author: CUTRER, Judge. FORET, Judge, DOUCET, Judge,

text:
    Harvey DUPLANTIS, Plaintiff-Appellant, v. Linda MONTEAUX, Defendant-Appellee.
    No. 8684.
    Court of Appeal of Louisiana, Third Circuit.
    March 18, 1982.
    Dissenting Opinions March 24 and April 19, 1982.

      Patricia A. Thomas, Abbeville, and T. Barrett Harrington, Crowley, for plaintiff-appellant.
    Theall & Fontana, Anthony J. Fontana, Jr., Abbeville, for defendant-appellee.
    Before GUIDRY, FORET, CUTRER, DOUCET and LABORDE, JJ.
   CUTRER, Judge.

This appeal arises from the wife’s rule to increase child support, to terminate the husband’s visitation rights with his two minor sons, and to hold him in contempt for violating the prior visitation order.

The facts presented in this case are:

Harvey Duplantis and Linda Monteaux Duplantis were judicially separated in 1976. The judgment of separation, dated September 7, 1976, granted Linda custody of the two minor children of the marriage, Harvey, Jr. and Kevin. Child support was set at $300.00 per month plus medical and hospitalization insurance. Harvey filed suit for a divorce on April. 25, 1978, based on living separate and apart for one year. Judgment was accordingly rendered. The divorce judgment continued custody of the minor sons in Linda and it also continued the $300.00 per month child support plus medical insurance. Harvey was also granted reasonable visitation rights.

On August 11, 1980, Harvey filed a rule to set certain visitation dates and specific dates for payment of child support. The hearing was held; the trial judge took the case under advisement, and rendered his reasons for judgment on October 20, 1980. Judgment was signed January 5, 1981.

Harvey, a state trooper (Department of Public Safety), requested certain visitation times due to his varying schedule and being subject to call. The judgment also took into consideration the effort by the Department which was trying to let the troopers have alternate weekends free. The judgment further took into account the fact that Harvey was living with a woman to whom he was not married. Thus, the judgment which sought to provide maximum times for Harvey to see his sons also sought to protect these impressionable children from being subjected to exposure to a “questionable” lifestyle. The judgment fixed certain times for visitation but conditioned such visitation as follows:

“D. Mover’s visitation privileges as described above are conditioned upon his restraining from keeping company with any woman to whom he is not married during times of visitation, except during daylight hours.’’

On March 30, 1981, Linda filed rules for an increase in child support, contempt and termination of visitation rights. Harvey answered the rule and also filed a rule for contempt against Linda.

A hearing was held and judgment was rendered June 22, 1981, increasing child support from $300.00 to $450.00 per month retroactive to the filing of the rule on March 30, 1981; both parties were held in contempt “for their wilful failure to comply with the lawful orders of this court concerning visitation” and fined $150.00; and the visitation rights as set out in the January 5, 1981 judgment were continued in effect. Costs were divided equally between the parties.

From the adverse judgment, Harvey appealed. No answer or appeal was taken by Linda.

This appeal presents the following issues:

(1) Whether Linda adequately alleged and proved sufficient changes in circumstances and need which would warrant an increase in child support obligations owed by Harvey;
(2) Are the restrictions placed on Harvey’s visitation privileges with his children unduly burdensome and unsupported by sufficient evidence; and
(3) Was there sufficient evidence adduced upon which the trial court could base its finding of contempt of a lawful court order by Harvey and Linda.

INCREASE OF CHILD SUPPORT BY $150.00 PER MONTH

The first question presented is whether the evidence reflects a change of circumstances which would warrant an increase of $150.00 per month as child support.

LSA-C.C. art. 227 imposes upon the parents a mutual obligation of support, maintenance and education of their children. The amount of support is determined according to the needs of the child or children as well as the circumstances of those who are obligated to pay it. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir. 1980), writ den., 383 So.2d 782 (La.1980).

The record reflects that the ages of the two boys, Harvey, Jr. and Kevin, in 1976, were 5 and 3 respectively. By the time of the 1981 hearing, the two boys were both attending school and engaged in the usual activities that accompany school age children. Linda explained that she was unemployed in 1976 but that she is now employed as a beautician working on a commission basis. Her gross income for 1980 was $8,784.98. Her “take home” pay was $555.00 monthly. She lists her total monthly expenses at $1,060.00; $465.00 for her expenses and $595.00 for the two children.

Linda testified that the increase in expenses since 1976, for the maintenance of the two boys, was due to the fact that they are now in school and participate in related activities. These factors increased the transportation needs, clothing needs and school expenses of the two boys. Also, since she is presently employed, a babysitter is required which costs approximately $150.00 per month. Of course, she must provide food and shelter for these two boys.

Harvey’s salary in 1980 was $22,638.00. (His income in 1976 was $17,591.24.) He is on special assignment with the Louisiana State Police and his transportation is provided. He can also use this vehicle on a limited personal basis. He is also allowed $2.50 per day by his employer for his uniform allowance. Harvey’s salary is augmented by Civil Service merit pay increases and overtime which he does accumulate.

Harvey was living with a woman, named Geraldine, to whom he is not married. She is employed and they equally share their living expenses. Geraldine owns the house in which they live. Harvey is also paying a $154.18 monthly car note on a vehicle purchased for and registered in the name of Geraldine. Harvey also pays a $67.61 monthly payment on a truck he purchased for his personal use.

Both Linda and Harvey list expenses which exceed their net income. Therefore, we must determine which party is in the best position to reduce his/her living standard so that the children will not be in need. Such a determination can only be made upon a consideration of all relevant factors. We agree with the court’s reasoning in Allbritton v. Allbritton, 393 So.2d 825, 826 (La.App. 2nd Cir. 1981), which stated:

“[T]hat the father’s obligation to provide support for his children is a high priority obligation and that he is required to reduce his living expenses in order to have funds to pay his required child support.”

Harvey is in the better position to contribute to the support of his children not merely because he is their father but due to his greater means, lesser living expenses by virtue of his roommate/paramour and reduced transportation expenses. He is not burdened with the costs of providing a home, care and supervision of his sons on a day to day basis as is Linda.

In determining child support, the trial court is vested with wide discretion. Such a determination will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion. We find no such abuse. Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir. 1981).

Due to the growing needs of his sons, coupled with his ability to provide more for their support, the judgment granting the increase of child support from $300.00 per month to $450.00 shall be affirmed.

VISITATION RIGHTS

Harvey contends, in the second issue, that the restrictions on his visitation rights (conditioned upon his restraining from keeping company with any woman to whom he is not married during times of visitation, except during daylight hours) are socially humiliating, overly burdensome and restricts his constitutional rights of travel and association. Duplantis contends that the facts of the case do not justify such a condition. We disagree.

It is well settled that the paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Gowins v. Gowins, 391 So.2d 48, 49 (La.App. 3rd Cir. 1980); Reavill v. Reavill, 370 So.2d 175, 177 (La.App. 3rd Cir. 1979).

We find the case of Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir. 1974) to be factually similar to the case at bar. There, the former wife opposed the husband’s visitation with her daughter as he lived in open concubinage with his paramour; and whenever the daughter stayed overnight, all three, father, daughter and concubine would sleep in the same bed. The former wife argued that such a “lifestyle” was not conducive to her daughter’s emotional and moral welfare.

In its modification of the visitation rights, the court made the following observation:

“A divorced father is ordinarily entitled to visitation with his minor child, when custody has l>ecn awarded to the mother. However, this right may be regulated. limited, or completely taken away bv the court when the father’s conduct in exercising the riarht could injuriously affect the child. ...” (Id. at 629. Emphasis ours.)

In the case at hand, while we find that the trial court did not abuse its discretion in looking out for the children’s emotional and moral welfare as to prevent an undermining of the children’s respect for the family institution by conditioning Harvey’s visitation rights, we do feel that the order rendered herein on January 5, 1981, is overly broad and should be clarified. The order, as framed, could be interpreted to prevent the visitations from taking place at night in the presence of Harvey’s close relatives, such as his mother. A reading of the trial judge’s reasons for judgment discloses that certainly this was not his intention. For clarification purposes we shall amend Paragraph D of the judgment dated January 5, 1981, to read as follows:

IT IS ORDERED that the overnight visitations of the children with Harvey Duplantis shall not be carried out in any abode where, at the same time, Geraldine Trahan, or any other non-relative woman to whom Duplantis is not married, is also an overnight resident.

As amended, we shall affirm the trial court’s visitation conditions.

CONTEMPT

The next issue raises the question of whether sufficient evidence was adduced upon which the trial court could base its finding of contempt of a lawful court order by Harvey.

Harvey avers that the trial judge erred in holding him in contempt. We disagree.

This is a civil contempt as defined by LSA-C.C.P. art. 221:

“A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
“Contempts of court are of two kinds, direct and constructive.”

