Tighe v. Moore

• Decision Date: 22 April 1963
• Docket Number: No. 42559,42559
• Parties: Bowman Stirling TIGHE v. Lou Frissell (Tighe) MOORE.
• Court: Mississippi Supreme Court

Page 910

151 So.2d 910

246 Miss. 649

Bowman Stirling TIGHE v. Lou Frissell (Tighe) MOORE.

No. 42559.

Supreme Court of Mississippi.

April 22, 1963.

Tighe & Tighe, Roger C. Landrum, Jackson, for appellant.

Bob Ray, Jackson, for appellee.

KYLE, Justice.

This case is before us on appeal by Bowman Stirling Tighe, the father of two minor children, Lynn Adelaide Tighe and Bowman Stirling Tighe, Jr., from a decree of the Chancery Court of the First Court District of Hinds County, rendered in favor of Mrs. Lou Frissell (Tighe) Moore, the mother of said minors, who had been awarded the custody of the minors, modifying a decree entered on December 28, 1960, granting temporary alternating custody and visitation rights to the appellant.

The record shows that the appellee was granted a decree of divorce from the appellant by the Chancery Court of the First Judicial District of Hinds County on August 7, 1959, in Cause No. 55,727, as shown on the Docket of said court. In the decree the court awarded to the appellee the custody of the two minor children, Bowman Stirling Tighe, Jr., and Lynn Adelaide Tighe; and reasonable rights of visitation were awarded to the appellant. The decree provided that the appellant should pay to the appellee the sum of $125 per month as alimony, and the additional sum of $125 per month for the support and maintenance of the two minor children. The appellee was ordered to keep the two minor children within the jurisdiction of the court, and was prohibited from removing the children beyond the jurisdiction of the court without permission granted by the court. An appeal was taken from that decree to this Court, and on October 24, 1960, this Court affirmed the decree of the lower court. Tighe v. Tighe, 239 Miss. 666, 123 So.2d 623, 124 So.2d 843.

While the cause was pending on appeal to this Court a decree was entered by the chancellor on April 28, 1960, granting the appellee permission to take the children out of the jurisdiction of the court, and providing for visitation by the appellant while the children were in Little Rock, Arkansas. In that decree the appellee was required to execute a bond in the sum of $1000 conditioned that she would faithfully perform all obligations set forth in the decree and would thereafter submit herself and the children to the jurisdiction of the court. The performance bond was filed and approved on May 23, 1960; and for a period of several months thereafter the appellee and the two children resided with the appellee's parents in Little Rock, Arkansas. On October 24, 1960, an order was entered granting the appellant additional visitation rights while the children were in Little Rock, Arkansas, during the Thanksgiving vacation period.

On December 21, 1960, the appellant and the appellee approved and agreed decree setting out certain visitation rights on behalf of the appellant, which was approved and signed by the chancellor on December 28, 1960. Six days before the signing of the last mentioned decree, the appellee, Mrs. Lou Frissell Tighe, married W. S. Moore, a practicing attorney in Jackson, where she and Mr. Moore now reside. The visitation rights of the appellant provided for in the agreed decree cover approximately three pages. The basic provisions of the decree were as follows: (1) Regular week end visits, to include every week end in the calendar year, except as thereinafter stated, from 4:00 P.M. on Friday until 7:30 P.M. on Saturday, and from 2:00 P.M. on Sunday to 7:30 P.M. on Sunday; (2) Special week end and holiday visits, to include week ends and holidays thereinafter stated, from 4:00 P.M. on the last day of school for children preceding the holiday until 7:30 P.M. on the day preceding the first day of school for children after the holiday; spring holidays or Easter; July 4th holidays; Labor Day holidays; Thanksgiving holidays; Christmas vacations and holidays; and additional special days, including Father's Day, Mother's Day, etc. The decree provided further that the provisions of the decree for divorce relating to the requirement that appellee obtain permission of the court prior to taking the minor children beyond the jurisdiction of the court, should be modified to the extent that such permission should not be thereafter required for out of state visits not exceeding fourteen days. Other provisions of the decree are not involved in the issue presented for our decision on this appeal.

