Ash v. Ash, 92-CA-0495
| Decision Date | 26 August 1993 |
| Docket Number | No. 92-CA-0495,92-CA-0495 |
| Citation | 622 So.2d 1264 |
| Parties | Cathy ASH (Vead), v. Michael ASH. |
| Court | Mississippi Supreme Court |
Wayne Dowdy, Magnolia, for appellant.
Philip A. LeTard, Vidalia, LA, for appellee.
Before PRATHER, P.J., and BANKS and SMITH, JJ.
SMITH, Justice, for the Court:
This case comes on appeal to this Court following the decision of a Special Chancellor in Adams County, Mississippi, to modify a child custody decree and change custody of the seven-year old child from the mother to the father. The Special Chancellor found that this war over visitation, spanning seven years with no end in sight, was a material change in circumstances. Finding further that this change was adverse to the child, the Special Chancellor determined a change of custody would be in the child's best interest. The only issue of merit before the Court is whether or not there was a material change in circumstances which adversely affected the welfare of the child. Keeping in mind our limited scope of review in such matters and being unable to say the decision was manifestly wrong, we affirm.
FACTS
Michael and Cathy Ash were granted a divorce on the ground of irreconcilable differences The divorce proved to be only the beginning of the matter of Ash v. Ash. Almost immediately, the onslaught of pleadings began, all stemming from visitation problems. A temporary restraining order was issued against Cathy in June 1989, prohibiting her from disobeying the agreed upon visitation provisions. Following further difficulties, the original provisions for visitation were modified by consent of the parties and approved by the chancery court. Only five (5) days later, another temporary restraining order was issued against Cathy, granting Michael immediate visitation with his son.
on August 28, 1986, in the Chancery Court of Adams County. A property settlement agreement between the parties was approved by the court and incorporated into the final divorce decree. That written agreement provided for primary custody of the parties' only child, Matthew, then age one (1) year, to rest with the mother. Child support and liberal visitation with the father were also provided.
In October 1990, an emergency order was necessary for Michael to secure a one (1) day, overnight visit. Thereafter a hearing to adjust and establish specific visitation rights was scheduled. Prior to the hearing the former chancellor recused himself and this Court specially appointed Chancellor George Warner to preside. In July 1991, Special Chancellor Warner attempted to finally settle the matter by requesting statements from each party and, with reference thereto, again adjusting the visitation schedule. Three months later, his visitation again denied, Michael filed a Motion to Change Custody and to Find in Contempt. As both parties resided out of state, the Special Chancellor again directed each side to submit written statements supporting and opposing the motion. Michael did so. Cathy did not. A judgment changing custody to the father was issued in December 1991. After Cathy denied ever being notified of that proceeding the matter was reopened in a full evidentiary hearing on April 13, 1992.
The battle lines were drawn, and, not surprisingly, the parties, each with a team of supporting witnesses in tow, gave conflicting testimony on the reasons Michael was frequently denied visitation. Virtually every witness did agree that visitation had been a constant problem for six years. Cathy testified to unpaid medical bills, and various incidents involving her former husband's alleged drinking problem; Michael denied such allegations and claimed Cathy was intent on denying him any relationship with his son and fabricated endless excuses to accomplish this result. Whatever the reasons, the testimony clearly indicated visitation, including communication by telephone, had not proceeded as the original or adjusted visitation agreements had provided.
At the conclusion of the hearing, the Special Chancellor, in a detailed thirty-one (31) page opinion outlining the history of the case, found that Cathy's continued refusal to allow Michael to visit with his son was a material change of circumstances. The Special Chancellor determined the child had been adversely affected and concluded it would be in Matthew's best interest to have a relationship with both parents. The court allowed the order changing custody to the father to stand. Cathy was given the same visitation rights as Michael had formerly been granted.
From the judgment changing custody, Cathy appeals and asserts two assignments of error, only one of which has merit and warrants discussion:
I. WHETHER THERE WAS EVIDENCE OF A MATERIAL CHANGE IN CIRCUMSTANCES WHICH ADVERSELY AFFECTED THE WELFARE OF THE CHILD
LAW
The law with regard to a modification of a decree for child custody is well-settled. There are two basic prerequisites:
First, the moving party must prove by a preponderance of the evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second Pace v. Owens, 511 So.2d 489, 490 (Miss.1987) (emphasis in original)
if such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody.
Yet not every change in circumstances warrants a change in custody. The 'totality of the circumstances' must be considered. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984), citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983). This Court has stated:
Even though the chancellor finds a material adverse change in circumstances, a change in custody is not automatic. That finding is merely the first step, the one which then authorizes and indeed challenges the chancellor to then go forward and determine whether the best interests of the child justify a change of custody.
Clearly, a decision to change custody, perhaps more so than an original custody determination, must not be made hastily or without ample justification. A chancellor has numerous guidelines to consider in this most challenging of decisions. We have said repeatedly that a child is entitled to "the stabilizing influence of knowing where home is." Bowden v. Fayard, 355 So.2d 662, 664 (Miss.1978). To that end, we have stated that "children do not need to be bounced back and forth between their parents like a volleyball." Tucker, 453 So.2d at 1298. On...
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