Lucas v. Lucas

415 So. 2d 709, 1982 Miss. LEXIS 2038
CourtMississippi Supreme Court
DecidedJune 9, 1982
DocketNo. 53589
StatusPublished
Cited by5 cases

This text of 415 So. 2d 709 (Lucas v. Lucas) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. Lucas, 415 So. 2d 709, 1982 Miss. LEXIS 2038 (Mich. 1982).

Opinion

DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Lauderdale County wherein Billy Wayne Jenkins, appellee, was attempting to adopt Madrid Phillip Lucas, a ten-year-old male child, who is the natural son of Rita Carol (Lucas) Jenkins. Rita Carol Jenkins was awarded custody of the child by a 1975 Alabama divorce decree. Phillip Lucas, appellant, the child’s natural father, posed an objection to the adoption, denying he had abandoned the child.

Appellees subsequently amended the petition for adoption asking for a judgment against Phillip Lucas for child support payments in arrears in the event the adoption request was denied. The chancellor denied the adoption; however, he granted Rita Jenkins a judgment for $2500 child support that was agreed to be in arrears. The chancellor further ordered that visitation rights be reduced from two weekends per month and two months each summer to one weekend per month and one month in the summer; that the visitation rights of the appellant with Madrid Phillip Lucas cease until child support payments in arrears were made, and that appellant post a $2000 bond conditioned on his returning the child to the appellees after visitation. Aggrieved of the chancellor’s decision, Phillip Lucas appeals and assigns the following errors for reversal:

1. The lower court erred in granting appellees a judgment for arrearages in child support based on an Alabama decree and ordering appellant’s visitation rights to cease until paid, in changing his visitation rights provided by the Alabama decree, in adjudging him to be in contempt of the Mississippi and Alabama courts, and in ordering him to post a bond to return his child to appellees after visitations, in this adoption proceeding.
2. The lower court erred in granting a judgment for child support arrearages against appellant, an Alabama citizen, based on an Alabama decree, and ordering his visitation rights to cease until paid, in changing his visitation rights provided by the Alabama decree, in adjudging him to be in contempt of the Mississippi and Alabama courts, and in ordering him to post a bond requiring him to return his child to appellees in Mississippi after visitations, under the full faith and credit clause of the United States Constitution.
3. The lower court erred in modifying the decree of the Circuit Court of Choctaw County, Alabama, by changing appellant’s visitation rights provided by the Alabama decree.
4. The lower court erred in ordering appellant to post a $2000 bond conditioned on his returning his child to appel-lees.

Phillip Lucas and Rita Lucas Jenkins were divorced in Choctaw County, Alabama on May 23, 1975. The divorce decree incorporated an agreement between the parties which provided inter alia that Mrs. Jenkins would have care, custody and control of the parties’ minor child subject to reasonable visitation rights of Lucas. The agreement provided for child support payments in the amount of $100 per month. On March 17, 1977, Lucas was found by the Alabama court to be $450 in arrears in child support payments. An equitable judgment in this amount was rendered against Lucas.

[711]*711Subsequent to the divorce, Rita Lucas Jenkins married the petitioner, Billy Wayne Jenkins. The Jenkins, along with the minor child, reside in Lauderdale County, Mississippi. Phillip Lucas is still a resident of Choctaw County, Alabama.

Before the petition for adoption was filed, appellant had paid very little, if any, child support since May 1978, but resumed child support payments after the petition was filed. At the time of the trial it was stipulated that the appellant was $2500 in arrears in his child support payments.

The appellees sought to adopt the child over appellant’s objection on the ground that appellant had in effect abandoned the child due to his continued refusal to pay child support. The appellees subsequently amended their petition asking for a judgment against appellant for the amount of child support payments in arrears.

Both Rita Lucas Jenkins and Billy Wayne Jenkins asserted at the hearing that the child should be adopted to Billy Wayne Jenkins in order to provide the child with a more stable family relationship. Rita Carol Jenkins and Billy Wayne Jenkins also testified that the present visitation arrangements precluded the child from participating in certain summer programs such as little league baseball and swimming lessons due to his extended visitation with his father during the summer months. At the conclusion of the hearing, the chancellor denied the request for adoption, but awarded Rita Carol Jenkins a judgment for past-due child support and further reduced visitation to one weekend per month and one month during the summer vacation. The chancellor further ordered the appellant to post a $2000 bond for redelivery of the child after visitation.

Did the chancellor err in adjudicating other issues since the appellees primarily sought adoption of the child?

The petition and the amended petition in this case appear to be by Madrid Phillip Lucas, without legal guardian, by his adult mother and next friend Rita Carol Jenkins. He is joined in the petition by Rita Carol Jenkins, individually, and further, is joined in said petition by Billy Wayne Jenkins. However, the petitioner in an adoption proceeding must be that party with real interest who is seeking to adopt the child, it being necessary to have the child joined in the petition by a guardian ad litem or otherwise. It is also necessary to have both parents join in the petition or if the natural parents do not join, they must be made parties.

As is evidenced by the reading of the whole of the petition, Rita Carol Jenkins joined in the petition as the mother seeking the adoption to her husband and current stepfather of Madrid Phillip Lucas, namely, Billy Wayne Jenkins. Rita Carol Jenkins did not need to adopt the child as she is the natural mother thereof. Madrid Phillip Lucas is not a proper petitioner in that he is the subject of the petition for adoption, therefore leaving the real party in interest and the proper petitioner Billy Wayne Jenkins.

Appellant contends it was error for the chancellor to adjudicate any other issues aside from the adoption matter. We agree, and state that this Court so held in Ford v. Litton, 211 So.2d 871 (Miss.1971), which involved an adoption contest between a natural grandmother and step-grandfather and the minor child’s natural father. Custody of the minor child had previously been awarded to the child’s mother who consented to the adoption. The natural father, aside from objecting to the adoption, filed a cross-petition wherein he prayed for a modification of the divorce decree. In upholding the chancellor’s dismissal of the father’s cross-petition, this Court stated:

The chancellor was correct in dismissing the cross-petition praying for a change of custody. Where there has been a substantial change in the circumstances of the parties, a petition may be filed in the original divorce suit. § 2743 Miss.Code 1942 Ann. (1956).
Visitation privileges and custody are matters to be considered and decided in the first instance by the chancery court upon the filing of proper petition therefor. (211 So.2d at 874).

[712]*712Furthermore, appellees failed to allege a material change in circumstances subsequent to the rendition of the Alabama divorce decree.

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Bluebook (online)
415 So. 2d 709, 1982 Miss. LEXIS 2038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-lucas-miss-1982.