Wansley v. Schmidt, 44000
| Decision Date | 16 May 1966 |
| Docket Number | No. 44000,44000 |
| Citation | 186 So.2d 462 |
| Parties | James Hugh WANSLEY v. Gertrude Wansley SCHMIDT. |
| Court | Mississippi Supreme Court |
Walker, Dillard & Sullivan, Laurel, for appellant.
Paul G. Swartzfager, Laurel, for appellee.
James H. Wansley has appealed from a decree of the Chancery Court of the Second Judicial District of Jones County denying his petition for custody of three minor children, making more specific and adjusting his rights of visitation, and increasing support payments provided for in a former decree.
The present controversy had its origin in a suit filed by appellee, Gertrude Wansley Schmidt, against appellant, her then husband, asking for separate maintenance and for custody of their three minor children. In that case, appellant answered and also filed a cross-bill seeking a divorce and custody of the children.
In October 1961, a final decree was entered dismissing the bill for separate maintenance and granting appellant a divorce, but awarding the custody of the three children (a girl then five years old, a boy four years old, and another girl, age 2) to their maternal grandparents, appellee's mother and father, the decree reciting that it was 'contemplated that the cross-defendant (appellee in the present case) will reside with her parents and assist in the care of the children, and the court does hereby specifically retain jurisdiction of this cause to make such changes in the provisions in regard to the care and custody and control of the said children as to this court may seem meet and proper from time to time as the circumstances shall then exist.'
The decree further recited that the question of the respective 'fitness or unfitness' of the parties to have permanent custody of the children was expressly pretermitted.
After the divorce, both parties remarried. Appellant married a widow with four children of her own by a previous marriage-a boy 18, a girl 17, and two boys 12 and 11, respectively. These children are living with the appellant and their mother.
Appellee married a man who apparently departed shortly afterward and whose present whereabouts seem to be unknown.
In 1965, appellant filed his petition in the case now before the Court, asking that the former decree be modified because 'there has been a material change of circumstances since the rendition of the final decree of the court and the court specifically retained jurisdiction over said cause to make such changes in regards to the care, custody and control of said children as the court deemed meet and proper.'
The petition set out that appellant had remarried and now was in a position to care for the children. It also charged appellee with immorality and alleged that it was to the best interest of the children that he be given their custody.
Appellee answered fully, denied the charges of immorality, denied that it was to the best interest of the children to change their custody as fixed by the former decree, and denied that there had been any material change in circumstances since entry of that decree, or any change which would warrant a disturbance of the custodial arrangement which had been in effect since 1961.
Respondent averred that she had faithfully complied with the provisions of the earlier decree, and, except for a few very brief absences, had lived in the home with her mother and father and the children and had looked after and cared for them. She averred that a continuance of this arrangement was to the best interest of the children. She pointed out that the three-bedroom home of appellant, while perhaps 'suitable' was not adequate for occupancy by appellant and his wife, the four stepchildren (whose ages ranged from 11 to 18 years), and the three children of the parties, and further averred it would be unwise to take the children from their present home and place them in the home with the four older children of appellant's wife.
Considerable testimony was offered by each side. An effort was made to show that appellee was guilty of misconduct with another man, or other men, following her second marriage. However, this testimony rested upon slight circumstances, all of which were equally capable of innocent interpretation, and on the whole was intrinsically weak and unconvincing. Stegall v. Stegall, 151 Miss. 875, 119 So. 802 (1929).
It was positively refuted by the testimony of appellee, supported by that of other witnesses who testified in her behalf. At most, the evidence introduced by appellant made a factual issue as to the material questions in the case. This was for the decision of the chancellor.
When both sides had closed, the chancellor delivered his opinion in which he found, among other things, the...
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Campbell v. Campbell, 49874
...of statute by virtue of the inherent power of the chancery court. Section 93-5-23 Mississippi Code Annotated (1972); Wansley v. Schmidt, 186 So.2d 462 (Miss.1966). Cases interpreting section 93-5-23 hold that chancery courts retain continuous jurisdiction over final decrees providing for al......
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Mississippi State Bar Ass'n v. Moyo
...are charged with the knowledge of the above principles, and act to the contrary thereof at their peril. See also: Wansley v. Schmidt, 186 So.2d 462, 465 (Miss.1966) (chancery court has "duty" to "protect and promote the best interests of minor The Legislature has created three statutory met......
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Rhodes v. Rhodes, 48957
...for alimony. Due process required that he be given notice of the claim, which notice he did not have. The decision in Wansley v. Schmidt, 186 So.2d 462 (Miss.1966), is controlling here, and requires reversal of the lower court for this Several other errors were assigned but they are not wel......
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Massey v. Huggins, 2000-CA-00929-COA.
...to make such orders and decrees from time to time as will protect and promote the best interests of minor children. Wansley v. Schmidt, 186 So.2d 462, 465 (Miss.1966). ¶ 25. In Wansley, the father petitioned for a change of custody of his three children. Wansley's ex-wife answered the petit......