Cavett v. Cavett, 97-CA-00758-COA.

• Decision Date: 22 June 1999
• Docket Number: No. 97-CA-00758-COA.,97-CA-00758-COA.
• Citation: 744 So.2d 372
• Parties: James Richard CAVETT, III, Appellant, v. Martha Ann Stafford CAVETT (Moore), Appellee.
• Court: Mississippi Court of Appeals

744 So.2d 372

James Richard CAVETT, III, Appellant, v. Martha Ann Stafford CAVETT (Moore), Appellee.

No. 97-CA-00758-COA.

Court of Appeals of Mississippi.

June 22, 1999.

Anselm J. McLaurin, Brandon, B. Ruth Johnson, Jackson, Attorneys for Appellant.

Melissa Lee Day Gardner, Brandon, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND PAYNE, JJ.

IRVING, J., for the Court:

¶ 1. On June 20, 1996, Martha Ann Stafford Cavett (Moore), hereinafter referred to as "Martha," filed a motion for contempt and for modification against James Richard Cavett, III, hereinafter referred to as "Rick." Martha's motion asked that a change be made in the issues of child custody, visitation, telephone contact and interference with Martha's relationship with the minor child. Rick filed an answer denying that he was in contempt of court and asked the court to award the custody of the child to him. The original judgment of divorce provided for joint legal and physical custody. The cause was tried over a two-day period, August 8, 1996 and January 9, 1997. The chancellor issued his order on February 26, 1997 finding: 1) that Rick was not in contempt; 2) that an award of physical custody to the mother, with visitation every other weekend to his father, would best serve the child's interest; and 3) that visitation during holidays and summer vacation was to remain as previously agreed upon in the original judgment of divorce.

¶ 2. On March 1, 1997, Rick filed a motion to alter the order of modification. The motion was heard by the court and denied by judgment dated May 15, 1997. Rick subsequently perfected his appeal in order to present these issues to this Court.

FACTS

¶ 3. The parties herein, Martha and Rick, were married December 29, 1982, and divorced September 12, 1990. Their marriage produced one child, Thomas Clinton Cavett ("Thomas"), who was born August 26, 1987, and whose custody and visitation are the subject of the case before this Court. Thomas attends a private school, St. Andrews Episcopal School, in Jackson, Mississippi. Rick is a medical doctor practicing in the field of pathology at the Mississippi Baptist Medical Center in Jackson, Mississippi. He has remarried and resides with his present wife, Melissa, in Hinds County, Mississippi. Martha has, likewise, remarried and is a housewife who resides with her present husband in Brandon, Rankin County, Mississippi.

¶ 4. At the hearing in the court below the chancellor conducted an in camera discussion with the child. When asked by the chancellor if he knew why they were there, Thomas said, "Yes, sir, its because my mother and father are always fussing and fighting." It appeared to the chancellor that Thomas, the nine year old son of the parties, was directly on point in response to the question.

¶ 5. The chancellor learned from the child that he was confused as to where he was supposed to be from time to time. The chancellor also determined that the child loves both his parents and is a fine youngster. It was also apparent to the chancellor that Thomas was in desperate need of stability and would continue to be caught in the middle of the battlefield between his mom and dad until they started treating him as a child and not as a possession.

¶ 6. The chancellor found that the mother and father, along with the stepmother and stepfather, are all fine people, well respected in their communities. The father earns well above average income. The stepmother is a well-respected schoolteacher and a caring person. The mother is a caring person, a good mother who has had the primary continuity of physical care of the child. The stepfather is employed as an automotive paint and body technician and appears to be stable and well respected in his field who loves the child and realizes his position is that of a stepfather.

¶ 7. The original visitation order that was included in the judgment of divorce provides, in part, as follows:

During the nine (9) months of the standard school year (September through May), Wife shall have custody of Thomas for nine out of every fourteen days, and Husband will have custody for the remaining five days. Husband's custody periods will begin at about 5:30 p.m. on Tuesday and last until about 5:30 p.m. on Wednesday, every week. Every other week, in addition to the above, husband will have custody from about 5:30 p.m. on Thursday until about 5:30 p.m. on Friday, when Husband does not have weekend custody and on alternate weeks Husband will have custody from about 5:30 p.m. on Friday until about 5:30 p.m. on Sunday.

