Walker v. Walker

Citation140 Miss. 340,105 So. 753
Decision Date26 October 1925
Docket Number25009
CourtUnited States State Supreme Court of Mississippi
PartiesWALKER v. WALKER. [*]

Division A

1. DIVORCE. Not obtainable for acts during insanity.

Divorce on ground of desertion or cruelty may not be obtained from acts occurring during insanity or during period in which offender was judicially determined to be insane, where no effort is made to overturn presumption, raised by adjudication of lunacy proceedings, that she was generally insane.

2. JUDGES. Not disqualified when not related to parties or financially interested.

Chancellor properly declines to recuse himself, where neither shown to be related to parties nor financially interested in litigation.

3. DIVORCE. Under prayer, custody of children or alimony not awarded where divorce cannot be granted.

Custody of children or alimony cannot be awarded; the prayer therefor being dependent on a decree of divorce which under the facts cannot be granted.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Newton county, HON. G. C. TANN Chancellor.

Bill for divorce by C. C. Walker against Wincie Ann Walker. Decree for complainant, and defendant appeals. Reversed and dismissed.

Cause reversed, and cross-bill dismissed.

Huff &amp Lee, for appellant.

I. The court erred in awarding appellee a divorce. The two charges laid in the bill of complaint were desertion and cruel and inhuman treatment. It was charged that appellant deserted her husband "about the--day of June, 1921." The bill was sworn to the 18th day of August, 1923, and filed. By a decree of the chancery court, of date June 21, 1922, which decree confirmed the action of the lunacy commission, had the latter part of 1921 or the first part of 1922, the appellant was adjudged insane. If she were insane, then we submit that she could not have been guilty of wilful, continued and obstinate desertion. And especially, if the court please, since her custody had been awarded to her brother, J. C. Stringfellow. How on earth could appellant be guilty of desertion toward appellee, when her custody had been awarded to some person other than her husband, and when, in legal effect, she was restrained from living with her husband? And besides, she was adjudged to be under disability and was so restrained from living with her husband until the 11th day of August, 1923, when she was restored to sanity.

II. The next proposition set up in the bill was cruel and inhuman treatment, carrying a knife and threatening to kill appellee. Appellee testifies that all of these cruel acts on which he bottoms his prayer for a divorce, on the ground of cruel and inhuman treatment, were committed by appellant at a time, in his opinion, when she was insane. Now, we submit, if the acts testified about by appellee were committed by appellant at a time when she was insane, then such acts could not, in legal effect, constitute cruel and inhuman treatment. See 19 C. J. 76.

We submit, therefore, that this is a case where the chancellor, both on the law and the facts, was manifestly wrong, and that this court should reverse the case.

III. The court erred in refusing to grant appellant the custody of her small and immature children. Judge FLETCHER, in O'Neal v. O'Neal, 95 Miss. 415, 48 So. 624, expressed the sentiments which, we submit, should control in this case. The above decision lays down the general policy of the courts concerning children of tender age; and we submit, that at such ages the interest of these children will not suffer in the arms of their mother, though she eats only the bread of comparative poverty.

W. M. Everett, for appellee.

The first assignment of error is that the court erred in granting the appellee a divorce. The decree in this case simply dissolves the matrimonial bonds existing between the complainant, G. C. Walker, and defendant, Mrs. Wincie Ann Walker, and says nothing with reference to which was granted the divorce.

This entire record details instance after instance of a long and continued and unbroken tragedy between two unpleasant and unhappy people, and if divorce was ever justified (and under the statutes of our state it certainly is) the present instant case is one in my humble judgment.

The appellant, through her attorneys, is now pleading for the first time as a main and only defense to this suit, that, the appellant during a part of the time of the desertion period of two years was placed by the chancery court under a ban of insanity. This plea was not even suggested to the chancellor in the court below.

Our friends, in quoting 19 C. J. 76, and O'Neal v. O'Neal, 95 Miss. 415, 48 So. 624, seem to rest consoled that the decision therein contained bears out their contention, but a close inspection thereof, it seems to me, if this is all their authority, puts the questions entirely beyond their hope of recovery. They rely wholly upon the fact that, the many acts of cruelty and inhuman treatment were committed by the appellant while under a ban of insanity.

