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HOLLIS C. CHEEK v. PAMELA B. CHEEK RICKER

JUNE 01, 1983

HOLLIS C. CHEEK
v.
PAMELA B. CHEEK RICKER



BEFORE PATTERSON, C.J., ROY NOBLE LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT

I.

On July 7, 1981, Hollis C. Cheek, complainant below and appellant here, filed against his ex-wife, Pamela B. Cheek, now Mrs. Pamela B. Cheek Ricker, a bill to change child custody. He alleged a material change in circumstances since the divorce of the parties and the original award of custody of their son, who will be nine years old on July 22, 1983. He argued that, as a result of this change of circumstances, custody of the child should be placed with him.

 The chancellor listened carefully and patiently to all of the evidence in an unnecessarily adversary proceeding and in the end declined to alter the substance of the original custody order. Intimating that we possess more of the wisdom of Solomon than the chancellor, Hollis C. Cheek appeals to this Court. For the reasons stated below, we affirm.

 II.

 There was far more contentiousness between the parties than there was conflict in the facts at the trial below. We will summarize briefly the facts which seem pertinent to the disposition this appeal.

 Hollis and Pamela were married in Leake County, Mississippi, on December 15, 1967. They have one child, a son, Zachary Chase Cheek, who was born July 22, 1974. Chase was adopted.

 Hollis and Pamela finally separated in early 1978. On July 11, 1978, the Chancery Court of Attala County, Mississippi, entered a final decree of divorce forever dissolving and declaring for naught the bonds of matrimony theretofore existing between them. The divorce was granted on grounds of" irreconcilable differences ". See Miss. Code Ann. 93-5-2 (Supp. 1982).

 Incident to the divorce proceedings each party acknowledged that the other was a fit person to have custody of the child. In their joint bill for divorce filed May 8, 1978, Hollis and Pamela each stated under oath:

 The said Pamela B. Cheek is a fit and suitable person to be awarded the permanent and primary care, custody, and control of said minor child, with reasonable visitation on the part of the said Hollis C. Cheek. The said Hollis C. Cheek is likewise a fit and suitable person to be awarded the custody of said child, but the parties feel that the best interest of said child would be that the mother have the primary custody.

 In reliance upon these representations, the Chancery Court entered a final decree of divorce on July 11, 1978, and provided that

 Pamela B. Cheek is awarded the permanent and primary care, custody, and control of the minor child Zachary Chase Cheek, . . . . Hollis C. Cheek shall have the right of reasonable visitation of said child at all reasonable times and places, including the right to have said child visit with him as agreeable to the said Pamela B. Cheek.

 After the separation but prior to the divorce Pamela moved to Starkville where she became a student at Mississippi State University. During this period of time she developed a

 romantic relationship with another man. Hollis was aware of this relationship on May 5, 1978, when he signed and swore to the statement in the joint bill for divorce that Pamela was a fit person to have custody of the child. This relationship ended in May of 1979. Upon her graduation from Mississippi State University, Pamela moved to Houston, Texas.

 There was substantial testimony adduced at trial that, while Pamela and the child lived in Starkville, she was a good mother. Several credible witnesses testified that Pamela showed constant love and affection for her son, that she took him to church regularly and that she otherwise fulfilled her filial obligations to him.

 In February of 1980, Pamela and her son Chase moved to Houston, Texas. There Pamela secured employment in the Marketing Department of Continental Telephone Company. She leased an apartment in what is supposedly the best school district in the area and enrolled Chase in a kindergarten. She joined the Clear Lake Baptist Church, which she and her son attended regularly.

 At trial Pamela presented testimony from four witnesses who came from Houston, Texas, one of whom was her pastor at the Clear Lake Baptist Church. This testimony was substantial and impressive in support of the proposition that Pamela was a concerned, caring and loving mother.

 In February of 1981 Pamela began seeing James C. Ricker, then age 44, who was married but separated. We are informed that shortly after the trial of ...


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