McKay v. McKay

• Decision Date: 05 May 1975
• Docket Number: No. 47986,47986
• Citation: 312 So.2d 12
• Parties: George William McKAY v. Rose Marie Cinquanto McKAY.
• Court: Mississippi Supreme Court

Page 12

312 So.2d 12

George William McKAY v. Rose Marie Cinquanto McKAY.

No. 47986.

Supreme Court of Mississippi.

May 5, 1975.

McLaurin & Nicols, Brandon, for appellant.

Thomas D. Lee, Forest, for appellee.

Before RODGERS, INZER and WALKER, JJ.

INZER, Justice:

Appellant George William McKay filed suit in the Chancery Court of Rankin County seeking a divorce from his wife Rose Marie McKay on the grounds of habitual cruel and inhuman treatment. Appellant also sought custody of George William McKay, Jr., the only child born to the marriage, then about eight years of age. Mrs. McKay answered the bill of complaint and denied that she had been guilty of habitual cruel and inhuman treatment of the complainant. Mrs. McKay made her answer a cross bill alleging that appellant had been guilty of habitual cruel and inhuman treatment of her, but in an effort to preserve their marriage she endured such treatment, yet in spite of her efforts, appellant voluntarily separated from her. She prayed for temporary and permanent separate maintenance, the custody and support of their child and for certain other relief.

A temporary hearing was had and the court entered an order on March 2, 1973, granting Mrs. McKay the temporary custody of the child and giving appellant specific visitation rights. The court also granted Mrs. McKay the temporary exclusive use of the home and household effects and required appellant to make the monthly payments on the house and to pay all the utility bills. The court also required appellant to pay Mrs. McKay $100 per month for the support of their child and to keep the child and his wife eligible for medical benefits under his retirement from the U.S. Navy.

The case was tried on the merits at the regular September 1973 term of the court and after a two-day hearing the court determined from the evidence that appellant failed to establish that he was entitled to a divorce or the custody of the child. The court after remarking that Mrs. McKay's conduct had not been too good made the provisions of the temporary order permanent by way of separate maintenance. A decree was entered accordingly; hence, this appeal.

Appellant first contends that the chancellor was manifestly wrong in denying him a divorce. We do not deem it necessary to detail the evidence on this issue. It is sufficient to say that the evidence was in sharp conflict. The chancellor heard the evidence and observed the witnesses as they testified and in his memorandum opinion he analyzed the testimony of the various witnesses and reached the conclusion that appellant had failed to establish that he was entitled to a divorce on the ground of habitual cruel and inhuman treatment of him. As the trier of the facts, the chancellor passed upon the credibility of the witnesses, the weight of their testimony, as well as interpreting the evidence where it was capable of more than one reasonable interpretation. After a careful review of the evidence in this case, we cannot say that the chancellor was manifestly wrong in denying appellant a divorce.

The only other point raised on appeal which merits discussion is whether the support payments appellant is required to pay are so excessive as to be unjust and inequitable. We are of the opinion that they are. The record reflects that appellant's only source of income is his salary of $402 per month as an employee of the Game & Fish Commission and retirement pay from the Navy in the amount of $286.43, making a total of $688.43. Mrs. McKay was working and her take home pay was $260 per...