Phillips v. Phillips, 89-CA-0023

• Decision Date: 13 December 1989
• Docket Number: No. 89-CA-0023,89-CA-0023
• Citation: 555 So.2d 698
• Parties: Denise Marie PHILLIPS v. Ronald Lee PHILLIPS.
• Court: Mississippi Supreme Court

Page 698

555 So.2d 698

Denise Marie PHILLIPS v. Ronald Lee PHILLIPS.

No. 89-CA-0023.

Supreme Court of Mississippi.

Dec. 13, 1989.

Thomas R. Jones, Bourdeaux & Jones, Meridian, for appellant.

Lawrence Primeaux, Goldman Dreyfus Primeaux & Doherty, Meridian, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

In May of 1988, Ronald Phillips filed a petition for modification of child custody and modification of a Property Settlement Agreement, arising out of a March 8, 1988, divorce of Ronald and Denise Phillips. Chancellor George D. Warner, Jr., on September 20, 1988, modified his prior judgment. First, he removed custody of the parties' minor child, Justin Harley Phillips, from Mrs. Phillips, and awarded custody to Ronald Phillips; second, he ordered that Mrs. Phillips remove herself from the former marital residence.

Denise Phillips appeals, suggesting that the Chancellor erred in the following:

I. IT WAS ERROR FOR THE TRIAL COURT TO CHANGE CUSTODY OF THE MINOR JUSTIN PHILLIPS FROM HIS MOTHER TO HIS FATHER SOLELY ON THE BASIS OF HIS MOTHER'S BRIEF INDISCRETIONS WITH A MAN, NOW HER HUSBAND. THIS ERROR WAS COMPOUNDED BY NOT REQUIRING ANY SHOWING THAT THE BEST INTEREST OF JUSTIN REQUIRED A CHANGE OF CUSTODY.

II. WHETHER THE CHANCELLOR AS A MATTER OF FACT AND LAW ERRED IN REMOVING MRS. PHILLIPS FROM HER FORMER MARITAL HOME AT A DATE EARLIER THAN PROVIDED FOR IN HER SEPARATION AND PROPERTY SETTLEMENT AGREEMENT.

STATEMENT OF THE FACTS

Denise and Ron Phillips were married August 7, 1977, and divorced on the grounds of irreconcilable differences March 8, 1988. Mrs. Phillips was granted custody of their only child, Justin Phillips, then age seven. The parties executed a Separation and a Property Settlement Agreement September 14, 1987, which was merged into the divorce decree of March 8, 1988.

The agreement provided that Mrs. Phillips would convey all her rights, title and interest in the marital residence to Mr. Phillips; she in return would have the right to exclusive use and possession of the home until October of 1990. Mrs. Phillips' right to possession would be forfeited if someone other than herself and Justin was a "permanent resident", unless she got permission from Mr. Phillips, which could not be unreasonably withheld. Mr. Phillips continued to pay the monthly mortgage notes of $446.00, in accord with the agreement. Child support was set at $50.00 per month as long as Mr. Phillips was paying the mortgage on the home; it would be increased to $200.00 per month when he ceased to make mortgage payments. No alimony was provided for Mrs. Phillips.

Mrs. Phillips at the time of trial worked as a cashier at the Navy Exchange. She works from fifteen to twenty-two hours per week at a rate of $4.07 per hour. Her gross income is about $130.00 every two weeks; the only other source of income is the $50.00 child support she gets from Mr. Phillips. Mr. Phillips was a First Class Petty Officer in the Navy. At the time of the hearing on the modification petition, he was stationed in Virginia. However, immediately after the divorce he was stationed in Meridian, and lived close to Mrs. Phillips.

In March of 1988, Mrs. Phillips was dating Billy Ray Coe, a member of the armed services (Chief Petty Officer, United States Navy). She has since married him. Mr. Coe had visited Mrs. Phillips often since her divorce from Mr. Phillips. He had baby-sat her son Justin while she was at work; he had bought groceries for Mrs. Phillips; he occasionally helped pay her bills and helped Mrs. Phillips by giving her money. The only point of contention between Ron Phillips and Denise Phillips is her relationship with Mr. Coe, a relationship which the Chancellor found justified the change in child custody and the forfeiture of the residence under the Property Settlement Agreement.

The Chancellor found that Mr. Coe was a "permanent resident", which triggered the forfeiture clause of the property settlement. Mrs. Phillips and Mr. Coe denied in their testimony that Mr. Coe was a permanent Mr. Phillips hired a private investigator, Mr. Marvin Reynolds, to watch the activities of Mrs. Phillips and Justin. Reynolds testified as to when he observed Mr. Coe's vehicle at Mrs. Phillips' home in April and May of 1988. Mr. Phillips also testified extensively in regard to when Mr. Coe's vehicle was at Mrs. Phillips' house and when it was at the base.

resident. They admitted that he did on occasion spend the night at Mrs. Phillips' home, but that he maintained a room at the barracks at the naval station. Mr. Phillips acknowledged that Mr. Coe had such a room.