LSA-C.C.P. art. 224 provides for constructive contempt:

"A constructive contempt of court is any contempt other than a direct one.
“Any of the following acts constitutes a constructive contempt of court:
* * * * * *
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;”

The Louisiana Supreme Court held in Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127, 128 (1971) “that willful disobedience of any lawful judgment, order, mandate, writ, or process of court is a constructive contempt of court.” The court set out some general rules regarding contempt proceedings in Lambert v. Adams, 347 So.2d 883, 884, 885 (La.App. 3rd Cir. 1977), as follows:

“... First, the object and purpose of a contempt proceeding is to vindicate the authority and dignity of the court. It is not designed for the benefit of the litigants, even though infliction of punishment for contempt may inure to the benefit of the mover in the contempt rule. State ex rel. Duffy and Behan v. Civil District Court for Parish of Orleans, 112 La. 182, 36 So. 315 (1904); Robertson v. Robertson, 258 So.2d 125 (La.App. 2d Cir. 1972). Second, unless a litigant wilfully disobeys a direct order of the court issued prior to the contempt rule, he should not be held in contempt, even if his acts tend to frustrate the opposing litigant. State ex rel. Duffy and Behan, supra. Third, proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Roy v. Berard, 227 La. 86, 78 So.2d 519 (1955); Junius Hart Piano House v. Ingman, 119 La. 1017, 44 So. 850 (1907). Fourth, as a general rule, contempt proceedings should not be resorted to where other specific remedies are provided by law. State ex rel. Duffy and Behan, supra; In re State ex rel. Hero, 36 La.Ann. 352 (1884); Junius Hart Piano House v. Ingman, supra.

From our review of the record, Harvey willfully disregarded the restrictions on visitation rights by having, his paramour present after dark while visiting with his two sons on weekends. The trial court stated as follows in this regard:

“I think you all are more concerned with your fight between yourself than you are about the welfare of the children. That may not be true, but it comes through real loud and clear to me like that. And when the day of reckoning comes — and it will come. I told you and I told your attorneys any time you want to bring the matter to the court, I’ll be happy to consider it. Now what I have noticed today is that both of you decide that you’ll obey the court when you want to; or when you don’t, you won’t have to.... ”

We find that the record reveals a reasonable factual basis for the finding of Harvey in contempt of court. The record, the testimony of the parties, and that of Harvey, Jr., establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The contempt citation will be affirmed.

For the foregoing reasons, the Paragraph D of the judgment of the trial court rendered January 5, 1981, is amended to read as follows:

IT IS ORDERED that the overnight visitations of the children with Harvey Duplantis shall not be carried out in any abode where, at the same time, Geraldine Trahan, or any other nonrelative woman to whom Duplantis is not married, is also an overnight resident.

In all other respects, the judgment rendered herein is affirmed. All costs of this appeal are assessed against Harvey Duplan-tis, plaintiff-appellant.

AMENDED AND AFFIRMED.

FORET and DOUCET, JJ., dissent and assign reasons.

FORET, Judge,

dissenting.

I respectfully dissent in part.

This case involves a restriction of visitation rights of an out-of-custody father with his children, to the effect that these children cannot visit with the father in the presence of his live-in girlfriend during nighttime hours. There is no showing whatsoever, as I see it, from the record, nor is it argued by counsel for the mother of the children, that there is evidence in the record showing that the failure to impose these visitation restrictions would be adverse to the best interest of the children. I do not believe that a trial judge can impose such a restriction (upon a father who is paying $450 per month child support) without articulating, for the record, the reasons why such a restriction is necessary to protect the best interest of the children. This is particularly true where the record is devoid of evidence to support the restriction.

In assessing if a parent’s sexual lifestyle is cause for denying custody (note that the instant case involves only visitation), the courts have consistently held the ultimate determination must be whether the behavior was damaging to the child. This determination involves several factors:

(1) Is the child aware of the illicit relationship?
(2) Has sex play occurred in the presence of the child?
(3) Was the sexual misconduct notorious, bringing embarrassment to the child?
(4) What effect has this conduct had on the family life?

Monsour v. Monsour, 347 So.2d 203 (La.1977); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971); Howes v. Howes, 388 So.2d 1182 (La.App. 4 Cir. 1980), writ denied, 393 So.2d 738 (La.1980); Coltharp v. Coltharp, 368 So.2d 793 (La.App. 2 Cir. 1979), writ denied, 370 So.2d 578 (La.1979); Nale v. Nale, 409 So.2d 1299 (La.App. 2 Cir. 1982). There has been no evidentiary showing in the instant case relative to any of the factors mentioned above.

I am further motivated in dissenting herein by the recent Supreme Court decision of Stephenson v. Stephenson, 404 So.2d 963 (La.1981) wherein the Supreme Court actually awarded custody to a mother who was admittedly and openly living in open concubinage with a man other than the father. The Supreme Court found that the children were very well adjusted, and that no showing had been made that awarding the custody to the mother would adversely affect the children, or would not be in the best interest of the children. True, that in Stephenson, the mother and the live-in boyfriend testified that they planned on getting married. While this is all well and good, such declarations are highly suspect and self-serving, and certainly was not the sole basis for the Court’s decision.

Obviously in this case, the mother was very adamant about this restriction. To impose the restriction for no stated reason, other than that the restriction is insisted on by the mother, is to inject moralistic views into a matter which should not be judged on the moralistic views of the mother or that of the trial judge. If the contrary be true, we might as well sanction such restrictions based purely on race, color, religious or political beliefs or differences.

Although in the final analysis the restriction involved herein may prove to be in the best interest of the children, it is my opinion that the basis for such a restriction on visitation rights must be articulated by the trial judge, or at the very least, sufficient evidence to justify the imposition of the restrictions must appear from the record. There is no evidence in this record to justify such a restriction in this case, and I dissent from the majority’s affirmance of the imposition thereof.

DOUCET, Judge,

dissenting.

I join with Judge Foret in the reasons he has assigned in his dissent and assign additional reasons.

I fully believe that the trial judge should be afforded great discretion in matters of custody, including visitation. His obligation is a particularly difficult one which often requires that he monitor the children’s welfare throughout their minority. The issue before us is not the propriety of appellant’s lifestyle. The question is much deeper than this. The issue presented is whether the trial court’s determination, limiting appellant’s visitation rights, is truly in the best interests of the children, supported by the evidence and consistent with our Supreme Court’s rulings regarding custody.

The record before us is absolutely void of any evidence that this non-custodial parent’s living arrangement is injurious to his sons’ well-being. Nonetheless, the majority is willing to speculate otherwise thereby justifying the alienation of a father and his sons. There is no evidence nor allegation of this couple engaging in sexual relations in the presence of appellant’s children or elsewhere. If anything, the record indicates that the father’s friend, Ms. Trahan, is a mature, stable individual and theirs is a relationship of mutual respect and support. Furthermore, the evidence establishes that Mr. Duplantis has provided well emotionally, physically, and financially for his children.

The problem is compounded by the application of differing standards to custody, and visitation, which, of course, constitutes part-time custody, e.g., Query: would the custodial mother be enjoined from associating- with a man not her relative in the presence of her children after dark, particularly absent evidence of injurious effect upon her children? As the same monastic restriction is not, ipso facto, imposed upon a custodial parent, the same cannot be done in matters of visitation.

Appellee’s reliance on Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir. 1974) is misplaced. In Larroquette, the child had special emotional problems and, when visiting with the father, slept in the same bed with the father and his concubine. The child returned from these visits emotionally upset. The Fourth Circuit found that such was not in the best interest of the child. The case is clearly inapposite to the present situation. The record does not disclose that the couple’s intimate matters of private concern are exposed to the children or that there is any adverse effect upon them.

In Stephenson v. Stephenson, 404 So.2d 963 (La.1981), the most recent and authoritative decision, a unanimous Louisiana Supreme Court reversed the appellate court and awarded custody to a mother living in open adultery as she was otherwise a good parent. The court therein noted that “proof of adultery does not necessarily render morally unfit a parent who is otherwise suited for custody” and that the appellate court had incorrectly analogized the situation to Schexnayder, supra at footnote 3, as Mrs. Stephenson provided excellent care for her daughter and conducted no impropriety in the presence of her daughter. Our highest court has spoken on the matter as to when the state may usurp parental authority and substitute its own judgment. No different standard can be applied to the rights of the non-custodial parent. Accordingly, I believe the majority’s declaration, to the effect that concubinage is ipse dixit detrimental to the best interests of the child, is in error.

The trial judge’s grant of visitation rights prohibited the appellant from being in the company of any female (except one to whom he is legally married), in the presence of his sons, after dark. Such a ruling de-nles the children the companionship of their relatives after certain hours depending on the season, and, in its application, severs plaintiff’s father-son relationship. Not only does this order of sexual segregation after hours deprive the children of visitation with their female relatives and friends, and, accordingly, deprive plaintiff of his associational rights, but it also prevents appellant from securing a female babysitter, or even in this case, visiting with his attorney. Should his sons become ill, requiring medical treatment and necessitating a house call, the appellant would technically be in contempt should the arriving physician be of the opposite sex. The majority opinion properly recognized that the aforesaid visitation restriction is overly broad, nevertheless they amend the decree in terms, which in the opinion of this writer, remain overly broad and are unjustified based on the record before us.

Under Louisiana and common-law jurisprudence appellant cannot be held in contempt unless his acts constitute willful disobedience of a specific decree. Not only do I consider the decree invalid as being unwarranted, overbroad, and vague, but also the appellant’s actions cannot be considered willful in the sense that there was a voluntary attempt to flaunt the authority of the court. As aforementioned, Mr. Duplantis’ visitation rights were conditioned upon him not being in the presence of any woman to whom he was not married while in the company of his sons, after dark. Appellant made a sincere effort to comply with the terms of said decree, nonetheless he did so violate the condition on one evening when the demands of his job as a state trooper required him to leave the home on a visitation week-end necessitating the assistance of a babysitter. Unable to find anyone else to stay with his boys, he called upon Ms. Trahan to help. Mr. Duplantis stayed with the boys, awaiting Ms. Trahan’s arrival. When she arrived, he departed to attend to the emergency at work. Technically, contempt had occurred: it was dark, and the babysitter was a woman, and appellant waited for the sitter’s arrival before leaving his sons, thus the two were temporarily together in the presence of the boys. I believe the term willful, as used in LSA-C. C.P. Art. 224, must be tempered by reason, that under the circumstances hereinabove appellant was not guilty of contempt.

