Garsceau v. Roberts, 49048

Decision Date21 December 1976
Docket NumberNo. 49048,49048
Citation340 So.2d 740
PartiesMrs. Kathryn GARSCEAU v. Leon ROBERTS.
CourtMississippi Supreme Court

Pigford, Hendricks & Fields, Jimmie H. Fields, Meridian, for appellant.

J. E. Ulmer, Jr., Bay Springs, John M. Sims, Heidelberg, for appellee.

Before PATTERSON, SMITH and LEE, JJ.

SMITH, Justice:

Mrs. Kathryn Roberts Garsceau Balliet and Leon Roberts, formerly husband and wife, were divorced in Florida in 1968, the decree having awarded custody of their children to Mrs. Roberts, now Mrs. Balliet, granting rights of visitation to Roberts, and ordered the latter to pay $25 per week for the support of the children. The present litigation was begun by Mrs. Roberts (now Balliet) who brought suit in the Circuit Court of Jasper County, demanding judgment against Roberts for $6,300.00, the aggregate amount she alleged that Roberts was in default in child support payments, from January, 1968, the date of the divorce decree, to the date of the filing of suit.

The case was transferred to the Chancery Court of Jasper County, where a trial took place. At the conclusion of the evidence offered by complainant a motion was made by the defendant 'to dismiss the bill' upon the ground that complainant had failed to make out a case. This motion was sustained by the chancellor and the bill was dismissed with prejudice.

The testimony of the parties in the record (the defendant was called as an adverse witness by complainant) makes it obvious that neither party had kept any records over the 8 year period here involved worthy of the name and that recollections on both sides were hazy and unsure in many instances.

Complainant, since her divorce from Roberts in 1968, had been married twice more, and had lived in various states and places and there were other factors relating to the method in which many of the payments had been made that made proof difficult and, on the whole, unsatisfactory. Nevertheless, when defendant's motion to 'dismiss' was interposed at the close of complainant's case (both parties now agree that the motion, despite its title, operated as a motion to exclude the evidence and to enter a decree for the defendant) it became necessary that the chancellor, in passing upon the motion, accept all that the evidence proved or reasonably tended to prove favorable to complainant, as well as such inferences favorable to her as might reasonably be drawn from it.

In Partee v. Pepple, 197 Miss. 486, 20 So.2d 73 (1944), this Court said:

While the foregoing statute, (Section 1312, Code 1942 (Mississippi Code Annotated section 11-5-71 (1972)) by its very language, only provides the right to the defendant to introduce his evidence when his motion to exclude that offered by the complainant has been overruled, we are of the opinion that it was the intention of the Legislature to make the same rule applicable in chancery as obtains in the circuit court, when a motion is made to...

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1 cases
  • Garceau v. Roberts
    • United States
    • Mississippi Supreme Court
    • October 18, 1978
    ...Court, in which, by opinion dated December 21, 1976, the decision was reversed and the case was remanded for new trial. Garsceau v. Roberts, 340 So.2d 740 (Miss.1976). In our opinion in that case, we summarized the facts relevant to the On the remand of the case, appellant sought permission......

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