Bell v. Bell

Citation572 So.2d 841
Decision Date03 October 1990
Docket NumberNo. 89-CA-1108,89-CA-1108
PartiesJoseph Alston BELL v. Carolyn Clinton BELL.
CourtUnited States State Supreme Court of Mississippi

Stephanie L. Denley, William M. Beasley, Mitchell Voge Beasley & Corban, Tupelo, for appellant.

Barry W. Gilmer, Gilmer Law Firm, Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This case presents a matter we see in varying forms and with increasing frequency, viz. incident to a no-fault divorce the parties present to the chancery court a child custody agreement which provides that the child or children must until majority reside in a particular community, usually the one in which the divorcing parents have theretofore lived. Where such agreements are mandatory in form, we consider them contrary to the best interests of the children and direct that the chancery courts of this state withhold approval. Furthermore, and of direct relevance to the case at bar, where such agreements have been approved, we hold that they are unenforceable.

For the reasons set forth below on this and other issues we affirm the judgment of the Chancery Court.

II.

Joseph Alston Bell and Carolyn Clinton Bell were married on February 17, 1973. Joe is a native of Tupelo. Carolyn is from Missouri. Two sons were born of their marriage: Ray Alston Bell, whose birthday was May 27, 1975, and Joseph Clinton Bell (whose nickname is Joc), born on August 5, 1981. Joe owns Bell Insurance, started by his father and mother in 1945, having gone into business with his father in 1974. He also owns Reynolds Hardware Company which is located next door to Bell Insurance. Carolyn is a harpist and pianist, having received her formal training at the University of Mississippi.

On January 6, 1986, Carolyn and Joe separated and in due course they filed for divorce in the Chancery Court of Lee County, Mississippi, asserting the no-fault ground of irreconcilable differences. Miss.Code Ann. Sec. 93-5-2 (Supp.1986). As required under the law at the time, Carolyn and Joe submitted to the Court an agreement regarding all financial matters and particularly regarding the care and custody of the children. On May 12, 1986, the Chancery Court entered its final decree of divorce incorporating the settlement agreement and providing, in part,

... that husband and wife shall have joint custody of the minor children with the wife having physical custody of the children. That neither the husband nor the wife shall remove the children from the jurisdiction without the express written consent of the other. It being the mutual intent of both parties that the children live in the Tupelo area. This paragraph is not to be construed to prohibit either party from taking or sending the children out of state for holidays, family visitations, vacations and summer camps.

A second section provided two years of alimony for Carolyn:

It is the order of this Court that husband shall pay unto the wife the sum of $700.00 per month as alimony, said payment being deductible by the husband as alimony with said payment to continue until such time as wife dies, remarries, or lives with another man or until the expiration of twenty-four (24) months from the entry of the Decree of Divorce whichever occurs first.

The decree directed that Joe have Carolyn's name removed from a note and deed of trust:

It is the order of this Court that husband shall further take appropriate steps to remove wife's name from the Note and Deed of Trust at The Bank of Mississippi. Said Note and Deed of Trust were for the purchase of Reynolds Hardware Company and shall hold wife harmless from any and all liability existing on the Note and Deed of Trust.

Additionally, the decree provided that Carolyn was to receive $1500.00 in lump sum alimony and use and possession of the couple's home in Tupelo.

On August 18, 1987, the children--Ray was then twelve years old and Joc was then six--attended their first day of fall classes in the Tupelo City Schools. That afternoon, Carolyn picked up the children and left with them with the expressed intention of establishing a new home in Jackson, Mississippi, and enrolling the children in school there. The details aside, Carolyn's course was impelled by not irrational considerations, one economic--employment opportunities for a musician and harpist were reasonably likely to be far greater in Jackson than in Tupelo, and the other social (if not psychological)--Joe was a native of Tupelo and Carolyn was not. Carolyn found particular difficulty in accepting Joe's less than platonic relationship with another woman who was separated from her husband but not yet divorced, none of which did the children much good either.

