Cox v. Moulds, 55568
| Decision Date | 04 June 1986 |
| Docket Number | No. 55568,55568 |
| Parties | David Andrew COX v. Knoxine J. Cox MOULDS. |
| Court | Mississippi Supreme Court |
Dolan D. Self, Jr., Herring & Self, Canton, for appellant.
C.R. Montgomery, Rebecca B. Cowan, Montgomery, Smith-Vaniz, McGraw & Ellington, Canton, for appellee.
Before ROY NOBLE LEE, P.J. and PRATHER and ROBERTSON, JJ.
I.
This appeal presents an important question regarding the authority of the Chancery Court to place restrictions upon a non-custodial parent's exercise of visitation rights with his or her children. We decide the case by reference to the view of our law that, however denominated, the visitation rights of the non-custodial parent should be tantamount to custody with respect to the place and manner of exercise of same, except in the most unusual circumstances. Because something approaching actual danger or other substantial detriment to the children--as distinguished from personal inconvenience or possible offense to middle class sensibilities--is required before a chancellor may restrict visitation to the home of their maternal grandmother, we reverse.
There are nine other assignments of error presented, two of which will be discussed briefly and the remainder of which merit neither comment nor reversal.
II.
David Andrew Cox is an adult resident citizen of Madison County, Mississippi. He was the original Plaintiff below and subsequently the Cross-Defendant below. He is the Appellant here.
In 1970 David and Knoxine J. Cox were married. They have two children who are the subject of this proceeding, namely Kelly LeAnne Cox, born January 18, 1971, now fifteen years of age, and Barry Nelson Cox, born March 22, 1975, now ten years of age.
By final decree of the Chancery Court of Madison County, Mississippi, David and Knoxine were divorced on November 28, 1975. Custody of the two children was vested in Knoxine "subject to the right of David Andrew Cox to visit with the children at any and all reasonable times". David was also ordered to pay child support at the rate of $75.00 per month.
Knoxine on July 3, 1980, married Arlon Moulds and now resides in Hattiesburg. Also residing in Hattiesburg is another important individual in these proceedings, the children's maternal grandmother, Mrs. Knox Jacobs.
There is no need to detail the history of the unworkability of the flexible but vague 1975 reasonable visitation rights decree. Suffice it to say that the parties could not agree regarding the nature and extent of David's rights with the children.
On May 5, 1981, David filed his first petition to modify. Two amendments later, the matter was before the Chancery Court on David's request that the visitation rights be made specific together with Knoxine's cross-claim for an increase in child support. On January 10, 1984, the Chancery Court entered its order making the visitation provisions specific and including the provision here in controversy that David
shall visit said minor children solely at the home of Mrs. Knox Jacobs [his ex-mother-in-law] and/or within the Hattiesburg, Mississippi area.
The chancellor also ordered that David's child support payments be increased to $150.00 per month and that he pay to Knoxine $500.00 as attorneys fees.
As indicated, David appeals to this Court. As indicated, we reverse on the ground of his principal complaint, vacate the award of attorneys fees, and otherwise affirm.
III.
The matter of the increase in child support need not detain us long. The record reflects that at the time of the original decree in 1975 David was employed on a hourly basis earning between $2.00 and $3.00 an hour. At that time he was ordered to pay $75.00 per month as child support for two children. At the time of the hearing below, David was employed as an inspector and monitor at Sewell Plastics at a salary of $5.89 per hour. In this setting the chancellor increased David's child support obligation to $150.00 per month for both children. 1
Before a final decree for child support may be modified our law requires the moving party to show "material change of circumstances of one or more of the interested parties--the father, mother, or child--arising subsequent to the original decree". Adams v. Adams, 467 So.2d 211, 214 (Miss.1985); Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). Possible factors which may constitute a material change in circumstances are increases in the children's expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree. Tedford v. Dempsey, 437 So.2d 410, 418 (Miss.1983). Suffice it to say that each of these circumstances is shown here. The chancellor's holding that child support should be increased is supported by substantial evidence and in his view of the evidence is consistent with our law regarding the subject.
IV.
By far the most serious issue in this case concerns the chancellor's order that David exercise his visitation rights only at the home of his ex-mother-in-law or in the city of Hattiesburg, Mississippi. A review of the pertinent facts is in order.
This issue arose below in the procedural context of David's twice amended motion to modify. This was not an ordinary motion to modify, for David has not sought to modify or change custody. He merely asked to have the court provide an order making his visiting rights specific with reference to times, dates and places.
In cases such as this our familiar change in circumstances rule, see, e.g., Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983), has no application. This is because the Court is not being asked to change the permanent custody of the children. Sistrunk v. McKenzie, 455 So.2d 768, 770 (Miss.1984). All that need be shown is that there is a prior decree providing for reasonable visitation rights which isn't working and that it is in the best interests of the children as fostering a positive and harmonious relationship between them and their divorced parents to have custody provisions made specific rather than flexible and attendantly vague.
At the time of their separation in 1975, David and Knoxine were living in a mobile home in Madison County, Mississippi. David has continued to reside in Madison County and lives very near to the area where he and Knoxine once lived. The home is situated in rural Madison County and has five rooms--a living room, a kitchen, two bedrooms and a bath, plus a porch. Permanent residents of the home include, in addition to David, his mother and his sister.
The evidence reflects that David Andrew Cox is a responsible citizen. He is 40 years old and has attended William Carey College. He has a two year Associate of Arts degree from Clark College in addition to the credits earned at William Carey. He is a veteran of the Vietnam war. He has full time employment with Sewell Plastics in Canton, Mississippi. He is Sunday School Director at Franklin Baptist Church in Madison County. While there is no doubt that David's circumstances are more modest than those enjoyed by Knoxine and the children in Hattiesburg, David's circumstances are hardly un-American.
In this setting, we note that the chancellor stated
The court is greatly concerned about the best interests of the children in situations such as this and does not find the home in which the father lives to be adequate to meet the needs of an almost thirteen year old girl who is reaching womanhood and needs her privacy in sleeping.
We take judicial notice that there are at this time literally thousands of thirteen year old girls growing up without untoward consequences in homes as modest as David's, if not more so. See Rule 201(b), Miss.R.Ev., eff. January 1, 1986. The chancellor went on to state
It is evident that the father cares for his children and even more so that the children's [paternal] grandmother, Mrs. Ena Cox, loves her grandchildren and would like to visit with them also.
Notwithstanding, the court entered the order restricting visitation to Hattiesburg or the home of the maternal grandmother, David's ex-mother-in-law.
Certainly the rights and responsibilities of the parent having custody following a divorce are paramount with respect to matters of schooling, discipline and the like. Clements v. Young, 481 So.2d 263, 267 (Miss.1985). We are afraid that by labeling the rights of the non-custodial parent "visitation" we imply an inordinate subordination of those rights in quality. That there will be no misunderstanding in the future the chancellor should approach the fixing of visitation rights with the thought in mind that, absent extraordinary circumstances militating to the contrary, the non-custodial parent will during the periods of visitation have broad authority and discretion with respect to the place and...
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