Sanderson v. Seaney
| Decision Date | 03 July 1969 |
| Docket Number | No. 92,92 |
| Parties | Judy Seaney SANDERSON v. James W. SEANEY, Sr. Misc. |
| Court | Mississippi Supreme Court |
Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jr., Jackson, for appellant.
Ernest L. Shelton, Jackson, for appellee.
ON APPLICATION FOR INTERLOCUTORY APPEAL WITH SUPERSEDEAS
On June 6, 1968, the Chancery Court of Rankin County, Mississippi, granted petitioner, Mrs. Judy Seaney Sanderson, a divorce from James W. Seaney, Sr., and custody of their three-year old son, with right in the father to have the child with him from June 1 to August 31. Seaney was to pay $75 per month for child support. The decree provided that Mrs. Sanderson should have the right to live with her child in Grand Prairie, Texas, where her parents then lived. No appeal was taken from this decree, and it became final.
In August 1968, Seaney filed a petition for modification of this decree. On September 27, 1968, the chancery court entered a decree modifying the former judgment, and awarding temporary custody of the child to appellee until appellant established a residence and employment in Mississippi 'satisfactory to the court,' when custody would revert to the terms of the decree of June 6, 1968. The decree also stated that appellant would have custody only so long as she maintained her residence at a particular street address in Rankin County. However, the court on the same day set aside that decree and entered another entitled 'temporary decree,' with substantially the same provisions.
Following the 'temporary decree' of the chancery court on September 27, 1968, one of the Judges of this Court granted an interlocutory appeal with supersedeas, but on further consideration by the entire Court, the appeal was dismissed as premature, since the chancellor apparently intended to take additional evidence at the next term of court. Seaney v. Seaney, 218 So.2d 5 (Miss.1969). However, supersedeas as to the custodial provisions of the 'temporary decree' was continued and kept in effect 'until entry of the decree following an evidentiary hearing upon the merits * * *'
The opinion of this Court observed that there could be no question that appellant was entitled to a full evidentiary hearing upon the merits, on the sole issue of whether there had occurred such a substantial change in circumstances that modification of the original decree would be warranted; and that this Court could not assume that such a full hearing on this limited issue would be denied appellant at the next term. It was further noted that the next term of the chancery court would convene in February 1969, 'at which there will be an evidentiary hearing upon the merits of the key issue.' (218 So.2d at 8)
Nevertheless, there was no hearing at the February 1969 term, but one was held on June 4, 1969. It was on Seaney's petition for modification of the June 6, 1968 decree.
The June 10, 1969, decree, to which the present application is directed, is again entitled a 'temporary decree,' although it recites that the court had 'heard all of the evidence and * * * (was) fully advised.' It ordered that Seaney should have custody of the child until three O'clock P.M., June 14, 1969, and thereafter Mrs. Sanderson should have temporary custody until further order of the court, with the father having the right to have the child on the first and third weekends of each month from Friday afternoon until Sunday afternoon. Child support payments remained the same. Although this 'temporary decree' did not tell Mrs. Sanderson precisely where she should live in Rankin County, Mississippi, it nevertheless forbade her from taking the child to the home of her husband in Mesquite, Texas, when it directed that the child should not be removed from this State.
After the chancellor denied permission for an interlocutory appeal and a stay from this decree of June 10, 1969, Mrs. Sanderson filed this application for leave to appeal with supersedeas from the 'temporary decree' modifying the former final decree.
For present purposes, and because there is now no transcribed record, we will assume that the decree of the chancery court of June 10, 1969, is in fact an interlocutory decree. That question can be considered more comprehensively when the entire record of the hearing is filed in this Court.
Mississippi Code 1942 Annotated section 1148 (1956) provides that an appeal from an interlocutory order of the...
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