Stone v. Stone, 44771
| Decision Date | 13 May 1968 |
| Docket Number | No. 44771,44771 |
| Citation | 210 So.2d 672 |
| Parties | Walterine H. STONE v. Glen K. STONE. |
| Court | Mississippi Supreme Court |
Willard L. McIlwain, Greenville, for appellant.
Appellee not represented by counsel in this Court.
Appellant Walterine H. Stone filed suit in the Chancery Court of Washington County against her husband Glen K. Stone, seeking a divorce on the ground of habitual cruel and inhuman treatment. She also sought alimony for herself and custody and support for the two children born during the course of marriage. Appellee answered the bill of complaint and denied that she was entitled to any relief and by a cross bill sought to obtain a divorce from her on the ground of habitual cruel and inhuman treatment. He also asked for custody of the older child, a boy, seven years of age, and denied being the father of the younger child, a girl, and asked the court to so decree.
The court, after a hearing on the merits, found that the appellant was entitled to a divorce and granted appellee the custody of the boy. The court held that the girl was not the child of appellee and therefore he was not obligated to support the child. Mrs. Stone appeals from that part of the decree which awarded the custody of the boy to the father and that part of the decree which denied her alimony and support for the girl.
We do not deem it necessary to set out the evidence in this case as to the divorce issue, since appellee has not cross-appealed from that part of the decree. Neither has he filed a brief in this Court in answer to appellant's assignment of error and brief. His failure to file a brief is tantamount to a confession of error, but in view of the fact that this is a domestic relations case, we have carefully reviewed the record in order that the interest of the public, the parties and the children involved can be protected.
These parties were married on June 10, 1958. Appellant was eighteen years of age and appellee was twenty-six years of age at that time. Appellee was a welder following pipeline work and they lived in several states during their marriage. On February 1, 1960, a son, Glen Christopher Stone, was born to their marriage. In December, 1961, while residing in the State of Kansas, they separated. Appellant filed a suit in the District Court of Sedwick County, Kansas, against appellee for a divorce, custody and support for her child. She obtained a temporary decree for the custody and support of the child. Thereafter by agreement of the parties she brought the child to Mississippi and left him temporarily with her mother in Winston County. Appellee left his work in Kansas and returned to Mississippi. He got possession or custody of the child by taking him on a visit. He did not return the child as promised and appellant filed a petition for a writ of habeas corpus in the Chancery Court of Washington County seeking the custody of the child. The court after a hearing denied the petition and left the child in the custody of the appellee. Appellant did not pursue her action for a divorce in the Kansas court.
In February, 1963, appellee filed suit for a divorce in the Chancery Court of Washington County. Appellant contends that she never received any notice of this suit and she did not know that a decree for a divorce and custody of the child had been granted as a result of this suit until their separation which resulted in the present suit.
The parties remained separated until September, 1964, when appellant returned to Mississippi and they began to live together as man and wife. On May 10, 1965, the little girl, Lisa Kelly Stone, was born. When this child was born appellee paid the hospital bills for her delivery, passed out cigars, taught the child to call him 'Daddy' and claimed the child as his on his income tax return. In fact, he never contended that this child was not his until after the parties separated in August, 1966. Appellant testified that after they separated she discovered for the first time that appellee had obtained a divorce from her in 1963. She filed a petition to vacate this decree as being null and void because of insufficient process. The Chancery Court of Washington County found that the process was void and vacated the decree. There was no appeal from this order and it is now final. Therefore, the situation is that the parties were man and wife from the time that they were married in 1958 until the decree was entered granting a divorce in this case.
The important question in this case is whether the trial court erred in declaring the child, Lisa Kelly Stone, was not the child of appellee and thereby declaring her illegitimate and thereby refusing to require appellee to support this child. The child was born in wedlock and as a matter of public policy the law presumes her to be legitimate. This presumption is said to be the strongest presumption known to law and it continues until it is shown that the husband is incapable of procreation or that he had no access to his wife at a time when the child could have been begotten. Moore v. Smith, 178 Miss. 383, 172 So. 317 (1937); Herring v. Goodson, 43 Miss. 392 (1870). We hold that the...
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Ingalls Shipbuilding Corporation v. Neuman, Civ. A. No. 3833.
...was either incapable of procreation or had no access to the mother at a time when the child could have been begotten. Stone v. Stone, Miss., 210 So.2d 672, 674 (1968). It is the contention of the defendant and intervenor that the issue of the paternity of these two children was not raised b......
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Estate of Taylor, Matter of
...that children be protected from being "branded as illegitimate." Brabham v. Brabham, 483 So.2d 341, 342 (Miss.1986); Stone v. Stone, 210 So.2d 672, 674-75 (Miss.1968). Mothers and fathers are secured as well. Madden v. Madden, 338 So.2d at 1002. More practically, the presumption protects th......
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Karenina by Vronsky v. Presley, 58386
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