Before Bridges, C.j., Herring, And Southwick, JJ.
The opinion of the court was delivered by: Herring, J.
TRIAL JUDGE: HON. JOHN C. ROSS, JR.
COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: MODIFICATION OF VISITATION DENIED
DISPOSITION REVERSED AND REMANDED - 7/14/98
¶1. John Randal Suess appeals from the judgment of the Monroe County, Mississippi, Chancery Court in which his request for modification of his visitation schedule with his two minor children pursuant to a judgment previously entered by the chancery court was denied. Following our review of the record, we reverse the judgment of the Monroe County Chancery Court and remand this action for further proceedings.
¶2. A final judgment of divorce ending the marriage of John and Laurie Suess was entered by the Monroe County Chancery Court on July 28, 1995. On that same day, the parties also entered into an agreement which dealt with the division of marital property, custody of their two minor children, child support, and alimony. As shown by their written agreement, the parties agreed to share legal custody of their two daughters, Jennifer and Jessica, and also agreed to a detailed visitation schedule. The only issue upon which the parties could not agree was whether or not Mr. Suess should be granted mid-week, overnight visitation with Jennifer and Jessica in addition to his weekend visits with the children. At the time of the divorce, Laurie Suess resided in Amory, Mississippi, with the two children, while John Suess lived in Tupelo, Mississippi, and worked in Amory. In a supplemental order dated October 19, 1995, the chancellor granted Mr. Suess weekday visitation with Jennifer and Jessica beginning at 5:00 p.m. on Wednesday of each week and ending the following morning when he took the children to school.
¶3. The record discloses that Mrs. Suess was reluctant to allow Mr. Suess to have the children for overnight visitation on Wednesday evenings. According to Mr. Suess, he would often arrive at his former wife's home to pick up the children in accordance with the court's judgment and find that Mrs. Suess would not permit him to take the children home with him. He testified that, instead, Mrs. Suess offered to allow him to visit with the children for a couple of hours on Tuesdays and Thursdays. Mrs. Suess testified that she denied Mr. Suess the Wednesday visitations on advice of counsel and on the basis that since she had appealed the decision of the chancery court she did not have to comply with the terms of the supplemental order until it became final once the appeal had been concluded.
¶4. Mr. Suess obtained a "writ of assistance" from the chancellor on November 30, 1995, which forced Mrs. Suess to comply with the chancery court's order allowing the Wednesday evening visitation by Mr. Suess with his children. Mr. Suess testified that after the writ of assistance was issued, Mrs. Suess reluctantly complied with the term of the supplemental order and allowed him to have his Wednesday evening visitation with the two children. He also testified that he incurred attorney's fees in the amount of $350 in obtaining the writ of assistance.
¶5. Mrs. Suess graduated from Mississippi University for Women and thereafter moved from Amory to Corinth, Mississippi, in August, 1996. As a result, Mr. Suess filed a motion for modification of the visitation schedule originally set by the trial court in these proceedings. He contended that his former wife's relocation forced him to lose twenty-nine days in visitation with the children because of the impracticability of traveling so far during the week to visit overnight with them and then taking them to school the following morning. He testified that the drive from Amory to Corinth was approximately one hundred miles, and his drive home from Corinth to Tupelo was sixty-five miles. Thus, he concluded that overnight visitation during the week would be impractical and not in the best interests of the children.
¶6. In his motion for modification of visitation *fn1 and for other relief, Mr. Suess requested that the original visitation schedule be modified in order to grant him additional time with the children during the Christmas holidays and spring break periods of each year. In addition, he asked that his weekend visitation with the children originally set from 5:00 p.m. on Fridays and run through 5:00 p.m. on Sundays be increased to a period beginning at 5:30 p.m. on Fridays through 8:00 p.m. on Sundays. Mr. Suess also requested that he be granted visitation with each of the children, on an alternating basis, for one weekend per month in addition to the alternating weekend visits that he already enjoyed with the children together. Mr. Suess also asked the chancery court to make Mrs. Suess responsible for transporting the children to his home for his weekend visits every other time the visits were to occur. In addition, he requested that she retrieve the children from his home after these weekend visits. Finally, Mr. Suess asked the court to award him the attorney's fees which he incurred as a result of his being required to file the motion for modification. He also asked to be awarded the attorney's fees which he incurred in obtaining the writ of assistance.
¶7. Following a hearing on December 10, 1996, in which testimony was elicited from both parties, the chancellor issued his opinion on December 18, 1996, and ruled that no material change in circumstances had occurred requiring a change in the visitation schedule. The chancellor set aside his previous order awarding weekday visitation to Mr. Suess and noted that when the court previously granted the weekday visitation to him, it considered the award to be temporary. The court was aware that Mrs. Suess was close to graduation from college and that she would be moving from Amory when she found ...