Newman v. Sample
| Decision Date | 02 January 1968 |
| Docket Number | No. 44563,44563 |
| Citation | 205 So.2d 650 |
| Parties | Beatrice McLin NEWMAN v. Louise SAMPLE. |
| Court | Mississippi Supreme Court |
B. Galloway Austin, Jackson, for appellant.
Mary Libby Payne, Brandon, for appellee.
Beatrice McLin Newman filed her petition for writ of habeas corpus in the Chancery Court of Rankin County, Mississippi, against Louise Sample for the custody of petitioner's twin sons who were born August 17, 1961. The defendant answered the petition and contended therein that petitioner had abandoned said children and was not a fit and proper person to have the care and custody of said children. After a hearing on the merits, the chancellor rendered an opinion in which he found that petitioner had abandoned her children and the petition was dismissed. The petitioner Beatrice McLin Newman appealed to this Court.
Petitioner is a native of Rankin County, Mississippi, and is a niece of the defendant Louise Sample. Petitioner moved to Chicago, Illinois, and on the 17th day of August, 1961, the two children involved in this case, Denis McLin and Derek McLin were born to the petitioner out of wedlock. Before their birth appellee asked for their custody. Shortly after their birth the children were sent to live with the defendant in Rankin County and, except for a number of trips to Chicago, have been living with the defendant and defendant's husband on a small farm in Rankin County, Mississippi. Up until about eight months before the filing of the petition in this case there was a close and cordial relationship between the petitioner and the defendant. The defendant took the children to Chicago from time to time to visit petitioner and other relatives. The petitioner came to Mississippi once or twice a year to visit her father and the children. The petitioner and defendant corresponded frequently concerning the children up until about December 15, 1965. The petitioner sent defendant sums of money from time to time which was used by the defendant in support of the children-the amounts being not less than $175 for the year 1962; $170 for the year 1963; $160 for the year 1964; $155 for the year 1965. Differences had begun to arise between petitioner and defendant in December, 1965, and thereafter petitioner sent only $5 prior to the filing of the petition in this case in the latter part of 1966. Petitioners explanation of her failure to send more money during this period was that defendant had declined to allow the children to come to Chicago as petitioner claimed she had promised. There is no showing that the children ever suffered for want of proper support, care and maintenance. Petitioner contends that she sent funds other than the totals above-mentioned which were represented by money order receipts which she had kept. She also stated that she had sent clothing and gifts in addition to funds. The chancellor found that the amount of money petitioner sent to the defendant was not sufficient for their support.
The record contains the testimony of a number of witnesses concerning details of the visits of the defendant and the two children to Chicago and of visits of the petitioner to Mississippi. Defendant says that petitioner did not have sufficient mother love for her children although the defendant herself conceded that petitioner does love her children. A great deal of consideration was given by the chancellor to the question whether the best interest of the children would be served by living in Mississippi or Chicago.
On February 8, 1965, petitioner married Elliott Newman, a resident of Chicago, who is regularly employed with an income of $8,000 per year which is expected to increase to $10,000 within a short time. Petitioner's income for the last year before the trial was about $3,600 so that petitioner and her husband had a combined income of more than $11,000 per year.
There is no testimony in this record to show that petitioner is not a suitable and fit person to have the care, custody and control of her children. The question is whether the chancellor was in error in finding that there had been an abandonment of the children on the part of the petitioner, and whether, if there was no abandonment, there were other circumstances justifying the denial of parental custody.
There is a presumption that the child's parents will love it most and care for it most wisely, and that it will be for the best interest of the child that it should be and remain in the custody of its parents. This presumption can be overcome by a clear showing of immoral conduct of the parent, abandonment of the child by the parent, or other circumstances which...
To continue reading
Request your trial
-
Bryant v. Cameron
...109-10 (Miss.1977); Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972); Ford v. Litton, 211 So.2d 871, 873 (Miss.1968); Newman v. Sample, 205 So.2d 650, 652 (Miss.1968). This foregoing rule works in tandem with Miss.Code Ann. Sec. 93-17-7 (Supp.1984) concerning the criterion for determination ......
-
Simpson v. Rast, 46520
...them most wisely and that it is to the best interest of children that they should be put in the custody of their parents. Newman v. sample,205 So.2d 650 (Miss.1968). It is true that this presumption may be overcome, but in order to do so there must be a clear showing that the parent has (1)......
-
Kees v. Fallen, 44722
...is now firmly established as a part of the case law of Mississippi. Mitchell v. Powell, 253 Miss. 867, 179 So.2d 811 (1965); Newman v. Sample, Miss., 205 So.2d 650, decided January 2, 1968; Pace v. Barrett, Miss., 205 So.2d 647, decided January 2, 1968; Bunkley and Morse, Amis on Divorce an......
-
Rodgers v. Rodgers
...We have considered and construed Drew in at least three cases; they are: Daniels v. Lewellen, 254 So.2d 907 (Miss.1971); Newman v. Sample, 205 So.2d 650 (Miss.1968); and Mitchell v. Powell, 253 Miss. 867, 179 So.2d 811 (1965). It is apparent from what we said in these cases that what we act......