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SARA ROBINSON SISTRUNK v. GERALD FINLEIGH McKENZIE

AUGUST 22, 1984

SARA ROBINSON SISTRUNK
v.
GERALD FINLEIGH McKENZIE



BEFORE ROY NOBLE LEE, ROBERTSON and DAN LEE

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

The Chancery Court of the First Judicial District, Hinds County, Honorable Paul Alexander, presiding, entered a decree July 2, 1982, modifying as to child custody a divorce decree rendered September 20, 1978, divorcing Sara (McKenzie) Sistrunk and Gerald Finleigh McKenzie. Sara Sistrunk has appealed from that modification decree and assigns two t2) errors in the trial below:

(1) The original decree cannot be modified in the absence of a material change in circumstances; and

 (2) The court improperly failed to consider the best interest of the minor child in scheduling visitation rights.

 The September 20, 1978, decree, in addition to granting a divorce between the parties, set out child support and custody. The three (3) children of the parties are Gerald Kenneth McKenzie, born February 20, 1963, Sara Katherine McKenzie, born February 20, 1963 (twins); and Laura Leigh McKenzie, born February 2, 1970. Permanent custody of the children was fixed in appellant and appellee was granted reasonable visitation rights with said children. Apparently, finances constitute no problem for the parties. Although appellee agreed to send the children to a senior college after their graduation from high school, if the children attended college in the State of Mississippi, the two older children chose not to attend college in the state. One is enrolled at Southern Methodist University and the other attends the University of Arkansas.

 The record reflects bitterness, hard feelings and strife have prevailed between appellant and appellee since their divorce. Even though appellee was granted reasonable rights of visitation with the children September 20, 1978, it is obvious from the record that the bitter feeling of appellant toward appellee has spilled over to the two oldest children. They have seen appellee infrequently since the divorce and do not care about seeing or having contact with him now. Appellant has married again and lives with her husband in Birmingham, Alabama, where they have established a

 home for the three children.

 The youngest child, Laura, is now fourteen (14) years of age. Appellee has had minimal contacts with her since the divorce, and, certainly, it cannot be said that he has had reasonable rights of visitation with her. The parties evidently cannot agree on any type of visitation, and appellant has ignored the provision of the September 20, 1978, decree granting him reasonable rights of visitation with the children. In that situation and the dilemma presented by it, surely the chancery court has the power to enforce its solemn decree. In so doing, the chancery court must find and set out what constitutes reasonable visitation.

 Appellant contends that there has not been a material change in the circumstances surrounding the parties and the children and that the original decree, therefore, cannot be modified. She relies upon O'Neal v. Warden, 345 So. 2d 610, 612 (Miss. 1977), where the rule was stated again:

 This Court has repeatedly held that when a decree has been entered and has become final which awards custody of a child to one parent that it cannot be materially modified or altered unless subsequent thereto there has been a material change of circumstances and then only after a finding based on substantial evidence that such change or circumstance materially affects the children's welfare adversely. [Citations omitted]. See Brocato v. Walker, 220 So. 2d 340 (Miss. 1969).

 In Tighe v. Moore, 246 Miss. 649, 151 So. 2d 910 (1963), the only change in circumstances was that the children had grown older. The chancellor changed the times involved and reduced the total amount of time granted to the father. This Court said:

 The mere fact that the children were older at the time the decree appealed from was entered would not in itself constitute such change in circumstances and surroundings as to justify a change in the general or permanent custody of the children from one party to the other. But the issue which the chancellor was called upon to decide did not involve the permanent custody of the children, but only a change in dates and periods of time during which the appellant was to have the temporary care and custody of the children for the purpose of visitation. The question which the chancellor was

 called upon to decide was whether or not the circumstances and surroundings of the children at the time of the hearing on the petition to modify the agreed decree were such as to require a change in the schedule of visitation ...


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