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ANNIE SUE TUCKER v. GEORGE RICHARD TUCKER

AUGUST 15, 1984

ANNIE SUE TUCKER
v.
GEORGE RICHARD TUCKER



BEFORE ROY NOBLE LEE, P.J., ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This matter comes before the Court on appeal of a Chancellor's decree refusing to modify custody of a ten year old female child only seven months after custody had been

 vested in the father. The Chancellor found that during that seven month period of time no material change in circumstances had occurred which adversely affected the welfare of the child and, accordingly, dismissed the application for modification. Having in mind our limited scope of review in matters such as this, and being unable to say that the Chancellor was manifestly in error with respect to his findings of fact or his ultimate decision, we affirm.

 II.

 On September 8, 1978, the Chancery Court of Rankin County entered its Final Decree that Annie Sue Tucker (now Annie Sue Tucker Kennedy), Appellant here, be granted a divorce of and from George Richard Tucker, Appellee here. The only portion of that decree of relevance here is that which placed the care, custody and control of Rachel Tucker, a female child born December 24, 1972, with her mother.

 Some three years, eleven months later, on August 16, 1982, the Chancery Court of Rankin County entered a Decree of Modification, finding that since the rendition of the divorce decree there had been a material change in circumstances adversely affecting the child, Rachel Tucker, and providing that the permanent care, custody and control of Rachel thereafter be vested in her father, George Richard Tucker. This modification decree granted visitation rights to the mother on alternating weekends. No appeal was taken.

 Approximately seven months later, on the weekend of March 13-14, 1983, the incident occurred which has given rise to round three between these parties. Rachel, then ten years of age, spent that weekend with her mother, who observed bruises on her body and concluded that Rachel had been abused by her father. As a result, Mrs. Kennedy, refused to allow Rachel to go back to her father.

 Almost immediately, on March 15, 1983, George Richard Tucker filed his motion to have his ex-wife cited for contempt for her failure to return Rachel at the end of the weekend visitation period. The following day, March 16, 1983, Mrs. Kennedy filed the instant motion to modify custody citing Rachel's father's alleged abusive conduct.

 On April 1, 1983, the Chancellor held a hearing on the consolidated counter-motions. As perhaps was inevitable, the testimony was in great conflict. There were bruises on Rachel's leg and back but it was highly disputed whether these bruises were the result of beatings by her father or Rachel's having fallen off her bicycle. Mrs. Kennedy also complained

 that the child was undernourished, not properly fed and clothed, and was always dirty, all of which Mr. Tucker denied. Mr. Tucker's final sin was that he had Rachel's hair cut - Mrs. Kennedy offered a picture into evidence showing that the child's hair was long and curly when she was younger.

 In the final analysis, the Chancellor held Mrs. Kennedy in contempt of court but suspended any further action on that matter upon assurances that the child would be returned immediately to her father. The Chancellor also found that the motion to modify custody should be overruled and denied, and a Final Judgment to that affect was entered May 5, 1983. In that judgment, the Chancellor expressly found

 "that there has been no showing that a material change in circumstances has occured between the parties that would ...


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