Mixon v. Bullard, 45089
| Decision Date | 16 December 1968 |
| Docket Number | No. 45089,45089 |
| Citation | 217 So.2d 28 |
| Parties | Marvin Richard MIXON v. Frances Imogene BULLARD. |
| Court | Mississippi Supreme Court |
Prewitt, Bullard, Braddock & Vance, Vicksburg, for appellant.
Lee Davis Thames, Vicksburg, for appellee.
This is an appeal by Marvin Richard Mixon from a judgment of the Circuit Court of Warren County affirming an order of the County Court of Warren County which granted a writ of habeas corpus in a child custody matter. We affirm.
Appellant and appellee, Frances Imogene Bullard, were formerly husband and wife, and two children, Marvin Richard Mixon, Jr. age 13, and Kim Susanne Mixon, age 9, were born to their marriage. They were divorced by a decree of the Court of Record of Escambia County, Florida, rendered on April 19, 1965, and appellee was awarded the custody of the two children. She remarried on May 3, 1965. On December 13, 1965, the same court denied appellant's petition to modify the custody decree so as to award him the custody of the children. In January, 1966, appellee and her husband moved to the State of New York in order that her husband could obtain a better job. After appellant learned of this move he secured an order of the Florida court relieving him of paying support for the children. On May 8, 1966, while appellant was temporarily working in New York he secured permission from appellee to have the children visit him. He agreed to return the children the same day. Instead of returning the children he brought them to Vicksburg, where he was then making his home. On May 20, 1966 appellee filed her petition for the writ of habeas corpus.
The trial court correctly held that appellant had failed to prove a material change of circumstances since the rendition of the December 13 Florida decree that would justify a refusal to grant the writ. The only change of circumstances shown to have occurred since the rendition of the decree is the change of residence from Florida to New York. The boy testified that he had been unable to make friends in his new surroundings and he had been referred to by some of his fellow students as a 'Rebel, hick and a farmer.' He expressed a desire to stay with appellant in Mississippi. Appellant is a boilermaker and his work requires him to travel to some extent. He has made his home in Vicksburg several months prior to this hearing. The decree of the Florida court was res judicata as to all matters prior to its date of rendition. However, since the decree was subject to modification by the Florida court, the county court on the hearing for the writ of habeas corpus could imquire whether there had been a change of circumstances since the rendition of the Florida decree that would make it to the best interest of the children for the court to refuse to grant the writ. Talley v. Womack, 249 Miss. 773, 163 So.2d 742 (1964). However, it should be pointed out that where the custody decree is rendered by the chancery court of this state, that upon a hearing of a habeas corpus petition involving the right to the custody of the child or children between the same parties that the party awarded the custody in the chancery court will be awarded the custody unless it is shown that since the rendition of that decree circumstances and conditions have changed to the extent that the party awarded the custody is thereby unfit to exercise such right or has forfeited it. Hinman v. Craft, 204 Miss. 568, 37...
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...is the doctrine which precludes the relitigation of issues arising prior to the rendition of a final order in a case. Mixon v. Bullard, 217 So.2d 28 (Miss.1968) (Florida decree was res judicata for all issues occurring prior to its rendition). Generally speaking, the concept of res judicata......
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