Wade v. Lee

• Citation: 471 So.2d 1213
• Decision Date: 05 June 1985
• Docket Number: No. 54804,54804
• Parties: Ruth Ann Steele WADE v. Israel Sylvester LEE, IV.
• Court: United States State Supreme Court of Mississippi

Page 1213

471 So.2d 1213

Ruth Ann Steele WADE v. Israel Sylvester LEE, IV.

No. 54804.

Supreme Court of Mississippi.

June 5, 1985.

Philip Mansour, Jr., Mansour & Thomas, Greenville, for appellant.

Eugene Sexton Berry, Jr., Jackson, for appellee.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is another of those cases the moral of which is that our law accords value to the best interest of a minor child secondary only to life itself. This premise in mind, it should startle no one that a county judge presented a petition for a writ of habeas corpus by a non-custodial parent followed by proof that the custodial parent had become a frequent drug user and was substantially emotionally unstable refused to enforce a prior chancery court custody decree. We likewise doubt anyone will be surprised that we affirm.

II.

Ruth Ann Steele Wade and Israel Sylvester Lee were divorced on October 13, 1980, by decree of the Chancery Court of Sharkey County, Mississippi. That decree vested primary custody of the parties' only child, Jason Lowry Lee, in Wade, his mother. Weekend visitation rights were granted Lee, Jason's father. At the time Jason was approaching four years of age, he having been born on January 17, 1977.

On or about February 25, 1983, Lee was exercising weekend visitation rights with his then six year old son at his residence in Jackson, Mississippi. Wade appeared intoxicated when she attempted to pick up the child, and Lee refused to give him to her.

Wade filed a petition for writ of habeas corpus against Lee in the County Court of the First Judicial District of Hinds County, Mississippi. After hearing testimony from both sides, the County Judge on April 6, 1983, entered a Judgment dismissing Wade's petition and temporarily vesting custody of the child with Lee, his father. In the face of substantial testimony that Wade had become a frequent user of illegal controlled substances, had become emotionally unstable, and that her second marriage was floundering, the trial judge found that Wade was "an unfit and unsuitable mother for the said child and is an unsuitable influence on said child". This ruling is assigned as error on this appeal.

III.

A.

This proceeding lies within the subject matter jurisdiction of the County Court of the First Judicial District of Hinds County, Mississippi, Miss.Code Ann. Sec. 9-9-23 (1972); Cole v. Cole, 194 Miss. 292, 295, 12 So.2d 425, 426 (1943); Payne v. Payne, 58 So.2d 377, 378-79 (Miss.1952); Thibodeaux v. Hilliard, 287 So.2d 434 (Miss.1973), notwithstanding that the original custody decree had been entered by a chancery court. Smith v. Watson, 425 So.2d 1030, 1032 (Miss.1983). Mixon v. Bullard, 217 So.2d 28 (Miss.1968). We long ago assumed that in matters such as this the "county judge ... acts ... with all the power and authority of a ... chancellor". Cole v. Cole, 194 Miss. 292, 295, 12 So.2d 425, 426 (1943).

Wade, nevertheless, disputes the authority of the County Court and argues that its decision unlawfully effects a modification of the divorce decree of the Chancery Court of Sharkey County in that it vests custody of the minor child in Lee and, in addition, affects such connected issues such as Lee's responsibility to pay child support to Wade. In this connection it must be noted that the County Court Judgment has been expressly made both temporary and subordinate for it provides:

III.

That this Judgment be, and same is hereby, not considered an attempt on the part of this Court to modify that said final decree of divorce, rendered by the Chancery Court of Sharkey County, Mississippi, between Petitioner (Wade) and Respondent (Lee);

IV.

That the custody of the said minor child be and the same is hereby, vested with the Respondent, ISRAEL SYLVESTER LEE IV, pending further action by the said Chancery Court of Sharkey County, Mississippi, on any further Petition for Modification that is pending or may be brought by either or both parties;

The County Court refused to grant Petitioner Wade any relief via habeas corpus, a ruling necessarily predicated upon an adjudication that Lee, Jason's father, was not unlawfully retaining custody. En route the County Judge entered a temporary order vesting custody of the child in Lee in order to safeguard the best interests of the child. His order by its express terms will remain in effect only until the Chancery Court of Sharkey County hears the matter under the aegis of a petition for modification brought by either or both parties. All of this was within the authority of the County Judge, and within the evidence.

Wade nevertheless argues vigorously that affirmance today would create a potential for unseemly jurisdictional collisions between chancery and county courts, relying primarily upon Ladner v. Ladner, 206 So.2d 620, 624 (Miss.1968). That case articulates the general principle that the court whose decree originally decides the custody arrangements of a minor child has exclusive and continuing jurisdiction over that child, and any other court is without jurisdiction to modify the original court's decree. See also, Reynolds v. Riddell, 253 So.2d 834, 836-37 (Miss.1971); Hinman v. Craft, 204 Miss. 568, 575, 37 So.2d 770, 770-71 (1948).

It is much too late to question that an exception to this general premise is recognized where, subsequent to the original decree, the party originally awarded custody has abandoned the child or has otherwise become an unfit parent. Mixon v. Bullard, 217 So.2d 28, 30 (1968). In Smith v. Watson, 425 So.2d 1030 (Miss.1983), the custody of a child, as provided by a prior decree of the Chancery Court of Hinds County, was at issue in the County Court of Warren County. This Court said:

The appellant contends that the county court erred in disregarding the prior chancery court decree, and in conducting a full hearing to determine who should have custody. Generally, when prior proceedings conducted by another court determined the custody of an infant, the prior judgment must be regarded as final, and it is not subject to attack by subsequent habeas corpus proceedings. (citations omitted) However, the habeas corpus court can disregard the prior decree where circumstances and conditions arising since the decree show that the party awarded custody is unfit to exercise or has abandoned custody of the child. (citations omitted)

--425 So.2d at 1032; see also Mixon v. Bullard, 217 So.2d 28, 30 (Miss.1968).

The showing required before a county judge in a habeas corpus proceeding may alter custody is stronger than in the ordinary chancery modification proceeding. In such a chancery proceeding the non-custodial parent must show (a) a substantial change of circumstances since entry of the decree sought to be modified, (b) adversely affecting the child, and (c) that the best interests of the child require the change of custody. Smith v. Todd, 464 So.2d 1155, 1157 (Miss.1985); Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983). In a habeas corpus proceeding the non-custodial parent must go further and affirmatively show that, since entry of the decree prescribing the custody arrangement in force and effect at that time, the custodial parent has abandoned the child or has otherwise become altogether unfit to continue to exercise custody over the child. Smith v. Watson, 425 So.2d at 1032; Mixon v. Bullard, 217 So.2d at 30.

The County Court's treatment of the substantive issue in this case conformed to the above principles of law. Moreover, the County Court's judgment accords with the overall policy that the paramount interest effected in such cases should be the best interest and welfare of the child. See Pearson v. Pearson, 458 So.2d 711, 713 (Miss.1984) (despite unconscionable behavior by the mother, this Court condoned altering an original decree of one court in a different court when urgent circumstances would necessitate a modification); Roach v. Lang, 396 So.2d 11, 14-15 (Miss.1981) (courts have jurisdiction to modify foreign decrees when conditions have changed justifying modification); Bassett v. Sims, 220 Miss. 210, 218, 70 So.2d 530, 534 (1954) (a court should always give custody to the person having the legal right thereto unless circumstances justify a different result). Where as here there was substantial evidence that the petitioning custodial parent had been a continuing drug user, had become...