Nix v. Nix, 43575
| Decision Date | 14 June 1965 |
| Docket Number | No. 43575,43575 |
| Citation | 253 Miss. 565,176 So.2d 297 |
| Parties | Mrs. Frances B. NIX v. Billy H. NIX. |
| Court | Mississippi Supreme Court |
Melvin, Melvin & Melvin, Laurel, for appellant.
Paul G. Swartzfager, Raymond Swartzfager, Jr., Laurel, for appellee.
Mrs. Frances B. Nix, on January 21, 1964, filed her bill against Billy H. Nix, in which she charged that the parties were married on September 17, 1954, and were separated on January 1, 1964; that Mark Allen Nix, age 8, and Sherry Lynn Nix, age 5, were the offspring of the marriage. She charged the defendant with habitual cruel and inhuman treatment and sought a divorce on that account. She also sought the award of the custody of the children to her, together with support for them, and alimony.
The defendant, on April 14, 1964, filed his answer, denying the material allegations of the bill, but admitting his liability for the payment of certain obligations referred to in the bill of complaint.
The chancellor, by decree of date of May 8, 1964, awarded temporary custody of the children to the mother and maintenance in the sum of $31.25 weekly to be paid into the registry of the court for disbursement.
Subsequently, on June 30, 1964, the defendant filed a cross bill in which he alleged that the complainant habitually drank alcoholic beverages to excess and had been guilty of adultery on a number of occasions, about which he was never aware and which he had not condoned. For these reasons, he prayed for a divorce. The answer to the cross bill was a detailed denial of the allegations thereof.
The final decree adjudged that the allegations of the cross bill, showing complainant's guilt of adultery, which was not condoned, were true, and awarded the temporary porary custody of the children to the father with an agreement thereon and instructions that they be placed in the home of Mrs. Myrtle Nix until further order of the court, and provided that the mother should be given visitation rights. The decree also refused to allow the complainant any sum for the payment of an attorney's fee.
On her appeal here, the appellant, Mrs. Nix, assigns four alleged errors, but they in effect mean that the court was manifestly wrong in all of its findings and in the application of the law.
Without detailing the evidence for the complainant, it is sufficient to say that it was to the effect that the defendant, at a New Year's Eve party on the evening of December 31, 1963, while under the influence of intoxicating liquor, had brutally assaulted and inflicted bodily injuries upon her. She was corrobated in this instance by two or more witnesses. Similar treatment from him had been suffered by her on other occasions over several years and had endangered her health and life. She also had some corroboration as to these instances and effects. In addition, she testified that the defendant, three or four weeks prior to the hearing of this case, had again inflicted bodily injuries upon her for which he was convicted in the city court. The evidence, adduced in her behalf, if believed, would have warranted the court in granting her a divorce.
On the contrary, the defendant's version was to the effect that his wife was intoxicated and the trouble maker at the party; and that he was trying to protect her. While denying that he struck her, his insistence was that contact, if any, was accidental. He denied the latter charge, saying that he was trying to get out of her car because his wife was beating him in the face with her fists. While admitting his conviction, he said that he could not help what the court did.
On the allegations of the cross bill, the version of Nix was that he knew nothing about any adulterous conduct on his wife's part at the time he answered; that he was away from home on his work much of the time; and that his curiosity had been aroused when, several nights after he had gone to his wife's house, seeking a reconciliation, he went back there and found part of a letter which was evidently written to a paramour. Following this lead, he began his investigations and found and produced several witnesses who testified about the drinking habits of the complainant; others about keeping the children while she had dates with another man; calls over the telephone by a man to the complainant's home and their subsequent leaving in his car and being gone from a few minutes to several hours; and finally the evidence of a witness who claimed to have been a boon friend of the complainant, to the effect that the complainant admitted to the witness that she was in love with two different men for a substantial length of time and with whom she had had sexual intercourse. This evidnece, if believed by the chancellor--and evidently it was--warranted the granting of the prayer of the cross bill.
The Court reached its conclusion because it is mindful of the...
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Brown v. Hewlett
...without funds and "[i]mportant questions were decided, and very sacred rights were in balance." Id. at 491 ; accord Nix v. Nix , 253 Miss. 565, 571, 176 So.2d 297, 300 (1965) (granting a one-half fee to losing party upon ...
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Owen v. Gerity
...See also Hulett v. Hulett, 152 Miss. 476, 119 So. 581 (1928). The proof of such a charge must be clear and convincing. Nix v. Nix, 253 Miss. 565, 176 So.2d 297 (1965); and McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 Adultery is a violation of the exclusivity of the marital relationshi......
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... ... 394, 124 F.2d 233 (1941); Foreman v. Foreman, 40 So.2d 560 (Fla.1949); Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660 (1969); Nix v. Nix, 253 ... Miss. 565, 176 So.2d 297 (1965); Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965); Dickenson v. Dickenson, 192 Misc. 635, 81 ... ...
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Savell v. Savell, 45922
...directed the defendant to pay the fee for the complainant's attorney. We find no error in this regard. In Nix v. Nix, 253 Miss. 565, 571, 176 So.2d 297, 300 (1965), a case relating the criteria of an award of attorney's fee for the wife in defending the cross bill of her husband, we used la......