Thomas v. Purvis, 51974
| Decision Date | 04 June 1980 |
| Docket Number | No. 51974,51974 |
| Citation | 384 So.2d 610 |
| Parties | Donna Gail Purvis THOMAS v. Alvin L. PURVIS. |
| Court | Mississippi Supreme Court |
Laurel G. Weir, Philadelphia, Charles M. Little, Tupelo, for appellant.
Harold W. Davidson, A. R. Wright, Jr., Carthage, for appellee.
Before ROBERTSON, P. J., and PATTERSON and LEE, JJ.
LEE, Justice, for the Court.
Donna Gail Purvis Thomas filed a petition in the Chancery Court of Leake County, Honorable G. M. Case, presiding, against Alvin L. Purvis, Sr., et ux., and Alvin L. Purvis, Jr., to modify a final divorce decree wherein she sought permanent custody of two (2) minor children. 1 The chancellor, although granting partial relief, dismissed the petition and Mrs. Thomas has appealed.
The question presented is whether or not the chancellor erred in dismissing the petition and in declining to grant appellant permanent custody of the minor children.
On July 12, 1978, the Chancery Court of Leake County, Honorable E. G. Cortright, presiding, entered a final decree divorcing appellant from Alvin L. Purvis, Jr., and granting custody of Shanon Delynn Purvis, born April 14, 1973, and Heather Sheree Purvis, born November 9, 1974, to their paternal grandparents, Alvin L. Purvis, Sr., and Loutishey Purvis, with the right of their maternal grandparent, Mrs. Ruby E. Thornton, to have custody of said children from May 25 to August 25 in each year, and with certain visitation rights to the parents of said children. The decree recited that on April 21, 1978, the court had previously ordered that said children be placed in the temporary custody of the Leake County Welfare Department and that both parents of the children were unfit to have their custody.
The record indicates that two (2) days after entry of the decree, appellant married Thomas, her present husband, and that they have been residing in a mobile trailer, that she spends her entire time as a housewife, that her present husband is employed with an off-shore drilling company and is away from home approximately fifty percent (50%) of the time, and that appellant has reformed and has settled down. Mrs. Ruby E. Thornton, the maternal grandparent, has been ill, and, during the three-month summertime period, when she had custody rights, appellant has exercised that privilege. The children have been well cared for and are satisfied and happy in the Purvis home. Their father, Alvin L. Purvis, Jr., resides approximately one hundred (100) yards from the Purvis, Sr. home, and his visitation with the children is facilitated by that fact.
After hearing all testimony on the petition to modify the final decree, the chancellor remarked that the paternal grandparents did not take the children from the natural parents, but they were willing to accept the responsibility of the children to prevent them from being reared in a foster home by persons not related to them and that they were being properly reared and loved by those grandparents. He said that there was no doubt a mother would rear her children in a manner which could not be duplicated by any other person who might try to fulfill her role, even including grandparents. The chancellor commended appellant for her change in conduct and for her desire to have custody of the children. He stated that she should not be forever denied the opportunity to have the children and that she should not interpret his findings as a permanent bar to relief at some future date when circumstances might more appropriately warrant same.
The chancellor decreed that the proof did not sustain the allegations of the petition to modify the decree and that appellant failed to establish and prove a change of circumstances had occurred which materially affects the children's welfare adversely, and he dismissed the petition for modification. However, he did modify the decree of July 12, 1978, by providing that, thereafter, appellant have custody of the children for the three-month period previously provided for the maternal grandmother.
The appellees rely upon the principle stated many times that a court will not modify custody provisions of a decree unless there has been a material change of circumstances which adversely affect the child's welfare. Bowden v. Fayard, 355 So.2d 662 (Miss.1978); O'Neal v. Warden, 345 So.2d 610 (Miss.1977). Also, they call attention to the rule that a chancellor will not be reversed on a finding of fact unless he is manifestly wrong. Smith v. Smith, 380 So.2d 1267 (Miss.1980).
Appellant cites Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973) which involved a contest between the natural mother of a child and the paternal grandparents, wherein the Court said:
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