Shoffner v. Shoffner, 42314

• Decision Date: 01 October 1962
• Docket Number: No. 42314,42314
• Citation: 244 Miss. 557,145 So.2d 149
• Parties: Albert Jackson SHOFFNER, Jr. v. Lee SHOFFNER.
• Court: Mississippi Supreme Court

Page 149

145 So.2d 149

244 Miss. 557

Albert Jackson SHOFFNER, Jr. v. Lee SHOFFNER.

No. 42314.

Supreme Court of Mississippi.

Oct. 1, 1962.

Philip Mansour, Greenville, for appellant.

No attorney for appellee.

KYLE, Justice.

This case is before us on appeal by Albert Jackson Shoffner, Jr., from a decree of the Chancery Court of Washington County, awarding the custody of two minor children born of the marriage of the appellant and the appellee, Lee Shoffner, to the appellee.

The record shows that at the March 1959 term of the Chancery Court a decree was entered awarding to the appellee a divorce, and a consent decree was entered awarding the custody of the two minor children, Lee Elaine Shoffner, age 2 1/2 years, and Deboran Ann Shoffner, age 11 1/2 months, to the mother, with right of visitation by the father, and also directing that the appellant pay to the appellee the sum of $60 per month for the support of said minors. On March 8, 1961, the appellee filed a bill to modify the former decree by increasing the support payments thereunder because of change in the conditions and circumstances of the parties since the rendition of the final decree. The appellant, in response to the bill to modify, filed an answer and cross bill. In the answer the appellant denied that there had been any change in the conditions and circumstances as to child support and prayed that the bill of the appellee be dismissed. In his cross bill the appellant alleged that since the entry of the former decree the appellee, by her conduct, had fully demonstrated that she was not a fit and proper person to have the care and custody of the minor children, and he prayed that the former decree be modified by awarding to him the full custody of the minor children, reserving to the appellee the right of reasonable visitation.

After a full hearing, the chancellor declined to modify the original decree, as prayed for in the appellant's cross bill, to the extent of taking the entire care and custody of the children, ages 3 and 5 years, respectively, from the mother. The chancellor stated that in his opinion the mother's course of conduct, since the rendition of the original decree, did not justify such drastic action, that the evidence did not convince the court that the appellee was totally unfit to share in the care and custody of the children. The chancellor thereupon entered a decree ordering that the mother be granted the custody of the children, provided, however, that the father should have the partial custody of the children from 9 o'clock on Saturday morning until 8 o'clock on Monday mornings on each succeeding week-end, and that the father should have the right of reasonable visitation with the children while they were in the custody of their mother. The chancellor found that the financial condition of the father had not so materially changed as to justify an increase in the support allowance of $60 per month for the support of the children; but the chancellor ordered that the father pay all medical expenses incurred by the children since the decree of divorce was rendered and all future medical bills for the children. From that decree the appellant has prosecuted this appeal, and has assigned as error the court's refusal to award custody of the two minor children to him.

After a careful examination of the testimony offered on behalf of the respective parties, we have concluded that the learned chancellor was manifestly wrong in his finding that the appellee's course of conduct since the rendition of the original decree id not justify a modification of the original decree as prayed for in the appellant's cross bill.

The testimony shows that after the rendition of the original decree in March 1959, the appellee, the two minor children involved in this controversy and an older child of the appellee by a former marriage lived with the appellee's mother, that both the appellee and her mother worked during most of the time as waitresses in various cafes located in the City of Greenville, and the children were cared for during much of the time by maids employed for that purpose. The testimony also shows that during the 2 1/2-year period of time which elapsed between the rendition of the original decree and the date of the hearing on the bill and cross bill to modify that decree, the appellee and her mother, along with the three children, moved their places of residence within the City of Greenville six or eight times; that during the summer of 1960 the appellee left the children with her mother and traveled over the country for a period of several weeks selling magazines; that soon after the appellee left Greenville her mother suffered a heart attack and was carried to the hospital, and with the consent of the appellee's mother the two children of the appellant, along with the appellee's child by a former marriage, were taken by the appellant to his home and cared for; that after the appellee's mother was discharged from the hospital she too left Greenville temporarily, and the children remained in the care of the appellant and his second wife for a period of approximately three months. The testimony also shows that the appellee returned to Greenville on two separate occasions during that period of time, but remained in Greenville...