Leggett v. Leggett

• Decision Date: 20 October 1947
• Docket Number: 36551.
• Citation: 32 So.2d 189,202 Miss. 435
• Court: Mississippi Supreme Court
• Parties: LEGGETT v. LEGGETT.

32 So.2d 189

202 Miss. 435

LEGGETT v. LEGGETT.

No. 36551.

Supreme Court of Mississippi

October 20, 1947

J. Ed. Franklin, of Jackson, and A. S. Scott, of Laurel, for appellant.

Paul G. Swartzfager, of Laurel, for appellee.

ROBERDS Justice.

This cause involves the jurisdiction of the Chancery Court of the Second District of Jones County to award the custody of a minor and the right of William H. Leggett, the appellee, to invoke the jurisdiction of that court for that purpose. The questions arise under these circumstances:

The parties hereto were married in Jones County, Mississippi October 27, 1940, and there lived as man and wife until September 17, 1943, when they separated in that County. Appellant then moved to Hinds County, Mississippi, bringing with her their only child, William Homer Leggett III, then about one year old, who is the subject of the controversy on this appeal.

In May or April, 1944, appellee, the husband, filed a petition in the nature of a habeas corpus in the Chancery Court of Hinds County, seeking to obtain the custody of this child from his mother, the appellant. The Chancellor denied the petition leaving the custody of the child with his mother, but granted the father the right to visit the child and have the minor in his possession at stated times and under described conditions. The decree also imposed on the father the obligation to pay the mother for the support and maintenance of the minor the sum of $25.00 per month. That decree contained this prohibition, 'The said minor child shall not be removed from the jurisdiction of this court by either of the parties herein except on written consent of the court'. The decree further recites, '* * * all parties being present in court and the court in all things having jurisdiction and it appearing that the parties herein have reached an agreement as to what should be done touching the custody of the child, which said agreement the court doth find is for the best interests of said child and is in all respects proper in the premises. It is therefore ordered, adjudged and decreed, the same having been agreed to between the parties herein * * *', then follows the adjudging and ordering part of the decree. The decree is dated April 7, 1944.

The minor remained with the mother under that decree, the father visiting the child but not always at the times so provided in the decree. There is some question, too, whether he made the payments for support required by the decree, but that is not material to the present hearing.

In March, 1946, the husband filed another petition in the Chancery Court of Hinds County, asking the Court to modify its decree of April 7, 1944, and award him the care and custody of the minor, setting up what he contends were changed conditions since the former decree justifying the court in awarding to him the custody of the minor.

On March 22, 1946, the Chancellor entered this order on that petition: 'This cause having come on for hearing on petition and answer and the Court after hearing the statements of counsel and duly considering the matter orders that the decree of April 7, 1944, be not modified in accordance with the prayer of the petition at this time, but that the matter be passed subject to said decree until further ordered, and without prejudice to the petitioner at some later time to renew his petition in like manner and for the same purpose.'

On December 13, 1946, Mrs. Edith Nan Leggett filed against the husband in the Second Judicial District of Jones County a bill for divorce. The husband answered that bill and made his answer a cross bill, in which he again prayed the Court to grant him the care and custody of the child, setting up what he claimed to be changed conditions occurring since the decree of April 7, 1944,...