Cheek v. Ricker

Decision Date01 June 1983
Docket NumberNo. 53788,53788
Citation431 So.2d 1139
PartiesHollis C. CHEEK v. Pamela B. Cheek RICKER.
CourtMississippi Supreme Court

Morgan & Morgan, Clarence E. Morgan, III, Kosciusko, for appellant.

Thomas A. Coleman, Ackerman, for appellee.

Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

On July 7, 1981, Hollis C. Cheek, complainant below and appellant here, filed against his ex-wife, Pamela B. Cheek, now Mrs. Pamela B. Cheek Ricker, a bill to change child custody. He alleged a material change in circumstances since the divorce of the parties and the original award of custody of their son, who will be nine years old on July 22, 1983. He argued that, as a result of this change of circumstances, custody of the child should be placed with him.

The chancellor listened carefully and patiently to all of the evidence in an unnecessarily adversary proceeding and in the end declined to alter the substance of the original custody order. Intimating that we possess more of the wisdom of Solomon than the chancellor, Hollis C. Cheek appeals to this Court. For the reasons stated below, we affirm.

II.

There was far more contentiousness between the parties than there was conflict in the facts at the trial below. We will summarize briefly the facts which seem pertinent to the disposition of this appeal.

Hollis and Pamela were married in Leake County, Mississippi, on December 15, 1967. They have one child, a son, Zachary Chase Cheek, who was born July 22, 1974. Chase was adopted.

Hollis and Pamela finally separated in early 1978. On July 11, 1978, the Chancery Court of Attala County, Mississippi, entered a final decree of divorce forever dissolving and declaring for naught the bonds of matrimony theretofore existing between them. The divorce was granted on grounds of "irreconcilable differences". See Miss.Code Ann. Sec. 93-5-2 (Supp.1982).

Incident to the divorce proceedings each party acknowledged that the other was a fit person to have custody of the child. In their joint bill for divorce filed May 8, 1978, Hollis and Pamela each stated under oath:

The said Pamela B. Cheek is a fit and suitable person to be awarded the permanent and primary care, custody, and control of said minor child, with reasonable visitation on the part of the said Hollis C. Cheek. The said Hollis C. Cheek is likewise a fit and suitable person to be awarded the custody of said child, but the parties feel that the best interest of said child would be that the mother have the primary custody.

In reliance upon these representations, the Chancery Court entered a final decree of divorce on July 11, 1978, and provided that

Pamela B. Cheek is awarded the permanent and primary care, custody, and control of the minor child Zachary Chase Cheek, .... Hollis C. Cheek shall have the right of reasonable visitation of said child at all reasonable times and places, including the right to have said child visit with him as agreeable to the said Pamela B. Cheek.

After the separation but prior to the divorce Pamela moved to Starkville where she became a student at Mississippi State University. During this period of time she developed a romantic relationship with another man. Hollis was aware of this relationship on May 5, 1978, when he signed and swore to the statement in the joint bill for divorce that Pamela was a fit person to have custody of the child. This relationship ended in May of 1979. Upon her graduation from Mississippi State University, Pamela moved to Houston, Texas.

There was substantial testimony adduced at trial that, while Pamela and the child lived in Starkville, she was a good mother. Several credible witnesses testified that Pamela showed constant love and affection for her son, that she took him to church regularly and that she otherwise fulfilled her filial obligations to him.

In February of 1980, Pamela and her son Chase moved to Houston, Texas. There Pamela secured employment in the Marketing Department of Continental Telephone Company. She leased an apartment in what is supposedly the best school district in the area and enrolled Chase in a kindergarten. She joined the Clear Lake Baptist Church, which she and her son attended regularly.

At trial Pamela presented testimony from four witnesses who came from Houston, Texas, one of whom was her pastor at the Clear Lake Baptist Church. This testimony was substantial and impressive in support of the proposition that Pamela was a concerned, caring and loving mother.

In February of 1981 Pamela began seeing James C. Ricker, then age 44, who was married but separated. We are informed that shortly after the trial of this case Pamela and Ricker were married.

