Magee v. Magee, No. 48339

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtINZER; GILLESPIE
Citation320 So.2d 779
Docket NumberNo. 48339
Decision Date13 October 1975
PartiesJan Lynn Y. MAGEE v. Joe MAGEE.

Page 779

320 So.2d 779
Jan Lynn Y. MAGEE
v.
Joe MAGEE.
No. 48339.
Supreme Court of Mississippi.
Oct. 13, 1975.

Page 780

Mounger & Mounger, Tylertown, for appellant.

Ratcliff & Morgan, McComb, for appellee.

Before PATTERSON, INZER and WALKER, JJ.

INZER, Justice.

This is an appeal by Jan Lynn Y. Magee from the decree of the Chancery Court of Walthall County modifying a decree relative to the custody of Sharon Denise Magee, a girl, five years of age, so as to award the custody of the little girl to the father Joe Magee. We reverse and render.

The record reflects that appellant and appellee were formerly man and wife. To their union were born three children, David Allen, age 15, Donald Ray, age 9, and Sharon Denise, age 5. The parties were divorced by a decree of the Chancery Court of Walthall County rendered on November 15, 1973, and by the terms of this decree, the mother, appellant here, was awarded custody of the three children with the right of appellee to have them visit with him very other weekend. He was required to contribute $150 per month to help support the children.

Two days after the divorce was granted, appellee married his present wife, Wilma Magee, and they reside near Summit in Pike County. His present wife has two children by a former marriage. On March 29, 1974, appellee filed a petition to modify the former decree so as to award him the custody of David Allen and Sharon Denise. The petition alleged that there had been a change in circumstances because the mother of the children had been for the past two or three weeks living openly with a man to whom she was not married and she had carried on unlawful sexual intercourse with the man to which the children had been exposed. It was alleged that this conduct was such as to render the mother unfit to have the custody of the children and appellee had a fit, proper and suitable hime in which to rear the children.

Appellant answered the petition and denied that there had been any change of circumstances since the divorce decree, except as to financial need due to the rise in living expenses. She denied the allegations of the petition relative to her conduct. She charged that the child Donald Ray was then and at the time of the divorce a retarded child and was attending the State School at Ellisville and that the father should be required to pay his room and board at the school. She also charged that the petitioner should be required to pay her an attorney's fee and the costs.

The only evidence tending to show any misconduct on the part of the appellant was the testimony of appellee, his present wife, and David, the fifteen year old son.

The only thing appellee knew of his own knowledge relative to any misconduct on the part of his former wife was that on March 25, 1974, he tried to reach his son by telephone at their apartment. He testified that he called several times and received no answer. The last time he called was about 11 p.m. and when he received no answer, he, his present wife, and another lady drove to Tylertown. He said he found appellant's car parked in front of Evon Harvey's home where he thought it would be. They watched the car until

Page 781

about 12 o'clock and then called the apartment again and no one answered. They then watched the car until about 2 a.m. and it was still parked in front of Harvey's home and all the lights were out in the house. He said that later he asked appellant about her relations with Mr. Harvey and she told him that they were married, but when he checked, he found out they were not married.

His present wife testified to the same facts relative to going to Tylertown, except she testified they first went to appellant's apartment and no one was there.

David, the fifteen year old son, was called as a witness by appellee. Because of the rather unusual circumstances relative to his testimony, it will be detailed to some extent. David testified that his mother had told him that she and Mr. Harvey were marred and he thought they were married. Counsel for appellee then asked him if he remembered discussing the matter with him in his office shortly after his birthday and David replied, 'Yes, sir.' When asked if he remembered telling him that he, his mother, and sister had stayed overnight at Mr. Harvey's, David said he told him that he and his sister stayed a part of the time. When asked about what he said about his mother staying there overnight, David said he told him that she stayed there a part of the time, but not overnight. Counsel for appellee then replied, 'I am not talking about what you told me today, I'm talking about what you told me in my office.' At this point, appellant objected to appellee impeaching his own witness. Although counsel for appellee did not claim surprise, he insisted that he had the right to cross examine the witness because he had made a statement in his presence and in the presence of his client to which he was now testifying differently. The court ruled that under the circumstances, he would allow counsel to cross examine his own witness as an adverse witness. On cross examination David admitted that he told the lawyer in the presence of his father that he, his mother, and little sister spent the night at Mr. Harvey's house and that he and his sister slept in opposite bedrooms and his mother slept in the bedroom with Mr. Harvey. He also admitted that he told the lawyer that Mr. Harvey had come to his mother's...

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16 practice notes
  • Russell v. State, No. 90-DP-1141
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 1992
    ...or in any way tend to establish the truth of the matters contained in the out-of-court statement." Id. at 719-20, quoting Magee v. Magee, 320 So.2d 779, 783 This is the first time the question of voluntariness of the July 27, 1989, statement has been raised in connection with its impeachmen......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff relies on circumstantial evidence as proof for his al......
  • Lanier v. State, No. DP-77
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 1988
    ...be used as substantive evidence. [citations omitted Id. at 719 [emphasis added]. We went on in Moffett to say, quoting Magee v. Magee, 320 So.2d 779, 783 (Miss.1975), [But impeachment] does not mean that the out-of-court statement became evidence on its merits or had any probative value..........
  • Wilkins v. State, No. 89-KA-0266
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1992
    ...249 (Miss.1979); Denton v. State, 348 So.2d 1031, 1034 (Miss.1977); Murphy v. State, 336 So.2d 213, 216-217 (Miss.1976); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hammons v. State, 291 So.2d 177, 179 (Miss.1974); Hooks v. State, 197 So.2d......
  • Request a trial to view additional results
16 cases
  • Russell v. State, No. 90-DP-1141
    • United States
    • United States State Supreme Court of Mississippi
    • August 12, 1992
    ...or in any way tend to establish the truth of the matters contained in the out-of-court statement." Id. at 719-20, quoting Magee v. Magee, 320 So.2d 779, 783 This is the first time the question of voluntariness of the July 27, 1989, statement has been raised in connection with its impeachmen......
  • Brooks v. Brooks, No. 92-CA-01197-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 30, 1995
    ...inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff relies on circumstantial evidence as proof for his al......
  • Lanier v. State, No. DP-77
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 1988
    ...be used as substantive evidence. [citations omitted Id. at 719 [emphasis added]. We went on in Moffett to say, quoting Magee v. Magee, 320 So.2d 779, 783 (Miss.1975), [But impeachment] does not mean that the out-of-court statement became evidence on its merits or had any probative value..........
  • Wilkins v. State, No. 89-KA-0266
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1992
    ...249 (Miss.1979); Denton v. State, 348 So.2d 1031, 1034 (Miss.1977); Murphy v. State, 336 So.2d 213, 216-217 (Miss.1976); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hammons v. State, 291 So.2d 177, 179 (Miss.1974); Hooks v. State, 197 So.2d......
  • Request a trial to view additional results

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