McAdams v. McFerron

• Citation: 180 Miss. 644,178 So. 333
• Decision Date: 24 January 1938
• Docket Number: 33003
• Court: United States State Supreme Court of Mississippi
• Parties: MCADAMS v. MCFERRON et ux

178 So. 333

180 Miss. 644

MCADAMS v. MCFERRON et ux

No. 33003

Supreme Court of Mississippi

January 24, 1938

Division B

APPEAL from the chancery court of Tallahatchie county HON. R. E JACKSON, Chancellor.

Petition by William Hugh McAdams for a writ of habeas corpus a Charles McFerron and wife to recover the custody of his son. From a decree denying the prayer of the petition, petitioner appeals. Affirmed.

Affirmed.

Roberts & Smith, of Cleveland, and Wm. L. Allan of Memphis, Tenn., for appellant.

There is no attempt in this case to impeach the divorce between the appellant and his former wife, the mother of the child. The only question is as to whether the decree of the Tennessee Court is valid where it awards the custody of the child. When the custody of the child was awarded to the grandparents, the appellees here, and the jurisdiction was retained for such other and further orders of that court to be made from time to time, touching the welfare of the minor child, and if, as we contend, the appellees here, submitted themselves to the jurisdiction of the Tennessee court in 1935 when the minor child was within the jurisdiction of the court, and the decree awarding the custody of the child to the father during the school term and to the grandparents during the vacation period was a valid decree, then we submit that under the language of the Federal Constitution, to-wit "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of each other state." Art. IV, Sec. 1.

We submit that the court below erred in holding that "Any and all orders and proceedings had by the Tennessee court, touching the care and custody of the minor, William Truman McAdams, are void for the reason that the Tennessee court never had jurisdiction of the person of said minor," and we submit that on this question the case should be reversed and judgment entered in favor of the appellant, awarding him the custody of his minor son.

Haynie v. Hudgins, 85 So. 99.

Our courts have have called upon in several cases to pass upon the question of what constitutes an abandonment and in every case that we have examined, that facts constituting are clearly supported by the testimony. In the case of McShan v. McShan, 56 Miss. 413, the father deserted the mother and one of the children and left them destitute and for the space of three years the father contributed nothing to the support of his wife or children and did not return to see his wife or children during that time. This is clearly a case of abandonment. In the case of Fillilove v. Banks, 62 Miss. 11, the character of the mother who was seeking the child was such as to grant the court the right to award the custody of the child as was done in that case. In the case of Morgan v. Shelley, 111 Miss. 868, the father who was seeking the custody of the child had for twelve years not visited the child nor contributed to its support and did not even recognize the child when he saw it. This was a clear case of abandonment.

Amis on Divorce and Separation in Mississippi, sec. 216; Hibbette v. Baines, 78 Miss. 695.

The courts have held that the father (as in this case the mother not desiring the child) would be clearly entitled to the custody of the child unless it has been shown that the father forfeited his right to the child by abandonment or immoral conduct.

Weir v. Morley, 99 Mo. 494, 6 L. R. A. 672; Stegall v. Stegall, 151 Miss. 875, 119 So. 802.

In the present case, the elements of abandonment by the father of his minor child are lacking. He did not leave the child to the tender mercy of a hostile world. In the first place, the child was with the mother until it was about two years old. A part of the time the mother was living with the father but when the mother decided to separate from the father of the child, the mother carried the child to the home of appellees. It was about this time that the appellant purchased a home and the appellees, with the minor child, moved onto the land so purchased. The testimony further shows that the appellant visited this home from time to time and on one occasion, when he had been laid off from his regular work as a saw filer, he actually lived in the home so purchased by him and at that time in the possession of the appellees, where the child was residing. The testimony is replete with facts that, would contradict the idea of an abondonment of the child by its father.

We submit that on the question of abandonment, the rulings of the courts below are absolutely contrary to the evidence and that this court on this question will reverse the decree of the lower court.

Unless the facts developed in the evidence should constitute an abandonment by William Hugh McAdams of his minor child, then we submit that the wishes of the child and the wishes of the grandparents should not have the controlling effect that it appears the court below gave in rendering his opinion.