In the interim, Hollis C. Cheek had remarried. On March 30, 1979, Hollis married Sarah Lee Cheek, and the thrust of his positive proof at trial was that he was now in a position to provide a stable two parent environment for Chase.

The evidence was uncontradicted that the boy, Chase, was experiencing mental and emotional difficulties. The psychologist offered by Hollis testified that he had made this finding after his examination of the boy. He substantially attributed Chase's difficulties to Pamela's relationships with other men, and, to be sure, the evidence is clear that between May of 1978 and the time of trial Pamela had slept with two men to whom she was not married.

The psychologist offered by Pamela agreed that Chase was experiencing emotional problems. He attributed these problems, however, first, to the tensions any child would experience incident to the divorce and, second, to the fact that the child now found himself caught in the middle of a nasty custody fight. The psychologist called by Pamela credibly refuted the thesis advanced by Hollis' psychologist to the effect that the child's emotional problems were the product of Pamela's relationship with other men.

In a brief opinion, the Chancery Court summed up the evidence as follows:

At the time the parties were divorced the Respondent [Pamela] was a student at Mississippi State University. After the divorce, the Respondent continued her education and graduated from that institution. After graduation she obtained employment with the Continental Telephone Company in Houston, Texas, where she is currently employed. Since the parties divorced, it is clear that the Respondent has demonstrated concern for her child's physical, mental and moral training. Her interests in the child are evident by the care she has demonstrated in locating a suitable kindergarten, schools and day care facilities, both in Mississippi and Houston, Texas. She has demonstrated a concern for spiritual matters in locating a church home in Starkville, Mississippi when she was a student there, as well as in Houston, Texas. This Court can only conclude that the Respondent loves her child and is interested in his well-being. It is obvious from the testimony in this case that the Respondent has erred in her conduct with other men; however, this conduct is not sufficient to render her unsuitable as a parent even though such conduct must be condemned.

The chancellor then concluded

that there has been no material change in circumstances which would adversely affect the child in such a way to necessitate a modification of the custody decree.

III.

As committed as the judiciary of this state is to faithful execution of the task of divining the best interest of the child, our prescience is limited. A mother and father who love their child, who act in good faith and as selflessly as human nature will allow, will find it difficult enough solving the unsolvable question of what custody arrangement is in a child's best interest. Yet, though their love for each other has ended, they are infinitely more capable of devising a workable custody plan than are the judges of this state.

Before the court today are two obviously mature adults. Each professes love and concern for their child, now almost nine years old. Upon a reading of the record below, it is difficult to believe that either would ever deliberately do anything that would seriously harm their child. It is equally difficult to understand why two such persons could not have privately resolved the disagreements which have led to this litigation. Suffice it to say that, if Hollis and Pamela each had devoted to their son one-half the energy and emotion they have brought to this custody fight, his best interests would have been better served.

It happens all too frequently that separated or divorced parents, for whatever reason, do not resolve custody questions among themselves. The ability to tolerate each other's frailties, though no doubt on the wane during the latter days of the marriage, seems to evaporate with the separation and subsequent divorce.

Sad experience has long ago taught us that the intervention of a third party is often necessary. That third party must possess the wisdom of Solomon, the patience of Job, and the humanity of Shakespeare. Beyond that he must be empowered by the state to make final binding decisions, subject only to appellate review.

These considerations have led this state to vest original power to hear all matters touching the custody and welfare of children in its chancery courts. Miss. Const. (1980) Art. 6, Sec. 159; Miss.Code Ann. Sec. 93-5-23 (1972). Appellate review, of course, is vested in this Court.

Institutional considerations dictate that this Court perform its appellate review function in cases such as this under the strict guidance of two well established rules.

First, a decree for child custody should not be modified so as to change custody from one parent to the other unless, subsequent to the original decree, there has been a material change in circumstances which adversely affects the child's welfare. O'Neal v. Warden, 345 So.2d 610, (Miss.1977); Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971); Sanderson v. Seaney, 224 So.2d 862 (Miss.1969); Brocato v. Walker, ...

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