Before Bridges, C.j., Herring, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J., For The Court:
KIMBERLY PUGH SHOWS, APPELLANT v. MICHAEL L. SHOWS, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: AUGUST 22, 1996
TRIAL JUDGE: HONORABLE J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CUSTODY
TRIAL COURT DISPOSITION: JOINT PHYSICAL AND LEGAL CUSTODY AWARDED TO BOTH PARENTS UNTIL AGE 5, AT WHICH TIME MICHAEL L. SHOWS WOULD HAVE PRIMARY PHYSICAL CUSTODY DURING SCHOOL YEAR
Kimberly Pugh Shows and Michael Shows were granted a divorce on the grounds of irreconcilable differences. The couple had previously been married, then divorced, and then again married each other. The chancellor found that a material change in circumstances from the time of the first divorce decree had not been shown and that the terms of the first decree still controlled. Ms. Shows appeals asserting that the chancery court erred in its child custody decision both as to procedure and on the substance. We agree that the chancellor erroneously relied upon the original divorce decree. We reverse and remand for further proceedings.
The parties were first married in July 1988 and were divorced in October 1993. Their one child, Joshua Michael, was born in June 1993. Ms. Shows was awarded custody subject to reasonable visitation. In April 1995, the parties remarried. After seven months of the new marriage, Mr. Shows filed for divorce and requested custody. Ms. Shows answered and filed a counterclaim for divorce and custody. The parties ultimately consented to a divorce based on irreconcilable differences. They stipulated that the court would resolve, among other things, issues concerning an equitable division of the marital property, child custody, visitation, and support.
Following a hearing, the chancellor awarded joint physical and legal custody of the child to the parties until the child reached five years of age at which time Mr. Shows would have physical custody of the child during the school year. Ms. Shows was awarded custody during the summer.
We must first determine what effect the Shows' remarriage had on the original divorce decree and custody determination. The chancellor stated that no child was born out of the parties' second marriage. Relying in part on that fact, he found that the previous divorce decree awarding custody to Ms. Shows remained valid and could not be modified without a material and substantial change in circumstances. Although the court concluded that there was no such change in circumstances, the chancellor found that a modification of custody was in the best interest of the child. Consequently, the chancellor awarded joint physical and legal custody of the child to the parties. The court further ordered that Mr. ...