any course of conduct on the part of a parent evincing a settled purpose to forgo all duties and relinquish all parental claims to the child. It may result from a single decision by a parent at a particular point in time. It may arise from a course of circumstances. The test is an objective one: whether under the totality of the circumstances, be they single or multiple, the natural parent has manifested his severance of all ties with the child. See Bryant v. Cameron, 473 So.2d 174, 178-79 (Miss.1985); Petit v. Holifield, 443 So.2d 874, 878 (Miss.1984); Ainsworth v. Natural Father, 414 So.2d 417 (Miss.1982).

Denying a parent his child is a matter no court does lightly. Society demands and expects a proceeding whose result is worthy of a high level of confidence, and so that we require abandonment be proved by more than the ordinary preponderance of the evidence. White quotes Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973), to the effect that a child's best interest lies with parental custody, that this is a legal presumption and that "in order to overcome this presumption there must be a clear showing...." White, 569 So.2d at 1183. The more conventional statement is the party charging abandonment must prove his charge "by clear and convincing evidence." Bryant v. Cameron, 473 So.2d at 178; Petit v. Holifield, 443 So.2d at 878.

Nevertheless, where there has been a finding of abandonment, our review on the factual points is as familiar as it is limited. We ask not how we would have decided the case ab initio but whether there be credible proof from which a rational trier of fact may have found abandonment by clear and convincing evidence. See, e.g., White v. Thompson, 569 So.2d at 1184; Bryant v. Cameron, 473 So.2d at 179; Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983). On the other hand, where on review it is apparent the court below has misapprehended the controlling rules of law or has acted pursuant to a...