For the reasons assigned, I respectfully dissent.

      . Linda did not appeal her contempt citation. Thus such is not before us for determination.

      . The visitation rights set forth in the January 5, 1981 judgment were continued in effect by judgment rendered June 22, 1981.

      . I am not unaware that in cases such as this, a trial judge will frequently call the children into chambers and personally discuss the matter with them (if they are of sufficient age to understand what’s going on) and obtain information upon which to guide himself dehors the record, and thereby avoiding the trauma of courtroom testimony. However, there is nothing to prevent, and indeed the trial court judge should, in such circumstances, again in the absence of the children, dictate into the record his reasons for imposing the restrictions.

      . Of related interest is the recent United States Supreme Court decision in Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599, wherein a New York provision allowing termination of parental rights upon showing only a “fair preponderance of evidence” was struck down. Most states require at least clear and convincing evidence. The present case would fail under either rule.

      . In this regard it should be noted that counsel for appellee subpoenaed the father’s roommate yet failed to call upon her to testify thereby creating a presumption that she would have testified adversely.

      . Equally inapplicable is Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), a custody rule case wherein the mother had persisted in an open and public adulterous affair at hotels and other places, depriving the children of her care, despite community and family outrage. The import of Schexnayder was subsequently clarified in Stephenson v. Stephenson, 404 So.2d 963, 965 (La.1981): “Perhaps most pertinent to the issue of child custody, testimony in the Schexnayder case indicated that Mrs. Schexnayder had neglected the basic needs of her children during her affair.”

      . Accord: Cleeton v. Cleeton, 383 So.2d 1231 (La.1980) where the Supreme Court held that to change custody simply because of concubinage would be to punish the mother when there is no proof of detrimental effect on the daughters; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) wherein there was no showing that the parent’s “indiscretions” had an adverse effect on the children.

      .Appellee asks that the decree be amended to restrict appellant to no overnight visitations while he is continuing his “immoral conduct” and further forbid any visitations to take place at appellant’s home. As defendant neither answered nor appealed, the majority properly rejects such requests.


source: Caselaw Access Project

author: GUIDRY, Judge. STOKER, Judge,

license: Public Domain

text:
    Flaudry Ann LaPOINTE, Plaintiff-Appellee, v. Larry James MENARD, et al., Defendants-Appellants.
    No. 8742.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Edwin Patout of Haik, Broussard & Haik, New Iberia, for defendants-appellants.
    Gordie R. White, New Iberia, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

In this habeas corpus proceeding plaintiff seeks to regain the custody of her eight year old son, Ravis John Ryder. The defendants are the child’s maternal aunt, Melissa LaPointe, and her husband, Larry James Menard.

A brief summary of the facts, which for the most part are not in serious dispute, is necessary for a proper understanding of the issues presented by this litigation.

On July 13, 1972, Flaudry Ann LaPointe, then approximately eighteen years of age, gave birth to an illegitimate child, Ravis John Ryder. Sometime in the latter part of the year 1973 or in the early part of the year 1974, Flaudry voluntarily gave physical custody of the child to the Menards and either simultaneously or shortly thereafter executed an act of surrender in their favor. The Menards then proceeded to file adoption proceedings; however, these proceedings were dismissed when Flaudry revoked her act of surrender and the consent which she had given to the adoption of Ravis. Following dismissal of the adoption proceedings and on March 30, 1976, plaintiff sought by habeas corpus to regain the custody of Ravis. The Menards answered alleging that plaintiff had abandoned her child and was unfit for custody. The matter was tried in April of 1976 but for some unexplained reason a formal judgment was not rendered and signed until July 11, 1977. The judgment of July, 1977 found plaintiff unfit and awarded temporary custody of the child to the Menards, subject to reasonable visitation rights in favor of Flaudry. In denying the relief sought by Flaudry the trial judge stated in written reasons as follows:

“. . . The plaintiff is employed as a bar maid and her work history indicates that she has worked in various bars and lounges, except for employment as a waitress at a fried chicken place, and two jobs as secretary. She indicates that she had not finished high school. The plaintiff was very candid about her relationship with her various boyfriends, some of whom lived with her and others took trips with her.
Her mother and father testified as to her conduct and advised of her having men in her house and in her trailer.
The plaintiff gave no indication that she intended to change her life style. In view of the evidence the court cannot allow her to have custody of her child until such time as there would be a change in her life style.”

On December 9, 1977, plaintiff again sought by habeas corpus to regain custody of her child. This second motion was not tried until June 1978. Following this second hearing the court, for written reasons assigned, again refused to grant custody to plaintiff. In its written reasons, the court recognized that plaintiff had changed her lifestyle for the better but not to the extent required for a change of custody.

Either before or shortly following her second try for custody of her child, Flaudry began to date Wiley Doucet, who was then married but separated from his wife. Flau-dry and Wiley Doucet began living together and sometime during the year 1979, Flau-dry gave birth to an illegitimate child, later named Scottie Doucet. Wiley Doucet subsequently divorced his wife, married Flau-dry and formally adopted the child. Following this change in circumstances, Flau-dry instituted the instant habeas corpus proceeding seeking, for a third time, to regain custody of her child.

The evidence adduced at this third hearing established that there has been a complete change in plaintiff’s lifestyle. In the year 1980 she married Wiley Doucet who is characterized by the evidence as mature, stable and responsible. Mr. Doucet has been steadily employed by the same company for over twenty-eight years and earns in excess of $50,000.00 annually. Plaintiff and her husband live in a comfortable, three bedroom, brick home located in a nice residential section of New Iberia. The record reflects that plaintiff’s marriage is happy and stable and that she is content with her role as a wife and mother. According to the several witnesses who testified, including a social worker with the office of Human Development, plaintiff now displays all of the characteristics of a good wife and mother and is now able to provide Ravis with a good home.

In contrast with the above the record reflects that Ravis has lived with defendants since infancy, a period of over seven years, and has always been considered as a member of the family. The Menard family has had financial difficulty over the years, in spite of the receipt by Mr. Menard of a $187,000.00 damage settlement, such that Mr. Menard declared bankruptcy some two years ago. Presumably, the latter circumstance is responsible for the fact that the Menard family moved their residence on five different occasions during the year and a half preceding trial of this rule. In spite of some hardship, the record reflects that, the Menard family weathered their difficulties. Apparently, such difficulties as may have plagued the family had no effect on Ravis as he is described by both lay and expert witnesses as a happy, well adjusted youngster. Mr. Menard testified at trial that he was gainfully employed, earning $1400.00 monthly, and that he and his wife were able to provide Ravis with a good home.

Defendants testified that plaintiff, even after her marriage to Mr. Doucet, failed to exercise her rights of visitation under the previous judgments with any constancy, visiting with her son, Ravis, only when it suited her convenience. Plaintiff denied the above and testified that her efforts to visit with Ravis were frustrated by defendants’ deliberate refusal to accord her her visitation rights. There is evidence in the record which corroborates the accusations of both. Plaintiff’s lifestyle prior to her marriage to Mr. Doucet tends to corroborate her infrequent visitation of Ravis. On the other hand in corroboration of plaintiff’s allegations, the record reflects that the relationship between plaintiff and defendants quickly deteriorated following the voluntary grant of physical custody of Ra-vis to defendants, being thereafter characterized by constant recriminations of wrongdoing. On at least one occasion defendants were found guilty of contempt for failure to accord plaintiff her right of visitation.

At the hearing, defendants presented the testimony of Dr. Wyatt, a psychiatrist, and Dr. Cromwell, a psychologist. Both experts opined that a change in Ravis’s custody, after a period of eight years, might cause emotional damage to the child and recommended against a change of custody. Both experts testified that their opinion was not based upon anything discovered during their examination of Ravis. Rather, each based their opinion on studies which show that a parent-child bonding takes place during the first five years of life, such that if the relationship is terminated it often causes emotional problems. The experts were questioned as to the period of adjustment required if the child were moved. Dr. Wyatt opined that it would take six months to a year. Dr. Cromwell indicated he had no way of knowing in that it would vary from child to child depending on the severity of the “separation anxieties”.

The trial judge spoke with Ravis in chambers, out of the presence of the litigants and attorneys. In this conversation Ravis indicated a desire to remain with the Me-nards; however, the court opined that Mrs. Menard did “what she could to influence the child to reach this decision”.

At the conclusion of the hearing in this matter the trial judge determined that plaintiff’s lifestyle had, in fact, changed to the extent that she' could provide her child with a good home. The trial judge then reasoned as follows:

“The Court feels compelled under the present jurisprudence to award custody to the mother, Flaudry LaPointe Doucet.
The Court will delay this change of custody until the termination of the school year for obvious reasons.
The Court will order that the mother, Mrs. Doucet, have the child from Saturday at 12:00 noon until Sunday at 6:00 p. m. the first weekend after the judgment is signed and every week-end thereafter from 6:00 p. m. Friday until Sunday at 6:00 p. m. It is further provided that the child shall be allowed to attend all school and athletic activities as he is presently doing.
The Court, in view of the unusual circumstances in this case, will allow the Menards to have visitation with the child every other week-end from Friday at 6:00 p. m. until Sunday at 6:00 p. m. after the school year ends."