In all of the above mentioned proceedings the petitions and decrees of the lower court were docketed in Cause No. 55,727, which was the docket number given to the original proceeding for divorce which was granted on August 7, 1959, and all of the above mentioned decrees were signed by S. V. Robertson, Jr., Chancellor.

On July 2, 1962, the appellee, Mrs. Lou Frissell (Tighe) Moore, the mother of the two children, filed her petition in the chancery court, in Cause No. 55,727, asking that the court modify the decree of December 28, 1960, relating to the visitation rights of the appellant. In her petition the petitioner alleged that there had been a material change in circumstances of the parties since the rendition of the agreed decree of December 28, 1960; that soon after the decree was entered she realized that the visitation arrangement established by the terms of the decree was harmful and injurious to the children, and that after waiting eighteen months she realized that the visitation arrangement set forth in the agreed decree was impracticable and unworkable. The petitioner alleged that the children during the last eighteen months had made many and lasting friends in their neighborhood that the children had arrived at the age when they could visit in the homes of their little friends during the week ends and have their litle friends visit in their homes; and it was not to the best interest of the children that they should be required to leave their home and friends practically every week end during the school year.

The petitioner further alleged that, because of the unreasonable and impracticable visitation schedule set out in the decree, the children did not have a sense of permanency in their home and had not been able to enjoy their association with their mother during the week ends, thus depriving them of the pleasure and enjoyment of having a mother to do with them and for them the little things that they would treasure for the rest of their lives; and that because of the confusion created by the visitation provided for in the decree, the children had become uncertain and emotionally unstable. The petitioner further alleged that the material changes in circumstances mentioned above were due in part to the fact that the children were older, and that it was for the best interest of the children that the former decree be modified. Petitioner also alleged that the performance bond required of her under the decree of April 28, 1960, should no longer be required of her, for the reason that she was now living with her husband in the City of Jackson and within the jurisdiction of the court, and there was no longer any necessity for such bond. Petitioner therefore prayed that process be issued for the defendant, commanding him to appear and show cause why the decree of December 28, 1960, should not be modified so far as visitation was concerned, and why the decree of April 28, 1960, should not be modified so as to eliminate the necessity for a performance bond.

The respondent filed his answer to the above mentioned petition on July 27, 1962; and in his answer the respondent denied that there had been a material change in the circumstances of the parties since the rendition of the decree of December 28, 1960. The respondent averred that the decree had been agreed to and signed by the petitioner and her attorney after every provision therein had been submitted to and discussed with her. The respondent denied that the custody and visitation established in the agreed decree was harmful or injurious to the children in any manner. He denied that the custody and visitation provisions of the agreed decree were unreasonable, impracticable or unworkable. The respondent also denied that the performance bond executed by the petitioner pursuant to the decree of April 28, 1960, should be cancelled. The respondent incorporated in his answer a 'special plea of res judicata.'

The cause was heard on July 27, 1962. The petitioner and the respondent both testified during the hearing, and several other witnesses were called to testify on behalf of the respective parties. It is not necessary that we undertake to summarize the testimony in this opinion. At the conclusion of the evidence the chancellor dictated into the record his findings of fact and his conclusions of law. The chancellor found that there had been a material change in the circumstances of the parties since the order of April 28, 1960, we entered granting permission to the petitioner to take the children out of the jurisdiction of the court, and that a material change of circumstances had taken place since the entry of the agreed decree dated December 28, 1960, and that the best interest of the children and the parties would be served, if the decree of December 28, 1960, were modified.

The chancellor therefore ordered that the decree dated April 28, 1960, be modified to the extent that the petitioner be relieved of the requirement to post a bond to insure her faithful performance of the orders of the court, and that the bond executed by the petitioner on May 5, 1960, be cancelled and that the sureties be relieved from further liability thereunder, except any liability which may have accrued during the time the bond was in effect.

The chancellor further ordered that the agreed decree entered on December 28, 1960, be modified and changed to the extent that the provisions of the decree giving the respondent custody and visitation rights with the children on regular week ends, including every week...