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KIMBERLY L. J. SPAIN v. ALLEN E. HOLLAND

JANUARY 22, 1986

KIMBERLY L. J. SPAIN
v.
ALLEN E. HOLLAND



BEFORE WALKER, P.J.; HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal requires that we confront a question of first impression before this Court. Should the chancery courts of this state interfere with a divorced custodial parent's planned movement of minor children to a foreign nation incident to that parent's pursuit of a reasonable professional or economic opportunity?

 In the case at bar a non-custodial divorced mother has objected to her ex-husband, a career Air Force non-commissioned officer, taking their six year old daughter and four year old son to England where he has been transferred for a four year tour of duty. The mother has alleged that this constitutes a material change of circumstances which would adversely affect the welfare of the children and has asked that custody be vested in her. The trial judge denied her plea. On these facts we affirm.

 II.

 On February 4, 1983, Allen E. Holland (" Allen ") and Kimberly L. J. Holland (" Kimberly ") appeared before the Chancery Court of Lowndes County, Mississippi, each seeking a divorce of and from the other. Two children had been born of their marriage, namely, Heather Ambre Holland, a female, born September 5, 1977, then five years of age, and Ryan Allen Holland, a male, born April 30, 1979, then three years old. On that date the Chancery Court entered its final decree awarding Allen a divorce of and from Kimberly and placing the children within the" complete care, custody and control "of their father, Allen,

 subject to Defendant's [Kimberly's] right of reasonable visitation with said children at any and all reasonable times upon reasonable notice. . . .

 Some six months later on August 14, 1983, Kimberly

 married Thomas Richard Spain. She resides with her new husband in Columbus, Mississippi. Allen has not remarried. At the advent of the instant proceedings Allen was a non-commissioned officer in the United States Air Force holding the rank of Staff Sargeant, E-5, and was stationed at the Columbus Air Force Base.

 The present controversy began in September of 1983 when Allen found that his request for a tour of duty in England would be granted. Kimberly was advised that Allen planned to take the children to England with his original departure time scheduled for February, 1984. Allen's departure was subsequently postponed until April, 1984.

 On December 29, 1983, Kimberly filed in the Chancery Court of Lowndes County a motion to modify the child custody features of the February 4, 1983 decree. Kimberly alleged a material change of circumstances since the earlier decree and charged that Allen had defaulted in many particulars in his responsibilities as a custodial parent. More to the point, Kimberly charged that Allen's planned transportation of the children to England would result in irreparable harm to them. On these grounds, Kimberly asked that custody be transferred to her, subject to reasonable rights of visitation in Allen. Allen, of course, answered and denied the material allegations of the motion.

 The matter was called for hearing in Chancery Court on February 7, 1984. On that date the Court delivered an opinion in which it found that

 the father is in the Air Force, as he was at the time of the divorce. The proof shows that the children are in a school/nursery on the Columbus Air Force Base. The proof further shows that the father takes good care of the children. He devotes a great deal of time with them. The proof further shows that the father is going to be transferred to an air base in the United Kingdom on or about April of this year. He will probably only get about three weeks vacation or leave each year, and plans to bring the children back to the United States during his leave.

 The mother, of course, will not likely get to see the children except once a year. His term of ...


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