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BARBARA SWARTZFARGER CUNLIFFE v. PAUL GEE SWARTZFAGER

SEPTEMBER 07, 1983

BARBARA SWARTZFARGER CUNLIFFE
v.
PAUL GEE SWARTZFAGER, JR.



BEFORE WALFER, ROY NOBLE LEE AND HAWKINS

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

Barbara Swartzfager Cunliffe filed a contempt proceeding in the Chancery Court of the Second Judicial District of Jones County, Mississippi, against Paul Gee Swartzfager, Jr., for failure to pay child support. At the conclusion of all the evidence, the lower court, Honorable J. Shannnon Clark, presiding, entered an order denying the relief sought and dismissed the petition. Mrs. Cunliffe has appealed and assigns three errors in the trial below.

The parties were divorced in 1970 by the Circuit Court of Dade County, Miami, Florida. Appellant was granted custody of the two minor children of the marriage,

 Helen Elizabeth Swartzfager, born November 5, 1962, anad Paul Gee Swartzfager, III, born May 5, 1964. Appellee was permitted visitation rights with the children and was required to pay monthly support for them.

 In March, 1975, appellant remarried and her husband was sent to Campinas, Brazil, as an executive of the B. F. Goodrich Company. The children spent part of the summer in 1975 with appellee, and then went back to Laurel and spent Christmas of 1975 with appellee. He decided not to return the children to their mother in Brazil. which resulted in appellant's spiriting away the boy, Paul Gee Swartzfager, III, after finding him at a movie theater in Laurel. Shorter prior therto, appellee filed a petition to modify the child custody decree entered by the Florida court, seeking custody of the children in himself. Preliminary motions were filed by the attorney for appellant; she entered her appearance; the court heard the matter and granted custody of Helen Elizabeth Swartzfager to appellant; and ordered appellee to pay $200.00 per month for the support of the boy.

 The record reveals that for a period of approximately five years there existed strife and bittereness between the parties. Appellant lived during that time in Brazil and Bogota, Columbia, but, at intervals in the summers, she, her husband and the boy would visit in Florida where the Cunliffes owned a condominium. Appellant contended that appellant resided, that she concealed her whereabouts and address from him, and that he was not permitted to communicate with or see his son. Suffice it to say, in this regrettable situation, appellee did not see the boy until he attained the age of eighteen, and appellant did not see her daughter for the same period of time. Helen Swartzfager dud visit her mother in Bogota, Colombia, during Christmas of 1979, when she became eighteen years old.

 The lower court held that appellee was not required to pay the support ordered for Paul Gee Swartzfager, III, and was forgiven the unpaid amounts due to the fact that he found appellant had concealed the boy and had prevented appellee from exercising visitation rights with him. Appellee admitted at the trial on cross-examination that he was in arrears for child support in the sum of $7,140.00 as charged by the appellant. The lower court also declined to allow appellant attorney's fees and medical bills.

 I. - II.

 Did the chancellor commit manifest error in ordering the appellant to produce the minor child of the parties as a material witness for the appellee?

 Did the chancellor commit manifest error in assigning more weight to the testimony of appellee than to the testimony of appellant when the testimony of appellant provided the court with more consistent and credible evidence?

 The lower court ordered appellant to have the child in court for the contempt hearing. She appeared without him but produced a note purportedly written by the boy to the effect that he did not want to come to court and declined to do so. Appellee filed a motion to dismiss because of failure to perform the order. The court took same under advisement and later overruled it.

 The appellant next contends that the lower court erred in assigning more weight to the testimony of appellee than to that of appellant and that the testimony of appellant was more consistent and more credible.

 We have examined the record pertaining to those two assignments of error and are of the opinion that ...


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