Simpson v. Rast, 46520

• Decision Date: 07 February 1972
• Docket Number: No. 46520,46520
• Citation: 258 So.2d 233
• Parties: Johnnie Virgil SIMPSON v. Paul RAST.
• Court: Mississippi Supreme Court

Page 233

258 So.2d 233

Johnnie Virgil SIMPSON v. Paul RAST.

No. 46520.

Supreme Court of Mississippi.

Feb. 7, 1972.

H. K. Van Every, Columbus, for appellant.

Stone & Graham, Columbus, for appellee.

RODGERS, Presiding Justice.

The petitioner, Johnnie Virgil Simpson, filed suit in the Chancery Court of Lowndes County, Mississippi, seeking the custody of Charles Virgil Simpson, Virgie Ann Simpson, and Mark Anthony Simpson, his minor children, whose ages are 15, 13 and 11 respectively. From an adverse decree in favor of the defendant Paul Rast, the petitioner Johnnie Virgil Simpson has appealed to this court and contends that the chancellor was manifestly in error under the facts in refusing the petitioner the custody of his children.

The evidence shows that the petitioner, Johnnie Virgil Simpson, hereafter called appellant, married Patricia Ann Simpson and that the three above-named children were born during their marriage. Thereafter, Patricia Ann left appellant and lived with appellee, Paul Rast, whom she later married. The evidence further shows that Patricia Ann was pregnant by appellee at the time she was divorced from Simpson. Patricia Ann obtained a divorce from Simpson in July, 1962, and a divorce was obtained from appellee by his wife, Betty S. Rast, on July 9, 1963. Patricia Ann and appellee were married in 1963. The three above-named children were placed in the custody of Patricia Ann in the divorce decree, and lived with appellee and their mother until her death on June 14, 1970. After her death the above-named children, along with appellee's other children, stayed with various friends and relatives until appellee's present wife came to live with them as a housekeeper on July 20, 1970. The evidence shows that she and her four children lived in the house with appellee from July 20 until they were married on November 15, 1970.

Appellant had been required under the terms of the divorce decree rendered against him to pay forty dollars ($40.00) per week to Patricia Ann for child support. The chancellor found that appellant had paid less than $500.00 over the eight-year period since his divorce. Appellant testified that the reason he paid no more than this was because he and Patricia Ann had made an agreement that he would not have to give her anything if he would give her a divorce. Also, appellant testified that Patricia Ann told him not to pay her the amount set out in the decree and that appellee told Simpson that he would not have to pay any support if he would stay away from the children. The appellant visited the children several times. On one occasion appellant had kept the children over the weekend out in the country at his father's home. On this occasion appellant and his children went fishing and had a picnic. There was testimony that Rast would not let the children return to their grandfather's again.

Appellee, Paul Rast, was at one time placed under peace bond by Patricia Ann because he had been mean to her. Appellee admitted having been out at Buck's Drive-inn with Patricia Ann's sister, and when Patricia Ann accused him of going with her sister, they had a big fuss with the result that appellee was placed under the peace bond.

The chancellor was of the opinion that the evidence failed to show support of the children by appellant, but he was of the opinion that Rast and his wife were church opinion that Rast and his wife were churchgoing people, that Simpson drank intoxicants of the children to live with the appellee.

The evidence shows that appellant lives in a four-bedroom house with his wife and five children and that appellee lives in a two-bedroom house with his wife and nine children, including the three children who are the subject of this lawsuit. Both appellant and appellee receive about the same income for their labor.

The decree of the chancery court is based largely upon the fact that the petitioner drinks beer sometimes and does not go to church, while the new wife of the defendant does go to church and she takes the children with her. The record shows that the defendant, Paul Rast, admitted 'breaking up the home' of the petitioner and his wife. The divorce decree obtained by Patricia Ann gave her the custody of the children, and she never sought to enforce the decree allowing support for the children. It is admitted that the defendant told the petitioner not to come to see the children at his house, but it is contended that the reason for this demand was the fact that petitioner was drunk.

Simpson filed suit seeking the custody of his children less than six months after the death of his former wife, Patricia. The appellant, petitioner, has two children by his present wife and she had three children before her marriage to appellant. The chancellor did not hold that the petitioner was an unfit person to have the custody of his children; nor did he hold that the petitioner had abandoned his children. The court simply held that in his opinion it was better for the children to live with the defendant, Paul Rast.

We cannot agree with this conclusion and must hold that the decree of the chancery court is manifestly erroneous.

To begin with, we must recognize that our society demands, and the law approves the rule, that the natural parents of children have the natural right to the nurture, care and custody of their children. (67 C.J.S. Parent and Child § 11, p. 634 (1950)). This is a rule of all nature as well as a rule for man. The law requires the father to perform this duty to care for his children so long as he is able; and the mother is required to perform this duty when the father is incapacitated. Watts v. Smylie, 116...