Tucker v. Tucker

• Citation: 453 So.2d 1294
• Decision Date: 15 August 1984
• Docket Number: No. 54802,54802
• Parties: Annie Sue TUCKER (Kennedy) v. George Richard TUCKER.
• Court: United States State Supreme Court of Mississippi

Page 1294

453 So.2d 1294

Annie Sue TUCKER (Kennedy) v. George Richard TUCKER.

No. 54802.

Supreme Court of Mississippi.

Aug. 15, 1984.

Albert Dickens, Jr., Jackson, for appellant.

Michael P. Younger, Johnston & Younger, Brandon, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

This matter comes before the Court on appeal of a Chancellor's decree refusing to modify custody of a ten year old female child only seven months after custody had been vested in the father. The Chancellor found that during that seven month period of time no material change in circumstances had occurred which adversely affected the welfare of the child and, accordingly, dismissed the application for modification. Having in mind our limited scope of review in matters such as this, and being unable to say that the Chancellor was manifestly in error with respect to his findings of fact or his ultimate decision, we affirm.

II.

On September 8, 1978, the Chancery Court of Rankin County entered its Final Decree that Annie Sue Tucker (now Annie Sue Tucker Kennedy), Appellant here, be granted a divorce of and from George Richard Tucker, Appellee here. The only portion of that decree of relevance here is that which placed the care, custody and control of Rachel Tucker, a female child born December 24, 1972, with her mother.

Some three years, eleven months later, on August 16, 1982, the Chancery Court of Rankin County entered a Decree of Modification, finding that since the rendition of the divorce decree there had been a material change in circumstances adversely affecting the child, Rachel Tucker, and providing that the permanent care, custody and control of Rachel thereafter be vested in her father, George Richard Tucker. This modification decree granted visitation rights to the mother on alternating weekends. No appeal was taken.

Approximately seven months later, on the weekend of March 13-14, 1983, the incident occurred which has given rise to round three between these parties. Rachel, then ten years of age, spent that weekend with her mother, who observed bruises on her body and concluded that Rachel had been abused by her father. As a result, Mrs. Kennedy, refused to allow Rachel to go back to her father.

Almost immediately, on March 15, 1983, George Richard Tucker filed his motion to have his ex-wife cited for contempt for her failure to return Rachel at the end of the weekend visitation period. The following day, March 16, 1983, Mrs. Kennedy filed the instant motion to modify custody citing Rachel's father's alleged abusive conduct.

On April 1, 1983, the Chancellor held a hearing on the consolidated counter-motions. As perhaps was inevitable, the testimony was in great conflict. There were bruises on Rachel's leg and back but it was highly disputed whether these bruises were the result of beatings by her father or Rachel's having fallen off her bicycle. Mrs. Kennedy also complained that the child was undernourished, not properly fed and clothed, and was always dirty, all of which Mr. Tucker denied. Mr. Tucker's final sin was that he had Rachel's hair cut--Mrs. Kennedy offered a picture into evidence showing that the child's hair was long and curly when she was younger.

In the final analysis, the Chancellor held Mrs. Kennedy in contempt of court but suspended any further action on that matter upon assurances that the child would be returned immediately to her father. The Chancellor also found that the motion to modify custody should be overruled and denied, and a Final Judgment to that affect was entered May 5, 1983. In that judgment, the Chancellor expressly found

"that there has been no showing that a material change in circumstances has occurred between the parties that would warrant a change in custody...."

III.

Annie Sue Tucker Kennedy has perfected her appeal to this Court and has assigned a single error, to wit: that the trial judge erred in holding that there was not a material change in circumstances to warrant the transfer in custody of the minor child of the parties, Rachel Tucker, to the Appellant.

Appellant's first error is her failure to recognize the limited scope of review of a custody decree on appeal to this Court. For example, in Yates v. Yates, 284 So.2d 46 (Miss.1973), we stated

"... we, as an appellate court, will affirm the decree if the record shows any ground upon which the decision may be justified ... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child." 284 So.2d at 47

In this and many other contexts, findings of fact made by a chancellor may not be set aside or disturbed on appeal unless manifestly wrong. This is so whether the finding relates to an evidentiary fact question, e.g., did George Richard Tucker beat Rachel, or an ultimate fact question, e.g., has there been a material change in circumstances which adversely affects the child's welfare. Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983).

B.

The rules of law applicable to cases such as these are well-settled. A decree for child custody shall not be modified so as to change custody from one parent to the other unless, subsequent to the original decree, there has been a material change in circumstances under which the child is living with the custodial parent which adversely affects the child's welfare. Denney v. Denney, 453 So.2d 693, 694 (Miss.1984); Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983) Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); O'Neal v. Warden, 345 So.2d 610 (Miss.1977).

The sort of change which would indicate the desirability of a change of custody, legally speaking, is one in the overall living conditions in which the child is found. The "totality of the...