Judgment was rendered accordingly. Defendants have appealed and plaintiff has answered their appeal.

Defendants appeal and plaintiff’s answer to the appeal pose two issues for determination: (1) did the trial court err in decreeing a change in custody; and, (2) if not, did the trial court err in awarding visitation rights to the defendants.

THE CHANGE OF CUSTODY ISSUE

It is well settled in our jurisprudence that a parent has a paramount right to custody of his or her child and may be deprived of such right only for compelling reasons. In accordance with this principle, it is well recognized that when a parent competes with non-parents of the child, the parent’s right to custody must be recognized unless it be established by convincing proof that he or she is unfit or has forfeited the parental right of custody by action or omission. Wood v. Beard, 290 So.2d 675 (La.1974); State in the Interest of Taylor, 296 So.2d 841 (La.App. 2nd Cir. 1974), writ refused 299 So.2d 799 (La.1974); Girouard v. Halpin, 368 So.2d 1139 (La.App. 3rd Cir. 1979); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), writ refused 369 So.2d 710 (La.1979); Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir. 1979), writ refused 380 So.2d 101 (La.1980); Juneau v. Bordelon, 380 So.2d 208 (La.App. 3rd Cir. 1980); LaCroix v. Cook, 383 So.2d 59 (La.App. 2nd Cir. 1980), writ denied 384 So.2d 801 (La.1980).

Appellants concede on appeal correctness of the trial court’s conclusions that plaintiff’s lifestyle has changed and that she can now provide her son Ravis with a good home. Appellants likewise concede that the legal principles above referred to are applicable to the instant controversy. However, appellants urge that the facts of this matter, considered in light of these established principles, do not compel the conclusion reached by the trial court. As we understand the thrust of defendants’ argument they contend that plaintiff has forfeited her parental right to custody by reason of her past conduct which resulted in two prior decisions which found her to be an unfit parent. From this premise they argue that the trial court should have simply considered the matter from the standpoint of “best interest of the child” as between the competing parties.

We do not agree that a parent forfeits forever the parental right to custody of his or her child by reason of the fact that at one time or another he or she has been declared morally or otherwise unfit for custody. Even as between competing parents, the cases are legion which have awarded custody to a parent once denied that right because of his or her prior lifestyle. Even more so should this same result obtain in custody contests between parents and non-parents. As stated by Justice Tate in his concurring opinion in State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958):

The right of a parent to his child existed before governments or other social institutions of mankind. This natural right proceeds from our Creator and exists independently of the state; the state (and particularly by a democratic government where rights not delegated thereto by the people are reserved to the people, U. S. Constitution, Amendment X, Art. 1, Section 15, La. Constitution of 1921, LSA) does not in my humble opinion possess the power to take a way in favor of a stranger the God-given right of a parent to his child, in the absence of the parent’s forfeiture or abandonment of such right or of positive detriment to the child. Cf., State ex rel. v. Garza, 217 La. 532, 46 So.2d 760; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411.”

Although admittedly plaintiff’s conduct and lifestyle following the birth of her child and for some seven years thereafter were socially unacceptable, irresponsible, and in total disregard of her duty as a parent, there is no showing of any intent on the part of plaintiff to abandon her child to the defendants. To the contrary plaintiff maintained a continuing interest in and contact with her child and was persistent in her efforts to regain his custody. Cf., State ex rel. Paul v. Peniston, supra; Paul v. Cloud, supra.

The circumstances of this case are not unlike those present in State in the Interest of Taylor, supra; Wilson v. Wilson, 307 So.2d 674 (La.App. 2nd Cir. 1975); Snell v. Snell, 361 So.2d 936 (La.App. 2nd Cir. 1978), writ refused 363 So.2d 536 (La.1978); Tolar v. Cunningham, supra; LaCroix v. Cook, supra; and, Juneau v. Bordelon, supra. In all of the cited cases the parental right to custody was recognized.

In sum we find that the facts and circumstances presented fall within the purview of the established legal principles initially set forth. Accordingly, we conclude that the trial court did not commit clear error in recognizing plaintiff’s paramount right to the custody of her minor child.

Appellants additionally argue that the trial court erred in ordering a change of custody in the face of the expert medical testimony which stands unrefuted. Although the welfare of the child takes precedence over enforcement of the parent’s paramount right to custody, in the application of this rule it is inappropriate to compare the mother’s home with that of the non-parents, when the former environment is acceptable. In the instant case the trial court gave consideration to the testimony of the experts but presumably concluded that this evidence did not show that a transfer of custody to the mother would be inimical to the welfare of the child. We cannot say that the trial judge clearly ■ erred in this determination. As we previously stated, the opinions of these experts (that a transfer of custody would probably cause the child some emotional damage) were not based upon their examination of the child but rather on studies involving the parent-child relationship. Additionally, both experts seemed to be in agreement that the child could adjust and would do so within a relatively short period of time.

Although the opinions of experts in matters of this kind are persuasive and must be given consideration, as we stated in Broussard v. Broussard, 320 So.2d 236 (La.App. 3rd Cir. 1975):

“. . . courts cannot abdicate their decision-making responsibilities in favor of the medical profession but must consider all factors present in the case.”

For the foregoing reasons we will affirm the trial court judgment insofar as that judgment awards custody of the minor child, Ravis John Ryder, to the plaintiff.

THE GRANT OF VISITATION PRIVILEGES TO DEFENDANTS '

Plaintiff has answered the appeal and asserts that the trial court erred, as a matter of law, in granting visitation privileges to defendant. We agree that this was error.

We know of no law and have been cited to none which authorizes the grant of visitation privileges to collateral relatives. It was not until the passage of Act 436 of 1970 that Grandparents were granted visitation rights and then only under clearly prescribed circumstances.

In 67A C.J.S. Parent and Child Sec. 41(c), at page 296, is stated:

“Generally, where custody of a child has been awarded to a fit parent, .. . third persons are not entitled to visitation privileges. ...”

In 59 Am.Jur.2d Parent and Child Sec. 45, at page 130 it is stated:

“Parents who have custody have the right to determine with whom the child will associate. Accordingly, where a parent or parents have custody, the courts will not undertake to give visitation rights to a nonparent... over the parents’ objection.”

While we recognize that an attachment has built up over the years between Ravis John and the defendants and we fully appreciate the hardship which will be brought to bear upon both the child and defendants by a denial of the latters’ visitation rights, we conclude that we have no choice but to reverse that portion of the judgment of which plaintiff complains.

For the above and foregoing reasons we reverse that part of the judgment which awards visitation privileges to Mr. and Mrs. Larry James Menard. In all other respects the judgment appealed from is affirmed at defendants’ cost.

AFFIRMED IN PART and REVERSED IN PART.

STOKER, J., concurs and assigns reasons.

STOKER, Judge,

concurring.

In Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), writ denied, 369 So.2d 710 (La.1979), an opinion authored by this writer, we held that the rule of Wood v. Beard, 290 So.2d 675 (La.1974) rested upon a rebuttable presumption. The rule of Wood held that when parents compete with non-parents for the custody of a child, “the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights”. In Tolar we said “the Supreme Court recognizes a rebuttable presumption that the child’s best interests are better served by awarding custody to the parent.” We also said, based on Wood, that “this presumption in favor of the parent can be overcome only if the non-parent shows that the parent is unable to provide a home for the child, is unfit for custody or has abandoned the child.” Unfortunately, the Supreme Court has limited the bases for rebuttal to these three situations.

In this case the child, Ravis John Ryder, was born July 13, 1972, and has been with Mr. and Mrs. Menard since late 1973 or early 1974. Therefore, Ravis is almost ten years old and has lived with the Menards since he was about a year and a half old. It would seem to me that these circumstances alone might be regarded as rebutting any presumption that the best interests of Ravis will be served by transferring custody to his mother at this late date. The testimony of the experts indicates that the welfare of Ravis would most likely be served best by leaving him where he is. As noted above, however, no considerations other than those enumerated in Wood may be opposed to the paramount rights of the parents.

In view of the fact that we must reverse the judgment of the trial court giving the Menard’s visitation rights, and the evidence indicates that intense antipathy exists between plaintiff and the Menards, there is a high probability that Ravis will not ever be permitted to visit with the Menards. Apparently, we are powerless to avoid this harsh result.

      . The social worker who testified did the home study in connection with the adoption of plaintiffs second child by Wiley Doucet. This social worker had previous contact with plaintiff as a result of her previous attempts to regain custody of Ravis. This witness testified that she was favorably impressed with the change in plaintiff’s lifestyle, so much so that she was able to return a favorable adoption report.

