Brocato v. Walker, 45208

• Decision Date: 10 March 1969
• Docket Number: No. 45208,45208
• Citation: 220 So.2d 340
• Parties: Shirley Faye Walker BROCATO v. John Paul WALKER.
• Court: Mississippi Supreme Court

Page 340

220 So.2d 340

Shirley Faye Walker BROCATO v. John Paul WALKER.

No. 45208.

Supreme Court of Mississippi.

March 10, 1969.

Fred Witty, Greenwood, for appellant.

Lyon & Crosthwait, Indianola, for appellee.

SMITH, Justice.

On May 9, 1966, appellant, Shirley Faye Walker (Brocato) brought suit for divorce against her then husband, appellee, John Paul Walker, in the Chancery Court of Sunflower County. In her bill she also sought custody of Shannon Loyd Walker, a child born to the parties on April 9, 1965.

The court heard the case on October 4, 1966, and entered a final decree granting a divorce to appellant upon the ground of habitual cruel and inhuman treatment. Permanent custody of Shannon Loyd Walker was awarded to appellant and appellee was directed to pay $50 per month toward the child's support. The decree also provided that appellee should have certain rights of visitation. The court 'retained jurisdiction' and ordered that 'in the event defendant (appellee here) fails to abide by the requirements of this decree he shall forfeit visitation rights and the right to have the child visit with him as set forth.'

There was no appeal from this decree granting appellant a divorce and awarding to her the permanent custody of the child.

Approximately three months later, however, appellee filed in the Chancery Court of Sunflower County a petition in which he alleged that appellant had violated his rights of visitation as allowed in the decree, and asked that she be cited for contempt for so doing. The petition also contained a second charge, couched entirely in general terms, to the effect that since entry of the original decree conditions surrounding the child and the parties to the suit had materially changed, and that such changed conditions rendered it 'necessary and advisable that the provisions for the custody and control of said child be set aside and this Court modify such decree, * * * and such action would be to the best interest of saic child. * * *' There followed a prayer that the award of the child's custody to appellant by the former decree be revoked and that its custody be awarded to appellee. There was no statement whatever in the petition of any fact or facts upon which appellee expected to rely as constituting the alleged 'changed conditions and circumstances' upon the basis of which he sought modification of the earlier decree.

On January 25, 1967, the chancellor conducted a hearing upon that phase only of the matter which dealt with the charge that appellant was in contempt. At the conclusion of this evidentiary hearing the court entered a decree finally dismissing the petition as to that aspect of the case.

Appellant then demurred to the petition for modification of the original decree. The demurrer was overruled. Appellant moved for a bill of particulars as to what constituted the alleged changes in circumstances and conditions, and this also was overruled. Appellant contends that the trial court erred in overruling the demurrer and in denying her motion for a bill of particulars because of the entire absence of any allegation of fact in the petition constituting a change in circumstances upon which the modification was sought. There appears to be merit in these contentions but we do not reach them as the case must be disposed of upon other grounds.

In July, 1967, the court heard the matter on appellee's petition for modification of the former decree, appellant's answer thereto, and proof.

In an opinion appearing in the record headed 'Decision of the Court and Finding of Fact' the chancellor found specifically, as a matter of fact, that both parties were 'fit and proper persons to have custody of said child.' However, on August 4, 1967, the Court entered a decree drastically modifying the original decree. This latter decree, in substance, directed that:

(1) Custody of the child should be divided between the parties, appellee to have it for four months, from June 1 through October 1, and that appellant have it for eight months, from October 2 through May 31.

(2) The parties should have the child for ten days at alternate Christmases, from December 20 through December 29.

(3) The 'support' payments of $50 per month should stop while the child was actually with appellee.

(4) Appellant was required to deliver the child to appellee and to come for him at the various times at which the changes in custody were ordered to occur, so long as appellee should remain a resident of Sunflower County or, in lieu thereof, to pay all necessary expenses of appellee in 'so obtaining or relinquishing his said custody.'

(5) Appellant was ordered to enter into bond, payable to appellee, in a penalty of $500, conditioned to carry out the terms of the decree.

The arguments of appellant for reversal fall into two main categories. First, no material change in circumstances adversely affecting the child's welfare justifying a modification of the original decree was alleged or proved; and second, the decree entered entirely disregarded the best interests of the child and to carry it into effect would be inimical to its welfare.

In response to these arguments, appellee cites the multitude of cases in which this Court has held that findings of fact by a chancellor, upon conflicting evidence, will not be disturbed on appeal unless the chancellor was manifestly wrong.

In Cassell v. Cassell, 211 Miss. 841, 846, 52 So.2d 918, 921 (1951) this Court held that in cases involving custody of minor children 'we sit as chancellors' and are not bound by the rule which requires affirmance of the decree of a trial court where the evidence is conflicting or where such decree is sustained by substantial evidence.

* * * 'A decree fixing the custody of a child is, however, final on the conditions then existing and should not be changed afterward unless on altered conditions since the decree * * * and then only for the welfare of the child.' (Emphasis added).

In the case at bar, the facts in evidence material to the issue are largely without dispute.

Following the divorce, appellant had remarried. At the time of the hearing, she and her husband were living in San Antonio, Texas, where he was employed. They had established their own home there and his earnings had been found to be sufficient to allow her to discontinue working so that she might devote all of her time to this child and another child which had been born of her present marriage.

Although the petition for modification said nothing about it, (it was filed before appellant moved to Texas and was not amended), the chancellor placed great emphasis upon the fact that she and her husband had moved to Texas as his reason for modifying the former decree. Other than his comments upon this 'change,' he noted that appellant had not attended the hearing (she had asked for a continuance) and disparaged the grounds she had assigned for not doing so. He also adverted to the fact that on several occasions (possibly three or four) she had not complied fully with the former decree as to appellee's visitation rights. There was neither an allegation in the petition nor any finding by the chancellor that the child had been abused or neglected or subjected to immoral influences.

Appellee himself, upon being questioned as to what changes in circumstances he considered had occurred since the original decree, replied, 'Well, sir, she has broken the court order.'

The record shows without dispute that the present husband of appellant went to San Antonio, where he had relatives living, to seek employment. Within three days after he had arrived there he was...