Watts v. Smylie, 76 So. 684.

We submit that Section 221 of Divorce and Separation in Mississippi by Amis, states the conclusions of the cases decided by our highest court. This section: "Since no person can have property rights or proprietary interest in a child or in its care, custody and training, and since in all contests regarding its custody, the chief concern of the court is the best interest of the child, it is generally held that when a contract made by a parent by which the care, custody or training is permanently transferred to a third void as being against public policy. Hibbette v. Baines, 78 Miss. 695, 29 So. 80. But if the contract taken in connection with the conduct of the parent was such as to amount to an abandonment of the child, the rule is otherwise; because in such a case the good of the child lies that it remain with its foster parent. Fullilove v. Banks, 62 Miss. 11; Morgan v. Shelley, 111 Miss. 868, 72 So. 700."

In order to construe the meaning of the last statement above it will be necessary briefly to analyze the two cases cited. In the Fullilove case, the character of the mother who made the promise, was such to warrant the court in arriving at the conclusion that the custody should not be disturbed. In the present case the character of the father cannot be assailed. In the Morgan case, the father seeking the custody of the child had no contact with and did nothing in the support of said child and did not recognize the child in any manner until he became twelve years o f age, and in addition to this, the father was shown not to be a person suitable morally to have the custody of his son, the court stating that the father "is profane, is a drunkard, and lives amidst immoral environments." These two cases were decided by the court upon the promise of the parent seeking the custody of the child, taken in connection with the conduct of the parent and the moral character of the parent as well as the facts set up constituting an abandonment.

The case before the court is so clearly differentiated by the facts shown in the testimony with reference to the question of abandonment, the moral conduct of the parent, and the alleged promise that the conclusions reached in these two cases cannot be applied to the case at bar.

Richard Denman, of Greenwood, and J. J. Breland, R. L. Cannon, and L. Q. Strong, all of Sumner, for appellees.

The Tennessee court never had jurisdiction of the child.

We submit that, as held by the Chancellor, the predominant weight of the evidence proves that prior to the divorce proceedings the appellant had abandoned his child to its grandparents, the appellees. This being true, in common sense, reason and law, the domicile of the child ceased to follow that of its father, the appellant, and became an incident to, and followed that of its foster parents, the appellees. Wherefore, the Tennessee court did not acquire any jurisdiction over the child, and could not thereafter assert an alleged jurisdiction incidental to a basic jurisdiction that never existed.

In support of the proposition that the actual situs of the child is determinative of the jurisdiction vel non over the custody of the child, we cite: Steele v. Steele, 152 Miss. 365, 118 So. 721; Seeley v. Seeley, 30 App. (D. C.) 191, 12 Ann. Cas. 1058, 209 U.S. 544, 52 L.Ed. 919; Duryea v. Duryea, 46 Idaho 512, 269 P. 987; Woodworth v. Spring, 4 Allen (Mass.), 321.

The Chancellor held, and the record shows, that by the manifest weight of the evidence appellant abandoned the child to the appellees.

Amis on Divorce and Separation in Mississippi, sec. 216; Hibbette v. Baines, 78 Miss. 695, 29 So. 80.

There is no issue here as to the substantive law of the case; the single question is as to the correctness of the Chancellor's finding that the appellant had abandoned the child. As a matter of fact, the cause was tried before a chancellor; but as to this finding of fact there would be no difference as to the law applicable on appeal, had it been tried before a circuit judge.

Langston v. Farmer, 176 Miss. 820, 170 So. 233; Sellers Motors Co. v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 883; Steele v. Ferrer, 150 Miss. 711, 116 So. 616; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122; Stevenson v. Swilley, 156 Miss. 552, 126 So. 195; Bacot v. Holloway, 140 Miss. 120, 104 So. 696.

We admit that, as said in the Hibbette case, one asserting the abandonment of a child by its father has the burden of showing clearly such abandonment. But we submit that this does not require that such abandonment be shown beyond controversy. If such were the rule, it is doubtful whether abandonment could be shown in any case. We submit that the only requirement of the rule is that in the welter of dispute and contradiction, there be sufficient competent, credible...