Wallace v. Wallace
| Citation | 93 Miss. 278,46 So. 398 |
| Decision Date | 11 May 1908 |
| Docket Number | 13,312 |
| Court | Mississippi Supreme Court |
| Parties | ELBERT B. WALLACE v. WINIFRED A. WALLACE |
FROM the chancery court of, second district, Yalobusha county HON. ISAAC T. BLOUNT, Chancellor.
Mrs Wallace, appellee, was the complaining petitioner in the court below; her husband, Elbert B. Wallace, appellant, was defendant there. The parties were separated, living apart each from the other. The suit was an habeas corpus proceeding for the custody of their seven year old son, William Frank. From a decree awarding the temporary custody of the child to the petitioner the defendant appealed to the supreme court. The facts are stated in the opinion of the court.
Affirmed.
Creekmore & Stone, for appellant.
Wallace is a strong, vigorous, young man of good business capacity and with no bad habits; there was some little testimony tending to show that he drank intoxicants but this was vague and uncertain and several persons who had associated with him daily in business for four years testified that they had never seen him drunk or drinking. There was no reason whatever, given by any witness why he was not a fit and suitable person to rear the boy and the only reason why he should not have the custody of his boy that was or could be advanced was that the boy would be a comfort to his mother in her sickness.
As to Mrs. Wallace, she is a woman of good character but ill-tempered and given to bursts of anger; she is weak and sick, suffering from a serious and most likely an incurable disease, which makes her unable to support herself and she must therefore rely upon her father.for her own support; and the care of the child, its training and education must be committed by her, if the child remains in her custody, to her father.
The father of the child, not having been shown to be an unfit or unsuitable person to have its custody, should be awarded such custody by this court. The court below went too far in this case and "consulted, not the permanent well-being of the child as much as its immediate enjoyment."
All the facts surrounding the life of the child from childhood to manhood is what should be considered and not the mere immediate happiness or enjoyment of the child. Hibbette v. Baines, 78 Miss. 696, 29 So. 80.
James G. McGowan, for appellee.
While at common law the rule was that the father was entitled to the custody of his child as against the world, our courts have continually modified this rule, until now it may be said that the father is entitled to the custody of the child unless it would be for the child's benefit to be elsewhere, or unless a father is shown to be unfit to have the custody of his child. I take it to mean that his best interest will be to put him where the influence and moral training will make him a better citizen. In the case at hand the mother, grandmother, and grandfather have had the care of him for the past four years, during which time, according to Wallace's own testimony, he had little opportunity, or evidenced little desire to train the child. Cocke v. Hannum, 39 Miss. 423; 21 Am. & Eng. Enc. of Law (2d ed.) 1038, notes 2, 3; McShan v. McShan, 56 Miss. 413; Verser v. Ford, 37 Ark. 270; Chapsky v. Wood, 26 Kan. 650; Sturdivant v. State, 15 Neb. 459; Jones v. Darnall, 103 Ind. 569; Drumb v. Keen, 47 Iowa; Ex parte Schrumpert, 6 Rich. Law 344; Hibbette v. Baines, 78 Miss. 696, 29 So. 80.
The decree in this case is as follows; ...
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