BEFORE DAN LEE, P.J.; SULLIVAN AND PITTMAN, JJ.
PITTMAN, JUSTICE, FOR THE COURT:
Howard R. Smith and Beverly Ann Smith were married on October 17, 1981. They had one child, Bethany Ann. The couple was granted a Judgment of Divorce on January 13, 1987, on the grounds of irreconcilable differences. Incorporated into the Judgment was an Agreement for Child Custody and Maintenance and Settlement of Property Rights. Beverly Smith was granted custody of Bethany. Howard Smith was granted rights of visitation as follows:
a. Husband shall have the child from 6:00 o'clock
p.m. on Friday until 4:00 o'clock p.m. on Sunday on the third weekend of each month. Husband shall pick the child up at the residence each weekend in which Husband shall have the child and shall return the child to the residence of Wife by 5:00 o'clock p.m. on the Sunday of such weekend. Husband and Wife agree that neither party will take the minor child into an environment of an immoral nature and that each of them will maintain said child in a sober and healthy environment in the best interest of said child.
On May 1, 1987, Howard Smith filed a Complaint for Contempt against his ex-wife, alleging that she had violated the following terms of the Settlement Agreement: (a) that she would assume responsibility for making the monthly payments on the 1982 Pontiac which she had received as part of the settlement and would further hold Howard Smith harmless from any liability for failure to make such payments; (b) that she would turn over Howard Smith's carpentry tools and saws; (c) and that she would allow reasonable visitation rights as provided for in the Settlement Agreement. The Complaint asked that Mrs. Smith be held in civil contempt until she had purged herself of such contempt by complying with the terms of the Settlement Agreement.
Howard Smith testified that he had attempted to exercise his visitation rights each month since the rendition of the divorce decree. He stated that Beverly Smith had told him that Bethany was seeing a psychologist and that as a result Beverly felt that it was not in the best interests of the child to see her father. Howard Smith also presented evidence concerning the indebtedness of the 1982 Pontiac and the carpentry tools. Smith admitted that even though he had alleged in his sworn pleading of May 1, 1987, that his wife had his carpentry tools, he had in fact gotten all the tools back, with the exception of the chainsaw, before the divorce judgment was rendered. Smith also admitted that he had known that the 1982 Pontiac would be repossessed if some action was not taken, but he refused to help his ex-wife with the payments. Smith acknowledged that he was living with Linda M. Woods from the time of his divorce until March 20, 1987, the date of his marriage to Linda M. Woods. He denied that he intended to take Bethany into this environment, insisting instead that he intended to have their visitation elsewhere. Smith testified that he had been treated for alcoholism on numerous occasions, and that he had failed to make the payments to Baptist Medical Center for the delivery of Bethany per the Settlement Agreement. Because of the alcoholism, Smith had not seen Bethany for eight months prior to the divorce.
Beverly Smith's testimony contradicted Howard's in several
areas. According to Beverly, Howard never asked for visitation rights until April. As to the April visitation, Beverly said there had been some attempt to work out the details of the visitation, but nothing had ever been finalized beyond what was in the decree. Finally, when Howard came to pick up Bethany, Beverly refused to let her go. When asked why, Beverly replied:
Because I feel as the mother that has been with the child for a year and he has not bothered to help with the child or anything, that I did not feel like it was the best interest of the child to go off with somebody not knowing where he was going to take her and the only thing he told me was that Brenda would be taking care of her and the circumstances arising around Linda, I did not think it was the best interest when he is the father and not her.
Mrs. Smith admitted that Smith informed her at this time that he and Linda M. Woods were married.
The Chancery Court entered its opinion on June 8, 1987. The court found first that Howard Smith had presented insufficient evidence as to the allegations concerning the chainsaw and the 1982 Pontiac and that those allegations should be dismissed with prejudice. The court also found that Beverly Smith was justified in not allowing Bethany to visit her father while he and Linda Woods were living together, that is, prior to March 20, 1987. The court never explicitly found whether there actually had been any visitation attempts by Howard Smith before April, 1987. The court made no finding as to contempt concerning the April visitation date, when Howard Smith and Linda Woods were married and Beverly Smith had been notified of this fact. The court took into consideration the fact that Howard Smith had seen his daughter only sparingly for one year prior to the May, 1987 hearing. Beverly Smith was awarded $300.00 in attorney's fees, with the costs of the proceedings assessed to Howard Smith.
Howard Smith filed a Motion to Reconsider Opinion. After a hearing the Motion was overruled. A final judgment was entered and the court reiterated its finding that Beverly Smith was not in contempt up to March 20, 1987; it further found that "Beverly Ann Smith is not in contempt of the Court's Order and the Complaint for Contempt filed by Plaintiff should be dismissed."
Findings of fact made by a chancellor may not be set aside or disturbed on appeal unless manifestly wrong; this is so whether the finding ...