¶ 8. The testimony of both parties was that from the beginning the custodial periods in the agreement were unmanageable, and the parties agreed to not follow its provisions as to custodial periods, effectively agreeing to a self-help modification. At Rick's suggestion the parties agreed that Martha would have physical custody from Tuesday through Saturday, with Rick taking custody of Thomas from Saturday until he was dropped off at school on Tuesday morning. Thereby, Martha had physical custody of the child for five days out of every seven-day period. Subsequently, Martha instituted a set time for the pickup on Saturday. This arrangement was followed, for the most part, until the events that led to the filing of this action for contempt and modification.

¶ 9. Martha's charge of contempt against Rick is alleged to have occurred when Rick picked Thomas up on May 24, 1996, and failed to return him to his mother on May 26, 1996, as required in the adjusted visitation schedule. Rick charges that when he picked Thomas up after the child's return from summer camp on June 15, 1996, and telephoned Martha's home so that he could take the child home, he learned that Martha was out of town. Rick contends that Martha failed to notify him that she would not be home to receive the child. It was the next day before Martha returned home.

¶ 10. The trial court found that the testimony of all parties indicates that the parents are picking apart such small issues as taking clothes to and from visitation periods, allowing phone calls to the other parent, notifying the other parent of activities such as athletic events and piano lessons.

¶ 11. The chancellor found that Rick was not in contempt of court regarding the matter of returning Thomas to Martha in the May 26, 1996 complained of incident. The chancellor was also of the opinion that the visitation issue and joint physical custody as it related to Thomas was required to be modified in order to serve the best interest of the child. As a consequence, the chancellor ruled as follows:

The legal care, custody and control of Thomas shall remain Joint. The physical care, custody and control of Thomas shall be changed with respect to Thomas in the following manner:

During the nine months of the standard school year (September through May), Rick shall have his son with him every other weekend, from the time school is out on Friday afternoon until the following Sunday night at 9:00 o'clock p.m., commencing on the first weekend of February 1997 (Friday, February 7, 1997).

The remaining summer and holiday visitation periods shall continue to be those set out in the prior agreement of the parties.

In addition to the visitation privilege specifically set forth, the parties may observe visitation any other times as they may agree to observe.

Both parties shall promptly advise each other of Thomas's school grades and his participation in all events and activities.

The Court finds that even phone calls are a problem between the mother and father with reference to the child and need to be spelled out.

Emergency calls may always be made with regard to the child's health.

The mother shall not call Thomas while he visits with his father on the weekends. However, during the three two-week summer visitation periods (when Thomas is with his father), the mother shall have the right to call her son on Wednesday evenings between the hours of 6:00 p.m. to 7:00 p.m. and on Sunday afternoons between the hours of 3:00 p.m. and 4:00 p.m., which calls shall not exceed 15 minutes each.

The father is authorized to call his son at Martha's home on Wednesday evenings between the hours of 6:00 p.m. and 7:00 p.m. and on Sunday afternoons between the hours of 5:00 p.m. and 6:00 p.m. on such Wednesdays and Sundays that he does not have Thomas with him. Vacation Notice: Each parent shall advise the other of those periods during the summer when they plan to be out of the State with Thomas. This includes notice as to where the child will be and an estimated time of his return. No phone call shall be made between the non-custodial parent and Thomas during these out-of-State vacation times.

In making the decision regarding the changes pertaining to visitation, the Court reviewed the Albright v. Albright, factors (437 So.2d 1003) and applied them to the case now before the Court in the following manner. (It was also both parties' request for a change regarding the arrangement of child custody and visitation.):

(1) Polestar consideration is the best interest of the child. In the Smith v. Todd case (464 So.2d 1155), the Court said in part, "It is important that children have as much stability as possible when their parents are divorced. Once the Court has determined which parent should have custody of the children, then they should be allowed the stabilizing influence of knowing where home is." It was apparent to the Court from the testimony and from the in camera discussion with Thomas, the nine-year-old child, that Thomas was confused from time to time as to where he was supposed to be. Thomas also said he had rather the Court make the determination as to custody and visitation. The Court must view the best interest of the child looking at the totality of the circumstances involved.

(2) and (3) The age, health and sex of the child has equal application for both of the parents, and in and of itself would not be determinative of the issue

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