Three of Mrs. Phillips' neighbors and friends corroborated Mrs. Phillips' testimony. They each testified that Mrs. Phillips was a good and attentive mother and that Justin had a good home life. Mrs. Inman testified that she had seen Mr. Coe at Mrs. Phillips' home, but had never seen any evidence of his living there; Mrs. Cordia, a former neighbor, who visited Mrs. Phillips at least once or twice weekly, had never seen any evidence that Mr. Coe resided there; and Mrs. Reid also stated that Mr. Coe had not moved in the house and did not reside there.

As to Justin's behavior, Mrs. Cordia, testified that Justin had difficulty when his parents were getting divorced but that he was happy and content afterwards; Mrs. Inman, who has a son with whom Justin plays, testified that Justin plays better with her son than prior to the divorce and is "more polite"; Mrs. Reid, who has two sons Justin plays with, testified that Justin is now a happy young man. She said that prior to the divorce he was very argumentative and did not play well.

Ron Phillips testified that Justin was happy until Denise Phillips and Billy Coe's friendship developed. Then, according to the father, Justin became very withdrawn, depressed and performed poorly in school. Mrs. Phillips' testified that Justin was much happier and was doing better in school. His grades started to improve at the end of his second school year, but even then he was unable to pull his reading up to passing. The only other evidence in the record concerning Justin is that he had to repeat second grade because he got an "F" in reading. Mr. Phillips testified that the reason Justin failed was because of Mrs. Phillips' and Mr. Coe's relationship. The record shows that Justin did poorly in first grade. Ron and Denise Phillips were given the option of keeping Justin back in first grade because he was in the low grade level. Mrs. Phillips wanted to hold Justin back, but Mr. Phillips refused. Justin has a neurological condition that causes him to have spells where he cannot wake up. This condition manifested itself when Justin was six to eight months old.

The Chancellor ordered that Mr. Phillips pick up Justin October 1, 1988, and take him away to his duty station. Mrs. Phillips' visitation rights were set as the first and third weekend of each month, spring break, the month of July and alternating Christmas Holidays. Mrs. Phillips was charged with all expenses of Justin's visitation.

STATEMENT OF THE LAW

I. DID THE TRIAL COURT ERROR IN CHANGING CUSTODY OF THE MINOR JUSTIN PHILLIPS FROM HIS MOTHER TO HIS FATHER SOLELY ON THE BASIS OF HIS MOTHER'S BRIEF INDISCRETIONS WITH A MAN, NOW HER HUSBAND; AND BY NOT REQUIRING ANY SHOWING THAT THE BEST INTEREST OF JUSTIN REQUIRED A CHANGE OF CUSTODY?

There are two prerequisites to a modification of child custody. First, the moving party must prove by a preponderance of the evidence that, after the entry of the judgment sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Second, if such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody. Pace v. Owens, 511 So.2d 489 (Miss.1987); Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984).

This court's scope of review is limited by the substantial evidence or manifest error rule. Dunaway v. Busbin, 498 So.2d 1218, 122 (Miss.1986); Torrence v. Moore, 455 So.2d 778 (Miss.1984). Therefore, the Chancellor's decision to modify child custody by awarding primary custody of Justin to Mr. Phillips, cannot be overturned unless "manifest error" is shown.

The thrust of the testimony to support the change in custody was that Mrs. Phillips had a romantic and sexual relationship with Mr. Coe. The record is limited in regard to the best interest of young Justin. The trial proceeded as though the question was whether the custodial parent's sexual relations with a third person outside of marriage warranted modification of the child custody order. Such a relationship by itself does not.

This court in Kavanaugh v. Carraway, 435 So.2d 697 (Miss.1983), stated that the Chancellor cannot use indiscretions of the custodial parent as the sole ground to change child custody but must look at the overall facts; the "totality of the circumstances" must be considered. Id. at 700. This court stated that "a change in custody should never be made for the purpose of rewarding one parent or punishing the other." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (emphasis added) Also, this court reversed the Chancellor, finding "manifest error" when the trial court changed custody from the mother to the father based solely on the fact that the mother's boyfriend had spent the night in her apartment on three occasions. This Court reasoned:

Furthermore, it was manifest error to hold that the facts and circumstances of this case support any modification of this child's custody. It must be recognized that uprooting a child from his mother, school, and environment was a jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously...