Hall v. Honeycutt

• Decision Date: 20 June 1972
• Parties: Audrey Vanhuss Medearis HALL v. Robert HONEYCUTT and Juanita Shepard Honeycutt.
• Court: Tennessee Court of Appeals

Page 37

489 S.W.2d 37

Audrey Vanhuss Medearis HALL v. Robert HONEYCUTT and Juanita Shepard Honeycutt.

Court of Appeals of Tennessee, Eastern Section.

June 20, 1972.

Certiorari Denied by Supreme Court Nov. 6, 1972.

Lodge Evans, Elizabethton, for appellant.

Robert E. Banks, Charles Crockett, Elizabethtown, for appellees.

OPINION

COOPER, Presiding Judge (E.S.).

Audrey Vanhuss Medearis, now Hall, has appealed from a decree of the Circuit Court of Carter County granting primary custody of her son, Jeffrey Medearis, to Robert Honeycutt and wife, Juanita Honeycutt. Mrs. Hall was granted specified rights of visitation, including having her son in her home in North Carolina a total of thirty one days per year. Mrs. Hall questions (1) the jurisdiction of the court to decree custody, (2) the propriety of the court's action in granting custody to appellees, who are not related by blood or marriage to appellant or the child, (3) the refusal of the trial judge to talk with Jeffrey before rendering his decision, and (4) the entry of an order in the trial court requiring appellant to make child support payments 'in keeping with her means and ability to pay.'

The evidence shows Jeffrey Medearis was born to appellant on April 19, 1964, in Elizabethton, Tennessee. At the time of conception of the child, appellant was married to Hal Ben Medearis. Mr. Medearis filed suit for divorce in the Circuit Court of Carter County and, among other charges, put in issue the paternity of Jeffrey. On trial, Mr. Medearis was granted a divorce on the ground of 'cruel and inhuman treatment' and was given custody of Robin Medearis, the young duaghter of the parties. Blood tests made after the birth of Jeffrey revealed Mr. Medearis could not be the father; consequently, no order regarding Jeffrey's custody was made in the divorce decree, and Jeffrey was left in custody of appellant.

On May 9, 1965, when Jeffrey was approximately thirteen months of age, appellant left Jeffrey with the appellees, with the understanding that appellant would pay $12.50 per week for Jeffrey's care. Appellant made payments for approximately two months then notified appellees she was no longer able to make the support payments. Since that time appellant has made no material contribution for the support of her son, but has visited him at irregular intervals.

On May 11, 1967, appellees, having had physical custody of Jeffrey Medearis for two years, filed a petition in the Circuit Court of Carter County seeking to adopt Jeffrey. Appellant filed a demurrer and answer, putting in issue the allegations of consent and the suitability of the appellees to adopt the child. Appellees then filed a supplemental petition charging that appellant had abandoned Jeffrey, and that her consent to the adoption was not necessary.

No action was taken by either party to prosecute the adoption case, or to change the physical custody of Jeffrey until October 29, 1971. At that time, under the pretext of taking Jeffrey to Elizabethton, Tennessee, to purchase Halloween gifts, appellant took Jeffrey to Hickory, North Carolina and announded her intention to keep the child with her.

Appellees filed a Habeas Corpus petition in the Superior Court of Carawba County, North Carolina in an effort to regain custody of Jeffrey. On hearing of the petition, the court declined to assume jurisdiction of the issue of custody, and ordered appellant to take Jeffrey back to Tennessee and adjudicate the issue of custody in the Adoption Petition then pending in the Circuit Court of Carter County.

Thereafter, on December 1, 1971, appellant filed a petition in the adoption proceeding seeking the dismissal of the adoption petition on the ground it had not been prosecuted to completion within the two year period specified by statute, and seeking to have the court adjudicate that she was entitled to have custody of Jeffrey.

Appellees filed an answer to the new petition, averring the delay in prosecution of the adoption was occasioned by agreement of the parties to leave custody in status quo. Appellees also put in issue the fitness of appellant to have custody of Jeffrey and asked the court to decree custody to them in the event the court dismissed the adoption petition.

On the trial, which was held on the 13th day of December, 1971, the adoption petition was dismissed for failure to prosecute the adoption to completion within two years from the date of filing of the petition. (T.C.A. 36--124). The court then heard evidence by oral testimony on the issue of custody, with the result that primary custody of Jeffrey was awarded appellees.

Appellant insists 'the trial court lost jurisdiction to adjudicate custody of the child to appellees when he dismissed the adoption petition, and when there was no further pleading before the court charging that the child was an abandoned and neglected child.' We find no merit in this insistence. T.C.A. 36--123 provides expressly that '* * * when a petition (for adoption) is dismissed, non-suited, or withdrawn, The child shall remain a ward of the court with jurisdiction to adjudicate the child's guardianship according to the best interest of the child.' (emphasis supplied). Then too, the dismissal of the adoption proceeding left pending the custody petition filed by appellant, which, of itself would give the trial court jurisdiction to try the issue of custody.

Appellant has filed six assignments of error in which she takes issue with specific findings or specific statements by the trial judge relative to the issue of custody. In substance these assignments when considered collectively present the question: Who is entitled to custody of Jeffrey?

The right of a parent to the custody of her child is paramount to that of an unrelated third party, other considerations being equal....