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Smith v. Herod

June 25, 1998

SMITH
v.
HEROD



Before Pittman, P.j., McRAE And Mills, JJ.

The opinion of the court was delivered by: McRAE, Justice, For The Court:

AMY P. HEROD SMITH v. RONNIE E. HEROD

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 07/31/96

TRIAL JUDGE: HON. EDWARD C. PRISOCK

COURT FROM WHICH APPEALED: ATTALA COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - CUSTODY

This case arises from a July 31, 1996 decree of the Attala County Chancery Court finding that there had been no material change of circumstances warranting a change of custody for the parties' minor child and dismissing both Smith's Motion for Modification and Citation for Contempt and Herod's Cross-Complaint for Modification and Cross-Citation for Contempt. Finding that conflicts over visitation are not a change in circumstances warranting a change in custody, we affirm the orders of the chancery court.

STATEMENT OF THE CASE

Ronnie Herod was granted a divorce on grounds of adultery and habitual cruel and inhuman treatment from Amy Herod (Smith) by the Attala County Chancery Court on May 24, 1995. Herod was given primary custody of the parties' daughter, Tyler Suzanne Herod, born February 19, 1990. A detailed visitation schedule was set out in the decree.

On April 16, 1996, Smith filed her Motion For Modification and Citation for Contempt, seeking a change in custody based on a material change in circumstances. She further filed for contempt, alleging that Herod had refused to comply with four scheduled visitations over the past year. Other than her reference to Herod's alleged refusal to comply with scheduled visitation in the Citation for Contempt, Smith gave no basis for her assertion that there had been a material change in circumstances warranting a change in custody. Herod denied any change in circumstances and filed a Cross-Complaint for Modification and Cross-Complaint for Citation for Contempt, based on alleged arrearage of child support in the amount of $140. He argued that Tyler's visits with her mother should be supervised because of alleged physical assaults on him by Smith and her parents; the "unwholesome atmosphere" engendered by Smith's marriage to "her paramour, Carlos Smith, who was basically the cause of this divorce;" and alleged efforts by Smith and her parents to make unauthorized visits with the child at her school.

After a hearing held on June 24 and 26, 1996, the chancellor found that "[t]here is simply no material change of circumstances in the parties since the prior decree adverse or otherwise." (emphasis in original). He dismissed the claims of both parties and ordered Herod and Amy and Carlos Smith to consult and meet with a mediator "to explore any and all possible ways to resolve and quieten [sic] the hostilities that exist," and encouraged the grandparents also to participate in the mediation efforts, requiring a report from the mediator within six months. Smith's motion for reconsideration was denied on December 5, 1996.

STATEMENT OF THE FACTS

At the time of the hearing, Herod was raising Tyler with help from other family members. Amy Herod married her paramour, Carlos Smith, on November 2, 1995. Their daughter, Carlee, was born in June, 1996. Smith has two young sons from his ...


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