Buntyn v. Smallwood, 53070
| Decision Date | 07 April 1982 |
| Docket Number | No. 53070,53070 |
| Citation | 412 So.2d 236 |
| Parties | Lynn Smallwood BUNTYN v. Kenneth SMALLWOOD. |
| Court | Mississippi Supreme Court |
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.
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 Smallwood, 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 Meadville.
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. Smallwood, 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...
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