Wilson v. Wilson

392 So. 2d 1131, 1981 Miss. LEXIS 1907
CourtMississippi Supreme Court
DecidedJanuary 21, 1981
DocketNo. 52324
StatusPublished

This text of 392 So. 2d 1131 (Wilson v. Wilson) 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
Wilson v. Wilson, 392 So. 2d 1131, 1981 Miss. LEXIS 1907 (Mich. 1981).

Opinions

HAWKINS, Justice,

for the Court:

This is an appeal from the Chancery Court of Lincoln County. The complainant-appellant Lois Ruth Wilson and the defendant-appellee Larry Joe Wilson married December 13, 1972. At the time of the marriage he was divorced, and the father of five children from the previous marriage. His former wife had custody of the children, but later Wilson gained custody of three of the children, who lived in the home of Wilson and their step-mother, Mrs. Wilson.

When the parties married, Wilson was in the Military Service, and during their marriage they lived at various places, including Germany.

The parties moved to Lincoln County, Mississippi, Wilson’s home, in August 1975. Their child, Cheryl Marie Wilson was born January 28, 1977. On February 3, 1978, Mrs. Wilson separated from her husband. She and their infant were carried to Jackson by the aunt and uncle of Wilson, a Paul and Mrs. Dora May Hall. Mrs. Wilson and the infant went to the home of her mother and step-father in the State of Washington. While she was in the State of Washington with the infant, Wilson made a trip in March attempting reconciliation. Also, there were telephone calls between the parties. In April 1978 Wilson returned to the State of Washington with a man he could only identify as “B. J.”, who he had picked up apparently as a hitchhiker on his first trip.

On April 10, 1978, Wilson forcibly took the child away from Mrs. Wilson in the State of Washington, and with B. J. driving, departed. Mrs. Wilson did not see her child again until October 1, 1979.

Upon returning to Mississippi, Wilson employed an attorney to file a petition on his behalf for legal custody of the infant, but did not pursue the matter.

Mrs. Wilson came to Mississippi, and on April 25, 1978, filed her original bill of complaint for divorce. In her bill of complaint, Mrs. Wilson prayed for temporary care and custody of their child, temporary alimony, temporary child support, temporary attorney’s fees, and other relief. Mrs. Wilson in her bill also asked for an absolute divorce, permanent care and custody of their child, permanent child support and alimony, and other permanent relief as to their property. The defendant was personally served with two summons, one requiring him to appear on the 2nd day of May 1978 at the regular term of the Chancery Court of Lincoln County to plead to the bill of complaint of Mrs. Wilson, and the other to appear on the same date and answer the complainant’s complaint for temporary child support, temporary alimony, temporary attorney’s fees and the immediate award of any personal effects belonging exclusively to the complainant. Both summons were personally served upon the defendant on April 26, 1978. The defendant failed to make any appearance whatever (deciding to leave the state as hereinafter set forth), and on May 19, 1978, the chancery court rendered a Temporary Decree and Writ reciting that personal service had been had upon the defendant and that both parties in the cause were represented by counsel on the first day of the term. The decree further recited that the defendant “has wholly defaulted and did not appear and the whereabouts of Cheryl Marie Wilson are unknown at this time.” 1

[1133]*1133On the 28th day of August 1978, with Wilson and the infant still absent from the state, the cause came on for hearing upon the permanent relief prayed for by Mrs. Wilson in her bill, and evidence was taken in open court, after which the court found and adjudicated that the court had jurisdiction of complainant and the defendant, their minor child Cheryl Marie Wilson, and subject matter. The decree went on to recite that the defendant had wholly defaulted, and after hearing evidence the court found that the complainant was entitled to a divorce absolute of and from the defendant on the grounds of habitual cruel and inhuman treatment and she was granted a divorce. The decree further recited that Mrs. Wilson was entitled to the immediate permanent care and custody of their child Cheryl Marie Wilson. The decree also directed the Sheriff of Lincoln County and any other sheriff in Mississippi to take custody of the child upon locating it, and enlisted the assistance of the welfare department.2

On April 28, following personal service of process upon him April 26, Wilson met a Miss Judith Rose Sullivan in a restaurant in Franklin County. Miss Sullivan as it developed was pregnant at the time with a child born October 16, 1978. Wilson discussed the proposition of hiring her to take care of the infant Cheryl, to which she agreed later that day, and she started taking care of her April 29. Either on April 29 or 30, Wilson and Miss Sullivan departed to Mobile, where they lived together in a trailer, and were married September 23, 1978. They returned to Lincoln County, Mississippi, in October 1978, and apparently remained there until the hearing on October 1, 1979.

Wilson’s mother was present in the chancery court proceedings on May 19 and 28, 1978. Mrs. Eula Mae Kimble, his sister, was present at the May 19 hearing, and on August 28 was asked the whereabouts of her brother by Mrs. Wilson. No information was forthcoming from Mrs. Kimble following the inquiry.

[1134]*1134Wilson, following the separation, also forged his wife’s name to some insurance proceeds checks from a fire loss. He pleaded guilty to uttering forgery in the Circuit Court of Lincoln County.

On March 15, 1979, Mrs. Wilson, in the State of Washington, executed a motion to cite Wilson for contempt. This motion was not filed, however, until September 21, 1979, and on that date the chancellor issued his fiat directing process for the defendant returnable to September 27, 1979. The motion recited that Wilson had failed to surrender the care and custody of the child to complainant, had kept his whereabouts and the whereabouts of the child hidden from Mrs. Wilson and the legal authorities of Lincoln County. An amended motion was filed on September 27, repeating essentially the first motion and asking for a re-setting of the cause beyond September 27, and for the immediate custody of the child.

Wilson filed an Answer and Cross-Petition alleging a material change of circumstances and for the Court to award him the permanent care, custody and control of Cheryl Marie Wilson. Mrs. Wilson filed an Answer to this Cross-Petition.

The cause came on for hearing at 1:30 o’clock in the afternoon of October 1, 1979. The Court found Wilson was in contempt of its prior decree, and then proceeded to hear the petition for modification of the final decree.

In his petition for a modification of the final decree, Wilson alleged a material change of circumstances following the decree consisting of (a) abandonment, by Mrs. Wilson of the infant, (b) an unnatural relationship between Mrs. Wilson and her stepfather, and (c) the remarriage of Wilson to Miss Sullivan.

At the outset of the hearing, counsel for Mrs. Wilson moved to exclude any evidence concerning any alleged conduct of the parties prior to the divorce decree of August 28, 1978, but the court under reserved ruling heard testimony from Wilson that some time in 1973 Mrs. Wilson had informed him she had previously engaged in a sexual episode with her step-father.

At the conclusion of the hearing the chancellor held there had been a material change in circumstances and awarded custody of the infant Cheryl to Wilson.

Mrs.

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Bluebook (online)
392 So. 2d 1131, 1981 Miss. LEXIS 1907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-miss-1981.