Marshall v. Marshall, 40451

• Decision Date: 01 April 1957
• Docket Number: No. 40451,40451
• Citation: 230 Miss. 719,93 So.2d 822
• Parties: V. F. MARSHALL, Jr. v. Jerry Allen MARSHALL, a Minor, by Mother and Next Friend, Mrs. Juanita Reeves.
• Court: Mississippi Supreme Court

Page 822

93 So.2d 822

230 Miss. 719

V. F. MARSHALL, Jr. v. Jerry Allen MARSHALL, a Minor, by Mother and Next Friend Mrs. Juanita Reeves.

No. 40451.

Supreme Court of Mississippi.

April 1, 1957.

Colin L. Stockdale, Jackson, for appellant.

Paul G. Alexander, Jackson, for appellee.

HALL, Justice.

Jerry Allen Marshall is a minor of the age of 11 years and is a son of the appellant and Mrs. Juanita Reeves, who was formerly Mrs. Juanita Marshall. The parents were divorced by decree of the Chancery Court of Hinds County, Mississippi, on December 3, 1947, at which time both parents were residing in Hinds County. In the divorce decree provision was made dividing the custody of the minor child between the parents and directing the father to pay to the mother the sum of $25 per month for the support and maintenance of the child. In the decree the court retained jurisdiction pertaining to the custody and maintenance of the child. The decree was modified on May 27, 1950, to the extent that the mother was granted the custody of the child because the father had moved out of the State of Mississippi, but the decree continued in effect the amounts to be paid by the father for maintenance of the child, and gave to the father the right of reasonable visitation with the child.

On July 15, 1950, the mother married William Maxwell Reeves and they have continued to reside in Hinds County. The father, because of his occupation, later moved to New Orleans, Louisiana, and about three years ago moved to Detroit, Michigan, where he is employed as a radio and television newscaster. He, too, has remarried and both the father and mother are shown by the evidence to be happily married and maintaining homes in apparently good circumstances.

On May 7, 1956, the mother, both individually and as next friend for the minor, filed a petition in the Chancery Court of Hinds County under Section 1269-01, Code of 1942, asking that the minor's name be changed from Jerry Allen Marshall to Jerry Allen Reeves. On the same day, without notice to the father of the child, the chancellor entered a decree granting this change, but, during the same term of court, the chancellor ten days later rescinded the said decree and directed the issuance of process by publication for the father of the child. Upon receipt of this process the father employed an attorney and resisted the application for change of the child's name. The matter came on for hearing on August 10, 1956, on which date the chancellor entered a decree changing the child's name, and from that decree the father appeals.

At the hearing three witnesses testified in favor of the petition. The minor child said that he has lived with his mother all his life and with his stepfather ever since he and the mother were married. He said that the only time he has ever used the name Jerry Allen Reeves was on an occasion when he attended a Y.M.C.A. camp. He also said that he sees his father about twice a year, the father making trips from Michigan back to Mississippi in order to see and visit with his son. The child also said that as long as the father was living in Hinds County he came to see him regularly, and that since he has been in Michigan he writes to the child about once a week, and in addition occasionally calls him up and talks to him over long distance telephone. He also said that his father sends him presents and does all in his power to keep as closely in contact with him as he can. His testimony is that he loves both his father and his mother and his stepfather.

Mrs. Reeves testified that for sometime after the divorce decree was entered the father did not contribute much to the support of the child, but she admitted that in order to catch up with the delinquencies the father has been sending her double payments each month since he became profitably employed. She also testified that the father has been making trips to Hinds County to see and visit with the child and that she has never refused to let him see the child. She admitted that the father has regularly sent presents to the child and said that by so doing he has ruined two or three Christmases for her because the presents would arrive just before Christmas and the boy wouldn't then be interested in the Santa Claus which she was providing for him. She said that the commencement of this proceeding was at the instance of the child.

Mr. Reeves testified that he was very much agreeable to the change in name and that he has not tried to influence the boy in the filing of the petition and further that he has never denied Mr. Marshall permission to see Jerry at any time; that there is no friction between them and that he has always tried to be kind to Mr. Marshall.

Mr. Marshall testified that he has been living in Michigan for about three years, immediately prior to which he was living in Louisiana, and before that time he was in Mississippi. He said that he has never abandoned his child or done anything to show an indifference toward his welfare; that after the divorce and as long as he remained in Mississippi he visited the child every few days and further that he also saw him when he was living in Louisiana. He mentioned that he has done what he could for the child from a monetary standpoint; that when he was living here he got behind with his payments and that he has been making double payments in order to catch up with them. He testified that when he was down here he tried to get the boy to visit him in Michigan but that his mother and stepfather said that he didn't want to. Mrs. Reeves herself said that she was unwilling for the boy to visit his father in Michigan and gave as her reason that it was too far away. Mr. Marshall also testified that before Christmas 1953 Mrs. Reeves wrote him not to send the boy anything because it spoiled her Christmas, but he bought the presents any way and wrote her saying that he would be here Christmas to bring them and she wrote back that she was taking the boy out of town. He also testified that a number of times before he went to Michigan he would write and ask to see his son and that Mrs. Reeves would say it wasn't convenient. He said that he has been denied the right to see his son a number of times and also that he was denied this privilege one Christmas.

The briefs in this case for both parties do not cite a single authority in point and evidently counsel did not cite anything to the court below. We have therefore had to make an investigation of the law ourselves. In 65 C.J.S., under the subject of Names, Sec. 11, there is a subparagraph beginning near the bottom of page 21 and continuing onto page 22 which discusses the question of a change in the name of an infant. That subparagraph says in part: 'Change of name of infant. An application to change the name of an infant should be granted only where to do so is clearly in the best interest of the child. Ordinarily a change of the name of a minor child of divorced parents should not be granted where it might contribute to the estrangement of the child from its father who has shown a desire to preserve the parental relationship, but such an application has been granted where the father is shown to have been indiffernet to the son's material welfare over a period of years and he is, in reality, a stranger and unknown to him.'

In the case of Kay v. Kay, Ohio Com.Pl., 112 N.E.2d 562, 567, the court said: 'There are times when an informal change to the surname of the mother's second husband may be desirable, as when the child's father indulges in improper conduct, fails to support, abandons the child, is presently, and in the past has been, indifferent to its welfare, and does not raise a timely objection to the change of name. On the other hand when the father is supporting the child, manifests an abiding interest in the child, and, without delay, by a proper pleading in court objects to a change of name, then the court must decide the issue with a view to what is the best interest of the child.' After stating the above rule on page 567, the court quoted the above quotation from 65 C.J.S., Names, Sec. 11, and then said:

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