Scott v. Scott, 38876

Decision Date18 January 1954
Docket NumberNo. 38876,38876
PartiesSCOTT v. SCOTT.
CourtMississippi Supreme Court

J. D. Stennis, Jr., Biloxi, for appellant.

Merle F. Palmer, Pascagoula, for appellee.

KYLE, Justice.

The appellee, Mrs. Estelle Scott, sued the appellant, Everett Scott, in the Chancery Court of Harrison County for a divorce and for the custody of their only child, Nancy Jean, five years of age. The appellee alleged in her bill of complaint as ground for divorce, habitual cruel and inhuman treatment. She did not ask in her bill of complaint for alimony or suit money, nor did she ask for an allowance for the support and maintenance of the minor child, Nancy Jean. The appellant filed an answer and a cross-bill, and in his cross-bill asked for a divorce and for the custody of the child. He likewise alleged as ground for divorce, habitual cruel and inhuman treatment. The cause was heard upon the pleadings and the proof at the March 1952 term of the court, and the appellee was granted a divorce and the custody of the minor child, subject, however, to the right of the appellant to visit the child and to have the child spend one night during each week with him. From that decree the appellant has prosecuted this appeal.

A few weeks after the divorce decree was entered, the appellant filed a petition asking that the decree be modified and that the custody of the child be awarded to him or some other suitable person to be selected by the court, because of the alleged misconduct of the appellee since the date of the rendition of the divorce decree. The chancellor heard the petition in vacation and on June 23, 1952, entered an order denying the prayer of the petition. The record of the proceedings on that petition, including the testimony of the witnesses who testified for the respective parties upon the hearing of the petition, has been made a part of the record on this appeal.

The record shows that the appellant and the appellee were married on December 13, 1944. Both parties had been married before, and both parties had been divorced from their former spouses. The appellant had five children by his first wife, but none of those children were living with him at the time of his marriage to the appellee. The appellee had been married to Andy Byrd prior to her marriage to Scott. Two children had been born of the appellee's marriage to Byrd, and both of those children were living with the appellee at the time of her marriage to Scott. Mary Alice, the older of the two children, was 11 years of age at that time, and Marie, the younger of the two children, was eight years of age. Both children continued to live with their mother after her marriage to Scott. Andy Byrd had also married again and lived in the City of Greenville until a short time before Scott and his wife separated.

Prior to his marriage to the appellee the appellant had lived on the Gulf Coast, but soon after his marriage to the appellee he and his wife and her two children moved to Pontotoc County. The appellant operated a restaurant and an ice cream parlor in the City of Pontotoc during the next two years, and then moved out on a farm which appears to have been owned by him and his brothers. The appellant and his family lived there until December 1949 when they moved to the City of Biloxi. There they rented an apartment on Howard Avenue which they continued to occupy until the date of their separation in February 1952. The appellee's sister and her husband occupied an adjoining apartment in the same building. The appellant at the time the divorce suit was filed was employed as a maintenance and repair workman for Adrian Weill, who was the owner of rental properties in the City of Biloxi.

The evidence offered on behalf of the appellee in support of the charges made by her in her bill of complaint consisted of her own testimony and the testimony of her sister, Mrs. Mary Pierce, and her daughter, Marie Byrd.

The appellee testified that soon after her marriage to the appellant, the appellant began to nag her about her two children and that he got so he would jump on the children and knock them around and keep them crying all the time; that he showed ill manners toward her while they were in the presence of other people; and that when she proposed to him that he go his way and that she would go her way, he said, 'The day you walk out of the house to leave me, that's the day I'll blow your brains out.' And she stated that her husband would frequently strike her and choke her.

