BEFORE WALKER, DAN LEE AND ROBERTSON
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from an order of the Chancery Court of the First Judicial District of Hinds County which modified
a prior separation agreement incorporated in the custody order. The modification effectively changed the primary custody of two of the three children of the parties from Lynda Gayle Hall Carraway (Rankin) Kavanaugh, appellant, and awarded the same to William Edward Carraway, appellee. We reverse.
Appeal was perfected to this Court after the chancellor refused to reopen the case to take additional evidence, but granted appellant's petition to appeal without supersedeas. Pending the delivery of Donna to the appellee, this Court granted an appeal with supersedeas. Six errors were assigned by the appellant, but we only consider assignment of error No. II, which is as follows:
The Lower Court erred in taking custody of the minor children of the parties from Appellant and granting such custody to the Appellee.
Lynda Gayle Kavanaugh, appellant, and William Carraway, appellee, are certainly no strangers to each other or to the courtroom. They have been married, divorced, remarried and redivorced. As a result of the first marriage they are the parents of three minor children, Donna, age 17; Michelle, age 15; and Brook, age 11. At the time of the second divorce the parties entered into an agreement regarding the custody and support of the children. The agreement, adopted by the chancellor in the final decree, dated October 11, 1976, provided that Mrs. Kavanaugh was to have custody of Donna and Brook, and Mr. Carraway was to have custody of Michelle. Both parents were granted reasonable visitation rights. Mr. Carraway was also ordered to pay $175 per month in child support, maintain medical and hospitalization insurance on the children, and pay one-half of any medical expenses not covered by the insurance.
On August 31, 1977, Carraway filed a Petition for Modification of Decree in an attempt to gain custody of Donna and Brook. He voluntarily dismissed the petition on January 25, 1978. Three and one-half years later, on October 5, 1981, Carraway filed another Petition for Modification of Divorce Decree, again seeking custody of the other two children. The petition alleged that Donna and Brook were inadequately cared for and that Mrs. Kavanaugh was involved in an adulterous affair with Tom Kavanaugh.
The proof offered at the modification hearing revealed that Mrs. Kavanaugh and Tom Kavanaugh were married little more than a week before. There was also ample testimony that the marriage plans were in the making, and a license applied for, prior to Mrs. Kavanaugh being served in this action. Both Mrs.
Kavanaugh and Tom Kavanaugh admitted that Tom had moved into her and the children's residence approximately five weeks before the time of the hearing. Each of them testified that they had experienced bad marriages and that living together before getting married was an effort to prevent making a similar mistake. Both admitted that living together was a moral error.
Other evidence at the hearing dealt more directly with the care and circumstances surrounding two of the three children. Both Kavanaughs testified that Donna and Brook are happy, well adjusted children. Both children own their own horses and compete in horse shows. Each child has a separate bedroom which is well furnished and comfortable. Mr. Carraway took the stand and testified that he would build onto his house to accomodate Donna and Brook should he be awarded custody.
Mrs. Kavanaugh al so testified concerning her and the children's relationship with each other and Mr. Carraway. She testified that Carraway was habitually late in sending support payments and was four months behind just two days prior to filing the instant action.
There was disputed testimony over whether Carraway had paid certain dental and medical bills of the children, Mrs. Kavanaugh said he had refused, and Carraway claimed the bills were not substantiated. Each side presented a number of character witnesses who perfunctorily testified to the parties' good character and parental qualities. The chancellor did not permit the children to testify.
The chancellor issued an opinion which did not address the care and circumstances of the children. Rather, the sole matter of concern to the chancellor was the month that Mr. and Mrs. Kavanaugh lived together prior to their marriage. The order stripped Mrs. Kavanaugh of custody of Donna and Brook, placing them in the care of their father, Mr. Carraway. The order also obligated Mrs. Kavanaugh to provide for the medical and dental expenses of the children. Mr. Carraway was ordered to pay the one month arrearage which existed at the time of the hearing.
DID THE LOWER COURT ERR IN TAKING CUSTODY OF THE MINOR CHILDREN OF THE PARTIES FROM MRS. KAVANAUGH AND GRANTING ...