Kyzar v. Kyzar, 42820
| Decision Date | 02 December 1963 |
| Docket Number | No. 42820,42820 |
| Citation | 248 Miss. 59,157 So.2d 770 |
| Parties | Mrs. Joan Elizabeth KYZAR v. Marvin Clayton KYZAR. |
| Court | Mississippi Supreme Court |
Jones & Stratton, Brookhaven, Fred C. Berger, William F. Riley, Natchez, for appellant.
Allen & Patterson, Brookhaven, for appellee.
This is an appeal from a decree of the Chancery Court of Lincoln County granting the wife a divorce from her husband for habitual cruel and inhuman treatment, and awarding custody of their four children (ages 9-1 1/2) to the state welfare department, after finding that both parents were not qualified to have them. The only questions are the right of the wife to custody of all four of the children, and an allowance of attorneys' fees for her counsel. We hold she is entitled to both.
John and Marvin Kyzar were married on June 12, 1952, and lived together until July 1, 1962. This divorce action was filed that same month, and at that time their four children were Paula, age 9, Theresa Ann, age 6, Angela, age 4, and Marvin, age 19 months. Two of the children were living with Mrs. Kyzar, the complainant, who was residing with her parents in Adams County, and two with the father. In response to the original suit by the wife, Mr. Kyzar answered, and filed a cross bill for divorce on the ground of adultery.
After a hearing, the chancery court granted her a divorce, and dismissed the cross bill. It further held that complainant was not fit or qualified to have the care and custody of the children; and although the father had made every effort to care for them, circumstances prevented him from doing this. He had to leave for work early in the morning, and take the children one and one-fourth miles to the home of a person not related to them for their care, and, the court said, it would not be to their best interest for him to have custody under the circumstances. The court concluded that 'for the time being' the best place for the children would be in the care of the Lincoln County Welfare Department, to be placed in a foster home until such time as a showing could be made by either party of changed conditions. The defendant was ordered to pay to the walfare department $20 per month for each child, or a total of $80 monthly. The effective date of the awards of custody was fixed at January 1, 1963. During December 1962 the children should remain in status quo. On January 2, 1963 the new chancellor authorized Mrs. Kyzar to appeal the decree with supersedeas.
Appellee through his attorneys waived process, entered his appearance, and submitted the case of this court for decision without the filing of a brief. Appellant's brief is the only one before us. There are several decisions dealing with disposition of a case where an appellee has not filed a brief. Various approaches and methods have been utilized in deciding them. W. T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527 (1932); Columbus & G. Ry. Co. v. Basson, 176 So. 600, (Miss.1937); Ramsay v. Milner, 192 Miss. 120, 4 So.2d 889 (1941); Gulf, M. & O. R. Co. v. Webster County, 194 Miss. 660, 13 So.2d 644 (1943); Anderson v. Rieveley, 218 Miss. 211, 67 So.2d 249 (1953); Lawler v. Moran, 245 Miss. 301, 148 So.2d 198 (1963); see 5 Am.Jur.2d, Appeal and Error, Sec. 686. It is sufficient here to say that, although we have not fully construed appellee's failure to file a brief as tantamount to a confession of error, we have considered that fact along with the facts reflected in the record, and conclude the chancery court was manifestly wrong in holding that Mrs. Kyzer was unfit to have the care and custody of her four young children. In addition to omitting a defense of the decree, appellee entered no cross appeal, and does not contend he is entitled to custody of the children. Appellant's brief states that she is informed the two children who were allowed to remain with their father, as the result of the supersedeas appeal, have been surrendered by him to the welfare department. There is no denial of this assertion.
The chancery court was warranted in finding, as it did, that for some time before the separation appellee consistently and brutally mistreated his wife, cursing and abusing her and beating her with his fists and feet; that he has a hot temper and apparently is unable to control it. All four of the children are of young and tender years. Three of them are girls, one a boy. It has long been the rule in this state that the custody of a child of young and tender age should be awarded to the mother if she is competent to care for them. Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375, 850 (1954); Brown v. Brown, 237 Miss. 53, 112...
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Mercier v. Mercier, 96-CA-00564-SCT
...Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982) (custody of female child of five years of age granted to mother); Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963) (custody of three females and one male, ranging in age from one and one-half years old to nine years old, granted to mothe......
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Brown v. Hewlett
...of the amount awarded by the trial court." Keyes v. Keyes , 252 Miss. 138, 145, 171 So.2d 489, 491 (1965) ;8 Kyzar v. Kyzar , 248 Miss. 59, 64, 157 So.2d 770, 772 (1963) (granting $ 125 for appellate fees, half of the $ 250 for trial court work). The one-half fee does not appear to ever hav......
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Albright v. Albright, 54289
...Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225 (1954); Mitchell v. Mitchell, 218 Miss. 37, 65 So.2d 265 (1953); Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Bunkley and Morse's Amis, Divorce and Separation in Mississippi Sec. 805, p. These cases refer to this principle as a rule, n......
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Buntyn v. Smallwood, 53070
...held that if the mother of a child of tender years-especially a female-is so fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Bosewell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss.......