All of this led the parties back to the Chancery Court of Lee County primarily on the question of custody and the enforceability of the court-approved settlement agreement that "the children live in the Tupelo area." On August 22, 1988, the Court entered a decree maintaining in effect the joint legal custody of the children, see Miss.Code Ann. Sec. 93-5-24 (Supp.1988), but modifying physical custody so that then thirteen-year-old Ray would live with his father--on grounds Ray had so requested--and then seven-year-old Joc would live with his mother in Jackson. The decree provided elaborately for visitation and vacation arrangements but empowered the parties "to amend or substitute said visitation by agreement ... [in] writing and signed by each party...."

The Court further ordered that, should it become necessary for Carolyn to relocate her residence, she petition the Court and obtain approval. The Chancery Court denied Carolyn's charge that Joe be held in contempt for his failure to procure her release from the obligations of existing promissory notes, deeds of trust and other instruments held by the Bank of Mississippi.

Joe has perfected an appeal to this Court, and Carolyn cross-appeals.

III.

The principal issue concerns the enforceability of the court-sanctioned custody agreement that until their majority the children should remain in the Tupelo area, period. We have no reported decisions regarding the enforceability of such residence requirements. It is within our actual and judicial knowledge, however, that divorcing spouses are beginning to employ such provisions in varying forms. 1 In at least one case of which we are aware, the parties provided that, upon the custodial spouse's change of residence, custody of the child would revert automatically to the other spouse. See, e.g., Lott v. Lott, 559 So.2d 1051 (Miss.1990) (memorandum of decision).

We take it as established that settlement agreements entered into by divorcing spouses and judicially approved under our Irreconcilable Differences Divorce Act, Miss.Code Ann. Sec. 93-5-2 (Supp.1990), become a part of the decree and enforceable as such as though entered by the court following contested proceedings. See, e.g., Newell v. Hinton, 556 So.2d 1037, 1043 (Miss.1990); Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984). Co-existing with this view is the reality that such agreements are frequently the product of arms length bargaining and thus are in the nature of court-approved contracts. See, e.g., Newell v. Hinton, 556 So.2d at 1042; East v. East, 493 So.2d 927, 931-32 (Miss.1986); In re Estate of Kennington, 204 So.2d 444, 449 (Miss.1967). Sullivan v. Pouncey, 469 So.2d 1233, 1234 (Miss.1985) did not alter this view, only recognizing that the statute required at the time a property settlement bearing the chancery court's imprimatur. In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts. See, e.g., Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989); Morris v. Morris, 541 So.2d 1040 (Miss.1989). Even so, we have held the parties may not by contract, court-approved or otherwise, deprive the court of authority to hear a plea for modification of periodic alimony. See Austin v. Austin, 557 So.2d 509, 510 (Miss.1990); East v. East, 493 So.2d 927, 931 (Miss.1986).

Provisions for the custody and support of minor children are different. Children of divorcing parents are, in a very practical sense, wards of the court which is by law charged to regard their best interests. Owens v. Huffman, 481 So.2d 231, 244 (Miss.1985); Tighe v. Moore, 246 Miss. 649, 151 So.2d 910, 917, cert. denied, 375 U.S. 921, 84 S.Ct. 265, 11 L.Ed.2d 164 (1963). In the present context, the legislature has directed that, before approving an agreement regarding child custody or support, the court should satisfy itself that the provisions for the care and maintenance of the children "are adequate and sufficient," Miss.Code Ann. Sec. 93-5-2 (Supp.1990), and the serious question before us is whether a provision which locks a child into residence in a given community until majority is ever "adequate and sufficient."

There was a time when most of the people of this state spent their entire childhood in a single community. Many still do and no doubt with great profit. But, we put our heads in the sand when we ignore that ours is an increasingly mobile society and that opportunities for social, economic, professional and educational advancement frequently dictate to reasonable persons that they move from one community to another and often from one state to another and this is so for children as for their parents. Indeed, each person enjoys an enforceable right to travel grounded in the federal constitution. See, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902-03, 106 S.Ct. 2317, 2320, 90 L.Ed.2d 899 (1986); Zobel v. Williams, 457...

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