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RETHA LYNN POPE BALLARD v. TONY LEON BALLARD

JULY 27, 1983

RETHA LYNN POPE BALLARD
v.
TONY LEON BALLARD



BEFORE PATTERSON, HAWKINS, AND PRATHER

HAWKINS, JUSTICE, FOR THE COURT:

Retha Lynn Pope Ballard appeals from a final decree of the Chancery Court of the First Judicial District of Hinds County changing custody of the minor son born unto her marriage with Tonv Leon Ballard from her to the father.

The only issue we address on this appeal is whether there had been a sufficient change of circumstances followinq a divorce

 decree in which the custody of the child had been awarded to the mother to justify modification of the decree so that the father was given custody. The chancellor found there had been. Since we find he erred in his interpretation of the law, and was manifestly wrong, we reverse and render. FACTS

 Retha Lynn Pope Ballard and Tony Leon Ballard were married May 8, 1971. One child, Mark Jason Ballard, was born of this marriage on August 28, 1972.

 Following an uncontested divorce proceeding, the Chancery Court of the First Judicial District of Hinds County entered a final decree granting the parties a divorce, and awarding control and custody of Mark to his mother Retha. The decree approved an agreement between Retha and Tony, dated June 16, 1977, in which Retha was to have custody of Mark, with Tony given all reasonable visitation, the right to have Mark on two week-ends every month, alternate recognized holidays on alternate years, and two weeks in the summer.

 On January 16, 1978, Retha filed a petition to cite Tony for contempt for failure to pay on a car note. On May 3, 1979, Tony petitioned the court for modification of the decree to reduce child support payments, and give him two additional weeks in the summer, to which Retha filed a cross-bill.

 On March 2, 1982, Tony filed a petition to modify the divorce decree, claiming generally that Retha "is no longer the most fit, proper and suitable party to have the permanent custody and control" of the child. It also contended the child had grown older and "will benefit greatly from the male guidance and leadership" that Tony could provide. There were no specific allegations of misconduct by Retha. Retha answered and cross-claimed.

 Following the original divorce, Retha was employed in a hospital and lived for a time in an apartment complex in Jackson. Thereafter she moved to Calhoun City to a duplex, where she and Mark lived. She enrolled as a part-time student at the University of Mississippi and was employed as a laboratory technician in the Webster County General Hospital in Eupora. Tony, a native of Attala County, returned to live with his mother in a mobile home eleven miles from Kosciusko. His mother, Mrs. Loraine Ballard, was 61 years of age at the time of the hearing on June 28, 1982. Tony was employed as a bail bondsman and did some investigative work. His employment required him to be out at all hours of the night.

 Retha went to school three days a week, from 9:00 a.m. to 2:00 p.m. The driving time from Calhoun City to the University

 is approximatelv one hour. She also worked two days a week from 7:30 a.m. to 5:00 p.m. The driving time from Calhoun City to Eupora is approximately forty minutes. Retha was one year from a degree in business administration. She also worked on a number of week-ends at the hospital.

 Mark, almost nine at the time of the hearing, was a student in the Calhoun City public schools. He was a serious student and made better than average grades. Retha took him to church regularly, and helped him with his homework. Retha would return home each day approximately an hour after Mark got home. In that interim, a lady who lived next door in the other duplex, and who did not work, would keep check on Mark, seeing if he was in the duplex watching television, or outside playing with his dog or riding his bicycle.

 Retha testified she planned everything she did around Mark, trying to make the time she did have with him as valuable as she could for him. She participated in the "kiddy leagues" , and if she could not go, she arranged for another parent to take him.

 She said Mark loved his father and she did everything possible to keep that relationship intact, never ...


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