Ladner v. Ladner

• Decision Date: 29 January 1968
• Docket Number: No. 44728,44728
• Citation: 206 So.2d 620
• Parties: Donald E. LADNER v. Frances Temple LADNER.
• Court: Mississippi Supreme Court

Page 620

206 So.2d 620

Donald E. LADNER v. Frances Temple LADNER.

No. 44728.

Supreme Court of Mississippi.

Jan. 29, 1968.

Hewes & Gillespie, Roberts, Young & Stelly, Gulfport, for appellant.

Roy D. Powell, Jackson, for appellee.

RODGERS, Justice:

This case came to this Court from the Chancery Court of the First Chancery Court District of Hinds County, Mississippi. It is an appeal from a decree in which the appellant, Donald Ladner, was found to be in contempt of the chancery court and guilty of civil and criminal contempt. He was ordered to pay appellee, Frances Temple Lander, $50, on penalty of imprisonment, and was also required to serve 10 days in jail for willful and premeditated contempt of court, in that the failed and refused to abide by a previous order of the chancery court. The appellee paid $50 as directed, and has appealed from that part of the decree requiring him to serve 10 days in jail for criminal contempt.

The record reveals that Donald E. Ladner filed an original bill seeking a divorce from the appellee, Frances Temple Ladner, in 1965. The appellee did not contest the bill for divorce, and a divorce decree was granted to the appellant on December 6, 1965. The appellant was given exclusive custody of their two minor children, Donald E. Ladner, Jr. and Kimberly Jo Ladner. Thereafter, on January 26, 1966, the appellee filed a petition to set aside the decree in the original case, and asked in the alternative that the decree be modified. The decree was modified so as to permit visitation rights to the appellee. On August 5, 1966, Mrs. Frances Temple Lander filed another petition in which she requested a change in the original divorce decree so as to give her the permanent care and custody of their minor children. The chancellor was of the opinion that the circumstances had changed so that it was to the best interest of the children for them to be given to their mother and for the appellant to be given the right to visit them. An order was entered by the court to effect the decision of the chancellor. Appellant appealed from this order, but the chancellor denied an appeal with supersedeas; thereupon-an application for supersedeas was submitted to a member of this Court. A hearing was had resulting in an order permitting an appeal with supersedeas, upon posting a bond. This case is now on appeal to this Court, but the issue in that case is not now before us on this branch of the proceedings.

Appellant brought to the attention of the Harrison County Family Court the condition of his children, so that at the hearing the judge in that court directed the appellant to institute an action in that court. On October 10, 1966 (apparently without notice to appellee), an order was entered in that court giving full custody of the children to the appellant. Thereafter, on February 3, 1967, the appellee filed a petition, an affidavit against the appellant, charging him with contempt of the Chancery Court of Hinds County, Mississippi, based upon his failure to carry out the order of the court as set out in the order of April 6, 1966. This hearing resulted in a decree of the chancery court in which the appellant was found to be in contempt of the chancery court.

The appellant has filed several assignments of error, but they are based on two major premises: (1) It is contended that the appellee is suffering with serious emotional and mental problems, and that the appellant has been 'hindered by a procedural rule of law which has placed him in a position of being unable to bring before the Court all of the facts which make up the total picture and reveal the true situation existing in regard to the safety and welfare of the two minor children here involved.' Thus, it is said, his alleged violation of a previous order of the court was not allowed, so he was not permitted to establish his motivation in going to the Harrison County Family Court. (2) It is contended that the chancellor was in error in holding the order of the Harrison County Family Court to be void because, it is said, that court had exclusive jurisdiction of the children here involved.

We are of the opinion that the alleged errors are not well taken, and that the order of the chancery court under the facts here presented is proper and should be enforced, for the reasons hereinafter shown.

It has been the contention of the appellant throughout the entire proceedings in this case that the appellee had mistreated her children from the dates of their birth; that she had threatened to kill them with a pistol and with knives and scissors; and that she had beaten them severely. The chancellor accepted this theory and, in the original divorce suit, in which the appellee had failed to make any defense to the original bill, granted the custody of the children to the appellant. However, as time passed and new evidence was presented and it became apparent to the chancellor that appellee loved her children and was constantly making an effort to talk to them on the telephone and to visit them, he changed the decree in the original divorce suit insofar as the custody of the children was concerned so as to make it accord with the facts as he then found them to be. The appellant was not satisfied with this arrangement and decree by the court, and appealed with supersedeas from this order, as he had a right to do. Nevertheless, even if the Supreme Court of Mississippi reverses the order dated September 29, 1966, changing the permanent custody of the children, there remained and still remains the previous order of April 6, 1966, in which the appellant was bound to permit the appellee to visit the children. The appellant testified that he had failed to obey the order of the court on the advice of legal counsel and the direction of the Youth Court of Harrison County. He testified that 'when it became evident to me upon their direction that the children were unnecessarily disturbed and were being torn and pulled and constantly trying to be made dissatisfied with the situation as it was and were constantly being told that they were going to come up here next week, or in a few days, and causing turmoil and confusion with the children, it was then that we quit bringing the children to visit. Never once has she been told that she cannot visit the children on the Coast.' From the testimony of the appellant and other testimony in the record, the chancellor found that the appellant willfully failed to carry out the order of the chancery court by preventing appellee from visiting her children.

While appellant was testifying on direct examination, his attorney asked him if he feared for the safety of the children. The court sustained an objection upon the ground that the question was leading, and at the same time pointed out that this issue had been before the court at the time the original order was entered. Appellant's attorney, however, suggested that the appellant's fear was admissible to show his motive for not obeying the order of the court. The chancery judge then said, 'Well he may testify as to facts but not conclusions since the date of the decree.'

The appellant now contends that the court committed reversible error in not permitting him to again show that it was dangerous for his wife to have the custody of the children and that his motive in violating the order of the court should have been taken into consideration by the court since it showed why he refused to obey the order of the court.

No objection was made to the ruling of the court.

At the outset it may be well to point out that where a contemnor defendant claims that he was acting upon the advice of counsel in violation of a solemn decree of the chancery court, this is no defense to a proceeding for contempt, although such fact may be taken into consideration by the chancellor in mitigation of the offense. United States v. Late Corp. of Church of Jesus Christ of Latter-Day Saints, 6 Utah 9, 80, 21 P. 503, 524 (1889); State ex rel. Mason v. Harper's Ferry Bridge Co., 16 W.Va. 864 (1879); Frost v. McLeod, 113 F. 531 (C.C.W.D. Wisc.1902); Roberts v. Walley, 14 F. 167 (C.C.N.D.N.Y.1882).

In contempt proceedings to determine whether or not a party has deliberately and intentionally violated an order of the trial court, the inquiry is limited to the issues as to whether or not the order was violated, whether or not it was possible to carry out the order of the court, and if it was possible, whether or not such violation was an intentional and willful refusal to abide by the order of the court. In a case where the alleged contempt consisted of the failure to comply with the terms of the court order or decree, an inquiry into the merits of the order or decree will not be permitted. State ex rel. Mason v. Harper's Ferry...