We think there is no question that, independent of any lunacy proceedings, or the ban of insanity, the decree of the chancellor should be affirmed. If the period of desertion should fail, which we do not admit, the desertion should count as a part of the chain of cruel and inhuman acts against the complainant appellee.

Taking out and excluding all the acts complained of, during the last lunacy hearing, and certainly those before the first hearing, when she was declared sane, cannot here be charged against the appellee, the complainant, if any poor mortal ever was entitled to relief, is now entitled to it. 19 C. J. 76; Hansel v. Hansel, 3 Pa. Dist. 724, 15 Pa. 514.

The case of Hiblet v. Bains, 78 Miss. 706, 29 So. 80, lays down the doctrine of the best interest of the child, the only issue to be decided as to the custody of the child, and the mother to be preferred, if the child is very young. This rule was followed by the chancellor in the present case. The same rule was laid down, or rather followed, in Duncan v. Duncan, 119 Miss. 271, 80 So. 697.

The only authority cited, to uphold the contention of the appellant, to her right to claim the children, is the O'Neal case heretofore referred to, which, as already shown, does not apply to the present case at all.

Our contention is that the decree should stand, unmolested and unmodified and affirmed, as rendered by the court below, who knew the facts; as a finding by the chancellor, in an action for divorce, on conflicting evidence will not be disturbed on appeal, it not appearing manifestly wrong. See Smithson v. Smithson, 113 Miss. 146, 74 So. 149, L. R. A. 1917 D. 361 N.

OPINION

MCGOWEN, J.

C. C. Walker filed his bill for divorce against his wife, Mrs. Wincie Ann Walker, alleged as grounds for divorce that the defendant deserted her home on the--day of June, 1921, and that the desertion constituted willful, continued, and obstinate desertion, for the space of and term of more than two years' time immediately before the filing of the bill.

Complainant further charged that the defendant was continually worrying and nagging at him, and refused to perform the regular and routine household duties, and had not been a real and true and affectionate wife for the past several years, and further charged that she had threatened to kill the complainant, and would go at times with two pocket knives concealed in her clothing, which he was advised and believed were carried for the purpose of carrying out her threats to kill him, and upon these statements charged defendant with habitually cruel and inhuman treatment. Complainant further prayed for the custody of their six children.

Mrs. Walker filed her answer, specifically denying the desertion, denied nagging and worrying complainant, denied the allegations specifically of cruel and inhuman treatment, and charged complainant with being to blame, with having driven her from home; and she filed a cross-bill with her answer, charging the defendant with habitually cruel and inhuman treatment, specifying in many particulars. She further charged that, actuated by his desire to rid himself of her, he (the cross-defendant) had instituted insanity proceedings, hired skilled physicians and alienists, and sought to have her committed to an insane asylum, but that upon the first hearing she was adjudged sane; that in the early part of 1921 she became a victim of influenza, and that her husband, complainant, did not summon a physician. She stated, further, that in April she had received one thousand two hundred fifty dollars, and charged that her husband attempted to acquire this money from her, and that he instituted a second insanity proceeding against her; that instead, as claimed in the bill of cross-complainant, of willfully and obstinately absenting herself from him, she was in truth and in fact by order of the chancery court decreed to be insane and placed under the custody of her brother, John Stringfellow, as a result of her husband's wicked design to get rid of her and squander her estate. She charged him with habitually cruel and inhuman treatment, prayed for a divorce, alimony, permanent and pendente lite, and prayed that she be awarded the custody of the children, alleging her husband's unfitness therefor.

Cross-complainant filed his answer, denying any cruel acts or misconduct, or that he acted through any wicked design in seeking to have her declared insane.

The case was tried by the chancellor and resulted in his granting a divorce to the parties apparently in favor of the husband.

Mrs. Walker, in the course of the trial, through her attorneys announced that she had abandoned the divorce feature of her cross-bill, and would only stand on the cross-bill for the custody of her children and for alimony.

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