O'Neal v. O'Neal

• Decision Date: 15 March 1909
• Docket Number: 13,748
• Parties: DAVID L. O'NEAL v. CLARA M. O'NEAL
• Court: Mississippi Supreme Court

48 So. 623

95 Miss. 415

DAVID L. O'NEAL v. CLARA M. O'NEAL

No. 13,748

Supreme Court of Mississippi

March 15, 1909

FROM the judgment of HON. G. GARLAND LYELL, Chancellor, rendered in habeas corpus proceedings, heard and determined at Jackson, Mississippi.

Mrs O'Neal, appellee, was the petitioner, and O'Neal, her divorced husband, appellant, was defendant in the proceeding before the chancellor. From a decree in petitioner's favor the defendant appealed to the supreme court.

The controversy involved the custody of their infant daughter, at the time of the institution of the proceedings about eighteen months old, and, according to the contention of the petitioner, wrongfully withheld from her. In the decree granting the divorce nothing was adjudged as to the custody of the child. The mother retained possession of the child until it was taken from her home by the father, after which this proceeding was instituted. The chancellor awarded temporary custody to the mother. A supersedeas of the chancellor's judgment pending the appeal therefrom to the supreme court was obtained, and the father retained possession of the child. Before the appeal came on for determination in the supreme court, the probationary period fixed by the chancellor for the mother's custody of the infant expired.

Affirmed and remanded.

May &amp Sanders, for appellant.

We are constrained from the facts of this record to announce to this court the conscientious belief that envy, jealousy, hatred and the desire for notoriety is responsible for this proceeding and not a mother's love. In view of these facts we respectfully insist that it was gross error for the chancellor to experiment in the hope that the presence of the child might serve to restrain or perhaps reform its mother. If the testimony of appellant's witnesses is to be believed, and the acts indicated from the character of her associations with the class of companions as shown by the record may be accepted as true, then may not the influence of such a participant result in so warping the character of the innocent as to result in its disease or destruction? We do not understand it to be the policy of the court having exclusive jurisdiction over infants as its wards to resolve such wards into instruments of reform. We respectfully submit that in view of the fact that it devolved upon the appellee to clearly prove her right to the custody of this child by a preponderance of the evidence, and that the only testimony which shows, or tends to show, any such right is that of her own, and that it stands in direct conflict and is contradicted in every particular, by the testimony of six or seven other witnesses and the records of the court; instead of establishing her right, the contrary has been proved; and we think the chancellor's decree bears out our contention. Indeed, we think that if such acts of indiscretion on the part of appellee since the date of the decree as were shown to have been committed prior to the rendition of the decree, were as clearly shown to the chancellor, that he himself would have taken from her the custody of the little girl and passed her to her father.

Hallam & Cooper and C. W. Girdlestone, for appellee.

A woman may through ignorance be indiscreet, she may transgress the bounds of propriety without being inherently bad, but the inborn love of her latest born dwells ever in her bosom, for

"A mother is a mother still--

The holiest thing alive."

On the question as to who is morally better fitted to care for this little child, we respectfully submit that if the weight is with either side, it is with the mother. All things else being equal, therefore, the urgent need by the child of a mother's love, of a mother's care and attention demands at the hands of this court an affirmance of this case. Should the father prevail, the child must be left to the care of a step-mother of whom nothing else is known than the not very commendable circumstance that she married D. L. O'Neal five days after he had procured a divorce from the appellee--having waited complacently by for the chance to step into the shoes of the divorced wife. Her love for the child, if it does not ripen into hate, her interest in its welfare, could not possibly equal that of the mother who risked her own life that this second principal of nature might live in the world. Although the court may believe that Mrs. O'Neal is the abandoned woman that the appellant would have the court believe her to be, yet we submit that at the tender age of this child, the child's moral character could not be hurt or influenced to any degree by its mother's conduct. It will be years before the mind of this child is sufficiently developed to understand right from wrong, and certainly if the facts disclosed by the record, if true, were presented to that child's mind they could have no influence over it. It has been by the most diligent effort on the part of the appellant, for grown up men and women, whose minds are developed, to discover even a suspicion of immorality in the conduct of the appellee, and certainly a little child could not discover such immorality or be influenced by it. But we do not wish to be understood to admit to the slightest extent that the conduct of the appellee has been immoral.

The cases of Cocke v. Hannum, 39 Miss. 423; Foster v. Alston, 6 How. (Miss.) 461; McShan v McShan, 56 Miss. 413; Johns v. Johns, 57 Miss. 530; Moore v. Christian, 56 Miss. 411, support the contention that in a contest between parents the mother is to be preferred, and especially if the child is very young and so requires a mother's care. The case of Hibbette v. Bains, 78 Miss. 706, 29 So. 80, has no reference to a contest between parents. That was a contest between the father and two aunts; and while the opinion in that case is masterly, the case is not controlling here except insofar as it holds that the interest of the child is the...