      . The visitation rights accorded Grandparents were further broadened by acts passed in 1972, 1975 and 1978.


author: PATTERSON, Chief Justice, HAWKINS, Justice,

text:
    Ted A. BELESKY & Jean Belesky v. CITY OF BILOXI, Mississippi and Sullivan, Long & Hagerty, An Alabama Corporation.
    No. 52964.
    Supreme Court of Mississippi.
    Dec. 23, 1981.
    Rehearing Denied April 21, 1982.
    Hopkins & Logan, Floyd J. Logan, Gulf-port, for appellant.
    Dukes, Carrubba & Dukes, William F. Dukes, Walter W. Dukes, Gulfport, Page, Mannino & Peresich, Paul J. Delcambre, Jr., Biloxi, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Mr. & Mrs. Ted A. Belesky brought suit against the City of Biloxi and Sullivan, Long & Hagerty, hereinafter S. L. H., in the Circuit Court of the Second Judicial District of Harrison County for damages to their residence allegedly caused by construction of a sewer line adjacent to their house and defective maintenance of a 30 inch storm drain.

From a jury verdict for the defendants, the Beleskys appeal, contending the trial court erred:

1. In refusing to excuse from the jury the seven employees of the City of Biloxi for cause;

2. In refusing to allow the Beleskys to cross-examine defendants’ expert witness, Harry Simpkins, concerning a prior inconsistent statement in his written report as to the cause of the subsidence;

3. In allowing the defendants’ expert witnesses to state an opinion as to the cause of the subsidence based upon reports prepared by independent third parties;

4. In allowing the witness Laier to express an expert opinion when he admitted the lack of data made his opinion speculative;

5. In refusing to allow the Beleskys to introduce the deposition of A. L. Turner for impeachment purposes; and

6. In overruling the Beleskys’ motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

The Belesky residence was built by Metro Homes in 1966 or 1967. A. L. Turner, associated with Metro at that time, testified that he sold the house two or three years after its completion to Dr. Ferguson, owner before the Beleskys, at a 25% discount because of settlement and cracking of the bricks and floor.

The house was built directly upon the original soil. Turner testified that the common economic practice at the time was to lay the slab on the lot rather than use fill dirt underneath it. The cracking and settling of the property caused by subsidence began about a year after completion and was thought to have stabilized some six or eight months before the Beleskys purchased it in 1972. At that time Ted Belesky noticed slight cracking, but after the sewer construction project in May or June 1974 the cracks widened. He notified S. L. H. of the condition. He also testified the southern half of his lot was continually soggy with water during the sewer construction work. Belesky dated the damage as occurring in May 1974. Since the year 1974, Belesky did not notice any further cracking or subsidence.

The parties stipulated the City of Biloxi did sewer construction work in the area adjacent to the Belesky house, through S. L. H. who contracted with the city for the project. The parties further stipulated that Biloxi has been responsible for the maintenance and repair of a drainage culvert running east and west under Big Lake Road to Oak Ridge Circle from 1965 to the present. The Belesky home is situated approximately 18 feet north of the drainage culvert and approximately 87 feet west of the ditch for the sewer pipe that was excavated on the east side of Big Lake Road which ran generally north and south. Pursuant to the contract with Biloxi, S. L. H. excavated the ditch and collected the water that drained into it from “well-points” which were dug at intervals along the ditch line. The water thus collected was pumped onto the surface of Big Lake Road and drained toward the 30 foot storm drain located south of the Belesky residence. There was testimony that during the construction of the sewer line water accumulated and pooled in the street in front of the appellants’ residence and in their yard. Evidence was also introduced that water from the sewer ditch did not accumulate in the appellants’ yard. There was also testimony that the storm drain for the city, a part of the east-west drainage system, had been broken and filled with sand. It was also stipulated that test boring data, sieve analysis data, the site plan depicting the adjacent streets and drainage easements might be introduced into evidence.

The evidence leaves no doubt that the house has settled considerably since its construction. The present issue is limited to whether the construction of the sewer line and the maintenance of the east-west drainage culvert caused further subsidence.

Several experts offered their opinion about the cause of the subsidence. Witness Fairley testified the settlement was caused by the highly changeable organic strata beneath the house. Witness Polatty testified the subsidence was caused by the rapid draw-down of water from the pumping and dewatering operation as well as the movement of fine sands beneath the slab caused by the pumping process. Witness Simpkins testified the cause of subsidence was poor soil and improper preparation for construction of the house and that the sewer line did not in any way contribute to the settlement. Witness Laier also testified the installation of the sewer line did not cause the subsidence. However, this last opinion contradicts a previous letter in which he had stated the sewer construction project caused a part of the settling process. The evidence presented was therefore conflicting and as such presented an issue to be resolved by the jury.

The Beleskys first contend for reversal that several prospective jurors should have been excused for cause when they were challenged because either they or their spouses were employees of the City of Biloxi. Those challenged for cause included three jurors who were later removed by peremptory challenges. After the peremptory challenges were exhausted there remained four employees of the city who were impaneled and participated in the trial as well as a fifth who was selected as an alternate juror, but did not participate in reaching the verdict. We first consider the prospective jurors who were unsuccessfully challenged for cause but who became subject to the peremptory challenges. In Hubbard v. Rutledge, 57 Miss. 7 (1879), it is stated:

The juror, Berry, was not above all exception as a juror, and should have been rejected by the court. He was in the service of the defendant as a clerk and that made him incompetent. It is true he was peremptorily challenged by the plaintiffs, but this required one of their peremptory challenges, which were exhausted, as the record shows, before the panel was completed. Id. at 12.

The resolution of the issue as to these three jurors will also dispose of the issue as to the four jurors who actually participated in the trial because they are similarly situated in their relationship to the city.

In Jackson v. Board of Mayor and Aldermen of Town of Port Gibson, 146 Miss. 696, 111 So. 828 (1927), a civil suit against “the Board of Mayor and Aldermen” of the Town of Port Gibson, a judgment was entered for the plaintiff in the sum of $500 for damages in a death case. In that case, E. P. Guthrie, the son of an alderman was called and permitted to serve on the jury after the plaintiff had exhausted his peremptory challenges. The issue as to whether Guthrie should have been permitted to sit as a juror was resolved by this court on appeal. We held the municipality was the real party to the lawsuit and that the son of the alderman was not disqualified as a juror because his alderman father was not a party. It need be noted the challenge was one of kinship and not one of employment. However, the court went on to say, in dictum, that the alderman would not be competent to serve as a juror, where the municipality was a party to the suit, because he was an employee of the municipality. We are of the opinion that Jackson is not in point.

We think the right of the prospective jurors to be impaneled must be decided upon their employment relationship with the City of Biloxi and the likelihood of influence the employment would have upon the verdict. There can be little doubt had there existed a direct master-servant relationship, as in a corporation, then the prospective jurors would be disqualified for cause. See Hubbard v. Rutledge, 57 Miss. 7 (1879), and Louisville, N. O. & T. Railroad Company v. Mask, 64 Miss. 738, 2 So. 360 (1887). The rationale of these cases is “the law does not lead jurors into the temptations of a position where they may secure advantage to themselves by doing wrong, nor permit the possibility of the wavering balance being shaken by self-interest.” Louisville, N. O. & T. Railroad Co. v. Mask, 64 Miss. at 744, 2 So. at 361.

Those challenged for cause and excused by peremptory challenges were Edward Galle, an auxiliary policeman of the City who served without pay, Patrick J. Smith, an employee of Biloxi Port Commission; and Rebecca Fields, whose husband was a lieutenant with the Biloxi Police Department.

It is contended that the “full paid” employees of the police department are protected by the civil service status as to their employment. It is also urged by the defendants that the jurors who are engaged in the teaching profession in the Biloxi Municipal Schools are also protected in their employment by statutory provisions and the CETA employee was paid with federal funds. From this the argument is advanced that prospective jurors in the categories mentioned, as well as their spouses, have status differing from the ordinary employer-employee relationship, and therefore the probability of influence from their remote employer, the City of Biloxi, is greatly diluted if not obviated, even though their remuneration is from the city.

There being no charge of fraud and no allegation of bias or prejudice other than that mentioned, we are of the opinion the trial court properly refused to excuse for cause the prospective jurors and those jurors who actually served. In concluding as we have, we are mindful that decisions of this sort are largely and properly left to the discretion of the trial court and that jurors are under oath to well and truly try the issues presented to them. In Butler v. State, 241 So.2d 832 (Miss.1970), although it be a criminal case, we find language believed to be appropriate to this case,

However, the selection and empaneling of juries, in the final analysis, is a judicial function. It is the clear intendment of the Mississippi jury statutes, in the absence of any evidence of fraud or bad faith and where no actual prejudice is shown to have resulted, that breakdowns or omissions which may occur in administrative procedures shall not deprive the trial court of its inherent power to empanel juries for the trial of causes, both civil and criminal. The ultimate duty rests upon the trial court, and he has the power, to see to it that each juror who serves possesses the qualifications prescribed by law, in which determination he may be aided by the voir dire inquiries of counsel. There is nothing in the record in this case to indicate that there was fraud or bad faith or that actual prejudice resulted to appellant from the failure of the board to sign its minutes upon the occasions mentioned. Therefore, it must be presumed, in the absence of a showing of anything to the contrary, that the trial court performed its duty and that the appellant received a fair trial by an impartial jury, consisting of persons lawfully qualified to serve. 241 So.2d at 835.

There is presently nothing before the court to indicate there was fraud or bad faith or that actual prejudice resulted to the appellant. We therefore conclude this assignment of error is without merit.

