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ELIZABETH MILAM AND FRANCES TURNER v. THOMAS COLEMAN MILAM

MAY 06, 1987

ELIZABETH MILAM AND FRANCES TURNER
v.
THOMAS COLEMAN MILAM, SR.



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

SULLIVAN, JUSTICE, FOR THE COURT:

This appeal is from a consolidation of three actions filed in the Chancery Court of DeSoto County, Mississippi. Mr. Milam filed suit to modify a 1977 decree of divorce to obtain custody of his two minor children, Leslie and Thomas, Jr.. Mrs. Milam

answered and also sought to have Mr. Milam cited for contempt for failure to pay child support and certain medical bills. Mrs. Turner, maternal grandmother of the two children filed an action seeking custody of the children against both the natural parents.

 The Chancellor denied the request of Mrs. Turner for custody of the grandchildren, found Mrs. Milam to be an unfit mother and modified the prior decree to grant custody of the children to Mr. Milam. The Chancellor further found that Mr. Milam must pay $2,383.00 in past due medical bills and attorney fees to both Mrs. Milam and Mrs. Turner, in the aggregate amount of $1,200.00.

 Mrs. Milam charged the Chancellor with abuse of discretion in not finding Mr. Milam in contempt; in the granting the change in custody; and in not finding that Mr. Milam had abandoned his children.

 Mrs. Turner urges that the Chancellor should have treated her as a parent, and that the Chancellor erred in not finding Mr. Milam in contempt.

 Mr. Milam urges that the Chancellor abused his discretion in the award of attorney fees and in finding that he owed the medical bills.

 CUSTODY

 As between Mr. and Mrs. Milam there is more than substantial evidence in this record to justify the Chancellor's finding that Mrs. Milam was unfit to have the custody of the children and that Mr. Milam was a fit and suitable parent to hnt to have custody of his children. Likewise the record contains substantial evidence from which the Chancellor could determine that Mr. Milam had not abandoned his children. This Court has held since 1848 that we will not disturb the finding of a Chancellor on conflicting evidence unless he is clearly wrong. Torrence v. Moore, 455 So. 2d 778 (Miss. 1984) and other cases too numerous to cite here. No purpose would be served by reciting the sordid and unfortunate facts offered in this record. Suffice it to say that upon the issue of custody the Chancellor was not manifestly wrong and his determination of the custody of these two children is affirmed.

 Mrs. Turner is a woman of great compassion and love for these two children and has been the rock of their stability for many of the years of their lives. She doubtless would provide excellent care for them as she has in the past. However, as between a parent and a grandparent, it is presumed that the best interest of children is to be in the custody of their natural parent unless it can be shown by clear evidence that the parent has abandoned the children or the conduct of the parent is so

 immoral as to be detrimental to the child or that the parent is mentally or otherwise unfit to have the custody of the child. Rodgers v Rodgers, 274 So. 2d 671 (Miss. 1973), Stoker v Huggins, 471 So. 2d 1228 (Miss. 1985).

 Mrs. Turner met this burden as to her daughter, Mrs. Milam, but we cannot disagree with the Chancellor, that upon this record she failed to meet her burden of proof as to Mr. Milam, the father of the two children. Therefore, as to Mrs. Turner, the finding of the Chancellor awarding custody to Mr. Milam is affirmed.

 CONTEMPT

 The Chancellor found that while Mr. Milam was in arrears he was not in contempt because during the period that he did not make his child support payments he was either in hospital, unable to work or living below subsistence level and only surviving with the aid of welfare. The Chancellor ordered Mr. Milam to pay the back child ...


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