Petit v. Holifield, 54049

• Decision Date: 04 January 1984
• Docket Number: No. 54049,54049
• Citation: 443 So.2d 874
• Parties: Gene PETIT v. John N. HOLIFIELD, et ux.
• Court: Mississippi Supreme Court

Page 874

443 So.2d 874

Gene PETIT v. John N. HOLIFIELD, et ux.

No. 54049.

Supreme Court of Mississippi.

Jan. 4, 1984.

William F. Vick, Vick & Diaz, Thomas J. Lowe, Jr., Jackson, for appellant.

Donald G. Barlow, Clinton, for appellee.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

WALKER, Presiding Justice, for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein the chancellor sustained appellee's amended petition for adoption of the minor children, Kristen Eve Petit and Dustin Patrick Petit, over objection of the natural father, Gene Petit. Aggrieved with the lower court's ruling, appellant has perfected his appeal to this Court assigning the following as error:

(1) The trial court erred in finding that the respondent had abandoned and deserted his minor children; and

(2) The trial court erred in finding that the respondent was unfit to properly rear and train his children.

Addie Lee Petit, the appellee and the natural mother of Kristen and Dustin, was granted a divorce on the grounds of adultery in February of 1980 after a seven-year marriage to Gene Petit. Mrs. Petit married John Holifield on August 31, 1980. The testimony did not bring forth his income or present employment although Mrs. Petit (Holifield) stated John Holifield is an ordained minister. On September 10, 1981, John filed his petition for the adoption of the minor children, Kristen and Dustin, which was joined in by Addie Holifield. An amended petition was filed January 19, 1982, alleging that Mr. Petit had abandoned or deserted his children and was otherwise unfit to rear or train them.

At the time of trial Mr. Petit's support payments were over $7,000.00 in arrears. Under the divorce decree he was required to pay $500.00 per month. His last payment was received October 15, 1980. According to Mr. Petit he has not had the funds to pay child support. In 1980 he grossed $22,000.00 and after expenses had a taxable income of $1,500.00. In 1981 he grossed $24,603.00 with a taxable income of $299.00. He testified he has had a comfortable living but this meant he could only provide for his own food and lodging.

Mr. Petit, who has a Bachelor of Arts degree in business administration, has been employed as a professional wrestler for approximately ten years. His profession requires him to travel extensively. His earnings can range from $500.00 to $3,000.00 or $4,000.00 a week depending on the time and place of a wrestling match.

Testimony was adduced without objection that Mr. Petit left his wife and daughter at a time when Mrs. Petit (Holifield) was pregnant with their second child. He allegedly left with a woman named Pam Savelle who Mr. Petit acknowledged living with at the time of his divorce. He and Pam married December 20, 1980.

During the approximately one and one-half years since the divorce and the filing of the adoption petition, there have been few visits between the children and Mr. Petit. According to Mrs. Holifield it has been no more than five times that he has visited with the children. He was not granted visitation rights under the divorce decree and any visits were with Mrs. Holifield's consent. She testified that she only refused to allow him to see the children on one occasion. Mr. Petit was allowed to keep Kristen for one overnight visit and she was allowed to attend his wedding in Mississippi. The last time he saw the children before the filing of the petition was July of 1981. The petition was filed in September 1981. Mr. Petit has sent Kristen a birthday gift and has sent the children Christmas presents and has called their home on numerous occasions.

Mr. Petit testified that since July of 1981 he has lived in Liberty, Missouri. Prior to that he resided in Charlotte, North Carolina for a thirteen-month period. He claimed to have sent a package on August 19, 1981 with his return address to the children. When questioned whether or not she knew the children received the package in August, Mrs. Holifield said, "No, sir; I don't." Mr. Petit also testified he mailed two self-addressed envelopes to Kristen for her to send him some pictures which she had made. Mrs. Holifield did not recall Kristen receiving these envelopes.

Mr. Holifield testified that he desired to and was willing to raise Dustin and Kristen as his own. Mrs. Holifield, who suffers from Hodgkin's disease, wants to provide a stable home environment for the children. Should something happen to her she didn't want Mr. Petit "to come in and jerk them away when Dustin doesn't even know him."

Mr. Petit is desirous of building a relationship between himself and his children. He would like to acquire visiting rights with the children and felt he could care for them should something happen to Mrs. Holifield. The question of visitation rights was not raised on this appeal.

With regard to the adoption petition, the court held that Mr. Petit had abandoned and deserted the children to the extent that they should be adopted by Mr. Holifield; that their best interest would be served by granting the adoption; and that Mr. Petit was not a fit and suitable person to be a father to these children. He found him to be unfit on the basis that he was living in open adultery with his present wife for a long period of time. In granting the adoption the court also took into consideration Mrs. Holifield's illness and the fact that Mr. Holifield was willing to take the responsibility of raising the two children if something happened to her.

On appeal from the decree granting Mr. Holifield the right to adopt Kristen and Dustin, Mr. Petit asserts the chancellor erred in finding that he had abandoned or deserted the children and also that he was unfit to properly raise them. We agree.

In order to sever the rights of a natural parent, the burden is upon the petitioner to show by clear and convincing evidence [ see De La Oliva v. Lowndes County Dept. of Pub. Wel., 423 So.2d 1328 (Miss.1983) ] that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child. Once that has been established, the best interest of the child is to be considered. See Ford v. Litton, 211 So.2d 871 (Miss.1968).

The criterion for determination of unfit parent's rights are stated in Mississippi Code Annotated section 93-17-7 (Supp.1983) as follows:

No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and 3(a), (b), (d) or (e) of section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the...