Rodgers v. Rodgers

• Citation: 274 So.2d 671
• Decision Date: 12 March 1973
• Docket Number: No. 46966,46966
• Parties: Glenda Denson RODGERS v. David Holder RODGERS.
• Court: Mississippi Supreme Court

Page 671

274 So.2d 671

Glenda Denson RODGERS v. David Holder RODGERS.

No. 46966.

Supreme Court of Mississippi.

March 12, 1973.

Donald M. Waits, Wiggins, for appellant.

Strickland & Clark, Wiggins, for appellee.

INZER, Justice:

This is an appeal by Glenda Denson Rodgers from a decree of the Chancery Court of Stone County modifying a divorce decree so as to award the custody of her two and a half year old child, Michael Shane Rodgers, to appellees, his paternal grandparents, Jack Rodgers and Eva Rodgers. We reverse and remand.

Appellant and David Holder Rodgers were divorced by a decree rendered on December 14, 1970. The child here in question was born to their marriage and his custody was awarded to appellant. The court affirmatively adjudicated that she was a fit, suitable and proper person to have the permanent custody of the child, and the father was ordered to pay $75 per month child support.

After the divorce decree appellant and her child lived in the home of her father and mother. Her father and mother separated, and appellant moved to Florida with her mother on March 3, 1971. Before leaving she went to the lawyer who had represented her husband in the divorce proceedings for advice about the child. She testified he advised her she could not carry the child out of the jurisdiction of the court, and it would be better to leave the child with the paternal grandparents until she could get located and get an order from the court allowing her to take the child to Florida. She also discussed the matter with the father of the child and decided to leave the child with the paternal grandparents.

Twenty-three days later on March 26, 1971, David Holder Rodgers and his parents filed a petition to modify the divorce decree with reference to the custody of the child. The petition alleged that the mother of the child was no longer a fit, suitable and proper person to have the custody of the child. Petitioners asked that paramount custody of the child be placed in Jack Rodgers and Eva Rodgers. No reason is set out in the petition why the father of the child did not ask for the custody, but the record reflects that he was on probation for possession of marijuana.

After a hearing on the petition, the chancellor found based upon a material change of circumstances, it was in the best interest of the child that the decree of December 14, 1970, should be modified so that the paramount custody of Michael Shane Rodgers be awarded to Jack and Eva Rodgers. A decree was entered in accordance with this finding, and the decree also required appellant and the father of the child to contribute $50 per month each for the support of the child, although the petition to modify the decree did not ask for support.

The principal assignment of error is that the chancellor was manifestly incorrect and abused his discretion in modifying the initial decree of divorce thereby changing the custody of a child of tender years from its natural mother, the appellant, to its paternal grandparents, there being insufficient evidence to support or sustain such modification.

It is apparent from the pleadings that this is in reality a contest between the natural mother of the child and third parties, the paternal grandparents, and is governed by the law relative to such contest. In such contest it is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the chlild, or (2) the conduct of the parent is so immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. Simpson v. Rast, 258 So.2d 233 (Miss.1972); Stegall v. Stegall, 151 Miss. 875, 119 So. 802 (1929); and Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900).

The petition seeking custody did not allege that appellant had abandoned her child and there is no proof in the record from which the chancellor could have found abandonment.

The real question in this case is whether there has been a clear showing that appellant is morally unfit to have the custody of her child. We think not. The chancellor did not find that appellant was morally unfit to have the custody of her child. The basis of his decision was that there had been a material change of circumstances and the best interests of the child would be served by placing the custody in the grandparents. The petition for modification alleged that appellant while living in Wiggins lived under circumstances as to be a bad moral influence on her child. It was alleged that she had numerous men visiting her during various hours of the night, and let one or more of them spend many nights in bed with her in the presence of the child. It was also alleged that the child had witnessed drinking and sex orgies, amounting to a bad influence on the child. This was denied by appellant in her answer to the petition. She propounded interrogatories to the petitioners seeking the particulars of these general allegations. These interrogatories were not answered and were quashed by the court prior to the hearing. There was no proof that appellant ever spent the night in bed with any man. Neither was there any proof that she was of an adulterous disposition. Appellees relied entirely upon circumstantial evidence to establish that she had been guilty of immoral relations with men. In order to establish adultery or fornication by circumstantial evidence, it is not sufficient that the...