She stated that she had no contacts with her former husband after her marriage to the appellant until about four years before the divorce suit was filed, when Byrd had a heart attack and she and the appellant drove to Greenville with Byrd's two children to visit their father; and that she saw no more of Byrd thereafter until Byrd returned to the Gulf Coast in 1952. She stated that Byrd visited the family in the Scott apartment right after New Year's Day in 1952, and that the appellant treated him just like he had always treated him; but that after Byrd had left the apartment the appellant cursed and abused her, and would have beat her if Marie had not intervened. She stated that the appellant a few days later took the baby, Nancy Jean, and carried her to Pontotoc County without her knowledge. After the child was brought back to their home the appellee took the child to her sister-in-law's home at Moss Point and on February 14 filed suit for a divorce. The appellee denied that she had ever done anything in the presence of her husband or out of his presence that should make him jealous of her former husband. The appellee was asked by her own attorney to tell the court about her husband striking her. 'Tell the court when that occurred.' Her answer was, 'It has happened so many times it would be hard to call particular dates, but its happened plenty of times. His biggest game was grabbing me and choking me and slam me against the wall. That was what he enjoyed most.'

On her cross-examination it appeared that most of the charges that the appellee relied upon to make out her case related to incidents that occurred while the parties were living in Pontotoc County from four to eight years before the appellee left the matrimonial domicile; and that appellee was unable to fix the time or place when the alleged acts of cruelty were committed. The appellee was interrogated especially about her charges that the appellant had jumped on the children and had mistreated them, and that he had threatened to do her bodily harm. Her testimony concerning those charges was in part as follows:

'Q. When did he start jumping on the children and beating the children? A. Well, we would have been married six or seven months when he jumped on the first one.

'Q. Which one? A. The daughter that is married today.

'Q. What did he do? A. He whipped her with a razor strap.

'Q. What had she done? A. Some foolish something in the house, I don't remember, poking around about the dish washing or something.

'Q. Do you know how hard he hit her? A. No, I didn't count that. I didn't count the licks. I do know that she was kind of blue a little the next day. It wasn't a unmerciful whipping, don't get me wrong, I'm not saying it was. It was a good licking. It was plenty hard, harder than you very often see.

'Q. Something to discipline the child. When was it he threatened to blow your brains out? A. So many times I couldn't tell you the dates, and he knows just as well as I do that I'm not sitting here lying.

'Q. Tell me when he did that the first time. A. We had been married about a month I guess, something like that.

'Q. And that's when he was nagging the children and you didn't like it? A. No, I don't like it. I wouldn't like anybody for mistreating my children.

'Q. What had the children done? A. Just little things--little things that nobody else would notice but him.

'Q. And he tried to correct them? A. He corrected them on everything they did. If they did right, it was wrong.

'Q. And you got mad and said you were going to leave him? A. No, I didn't get mad and say I was going to leave over correcting the children, no, but I saw well and good we wasn't going to get along.

'Q. That was eight years ago? A. Yes.'

The appellee was later asked for more details concerning other charges made by her on her direct examination:

'Q. When was it that Scott struck you and choked you and slammed you against the wall? A. A dozen times.

'Q. When? A. One time in Pontotoc after the baby was just small. He done me like that (indicating). He jerked me and slammed me against the wall. Daughter tried to pull him off and he turned on the daughter and I had to send after his brother, Howard, in the witness room there now, to straighten him out. And when his brother got there he denied every bit of it.

'Q. Nobody has ever seen him strike you or Marie except you or Marie? A. My sister has seen him choking me. He's not going to get in front of my family and jump on me, that wouldn't be sensible.

'Q. Nobody has ever seen him do those things but you and Marie? A. And Mary Alice, my other daughter.'

Finally, the appellee was asked on cross-examination when it was that she claimed that the appellant jumped on her because she had entertained Andy Byrd and would have beat her if her daughter, Marie, had not interfered; and her answer was, 'That was just before we left from there.'

Mrs. Mary Pierce, the appellant's sister, testified that she lived with the appellant and the appellee in 1945 and 1946, while they were living at Pontotoc, and that 'They got along nicely for a while, but there was one time they was very much in a uproar.' The witness stated that she saw the appellant choke the appellee, and that there were finger marks on her neck. On cross-examination she stated that the incident mentioned by her occurred in 1945. Mrs. Pierce was then asked the following questions and made the following answers:

'Q. Well, you have...

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