Hatten v. Pearson

221 So. 2d 87, 1969 Miss. LEXIS 1487
CourtMississippi Supreme Court
DecidedMarch 31, 1969
DocketNo. 45303
StatusPublished

This text of 221 So. 2d 87 (Hatten v. Pearson) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hatten v. Pearson, 221 So. 2d 87, 1969 Miss. LEXIS 1487 (Mich. 1969).

Opinion

BRADY, Justice:

This is an appeal from a decree of the Chancery Court of Forrest County, Mississippi, which defined and modified the visitation rights of the appellant and appel-lee with their minor daughter, Jennie Lynn Hatten, who was born on March IS, 1961. The essential facts, stated as tersely as possible, are that a decree of June 23, 1966, modified a final decree of December 19, 1964, in that the chancellor decreed that it would be in the “best interest of the child, and the child’s interest would be promoted” by the permanent care and custody of the child being granted to the appellant, E’Van Hatten, father of the minor, “with the right of reasonable visitation by the mother, Mrs. Ira Lou Hatten, at any and all reasonable times and that the child may visit with her mother at reasonable times.” The decree of December 19, 1964, had recognized an agreement of the parties thereto, the litigants in the case at bar, to maintain mutual care and custody of the minor child, with the court expressly retaining jurisdiction over the child.

On April 10, 1967, a petition to modify the June 23, 1966, decree was filed by the appellee, Mrs. Ira Lou Hatten Pearson. Appellee’s petition to modify the former [89]*89decree substantially set forth that subsequent to the rendering of the June 23, 1966, decree “there have been material and substantial changes in circumstances; that the respondent has consistently, continuously and obstinately refused to permit your petitioner to visit with and have her child at any and all reasonable times; that the respondent has arbitrarily defined reasonable rights of visitation in an unreasonable manner in such way as it appears to be vengeful.” Appellee also charged that appellant is married to a nineteen year old woman who has no children of her own and who cannot possess a mother’s love for Jennie Lynn and that appellant is not kind to his present wife, causing her to cry and creating an atmosphere in appellant’s home in which Jennie Lynn lives which is not happy and conducive to the rearing of a small child. Other grounds are also set forth by appel-lee. The appellant denies all the allegations of the appellee and contends that there is no equity on the face of the petition and that the same should be dismissed with prejudice. Appellant urges that he did comply with the conditions and requirements of the decree of June 23, 1966, and that he has permitted the appellee reasonable rights of visitation with the child at all reasonable times.

The chancellor found that appellant and appellee are both fit, suitable and proper persons to have custodial rights of their minor child, Jennie Lynn, but the chancellor found that the court decree of June 23, 1966, regarding the custody of the minor child, is not workable, that since the rendition of the decree of June 23, 1966, appellee has not been afforded reasonable rights of visitation with the minor child in keeping with the best interest of the minor child, and that appellee has a good, adequate and suitable home wherein said child might visit and be in the care and custody of her mother. The chancellor found further that there have been substantial and material changes in the situation and circumstances of the appellant and appellee relating to' the care, custody and needs of said minor child which justify an alteration and modification of the June 23, 1966, decree in order to better or more fully meet the emotional needs of the said child by designating specific and exact times and intervals between changes in custody and visitation of appellant and appellee with the minor child.

Eight assignments of error are urged by the appellant, some of which it is unnecessary for us to treat, because the record fails to establish evidence sufficient to merit our serious consideration thereof. The first error assigned is that the trial court erred in overruling appellant’s demurrer. A careful reading of the petition of the appellee convinces us that the ap-pellee charged sufficiently facts which, if believed by the chancellor, would justify the rendering of a decree in this cause in that appellee charged that “there have been material and substantial changes in circumstances.” Furthermore, the petition of appellee charges that the appellant continuously refused to permit the appellee to visit with her child at any and all reasonable times and that the appellant arbitrarily defined reasonable rights of visitation as he saw fit, which is a reasonable inference to be drawn from appellee’s charge that the appellant’s interpretation was such that it appeared to be vengeful. We hold, therefore, without any further comment that the demurrer was properly overruled. Likewise, a careful review of the record discloses that the chancellor had ample evidence of change of circumstances upon which to base his overruling of appellant’s motion to exclude appellee’s testimony.

We find no merit in the contention of appellant that the chancellor committed reversible error in denying the appellant the right to read in open court the petition filed by appellant on May 30, 1966, seeking a change in the decree of December 19, 1964. Although the present chancellor was not presiding at the time the petition of May 30, 1966, was filed, it does not follow per se that he was not familiar with [90]*90the contents thereof or did not familiarize himself therewith prior to adjudicating the rights of the litigants in the case at bar. Pleadings theretofore filed in the case are part of the record and need not be introduced because the Court takes judicial notice of anything in the record. Griffith, Mississippi Chancery Practice § 572 (2d ed. 1950). The entire record, together with the briefs, established beyond peradventure that the chancellor was quite familiar with the petition of May 30, 1966, and the facts upon which the decree of June 23, 1966, was predicated. Appellant contends that the court erred in giving his notes for decision and his entering a decree based on said notes for the reason that the entire record fails to show any material or substantial changes in circumstances between the parties since the rendition of the June 23, 1966, decree; that the evidence offered by appellee reveals only a vexed petitioner, unhappy because of her idea and interpretation of what reasonable visitation rights are. Based upon the factual findings of the chancellor as supported by the proof in this cause, we hold that it was not error for the chancellor to prepare the handwritten notes of his decision, deliver the same to counsel representing the appellee and request the preparation of a decree based thereon and to enter said decree in accordance with the chancellor’s decision. Griffith, Mississippi Chancery Practice, § 624 (2d ed. 1950).

Furthermore, the record discloses that the appellant, prior to the entry of the decree as evidenced by the “Objections Propounded to Court by Counsel” which was filed by the attorney representing the appellant, had before him the decree which the chancellor was preparing to enter in the cause based upon his notes or “decisions” relating to" the facts as established by the evidence, and it should be noted further that appellant’s objections were filed on September 30, 1967, at 9:28 A.M., the same time the decree was filed. It follows, therefore, that the contention of appellant that he did not have the opportunity to review the decision based upon the notes of the chancellor is incorrect.

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Bluebook (online)
221 So. 2d 87, 1969 Miss. LEXIS 1487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hatten-v-pearson-miss-1969.