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JAMES BICKHAM CLEMENTS v. MARY KATHRYN CLEMENTS YOUNG

NOVEMBER 20, 1985

JAMES BICKHAM CLEMENTS
v.
MARY KATHRYN CLEMENTS YOUNG



BEFORE PATTERSON, C.J., HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

At its core this case tests the limits upon a divorced custodial parent's prerogative to incur substantial expenses for orthodontics care for children and require the supporting non-custodial parent to pay the bill. Absent an agreement to the contrary, sound practical considerations mandate that substantial discretion in such matters be vested in the custodial parent, albeit not unfettered discretion. Here the agreement of the parties, incorporated into the divorce decree, required the father to pay the medical and dental expenses of the children, so long as the care and treatment be reasonably necessary and its cost reasonable in amount. We

 hold here that the mother has not abused her discretion as the custodial parent to select the orthodontist to care for the children and enforce the prior decree according to its tenor.

 II.

 James Bickham (Jimmy) Clements and Mary Kathryn Clements (Young) were married in Holmes County, Mississippi, on May 23, 1966. They have two children, Jeremy Branch Clements, born September 17, 1969, and Susan Shea Clements, born September 29, 1972. Jimmy and Mary Kathryn finally separated in December of 1974. On March 14, 1975, in anticipation of obtaining a divorce, they executed a formal written Separation and Property Settlement Agreement. Thereafter, on March 17, 1975, the Chancery Court of the First Judicial District of Hinds County, Mississippi, entered a final decree of divorce terminating the marriage. The divorce was granted on grounds of habitual cruel and inhuman treatment of Mary Kathryn by Jimmy. Miss. Code Ann. 93-5-1 [Seventh] (1972). The divorce decree expressly provided that the Separation Agreement should be incorporated therein. Pursuant thereto, custody of the children was vested in Mary Kathryn.

 Each of the children suffers a congenital dental condition known as malocclusion of the teeth or "overbite" . These conditions were inherited from the children's father and were known to the parties prior to the divorce. In this state of affairs the parties included in the separation agreement, subsequently court approved, a provision requiring that Jimmy Clements "pay all reasonable and necessary medical and dental expenses of the minor children" .

 In due course thereafter, each party entered a second marriage. Mary Kathryn has become Mrs. Richard Young.

 Two and a half years later the parties were back in court, as Mary Kathryn moved to cite Jimmy for contempt and Jimmy moved the court for an order modifying various provision of the prior decree. On September 12, 1978, the Chancery Court entered its decree denying so much of Jimmy's motion as sought to award him custody but granting his motion to the extent of reducing his child support obligation from $465.00 per month to $350.00 per month, effective September 1, 1978. The Chancery Court refused to cite Jimmy for contempt. The effect of the October 12, 1978 decree was to leave the permanent care, custody and control of the children vested in Mary Kathryn with reasonable visitation rights being reserved to Jimmy.

 Round Three between Jimmy and Mary Kathryn was commenced

 on October 14, 1982. On that date Mary Kathryn filed a motion asking that Jimmy be held in contempt of court for his failure and refusal to pay medical, dental and drug bills she had incurred on behalf of the children. The matter came on for hearing in open court on July 12, 1983, at the conclusion of which the trial judge ruled in substance in favor of Mary Kathryn. By judgment entered on July 21, 1983, the Chancery Court held that Jimmy was in arrears in his medical, dental and drug expense obligations and ordered payment to Mary Kathryn of the sum of $5,633.28 plus costs. This judgment included a $250.00 attorneys fee awarded to Mary Kathryn plus her $30.00 advance for court costs. In addition, the judgment of July 21, 1983, found Jimmy in contempt of court and committed him to the custody of the Sheriff of Hinds County for confinement until he purge himself of his contempt by payment of the aforesaid sum of $5,633.28.

 Immediately thereafter Jimmy perfected the present appeal in connection with which the Chancery Court stayed the effect of the judgment rendered by allowing this appeal with supersedeas. The matter is now ripe for our review.

 B.

 Jeremy Branch Clements and Susan Shea Clements have suffered from malocclusion of the teeth or the inability of the bite of the teeth to meet as it is supposed to meet. This "overbite" or "rabbit teeth" has apparently been inherited from the children's father. This condition has caused Susan to have a severe frontal lisp, a deviant speech pattern, further complicated by tongue thrusting, and a deviant swallow. Susan has been treated by a speech pathologist contemporaneously with orthodontic dental care by Dr. Robert B. Parkes of Jackson, Mississippi. Jeremy has been treated with orthodontic dental care by Dr. Parkes. This treatment appears to have been successful.

 Mary Kathryn selected Dr. Parkes to perform the orthodontic dental services for the two children for a variety of personal reasons: Dr. Parkes had treated Mary Kathryn when she was a teenager and had treated other members of her family. She regarded him as a very good orthodontist and has complete faith in him.

 Jimmy Clements does not deny that the children were in need of orthodontic dental care. His sole complaint seems to be that Dr. Parkes charges too much. Jimmy offered evidence that during a brief period of time when Jeremy was living with him, Jeremy was treated by Dr. Alex C. Shotts, Jr., another orthodontist practicing in Jackson. It appears that, prior to

 the performance of much of the orthodontics work at issue, Jimmy and Mary Kathryn discussed the matter. Jimmy well knew Mary Kathryn planned to send the children to Dr. Parkes and he objected. Jimmy countered that he would pay all orthodontic expenses, provided Mary Kathryn would send the children to Dr. Shotts. Jimmy's primary reason for preferring Dr. Shotts was his view that the children could have received the same orthodontic care from Dr. Shotts and for a lot less money. Mary Kathryn's position throughout has been that, under the separation agreement/divorce decree, she has substantial discretion to select the orthodontist to provide the care the children need, notwithstanding any objection Jimmy may interpose. The trial judge accepted this view.

 III.

 Our law necessarily provides that the award of custody to a parent incident to a separation or divorce vests in the custodial parent the right to make, and responsibility for making, day to day decisions regarding the care and welfare of the children. Except as otherwise agreed by the parties in writing, the custodial parent may determine the child's upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial spouse though not spelled out in detail in a separation agreement or custody decree.

 This authority, however, is not unlimited. The custodial parent's actions, particularly in the context of matters the expense for which is to be assessed against the noncustodial parent, are always subject to challenge on grounds of unreasonableness. Put another way, and having reference to the issue posed in this case, a divorce award o custody to the mother and assessment of medical and dental expenses to the father do not give the mother carte blanche authority to provide wholly elective or marginally necessary care for the children and then require the father to pay great or exorbitant expenses which would have been well beyond the reasonable means of the parties had they remained married.

 In this case Jimmy Clements has heretofore been directed to "pay all reasonable and necessary medical and dental expenses of the minor children" . Without serious question, the orthodontic care and treatment received by these two children falls within the meaning of the phrase "dental expenses" . The March 17, 1975 decree, however, does not command that Jimmy Clements pay all dental expenses, only "reasonable and necessary" dental expenses.

 In Smith v. Smith, 405 So.2d 896, 898 (Miss. 1981), we

 faced an aspect of this problem and held that reasonable and necessary orthodontic care is that which

 was reasonably necessary for . . . [the child's] health and well-being, including mental and physical, ...


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