Hodum v. Crumpton, No. 48522

• Decision Date: 23 March 1976
• Docket Number: No. 48522
• Citation: 329 So.2d 667
• Parties: Barbara A. (Crumpton) HODUM v. Leonard CRUMPTON.
• Court: Mississippi Supreme Court

Page 667

329 So.2d 667

Barbara A. (Crumpton) HODUM v. Leonard CRUMPTON.

No. 48522.

Supreme Court of Mississippi.

March 23, 1976.

Rehearing Denied April 27, 1976.

Farese, Farese, Jones & Farese, Ashland, for appellant.

B. N. Knox, Jr., New Albany, for appellee.

Before GILLESPIE, WALKER and BROOM, JJ.

WALKER, Justice:

This is an appeal from the Chancery Court of Union County, Mississippi, which dismissed appellant's petition for modification of a prior decree awarding custody of a two and one-half year old female child to her father, the appellee here.

The essential facts which have brought this litigation to this stage are as follows:

On or about April 19, 1973, appellant and her husband separated. On May 22, 1973, appellant filed for divorce against her husband. The precise ground for the divorce was habitual, cruel and inhuman treatment. Appellee filed a cross-bill, charging appellant with adultery.

One child, Donna Crumpton, was born of this union. At the time of the divorce, the child was one and one-half years of age. The proceedings upon the original bill and cross-bill for divorce were uncontested. In due course, on June 28, 1973, upon the uncontested evidence of the husband, the divorce was granted to him along with custody of the minor child. Appellant was granted specific visitation privileges from Friday to Sunday on each third weekend.

On December 31, 1973, appellant filed her petition seeking modification of the original decree so as to obtain custody of the child.

The decree granting appellee a divorce and custody of the minor child was based on a charge of adultery but made no finding with reference to the fitness or unfitness of appellant to have the minor child.

At the time of her divorce, appellant was working full time. After the divorce, she married Billy R. Hodum and the couple now reside in Memphis, Tennessee, where Billy Hodum is General Manager of a builders supply company. The Hodums' current income is approximately $1,200 per month. Mrs. Hodum does not work and remains in the home as a housewife. The home, which they own, is a modern home with three bedrooms, one and one-half baths, breakfast room, kitchen, living room, dining room, family room and double carport. The home is located in a residential area near a school and church. Mr. and Mrs. Hodum are the only occupants of the home.

After the Crumptons' divorce in Union County, Mr. Crumpton, the appellee, sold the three bedroom home which he and appellant had built prior to their divorce. He then moved, with the child, into a mobile home trailer, which he purchased. Mr. Crumpton, the minor child, Mr. Crumpton's mother and father, and a nephew, thirteen years of age and who does not go to school, all live in the trailer. The trailer is twelve feet wide and sixty-five feet long, consisting of three bedrooms, two baths, a living room and a kitchen. Mr. Crumpton's parents use one bedroom and the nephew uses one. The third bedroom is occupied by Mr. Crumpton and the minor child here involved. Mr. Crumpton is employed as a factory worker at Futorian Manufacturing Company, earning $115 per week. Mr. Crumpton's mother cares for the child while Mr. Crumpton is at work. The child is now four years of age.

We are of the opinion that the chancellor erred in dismissing appellant's petition to modify the divorce decree granting custody of this minor child to the appellee. Here, as in Boswell v. Pope, 203 Miss. 31,56 So.2d 1 (1952), the issues are two in number: (a) Whether there had been a material change in circumstances to warrant a modification or change of the custody decree; and (b) If such material change had occurred, what is for the best interest and welfare of the child.

The appellee's circumstances have changed since the former divorce decree. He has sold the home in which he and the appellant and child lived, and is now residing in a trailer, which he owns, with his mother, father, and a thirteen-year-old nephew who does not attend school. Due to the number of people in the three bedroom trailer, the appellee and the child share a bedroom. As was the case at the time of the former decree, the child is cared for by appellee's mother while he works.

The appellant's circumstances have also changed since the former decree. She has remarried and the couple have a home of their own. Furthermore, appellant is no longer working and is now able to devote her full time to the child and being a housewife. Appellant's husband is financially able and willing to support the child.

The paramount consideration in this case is the child's welfare. The general rule is that a child of such tender years and especially a female child should be with her mother, unless the mother is an unfit person to have the child's care and custody. Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971).

In Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443 (1948), it was said:

When a divorce has been properly granted because of the adultery of the wife, she is not entitled either to alimony or to the custody of the children, save temporarily as to an infant so young as not to permit separation from its mother, and save as to some exceptional circumstances, none of which are here present. (Emphasis added). (203 Miss. at 395, 35 So.2d at 444).

What was said in Bassett v. Sims, 220 Miss. 210, 70 So.2d 530 (1954), quoting Amis, Divorce and Separation in Mississippi, section 214, p. 289 (1935) is pertinent here. There it...