Ballard v. Ballard, 54312

• Decision Date: 27 July 1983
• Docket Number: No. 54312,54312
• Citation: 434 So.2d 1357
• Parties: Retha Lynn Pope BALLARD v. Tony Leon BALLARD.
• Court: Mississippi Supreme Court

Page 1357

434 So.2d 1357

Retha Lynn Pope BALLARD v. Tony Leon BALLARD.

No. 54312.

Supreme Court of Mississippi.

July 27, 1983.

Lawrence Chandler, Calhoun City, for appellant.

Thomas J. Richardson, Jackson, for appellee.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

HAWKINS, Justice, for the Court:

Retha Lynn Pope Ballard appeals from a final decree of the Chancery Court of the First Judicial District of Hinds County changing custody of the minor son born unto her marriage with Tony Leon Ballard from her to the father.

The only issue we address on this appeal is whether there had been a sufficient change of circumstances following a divorce decree in which the custody of the child had been awarded to the mother to justify modification of the decree so that the father was given custody. The chancellor found there had been. Since we find he erred in his interpretation of the law, and was manifestly wrong, we reverse and render.

FACTS

Retha Lynn Pope Ballard and Tony Leon Ballard were married May 8, 1971. One child, Mark Jason Ballard, was born of this marriage on August 28, 1972.

Following an uncontested divorce proceeding, the Chancery Court of the First Judicial District of Hinds County entered a final decree granting the parties a divorce, and awarding control and custody of Mark to his mother Retha. The decree approved an agreement between Retha and Tony, dated June 16, 1977, in which Retha was to have custody of Mark, with Tony given all reasonable visitation, the right to have Mark on two week-ends every month, alternate recognized holidays on alternate years, and two weeks in the summer.

On January 16, 1978, Retha filed a petition to cite Tony for contempt for failure to pay on a car note. On May 3, 1979, Tony petitioned the court for modification of the decree to reduce child support payments, and give him two additional weeks in the summer, to which Retha filed a cross-bill.

On March 2, 1982, Tony filed a petition to modify the divorce decree, claiming generally that Retha "is no longer the most fit, proper and suitable party to have the permanent custody and control" of the child. It also contended the child had grown older and "will benefit greatly from the male guidance and leadership" that Tony could provide. There were no specific allegations of misconduct by Retha. Retha answered and cross-claimed.

Following the original divorce, Retha was employed in a hospital and lived for a time in an apartment complex in Jackson. Thereafter she moved to Calhoun City to a duplex, where she and Mark lived. She enrolled as a part-time student at the University of Mississippi and was employed as a laboratory technician in the Webster County General Hospital in Eupora. Tony, a native of Attala County, returned to live with his mother in a mobile home eleven miles from Kosciusko. His mother, Mrs. Loraine Ballard, was 61 years of age at the time of the hearing on June 28, 1982. Tony was employed as a bail bondsman and did some investigative work. His employment required him to be out at all hours of the night.

Retha went to school three days a week, from 9:00 a.m. to 2:00 p.m. The driving time from Calhoun City to the University is approximately one hour. She also worked two days a week from 7:30 a.m. to 5:00 p.m. The driving time from Calhoun City to Eupora is approximately forty minutes. Retha was one year from a degree in business administration. She also worked on a number of week-ends at the hospital.

Mark, almost nine at the time of the hearing, was a student in the Calhoun City public schools. He was a serious student and made better than average grades. Retha took him to church regularly, and helped him with his homework. Retha would return home each day approximately an hour after Mark got home. In that interim, a lady who lived next door in the other duplex, and who did not work, would keep check on Mark, seeing if he was in the duplex watching television, or outside playing with his dog or riding his bicycle.

Retha testified she planned everything she did around Mark, trying to make the time she did have with him as valuable as she could for him. She participated in the "kiddy leagues", and if she could not go, she arranged for another parent to take him.

She said Mark loved his father and she did everything possible to keep that relationship intact, never criticizing Tony before Mark.

Mary Knight, the mother of two sons, one of them Mark's age, testified she and Retha at times baby sat for the other, Mark had spent the night at her home, and played with her children. According to Mrs. Knight, Mark was a well-behaved and well-rounded child, who got along with her children "wonderfully". He was polite and had good table manners and always said his prayers before going to bed at night. Her observation was that Retha's life revolved around Mark. Retha never raised her voice to him, she took him to church and always knew where he was.

Mrs. Susie Aycock, who was a neighbor of Retha's in Jackson and worked with her, corroborated Mrs. Knight as to Retha's care and attention to Mark. She recalled Retha being unhappy with Mark's schooling in a public school, and getting him into a private school. She had observed Retha helping Mark with his homework.

Mrs. Linda Shelley, Retha's sister, also testified as to the devotion she had observed in Retha for Mark.

After moving to Calhoun City, Retha developed a romantic attachment to one Dennis Young. They became engaged in January 1982. Tony, with the assistance of an off-duty Starkville policeman, began surveilling Retha's home. On two occasions from February 22 to March 27, 1982, Young was observed leaving the duplex around daylight. On another occasion Tony testified he went to the duplex at 7:30 a.m. and observed Young lying on the living room couch in pajama bottoms. Young and Retha claimed it was 8:30 a.m. when Tony observed Young, and he was either dressed in blue jeans or jogging pants.

Tony also observed two men leaving Retha's Jackson apartment at two a.m., and one time noticed marijuana in Retha's Jackson apartment.

Young at one time was employed by a bank in Starkville. He was convicted of possessing cocaine, and left his job with the bank. Thereafter he moved to Louisville, and was employed as a supervisor in the shipping department of a manufacturing plant. He met Retha in 1981. Young and Retha both testified Young had spent the night in Retha's home in Calhoun City on three occasions when Mark was there, but that he slept, fully dressed, on the couch in the living room. No improprieties were engaged in by them in Mark's presence at any time.

Young testified he would spend the night "all the time" when Mark was not there. Louisville and Calhoun City are approximately 55 miles distance from each other.

Young had over four years college work, and lacked eighteen hours receiving a degree in marketing.

Young, who was called as a witness by Tony, testified Retha was an attentive and devoted mother, taking Mark to church, tucking him in the bed at night,...