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EDWARD LEO PACE v. JANICE ELAINE DAVIS PACE OWENS

AUGUST 05, 1987

EDWARD LEO PACE
v.
JANICE ELAINE DAVIS PACE OWENS



BEFORE HAWKINS, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is one of those cases requiring that we set aside our exasperation with the human animal, adult variety, and try to minimize the impact of his folly upon his children. Two ex-spouses, each inspired by their new spouses, and dislike for each other's, have hurled charge and countercharge to the point where we wonder if either truly cares for the two children involved.

 In the end, the Chancery Court made quite specific and detailed provisions for custody and visitation, such as befits a case where no one will agree even on the time of day. Alas, that Court failed to resolve [any] * of the ultimate issues tendered by this child custody modification mess. As explained below, we have no alternative but to affirm and remand, hoping against hope that today will not be the first day of the rest of the trouble.

 II.

 Pursuant to our Irreconcilable Differences Divorce Act, Miss. Code Ann. 93-5-2 (Supp. 1981), Janice Pace Owens and Edward Leo Pace were divorced in Lamar County. The final decree of divorce was entered January 13, 1981. Janice Pace Owens was granted custody of the two children, Nicki Pace, born August 13, 1976, and Ronald Clifford Pace, born May 23, 1980. Leo Pace was granted reasonable visitation rights in an agreed property and child custody agreement attached to the final decree of divorce, dated June 9, 1981.

 Both parties married other persons in 1981, and thence began the trouble. Between the fall of 1981 and the first full hearing in today's cause in July of 1985, tremendous animosity developed between the former spouses over the matter of the children. This animosity culminated in charges, by Janice Owens against Ruby Pace, Leo Pace's new wife, of physical abuse of the five year old Cliff, and Leo Pace's counter charges against Janice of sexual abuse of Cliff.

 On May 25, 1984, Janice Pace Owens filed a motion for contempt and a motion for modification of final decree, alleging that Leo Pace was in arrears in child support and that the children were subjected to various acts of child abuse at the hands of Leo Pace and present wife Ruby Pace. On June 18, 1984, Leo Pace answered denying Janice's allegations and filing his own cross-petition for modification of final decree. He alleged a material change in circumstances in the custodial home which adversely affected the children; he claimed that the children had been subjected

 to abuse by Janice and her new husband. Between June 18, 1984, and the final hearing in July, 1985, various temporary orders were entered by the court setting out visitation rights. Both step-parents, Ruby Pace and David Owens, were prohibited from punishing the children and were directed not to be left alone with the children until a final hearing in this case.

 On July 16, 17, and 18, 1985, the Chancery Court of Lamar County heard the matter as a suit for modification of custody of two minor children. At the conclusion thereof, the Court [denied] * the relief sought by Edward Leo Pace - the permanent, care, custody and control of the minors. The Court held that Janice Elaine Davis Pace Owens and Edward Leo Pace were to have joint [legal] * custody of the minor children, Nicki and Cliff Pace: Janice Pace Owens was to have [physical] * custody of the children. Leo Pace was to have quite liberal visitation rights as set out in great detail in the order of the court entered August 7, 1985.

 From that judgment, Leo Pace appeals.

 III.

 Leo Pace presents five assignments of error, four of which require no discussion in view of the disposition we must make of this appeal. We consider only Pace's charge that the evidence was such that we should reverse and render on the Chancery Court's denial of his demand for custody of the children.

 There are in our law two prerequisites to a modification of child custody. First, the moving party must prove by a preponderance of the evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which [adversely] * affects the welfare of the child. Second, [if] * such an adverse change has been shown, the moving party must show by like evidence that the best interest of the child requires the change of custody. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984); see also Duran v. Weaver, 495 So.2d 1355, 1357 (Miss. 1986); Spain v. Holland, 483 So.2d 318, 320 (Miss. 1986); Cox v. Moulds, 490 So.2d 866, 869, 55 ...

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