Turning to appellant’s second contention that the trial court erred in refusing to permit cross-examination of appellee’s expert witness, Harry Simpkins, concerning a statement in his written report which supported the Beleskys’ position as to the cause of the subsidence, we are of the opinion cross-examination was properly limited because the report was based on mere possibilities rather than probabilities. We stated in Gulf Insurance Company v. Provine, 321 So.2d 311, 314 (Miss.1975), that “[i]t is not necessary that the testimony of an expert witness be capable of demonstration, it is sufficient if his testimony is probably true rather than possibly true, or simple guesswork or conjecture.” Also, it was a question of law for the trial court to determine if the expert’s opinion was based on sufficient facts or evidence. See Gulf, Mobile & Ohio Railroad Co. v. Hollingshead, 236 So.2d 393 (Miss.1970); 49 Miss.L.J. 1, 21-22 (1978). Therefore, we conclude the trial court did not err in disallowing impeachment on a report founded on conjecture.

We are of the further opinion the expert testimony of James Fairley which was partly based on soil tests performed by Gulf States Testing Laboratories (admitted into evidence) was properly introduced even though his opinion as to the cause of subsidence was based on the foregoing tests performed by an independent third party. Since the data was in evidence and the Fairley Engineering Company was involved with the Richland Park Drainage Improvement Project including the soil tests, Fair-ley was competent to testify. An expert may consider testimony of other experts and any test data properly in evidence in reaching his expert conclusion. In Entex, Inc. v. Rasberry, 355 So.2d 1102 (Miss.1978), we held medical expert testimony inadmissible which was based on a second x-ray not introduced into evidence and which the expert physician had not personally examined. Quoting with approval Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965), we stated the following in Entex:

As an expert he could consider testimony of other doctors properly in evidence and also the result of any X-rays properly in evidence, but he should not have been allowed to base his testimony on reports of other doctors and X-rays not in evidence. (252 Miss. at 627-28, 173 So.2d at 651-52).
It is apparent that the facts of the instant case are virtually identical to those in Wild; therefore, the holding in the instant case is controlled by the rule enunciated in Wild that a “... medical expert should not be allowed to base his opinion on matters not within his own knowledge and not in evidence in the case.” (252 Miss. at 628, 173 So.2d at 652). 355 So.2d at 1103.

Even though Fairley admitted having no personal knowledge of the soil boring tests, he could testify as to his opinion based on tests properly in evidence.

This brings us to appellant’s assertion that James Laier’s expert testimony was erroneously admitted because his opinion was based on speculation. We again are of the opinion this is not meritorious. The trial court in its discretion determined, after lengthy voir dire, that Laier’s testimony was admissible provided hypothetical questions were propounded. We think the trial court did not abuse its discretion in that Laier’s testimony was supported by sufficient facts in evidence to sustain it. Gulf Insurance Co. v. Provine, supra.

Also appellant cites error in the trial court’s refusal to allow the introduction of the deposition of A. L. Turner for impeachment purposes. We are of the opinion the trial court properly refused the introduction of certain pages of Turner’s deposition. Although the appellant laid the foundation for introduction of the deposition, it is also true that he did not offer the entire deposition. The primary basis for appellees’ objection to the proffered evidence was if a part of the deposition were to be admitted, then the entire de[x>sition should be admitted. Appellant did not offer the entire deposition, so the trial court correctly sustained the objection. Our discovery statute, MCA § 13-1-232(1), (4) (Supp.1981) provides:

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Also the two pages sought to be introduced were tendered after Turner had left the witness stand and the court was in recess. The request for the deposition to be admitted after the witness had been discharged was untimely and took away from the witness any opportunity to explain inconsistencies or discrepancies in his testimony. Therefore, we think the trial court correctly ruled the deposition inadmissible. Moreover, the contents of that sought to be introduced into evidence was read from the deposition for the benefit of the jury by the witness, leaving little, if any, room for any prejudice to the plaintiffs. We think the trial court did not err in its ruling.

Finally, appellant argues the jury verdict is contrary to the uncontradicted physical facts, and therefore, against the overwhelming weight of the evidence. There was conflicting evidence as to the cause of the settlement and cracking of the Belesky residence; moreover, experts for both parties testified to differing causes of the subsidence. “Conflicts in the evidence are ... resolved by the jury, and before a reviewing court can interfere with the verdict, testimony must so strongly preponderate that the court can safely say it was overwhelmingly in favor of the appellant.” Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980). We are of the opinion the jury verdict was not against the overwhelming weight of the evidence.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

HAWKINS, Justice,

specially concurring:

I specially concur with the original opinion in this case. My concern is with the circuit judge’s refusal to excuse certain jurors for cause.

In this case there were eight (8) jurors who were challenged for cause because of their economic relationship to the defendant municipality, namely: (1) Rebecca L. Field; (2) Edward S. Galle; (3) Patrick J. Smith; (4) Helen Russell; (5) Janice Hayes; (6) Charlotte Havelin; (7) Adelia C. Farris; and, (8) Cathy D. Guthrie.

The husband of juror Field was a lieutenant in the Biloxi Police Department. Juror Galle was employed by the City as an auxiliary policeman. Juror Guthrie was employed by the City as a secretary in the police department.

Jurors Russell and Havelin were employees of the Biloxi School District; the husband of juror Farris was employed by the Biloxi School District.

Juror Smith was employed by the Biloxi Port Commission; juror Hayes was a CETA employee of the City.

The court overruled the challenge for cause of all these jurors.

The plaintiffs then peremptorily challenged jurors Field, Galle and Smith.

Juror Guthrie was chosen as an alternate juror and did not participate in the deliberations of this case.

In my view, the circuit judge was in error in refusing to excuse for cause jurors Field, Galle and Guthrie. Because jurors Field and Galle were excused peremptorily and juror Guthrie served as an alternate juror, however, no prejudice resulted.

The plaintiffs have failed to make a record of any manner in which the remaining jurors are economically connected to the City in such a way as to indicate there was an abuse of discretion by the trial court in refusing to excuse these jurors for cause.

When a juror is shown to be directly connected with some defendant, such as an employee or spouse of the employee, even though the defendant is a public body or institution, I think such juror should be excused for cause. Jackson v. Mayor and Board of Aldermen of Port Gibson, 146 Miss. 696, 111 So. 828 (1927); Hubbard v. Rutledge, 57 Miss. 7 (1879). Beyond that, some additional showing should be made of a financial or economic connection which could influence the juror’s impartiality. Absent such a showing, it is clearly within the sound ■ discretion of the trial judge whether such juror is qualified to hear the case.

BOWLING, J., joins in this specially concurring opinion.


text:
    FIRST MISSISSIPPI BANK OF COMMERCE, Walnut, Mississippi v. MISSISSIPPI STATE BANKING BOARD & BANK OF FALKNER, Miss. (Branch on 72 West: Walnut, Miss.)
    No. 53104.
    Supreme Court of Mississippi.
    March 24, 1982.
    Rehearing Denied April 21, 1982.
    Smith, Downs, Ross, Trapp & Coleman, J. Price Coleman. Corinth, for appellant.
    Thomas E. Pegram, Jr., Marion D. Roten, Ripley, for appellee.
   Appeal from Chancery Court, Tippah County; Anthony T. Farese, Chancellor.

Before PATTERSON, C. J.¡ and ROY NOBLE LEE, and DAN M. LEE, JJ.

AFFIRMED.


author: HAWKINS, Justice,

text:
    Lynn Smallwood BUNTYN v. Kenneth SMALLWOOD.
    No. 53070.
    Supreme Court of Mississippi.
    April 7, 1982.
    Rehearing Denied May 5, 1982.
    K. Maxwell Graves, Jr., W. W. Hewitt, Meadville, for appellant.
    Guy, Dowdy & Whittington, Ronald L. Whittington, McComb, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court.

This is an appeal by Lynn Smallwood Buntyn from a February 28, 1981 decree of the Chancery Court of Franklin County denying her petition for modification of a former decree of the court granting custody of Amanda Smallwood to her father, Kenneth Smallwood, the former husband of Mrs. Buntyn.

The only issue we address on this appeal is whether there has been a material change in the circumstances of the parties justifying a modification of the former decree. We hold there was, and reverse.

Mrs. Buntyn and Mr. Smallwood were married May 17, 1975, and Amanda Small-wood, born September 7, 1976, was their only child. On June 17, 1978, the court rendered a divorce decree, which granted custody of Amanda to her mother. At the time, the parties lived in Meadville. Both the paternal grandparents and the maternal grandmother of Amanda also lived in Mead-ville.

Following her divorce, Mrs. Buntyn quit her job in Meadville and moved to New Orleans. A dispute arose between Mrs. Buntyn and Mr. Smallwood, and on October 18, 1979, they executed a joint petition to the court to modify the original divorce decree granting custody to Mrs. Buntyn. The petition contained the following statement:

The parties would show that following the rendition of the prior decree of this Court, there has been a material change in circumstances relative to the custody of the child, and because her job requires her to relocate to a location outside of the State of Mississippi, the parties jointly agree that it would be in the best interest of the minor child, Amanda Smallwood, and the parties herein that the prior decree be modified to award unto Kenneth Smallwood the care and custody of the child, Amanda Smallwood, subject to visitation by and with said child by Lynn Smallwood from 6:00 p. m. Friday until 6:00 p. m. Sunday on the weekends that Kenneth Smallwood is away from home because of his employment which is generally on alternate weekends.

The court rendered a decree on November 15, 1979, granting custody of Amanda to Mr. Smallwood in accordance with the petition of the parties.

Mr. Smallwood was employed on an offshore oil drilling operation, where he was on the job every other week. Essentially one day, each, was spent in going and returning from his job. While he was gone Amanda lived with his parents in Meadville.

