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Brocato v. Brocato

January 21, 1999

LESLIE KAY KING BROCATO
v.
CHRISTOPHER TODD BROCATO



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

The opinion of the court was delivered by: Smith, Justice

DATE OF JUDGMENT: 12/11/97

TRIAL JUDGE: HON. DENNIS M. BAKER

COURT FROM WHICH APPEALED: PANOLA COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - CUSTODY

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

STATEMENT OF THE CASE

¶1. Leslie Kay King Brocato ("Leslie") and Christopher Todd Brocato ("Chris") were married in Phillips County, Arkansas on June 18, 1988. They were divorced by decree of the Panola County Chancery Court on December 18, 1992. There are two minor children of the marriage, Jennifer Brooke Brocato ("Jennifer"), born July 31, 1989, and Edwin Ross Brocato, nicknamed Timber ("Timber"), born April 21, 1985. Timber is the natural son of Leslie and was adopted by Chris.

¶2. Following the decree of divorce, Leslie had primary custody, control, care and responsibility of the two children until a Modification of the Divorce Decree on July 26, 1996, when custody of both was given to Chris. This modification was primarily predicated upon Leslie's substance abuse and eating disorder problems. Prior to this modification, Leslie and the two children were living in Desoto, Texas with Leslie's mother. The Order for Modification gave Chris full custody and Leslie limited visitation only in the home of Chris or James King, Leslie's father.

¶3. Since the modification, Chris has used the assistance of his parents, Billie and Sammie Brocato, as well as James King, in rearing the children. In fact, at some point soon after the modification in 1996, Chris realized that Jennifer needed a womanly influence and decided to have Jennifer live with his parents in Coahoma County, Mississippi. Meanwhile, Timber had lived with Chris in Batesville until April 1997 when he began staying with James King, his maternal grandfather. Timber's move was caused by frequent discipline problems at both school and home. Chris regularly disciplined Timber, usually with whippings. He testified that once he even beat Timber until he could beat him no more. Frustrated, he finally decided to take Timber to James King, because that was the only person Timber would obey.

¶4. In contrast, Jennifer has done very well at her paternal grandparents. Jennifer is enrolled in a parochial school and has overcome her deficiencies since residing with the Brocatos. She has received numerous awards and excellent report cards after a slow start. Billie Brocato , her grandmother, has provided her with maternal care and attention as well as tutors and playmates. Chris comes to see her as often as possible, usually three or four times a month, and talks to her on the phone most everyday.

¶5. After completing her rehabilitation at Charter Hospital, Leslie returned to Helena, Arkansas, and lived with her father, James King, and stepmother. She has found employment at the Grand Casino in Tunica County where she works approximately 35 hours per week at $4.75 an hour plus tips. Shortly after Chris left Timber with James King in April of 1997, Leslie moved with Timber to Walls, Mississippi, and enrolled him in Desoto School. James King has continuously provided financial assistance to Leslie and Timber. Timber continues to struggle in school, but the chancellor found that James King's influence was best for the boy.

¶6. On July 9, 1997, Leslie petitioned the Panola County Chancery Court for modification of divorce decree. On October 2 and 3, 1997, Chancellor Dennis M. Baker heard testimony. Subsequently, he ordered that the previous decree be modified in part. The court modified the decree with regards to Timber placing him in the custody of Leslie and required that she be solely responsible for his maintenance and support. The court ordered that Jennifer remain in the custody of Chris and that he be solely responsible for her maintenance and support. The court further ordered that visitation be at all reasonable times for Chris and Timber and left intact the decree that Leslie visit Jennifer only at her father's or Chris'.

¶7. Aggrieved by the chancellor's findings, the Appellant/ Leslie assigns two errors, as follows:

"I. WHETHER THE TRIAL COURT ERRED IN MODIFYING CHILD CUSTODY WITH REGARD TO ONLY ONE OF THE MINOR SIBLINGS.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO REQUIRE CHRIS BROCATO TO PAY CHILD SUPPORT FOR THE BENEFIT OF THE MINOR CHILD, EDWIN ROSS (TIMBER) BROCATO."

STANDARD OF REVIEW

¶8. Our standard of review in custody cases is well settled and is limited:

"`this Court will not reverse a Chancery Court's factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact.' Smith v. Jones, 654 So.2d 480, 485 (Miss. 1995)(quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss. 1991)). Furthermore, the chancellor's findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard. ...


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