Love v. Barnett

• Decision Date: 17 December 1992
• Docket Number: No. 91-CA-0146,91-CA-0146
• Citation: 611 So.2d 205
• Parties: Virginia Kackley Barnett LOVE v. Joseph Milton BARNETT.
• Court: Mississippi Supreme Court

Page 205

611 So.2d 205

Virginia Kackley Barnett LOVE v. Joseph Milton BARNETT.

No. 91-CA-0146.

Supreme Court of Mississippi.

Dec. 17, 1992.

Walterine Langford, Vicksburg, for appellant.

David M. Sessums, Varner Parker Sessums & Akin, Vicksburg, for appellee.

Before HAWKINS, P.J., and PITTMAN and ROBERTS, JJ.

PITTMAN Justice, for the Court:

Virginia Kackley Barnett Love ¹ and Joseph Milton Barnett were divorced July 21, 1988, on the grounds of irreconcilable differences. Love was granted primary physical custody of the two children, with joint physical and legal custody shared with Barnett. Barnett was ordered to pay Love $200.00 a month child support. On May 25, 1990, Love filed a petition for modification of visitation rights, requesting specific visitation rights be set out. Barnett filed a counter-motion asking for sole custody. Following a hearing on December 6, 1990, Chancellor Nat W. Bullard announced the ruling of the court. He modified the visitation schedule and denied the counter-motion. Apparently, Chancellor Bullard died before an order could be entered into the record, and Chancellor James E. Nichols signed the order granting the modification. Love appeals, claiming the order signed is different from the bench ruling by Bullard.

I.

Virginia Kackley Barnett Love was divorced from Joseph Milton Barnett in July 1988. She and Barnett had two children, Bridgette Marie Barnett and Joseph Kyle Barnett, 7 and 6 respectively at the time of trial on December 6, 1990. Love testified the children normally spend every weekend with their father. No specific visitation schedule was set out in the divorce decree. Love said Barnett kept the children for the summer immediately following the divorce, but now gets them every weekend in the summer and longer if he wants.

Love testified at trial she married Billy Roger Love two months after her divorce and lives with him in a two bedroom trailer. Four children also live in the twelve (12) by fifty (50) trailer. Love said Bridgette and Kyle sleep in a room, and the babies sleep in the bedroom with her and her husband. She said they were planning to add another room in January. Billy Roger Love works for a farmer and Love does not work.

Love filed the motion to modify visitation because she said the children are dirty when her former husband sends them to school on Mondays. Their hair is unwashed and they have not had a bath, she said. Love also said her time with the children is limited during the week and she would like one weekend a month to spend quality time with them.

Barnett lives in a house near his mother and stepfather, who help him take care of the children. He said the visitation schedule at the time of trial developed over time. He and Love have a hard time communicating, so it is difficult for them to work out an alternative schedule. If the chancery court orders custody with Love and sets a visitation schedule, he said, he should be given equal time with the children.

After hearing the evidence, Chancellor Nat W. Bullard issued the following bench ruling regarding visitation:

On visitation, both counsel well know the Court's feelings about specific visitation. It's difficult. And in the case of illness or any one of a number of family problems in either one of the two separate households it can be a real problem to everybody. I give you full latitude in drafting a Decree to try to cover this in the best way possible.

The mother's [sic] entitled to just as much weekend time with these children as the father. And the father will be granted two weekends per month of visitation from Friday after noon at a time which each counsel has latitude to agree upon until some time Sunday evening when they will be returned, and (that) should be in time for them to get their baths and get to bed. I would assume probably somewhere around 6:00 or 7:00, but I'll give counsel latitude on that, of course.

The parties will have alternate major holidays, and I'll give counsel latitude to specify that. Some people include Mother's Day and Father's Day as major holidays. That can be whatever counsel can agree upon. And the holidays will have During the period of summer visitation, if it extends for more than a week at a time, the mother should have them alternate weekends the same as the father or at least two weekends a month, the same as the father. And it should be specified on the same time basis.

priority over the weekend visitation that's otherwise provided. The father should have half of the Christmas vacation period and this should alternate year-to-year. I'll give counsel latitude as to how to (set) that up. The same is true of Spring Break. The father should have the children for somewhere about six weeks in the summer. I will give you latitude in setting that up whether it's to be in one stretch or whether it should be broken up into several stretches. And it should certainly include the period (of) vacation.

The father--the Court will--although this is a little bit beyond the pleadings, I think it's essential for the welfare of these children that the father be required to carry the medical insurance that he presently has, and that the mother be provided with the appropriate documentation so that in the event it is necessary for these children to receive medical care that she can obtain that under the medical coverage. ...

The visiting parent would be responsible for the transportation at each visitation, both pickup and return of the children. ... I'll give counsel latitude to discuss it, but, basically, we've always pretty well stuck to the visiting parent is responsible for the pick up and delivery of the children.

After the above bench ruling on December 6, 1990, Chancellor Bullard died before entering an order into the record. Thereafter, Chancellor James E. Nichols entered the order on January 17, 1991, which changed Chancellor Bullard's bench order in part, by providing the parents could use the school bus to transport the children and eliminating the medical insurance provision.

II.

Did the interim Chancellor err in modifying the bench opinion of the sitting Chancellor who died prior to the signing of the Judgment.

Love claims that Chancellor Jim Nichols, who eventually entered the order, erred by providing that the children will ride the school bus to and from their parents' respective houses when available, by allowing the children to spend Sunday night with their father during the school year on visitation weekends, and by omitting reference to the medical insurance.

Under this Court's limited scope of review, findings of fact made by a chancellor will not be disturbed if this Court finds substantial evidence supporting these factual findings. Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983) (citing Anderson v. Watkins, 208 So.2d 573, 575 (Miss.1968); Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983)). As to issues of fact where no specific findings have been articulated by the chancellor, this Court proceeds upon the "assumption that the chancellor resolved all such fact issues in favor of appellee," Tedford, 437 So.2d at 417; Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983), or as a minimum, in a manner which would be in line with the decree. Tedford, 437 So.2d at 417. "[I]f there be substantial evidence undergirding such a ...