Mrs. Buntyn married her present husband on August 30, 1980, and in November, 1980, they moved to Chattam, Alabama, a small town, where he was employed as vice president of the local bank.

On November 22, 1980, Mr. Smallwood remarried, and thereafter he and his wife resided in Natchez. Amanda moved to Natchez with her father and stepmother.

A dispute again arose between the parties, and on January 12, 1981, Mrs. Buntyn filed a petition to modify the November 15, 1979, decree granting custody to Mr. Small-wood, and to award custody of Amanda unto her.

Following a hearing in February, 1981, the chancellor found there had been no material change in the circumstances of the parties, denied the petition, required Mrs. Buntyn to post a ne exeat bond in the amount of $8,000, limited her right to visitation with her daughter to one weekend per month (beginning on Saturday at 10:00 a. m., and ending at 7:00 p. m. on the Sunday following), Mother’s Day, and the alternating Christmases and birthdays of Amanda. Under the principles announced in Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918 (1951); Tighe v. Moore, 246 Miss. 649, 151 So.2d 190 (1963); and Hodum v. Crumpton, 329 So.2d 667 (Miss.1976), courts are authorized to make changes in child custody when there has been a material change of circumstances of the parties. In deference to the chancellor, however, we believe there was a material change in the circumstances of the parties, and that custody should have been awarded to Mrs. Buntyn.

Both parents are clearly well-meaning and love their daughter. There are negative considerations, also, on each side. Both parents are now married to spouses who were previously married, and who do not have custody of their children from the prior unions.

At the February, 1981 hearing, Mrs. Bun-tyn lived in a stable environment, fully supported by Mr. Buntyn, who is also capable of, and desirous of affording a home for Amanda.

Mr. Smallwood, on the other hand, could only be with his daughter five days out of every fourteen; the remainder of the time, Amanda was totally in the care and control of her stepmother.

When the November 15, 1979 decree granting custody to Mr. Smallwood was entered, the parties obviously considered that Amanda would have to live with her paternal grandparents while he was on the job. Prior to that time, Amanda lived part of the time with Mrs. Buntyn’s mother in Meadville.

No hard and fast rule can be applied to these most difficult of cases. Mrs. Buntyn voluntarily relinquished custody of her daughter, which raises serious questions now of reinvesting custody in her. On the other hand, she is presently in a position to give full time and attention to her daughter, a child of tender years, who is a female. Her stepmother, who presently must be her sole attendant for considerably more than half of each working year, is no doubt well-meaning, but is not, and never can be, Amanda’s mother. The best interest of this child dictates that custody vest in her mother, who can be with her every day.

Under the principles of law enunciated in Steele v. Steele, 152 Miss. 365, 118 So. 721 (1928); Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225 (1954); Dickerson v. Dickerson, 245 Miss. 370, 148 So.2d 510 (1963); and Hodge v. Hodge, 186 So.2d 748 (Miss.1966), the best interest of the child is paramount in the consideration of the Court. Moreover, this Court has continuously held that if the mother of a child of tender years — especially a female — is so fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Bosewell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879).

We accordingly reverse and render this case insofar as custody is concerned with direction to the chancellor to award custody to Mrs. Buntyn. The matters of child support payments and liberal visitation with her father (such as in the summer months when the child is not in school), are left to the broad discretionary powers of the chancellor. It is also our opinion that the ne exeat bond should be reduced to $3,000.00, on the condition that the jurisdiction of this case shall remain in the hands of the chancellor to make any future provisions pertaining to the custody and care of Amanda as may arise.

REVERSED AND RENDERED IN PART AND REMANDED IN PART.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and DAR-DEN, JJ., concur.


author: SUGG, Presiding Justice,

text:
    Jimmy HALL and Cities Service Company, A Delaware Corporation v. PANOLA COUNTY BANK, A Mississippi Banking Corporation, North Mississippi Savings and Loan Association, A Mississippi Corporation, and Marko Radich.
    No. 53344.
    Supreme Court of Mississippi.
    April 7, 1982.

      Taylor & Whitwell, Charles W. Broun, III, Troutt & Moore, H. Kirk Moore, Jr., Senatobia, for appellant.
    McClure & Shuler, Thomas S. Shuler, Sardis, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   SUGG, Presiding Justice,

for the Court:

Appellants filed a bill of complaint in the Chancery Court of Panola County to foreclose judgment liens on property which had been sold under a deed of trust in favor of the Panola County Bank. This appeal is from a decree dismissing the bill of complaint. We reverse and remand.

The facts in this case are undisputed. Marko Radich and wife, Carol B. Radich, owned and occupied as their homestead a house and lot in the City of Sardis. The property was encumbered by a deed of trust in the principal amount of $19,000, dated January 11, 1972 in favor of North Mississippi Savings and Loan Association.

Appellant, Jimmy Hall, obtained a judgment against Marko Radich in the amount of $1,187.50 and the judgment was enrolled on May 2, 1975. Appellant, Cities Service Company, obtained a judgment against Ra-dich in the amount of $1,858.40 and the judgment was enrolled on October 11, 1978.

Radich and his wife borrowed $4,000 from the Panola County Bank on January 14, 1979 and Radich executed a deed of trust in favor of the Bank on that date. Mrs. Ra-dich signed the deed of trust on September 20, 1979 and it was filed for record on that date. The deed of trust contained the following provision:

It is further stipulated, that in case of foreclosure of this deed of trust, the proceeds derived from the sale of the property herein described after payment of costs, expense of foreclosure, taxes and other expenditures made for protection of the security, shall be applied proratably in satisfaction of the principal indebtedness evidenced by the notes described herein, and any balance remaining may be applied to any indebtedness existing in favor of said PANOLA COUNTY BANK, which may be otherwise secured, or may be unsecured.

At the time the deed of trust was executed in favor of Panola County Bank, Ra-dich was indebted to the Bank in the approximate amount of $100,000. The Bank foreclosed its deed of trust, and at the trustee’s sale, the Bank submitted a successful bid of $25,000 which was applied to the indebtedness owed by Radich to the Bank. Following the foreclosure sale, the Bank made payments on the first mortgage in favor of North Mississippi Savings and Loan Association.

At the time appellants enrolled their judgments the amount of the homestead exemption was $15,000. Section 85-3-21 Mississippi Code Annotated (1972). The amount of the homestead exemption was increased to $30,000 effective July 1, 1979 by Chapter 447 Mississippi General Laws of 1979. In Builders Supply Co. of Hattiesburg v. Pine Belt Savings and Loan Assn., 369 So.2d 743 (Miss.1979) we held that the rights of a judgment creditor become fixed when he obtains his judgment, and the legislature cannot increase the homestead exemption as to existing debts. We therefore hold that the $15,000 homestead exemption applies in this case.

Appellants contend they are entitled to satisfy their judgment liens out of the proceeds of the sale under the Bank’s deed of trust in excess of the $15,000 exemption. The property sold for $25,000 at the foreclosure sale leaving a surplus of $10,000 above the $15,000 homestead exemption. Section 85-3-21 Mississippi Code Annotated (1972) which fixes the value of a homestead provides in part:

[Hjowever, that in determining this value, existing encumbrances on such land and buildings, including taxes and all other liens, shall first be deducted from the actual value of such land and buildings.

This statute was construed in Davis v. Lammons, 246 Miss. 624, 151 So.2d 907 (1963) at a time when the homestead exemption was $5,000. For several years pri- or to 1961 the Lammons owned and occupied as a homestead a house and lot. In 1961 two parties obtained judgments against the Lammons and on October 6, 1961 the Lammons sold their homestead property for $10,500. After deducting the balance due on a note and deed of trust, bills of materialmen and laborers for repairs to the house before the sale, and other expenses connected with the sale, a balance of $3,485.05 remained. The Court held the Lammons were entitled to the $3,485.05 under section 85-3-49 Mississippi Code Annotated (1972) which provides that exempt property disposed of by the owner does not become liable for the debts of the owner because of such disposal. The Court held that the statutes recognized the exempt status of the proceeds of the sale of the homestead property within the $5,000 exemption.

Applying Davis, supra, to the facts in this case, the Radichs were entitled to homestead exemption for $15,000 over and above the deed of trust to North Mississippi Savings and Loan Assn, when appellants obtained their judgments. The same situation existed when the Radichs executed a deed of trust to the Bank on September 20, 1979. The fact that appellants had enrolled judgments before that date did not preclude the Bank from taking a second deed of trust on the homestead to secure any indebtedness covered by the deed of trust.

However, the Bank had constructive notice of the enrolled judgments and had actual notice of one of the judgments. Under these facts the Bank’s deed of trust is entitled to priority against the appellants as judgment creditors up to $15,000, the amount of the homestead exemption. The enrolled judgments were a prior lien to the Bank’s deed of trust; therefore, as between the Bank and the judgment creditors, the Bank’s security under its deed of trust does not exceed the amount of the homestead exemption, $15,000.

When the Bank foreclosed on its second deed of trust and bid $25,000 for the property, it bought the property subject to the first deed of trust. From this we conclude that the value of the property purchased by the Bank was at least $25,000 plus the balance due on the first deed of trust.

