Yates v. Yates, 47241

• Decision Date: 15 October 1973
• Docket Number: No. 47241,47241
• Citation: 284 So.2d 46
• Parties: Larry Lee YATES v. Martha Janice Rowzee YATES.
• Court: Mississippi Supreme Court

Page 46

284 So.2d 46

Larry Lee YATES v. Martha Janice Rowzee YATES.

No. 47241.

Supreme Court of Mississippi.

Oct. 15, 1973.

Roy Noble Lee, Thomas D. Lee, Forest, for appellant.

Marcus D. Gordon, Gordon & Henry, Union, for appellee.

BROOM, Justice:

Appellant Larry Lee Yates, hereinafter identified as Larry, appeals from a decree of the Chancery Court of Newton County, Mississippi. It is argued here by Larry that the trial court erred in finding that his former wife Martha, appellee herein, is a fit and proper person to have the custody of their minor child and in granting permanent custody of the child to Martha.

Larry and Martha were married June 19, 1965 and are parents of one child, Thomas Lee Yates, born May 8, 1966, and being five and one-half years of age at the time of the trial. These young parents together with the child, whom they obviously both love with commendable affection, lived in a house trailer near Martha's parents. They separated on April 29, 1971, when Martha vacated their place of abode and began residing in Clinton, Mississippi. Larry sued Martha for child custody and a divorce on the ground of adultery. She denied the averments made against her. By cross-bill she sought child custody and a divorce asserting habitual cruel and inhuman treatment as grounds therefor. The chancellor granted Larry a divorce on the ground of adultery, but narration of the details is not appropriate here. Evidence was presented to the chancellor indicating improper conduct on the part of Larry (which Larry denied) in the presence of his son and Martha. In spite of recriminatory statements made by each parent relative to their respective fitness for child custody, the chancellor made a finding that both parents are fit and proper people to have child custody. Confronted with conflicting testimony, he awarded custody of the child to Martha subject to visitation rights of Larry.

The main argument asserted by Larry is that having been found guilty of adultery, Martha is not fit or entitled to have child custody. He cites the case of Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965) as authority for his contention that where the wife is found guilty of adultery by competent evidence, she is not entitled to child custody. InKeyes, the wife had an adulterous affair that lasted over two years, and the court found her to be an 'unfit mother' and that in the 'best interest' of the children they should be awarded to the father. No such finding was made in the case at bar. The rule announced in Keyes is a general rule that a parent guilty of adultery should not be awarded child custody, but there are exceptions to this rule. Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443 (1948). Winfield recognizes that even though a husband is properly granted a divorce because of the adultery of the wife, special or exceptional circumstances may justify granting child custody to the mother. Where it is clearly to the best interest of a child to remain with the mother, it may be proper to grant custody to the mother even though she may have been found guilty of adultery. Anderson v. Watkins, 208 So.2d 573 (Miss.1968); Schneegass v. Schneegass, 194 So.2d 214 (Miss.1966); Amis, Divorce and Separation in Mississippi § 214 (1935), and 24 Am.Jur.2d Divorce and Separation § 788 (1966).

In the case before us the chancellor found 'that the best interest of the minor child can be served by awarding permanent custody to its mother' subject to visitation rights of the father, Larry....