Magee v. Magee, 48339

• Decision Date: 13 October 1975
• Docket Number: No. 48339,48339
• Citation: 320 So.2d 779
• Parties: Jan Lynn Y. MAGEE v. Joe MAGEE.
• Court: Mississippi Supreme Court

Page 779

320 So.2d 779

Jan Lynn Y. MAGEE v. Joe MAGEE.

No. 48339.

Supreme Court of Mississippi.

Oct. 13, 1975.

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 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 house and stayed there overnight. David was then asked if what he had told the lawyer in his office was true, and he replied that it was not and that he had lied. When asked why he had lied, David replied he did not know. When asked if he wanted to continue to live with his mother, he replied that he did.

On further examination, David testified that his mother had never spent the night with Mr. Harvey, that he had never seen his mother do any immoral act, and that she had been a good mother to him and his little sister. He said he was afraid of his father because his father had struck him in the stomach with his fist about two years before and he had been afraid of him ever since. He also testified that when his father took him to the lawyer's office, his father told him to tell the lawyer that they had been staying at Mr. Harvey's house and that his mother had told him that they were married. He said because of his fear of his father, he had to give answers to questions that he knew were not true and that is what occurred in the lawyer's office. He also testified that his father's lawyer had told him that his statements in his office had been taped and that his father told him that they were going to use the tapes against him.

In this connection, the record reflects that counsel for appellee did have some tapes on the table in front of him in the courtroom, but it developed that these tapes were blank tapes. Apparently, their purpose was an attempt to influence David to testify to the same thing that he had told in the lawyer's office. However, throughout his testimony under oath, David maintained what he had said about this mother and Mr. Harvey was not true, and he had lied to the lawyer. He also testified that no one had tried to influence him or promised him anything to testify as he did in court.

Appellant was called as an adverse witness and she testified that she met Mr. Harvey on about the first of February and had dated him since that time. She said that Mr. Harvey had formerly been married and had a seven year old daughter who lived with him and she had allowed her daughter to go to Mr. Harvey's home and spend the night with his little girl and the Harvey child had spent the night in her home. She denied that she represented to her son that she and Mr. Harvey were married. She also denied that she told Mr. Magee that she and Harvey were married. She said he asked her if she and Harvey were married and she told him that they might be or might not be, but in any event, it was none of his business. She denied that she had ever spent the night in Mr. Harvey's home, or...