We reverse and remand with directions to the Chancery Court to appoint a commissioner to sell the property to satisfy appellants’ judgment liens. The commissioner shall sell the property subject to the first deed of trust of North Mississippi Savings and Loan Association, and disburse the proceeds as follows: (1) the expenses of the sale, (2) $15,000 to the Bank, (3) the amount of appellants’ judgments plus accrued interest to appellants, and (4) any excess to be applied on the debt of the Radichs to the Bank. After payment of the four items, if any excess remains, the balance shall be paid to the Radichs. In order to save the expenses of sale, the Bank is given the option of paying appellants an amount equal to the judgments plus accrued interest within 30 days of the issuance of a mandate from this Court; otherwise, a sale shall be held as herein ordered.

The Bank has expressed some concern about the effect on the financial community if lenders are unable to take a second deed of trust on homestead property to secure an indebtedness. Its concern is groundless because a second deed of trust on homestead property executed by both husband and wife secures the indebtedness covered by it except for valid liens antedating the second deed of trust.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.

      . Judgments do not constitute a lien until enrolled. Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 428 (1926); De Bardeleben Coal Corp. v. Parker, 164 Miss. 728, 144 So. 474, 145 So. 341 (1932).

      . Section 329 Mississippi Code 1942.


author: BOWLING, Justice,

text:
    Johnny BOURDEAUX v. STATE of Mississippi.
    No. 53132.
    Supreme Court of Mississippi.
    April 7, 1982.
    Leslie C. Gates, Meridian, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted of escape in the Circuit Court of Lauder-dale County and sentenced to a term of three years with the Department of Corrections. There are several assignments of error. Only one has merit and disposes of the appeal. This is that “the court erred in sentencing Johnny Bourdeaux to serve a sentence of three years.”

At the time of the incidents leading to the escape indictment, appellant in February 1980, had plead guilty to two charges of burglary. He was sentenced to serve a term of five years on one charge and one year on the other. The sentences were to run concurrently.

Appellant was not carried to the Department of Corrections facility and was not secured by that department. He remained in the Lauderdale County Jail. For some time prior to October 17, 1980, the date of the alleged escape, appellant had been given a semi-trusty status. He was permitted by the officers to run various errands for them. He would take out the garbage and work at the county service station. He was not required to be accompanied by an officer but made these trips outside the jail alone. On October 17, 1980, appellant left the jail at about 12:05 p. m. stating to the officials that he had been instructed to carry another officer’s car to the service station to remove a siren and was also to take the garbage at the same time. Undis-putedly appellant drove the car to the service station where the work was being performed. Appellant could not resist talking with his girlfriend, so he went to the nearby bus station and called her. This resulted in the girlfriend taking appellant for a ride from which he did not return. He was located on December 7, 1980, and returned to incarceration in the jail.

Appellant was indicted under the provisions of Section 97-9-45, Mississippi Code Annotated (Supp.1981), which provides:

If any person sentenced to the penitentiary for any term less than for life shall escape, or shall escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in such prison for a term not exceeding five (5) years, to commence from and after the expiration of the original term of his imprisonment as extended in consequence of such escape, and shall forfeit all earned time toward a parole; provided, however, that if any person sentenced to the penitentiary for life shall escape, he shall, upon conviction, forfeit all earned time toward a parole.
Any convict who is entrusted to leave the boundaries of the penitentiary by the penitentiary authorities or by the governor, and who wilfully fails to return within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and subject to prosecution under this section.

It is contended by appellant that he should have been indicted and tried under the provisions of Section 97-9-49, Mississippi Code Annotated (Supp.1981), which provides as follows:

If any person confined in any jail upon any conviction for a criminal offense shall escape therefrom, or shall escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding two (2) years, or in the county jail not exceeding one (1) year to commence from the expiration of his former sentence.
Anyone confined in any jail who is entrusted by any authorized person to leave the jail for any purpose and who wilfully fails to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave, shall be considered an escapee and subject to prosecution under this section, and may be punished by the addition of not exceeding six (6) months to his original sentence.

A general principle is well established that when facts constituting a criminal offense may fall within either of two or more statutes or there is substantial doubt as to which applies, the statute imposing the lesser punishment shall be applied. In Grillis v. State, 196 Miss. 576, 17 So.2d 525 (1944), this Court, through Justice Griffith, stated:

The case, then, is one for the application of the rule that when the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which of the two is to be applied, the ease will be referred to the statute which imposes the lesser punishment. See cases cited 24 C.J.S., Criminal Law § 1979, p. 1193 under Note 75. And under the attempt statute Section 793, Code 1930, Section 2017, Code 1942, no greater punishment may be administered than that prescribed for the actual commission of the offense attempted.

There certainly is substantial doubt as to which of the above quoted sections is applicable. Under Section 97-9-45 it is required to prove that the accused escaped from the Department of Corrections (penitentiary) or escaped from'“custody” before confinement. While not clear, this custody seems to imply that it refers to the Department of Corrections. This implication is strengthened by the provisions of Section 97-9-49, which is confined to escape from a “jail.”

We have already discussed the evidence that appellant was entrusted to leave the jail for designated purposes and including errands and was entrusted to do this alone. According to Section 97-9-49, appellant “wilfully failed to return to the jail within the stipulated time, or after the accomplishment of the purpose for which he was entrusted to leave.” It is readily apparent therefore that we must hold that Section 97-9 — 49 applies and the maximum sentence that may be given appellant under the record in this particular case is the additional sentence not exceeding six months to his original sentence. We, therefore, affirm the conviction, vacate the previous sentence, and remand to the lower court for proper sentence.

AFFIRMED AS TO CONVICTION; SENTENCE VACATED; and REMANDED FOR PROPER SENTENCE.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, DAN M. LEE and DAR-DEN, JJ., concur.


text:
    MOSCHELLA LAND DEVELOPMENT CORPORATION, W. F. Tate, L. H. Briscoe, and George E. Cates, Trustee, v. MAYOR AND BOARD OF ALDERMEN OF The CITY OF TUPELO, Mississippi.
    No. 53157.
    Supreme Court of Mississippi.
    April 7, 1982.
    Holland, Ray & Upchurch, Robert K. Up-church, Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, Jr., Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

REVERSED AND RENDERED.

PATTERSON, C. J., WALKER, P. J., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.


text:
    Van B. PHILPOT, Jr. v. Rachel Gene Eaves PHILPOT.
    No. 53146.
    Supreme Court of Mississippi.
    April 7, 1982.
    James S. Gore, Houston, for appellant.
    Richard W. Wise, Starkville, for appellee.
   Appeal from Chancery Court, Chickasaw County; Lenore L. Prather, Chancellor.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED.

PATTERSON, C. J., WALKER, P. J., and ROY NOBLE LEE, DAN M. LEE and DARDEN, JJ., concur.

HAWKINS, J., took no part.


text:
    SARDIS LUGGAGE CO. v. Lora Moore WILSON.
    No. 53125.
    Supreme Court of Mississippi.
    April 7, 1982.
    Daniel, Coker, Horton & Bell, Robert S. Addison, Jackson, for appellant.
    Bailey, Trusty & Cook, William L. Cook, Jr., Batesville, for appellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

Before WALKER, P. J., and DAN M. LEE and DARDEN, JJ.

AFFIRMED.


text:
    Marshall J. TERRY v. MacMILLAN BLODEL CONTAINERS, INC. & Commercial Union Inc. Co.
    No. 53135.
    Supreme Court of Mississippi.
    April 7, 1982.
    Mack Brabham, McComb, for appellant.
    Watkins & Eager, James A. Becker, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Jerry TURNER v. TRAVENOL LABORATORIES, INC. and James M. Gatling.
    No. 53398.
    Supreme Court of Mississippi.
    April 7, 1982.
    Alexander, Johnston & Alexander, Cleveland, Mansour & Thomas, Philip Mansour, Greenville, for appellant.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Freeland & Gafford, James L. Robertson, Oxford, for appellee.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and ROY NOBLE LEE, HAWKINS and DAR-DEN, JJ., concur.

DAN LEE, J., took no part.


author: PATTERSON, Chief Justice,

text:
    Augustin Lucas SAUNDERS, Jr. v. M. W. MULLINS, The City of Jackson, Mississippi and Ray Pope, Chief of Police, City of Jackson, Mississippi.
    No. 53205.
    Supreme Court of Mississippi.
    April 7, 1982.
    Courtney & Courtney, H. A. Courtney, Jackson, for appellant.
    Timmie Hancock, Jackson, for appellees.
   ON PETITION FOR REHEARING

PATTERSON, Chief Justice,

for the Court:

Heretofore this Court was of the opinion that the trial court erroneously sustained demurrers to the declaration of the plaintiff which proposed to allege a cause of action pursuant to 42 U.S.C. 1983 for deprivation of his civil rights under the Fourteenth Amendment to the United States Constitution.

We were formerly of the opinion the trial court erred in sustaining the demurrers. However, we are now of the opinion that we erred because of the dictates in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which states in pertinent part as follows:

We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, 98 S.Ct. at 2020-2021, 56 L.Ed.2d at 616-617, we must reverse the judgment below.... (436 U.S. at 694-95, 98 S.Ct. at 2037-38, 56 L.Ed.2d at 638)

In the declaration before us we do not find an allegation of a municipal policy, custom, edict or act that may be fairly said to represent official policy. We therefore, conclude that we erred in our former opinion and it is withdrawn and this writing becomes the opinion of the Court.

The order of the trial court in sustaining the demurrers of the defendants is hereby reinstated and that judgment affirmed.

AFFIRMED.

SUGG, P. J., and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.

SMITH, P. J., took no part.