Bittick v. Bittick

987 So. 2d 1058, 2008 Miss. App. LEXIS 402, 2008 WL 2805708
CourtCourt of Appeals of Mississippi
DecidedJuly 22, 2008
DocketNo. 2007-CP-00401-COA
StatusPublished
Cited by1 cases

This text of 987 So. 2d 1058 (Bittick v. Bittick) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bittick v. Bittick, 987 So. 2d 1058, 2008 Miss. App. LEXIS 402, 2008 WL 2805708 (Mich. Ct. App. 2008).

Opinion

ISHEE,

J., for the Court.

¶ 1. Thomas G. Bittick and Stacy Elizabeth Bittick were married in 1997. They had one child together. Thomas and Stacy received an irreconcilable differences divorce in August 2004. The decree granting their divorce contained a property settlement agreement and custody agreement. The custody agreement granted joint legal custody to both Thomas and Stacy, but primary physical custody to Stacy. Three months after the divorce, Stacy filed a complaint for contempt against Thomas and moved to modify the [1060]*1060custody agreement. Thomas counterclaimed for contempt against Stacy and also moved for a modification of the custody agreement. The case was heard in Lauderdale County during a trial lasting three days in August 2006 and one additional day in October 2006.

¶ 2. The chancellor found that a modification of the primary custody arrangement was not necessary, but he did modify certain aspects of the visitation schedule set out in the original divorce decree. The chancellor declined to find either party in contempt for their actions. Aggrieved, Thomas appeals, asserting that: (1) the chancellor erred in failing to find a material change in circumstances sufficient to support a change in physical custody; (2) the chancellor erred by modifying the visitation schedule; (3) the chancellor erred in ordering him to pay $200 in child support for June and July 2006; (4) the chancellor erred in failing to order Stacy to pay $5,531 in mortgage arrearage payments; and (5) the chancellor erred in failing to find Stacy in contempt of court. Finding no error, we affirm the judgment of the chancery court.

STANDARD OF REVIEW

¶ 3. In child custody eases, “[a] chancellor’s decision cannot be disturbed ‘unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or an erroneous legal standard was applied.’ ” Barnett v. Oathout, 883 So.2d 563, 566(¶ 6) (Miss.2004) (quoting Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)). Furthermore, “[t]he chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So.2d 1284, 1288(¶ 14) (Miss.2001). In custody matters, this Court “shall not disturb the decisions of chancellors unless it is clear that justice and the law require us to do so.” Id. (citing Chamblee v. Ckamblee, 637 So.2d 850, 860 (Miss.1994)).

DISCUSSION

I. Whether the chancellor erred in failing to find a material change in circumstance sufficient to support a change in custody.

¶ 4. Thomas argues that the chancellor erred in failing to find a change in material circumstances in Stacy’s home sufficient to support a modification of the custody arrangement. In support of his argument, Thomas points to the fact that he was denied regular weekend visitations for a period of approximately nine months and that he was denied approximately 192 telephone conversations over a two-year period, both of which were contained in the original visitation schedule.

¶ 5. Generally, in order to obtain a new custody order, the non-custodial parent must first show “that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Lambert v. Lambert, 872 So.2d 679, 683-84(¶ 18) (Miss.Ct. App.2003) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). Under this rule, only after a finding of a material change has been made can the chancellor even consider altering the custody arrangement. Id. at 684-85 (¶¶ 22-25).

¶ 6. In this case, the chancellor correctly identified Thomas’s primary argument concerning material change to be based on the facts he alleged about Stacy’s interference with his visitation. Normally, visitation issues are not considered by the chancellor when entertaining a motion for a change of custody. Ellis v. Ellis, 952 So.2d 982, 994(¶ 27) (Miss.Ct.App.2006). However, we have noted that “[wjhile visitation issues should not normally be con[1061]*1061sidered by the lower court when hearing a plea for custody modification, the supreme court has identified that interference with visitation may constitute a material change in circumstances given sufficient severity.” Id. Ellis involved, among other things, the testimony of three different child psychology experts on the negative impact that the visitation schedule was having on the child.

¶ 7. Thomas asserts that Stacy’s interference with his weekend visits and telephone calls affected his relationship with his son to such an extent that the chancellor erred in failing to find a material change in circumstances. We disagree. Although there was evidence adduced at trial that Stacy interfered with Thomas’s visitation rights under the custody agreement, there was also evidence presented that Thomas had, to some degree, interfered with Stacy’s rights under the agreement as well. Furthermore, none of the evidence presented to the chancellor gives this Court any reason to believe that Stacy’s interference with Thomas’s visitation rights was of a sufficient degree of severity that the chancellor was manifestly wrong or clearly erroneous in failing to find a material change in circumstances due to the issues with visitation. Accordingly, we find Thomas’s argument on this issue to be without merit.

II. Whether the chancellor erred in modifying the visitation schedule.

¶ 8. Thomas argues that the chancellor erred in modifying the visitation schedule because that modification unnecessarily interfered with his right to contract. It is true that “a property settlement agreement is no different than any other contract, ‘and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.’” Beezley v. Beezley, 917 So.2d 803, 807(¶ 13) (Miss.Ct.App. 2005) (quoting East v. East, 493 So.2d 927, 931-32 (Miss.1986)) (emphasis added).

¶ 9. The same, however, is not true of custody agreements and visitation schedules because they affect the interests of children. To modify a visitation schedule, the chancellor need only find that the original schedule is not working and a change is in the best interest of the child. H.L.S. v. R.S.R., 949 So.2d 794, 798(¶9) (Miss.Ct.App.2006) (citing Ellis v. Ellis, 840 So.2d 806, 812(¶25) (Miss.Ct.App. 2003)).

¶ 10. In this case, the record is replete with evidence indicating that the visitation schedule agreed to by Thomas and Stacy in the original divorce decree was not working, and that a modification of that schedule could benefit their son. We find absolutely no evidence that the chancellor was manifestly wrong or clearly erroneous in modifying the visitation schedule. Accordingly, we find Thomas’s argument on this issue to be without merit.

III. Whether the chancellor erred in ordering Thomas to pay child support for June and July 2006.

¶ 11. Thomas argues that the chancellor erred by ordering him to pay child support for the months of June and July 2006. Thomas bases his argument on a clause contained in his original divorce decree and property settlement agreement that allowed him a “grace period” of sixty days relief from paying the agreed $200 a month child support.

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987 So. 2d 1058, 2008 Miss. App. LEXIS 402, 2008 WL 2805708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bittick-v-bittick-missctapp-2008.