Pass v. Pass, 41407
Citation | 118 So.2d 769,238 Miss. 449 |
Decision Date | 21 March 1960 |
Docket Number | No. 41407,41407 |
Parties | E. C. PASS v. Mrs. Nancy Pauline PASS. |
Court | United States State Supreme Court of Mississippi |
Horan & Horan, Water Valley, for appellant.
Joel W. Bunkley, Jr., University, John S. Throop, Jr., Water Valley, for appellee.
The principal question presented on this appeal is whether the court has the legal right to compel a father to provide funds for a college education for his minor child whose custody has been awarded to the mother by court decree. The question has not heretofore been passed upon by this Court, and the authorities generally are not in harmony.
The parties to this action were formerly husband and wife. They had two children, one a son and the other a daughter, Nancy Karleen Pass. By decree of the Chancery Court of the Second Judicial District of Yalobusha County rendered on May 12, 1958, the parties were divorced; the custody of the son was awarded to the father, the custody of the daughter was awarded to the mother, and the father was directed to pay $50 per month for the support of his daughter. The daughter was then approximately sixteen years of age and a student in high school. This decree was rendered pursuant to the authority vested in the court by Section 2743 of the Code of 1942, which reads as follows:
On March 31, 1959, at which time the daughter was approximately seventeen years of age and was a senior in high school, the appellee, Mrs. Nancy Pauline Pass, filed a petition in the Chancery Court of the Second Judicial District of Yalobusha County seeking a modification of the decree of May 12, 1958, upon the alleged grounds that there had been a material and substantial change in circumstances which necessitated an increase in the amount awarded for the support of the daughter, and praying that said award be increased in order to enable the daughter to attend college at the University of Mississippi.
It is undisputed that the daughter, Nancy, is a brilliant student and has made straight A's in her studies, and is prominent in extra-curricular activities, and has a strong desire to attend college following her graduation in May 1959, and has a special aptitude for a college education, and is qualified therefor.
Mrs. Pass, the appellee, testified that she is financially unable to provide the funds necessary for her daughter's college education, but that the appellant is. She further testified that the appellant owns 283 acres of land, of which there are about 100 acres in cultivation; that the land has thereon three tenant houses in good repair; that there is one large dwelling house that is equipped with all modern conveniences; that there is another tenant house that has all modern equipment; that there is a dairy barn on the place; that there are brooder houses for about 24 brood sows; that the appellant has about 40 head of cows; that the appellant gets a pension from the Navy amounting to $246.46 per month; that he has tractors and all the equipment necessary to profitably operate the farm; that he has a house trailer fully furnished and equipped which he uses for fishing and hunting trips; that he has a big boat and a motor; that he has about four guns and a number of bird dogs that he uses for his own pleasure; that the farm is well fenced, and that it is well capable of producing approximately $12,000 per year in income.
The appellee further testified that it would require about $190 per month for Nancy to attend the University of Mississippi, and that Nancy contemplated attending ten months in the year.
The appellant testified that he was heavily in debt and not able to increase the original award made for the support of his daughter. The chancellor, after hearing the evidence, found and held that there had been a substantial and material change in circumstances since the rendition of the original decree of May 12, 1958, and that the original award of $50 per month made in the original decree of May 12, 1958 should be increased to $90 per month in order to aid the daughter, Nancy, in acquiring a college education. The appellant appeals from this decree. He contends that his daughter is now above the age of 18 years and has become emancipated, and he is, therefore, relieved of his legal obligation to support her. The mere fact that the daughter's custody was awarded to the mother by court decree does not of itself cause an emancipation of the daughter. In 67 C.J.S. Parent and Child Sec. 86, p. 811, it is said:
'Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent's legal obligation to support it.'
It is readily apparent that Nancy has not become emancipated, and therefore the appellant's contention that she has become emancipated is without substantial merit.
The appellant seriously contends that the evidence fails to reveal such a material and substantial change in circumstances as to render the original decree subject to modification. Of course, the original decree is not subject to modification unless the proof shows a substantial and material change in the circumstances of the parties. Malone v. Malone, 159 Miss. 138, 131 So. 870.
If under the facts of this case the father can be legally required to the extent of his financial capacity to provide funds for a college education for his minor daughter, or to contribute thereto, we have no difficulty in concluding that since the rendition of the original decree there had been such a material and substantial change in the circumstances of the parties as to justify a modification of the original decree. Since the rendition of that decree, Nancy had become a senior in high school; she had become prepared for graduation and for...
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