The opinion of the court was delivered by: Roberts, Justice,
DATE OF JUDGMENT: 07/21/1997
TRIAL JUDGE: HON. PERCY LEE LYNCHARD, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 02/04/99
¶1. On May 9, 1997, David Weigand (herinafter "David") filed a petition for modification of the custody and visitation order in effect with regard to his son, Paul Weigand (hereinafter "Paul") in the Chancery Court of Desoto County, Honorable Percy Lee Lynchard, Jr. presiding. Because the original divorce decree was entered by the District Court of Shawnee County, Kansas, David petitioned the chancery court for enrollment of a foreign divorce decree at the same time. The Opinion of the Court, denying the petition for custody modification, was filed on June 17, 1997. In light of new evidence which David found quite important to the case, he filed a Motion for New Trial and Motion to Alter or Amend Judgment, which was heard on August 19, 1997. That motion was denied by the chancellor in an order filed on September 9, 1997. On October 9, 1997, David filed a Notice of Appeal. On December 8, 1997, David filed a Motion For Injunctive Relief Pending Appeal with the chancery court. That motion was denied by the chancery court in an Order filed on December 22, 1997. David asserts four issues on appeal to the Supreme Court:
I. WHETHER THIS COURT IS REQUIRED TO GIVE DEFERENCE TO THE CHANCELLOR'S FINDING CONCERNING THE BEST INTEREST OF THE CHILD WHEN THE CHANCELLOR RELIED ON AN ERRONEOUS VIEW OF THE LAW AND MISAPPLIED THE ALBRIGHT FACTORS?
II. WHETHER THE CHANCELLOR ERRED WHEN HE FOUND THAT MODIFICATION OF CUSTODY WAS NOT IN PAUL'S BEST INTEREST?
III. WHETHER THE CHANCELLOR'S SUA SPONTE ORDER THAT ALL VISITATION BETWEEN DAVID AND PAUL OCCUR OUTSIDE THE PRESENCE OF DAVID'S LIFE PARTNER IS LEGAL ERROR AND REQUIRES REVERSAL?
IV. WHETHER THE CHANCERY COURT'S RULING REQUIRES REVERSAL AND AN IMMEDIATE TRANSFER OF CUSTODY OF PAUL TO HIS FATHER, DAVID?
¶2. On November 23, 1987, a divorce was awarded unto David by the District Court of Shawnee County, Kansas, Division 11, in Cause No. 87-D-8111. The District Court awarded the joint legal custody of Paul to both parties with "residential custody" being alternated between the parties until such time as the minor child reached school age. It further provided that at the time the minor child reached school age, the residential custody would be vested with David during the school year and with Machelle during the remaining months. Subsequently, on June 2, 1988, an order modifying that decree was entered by the same court whereby the parties were granted joint custody of the minor child with Machelle having the residential custody of the child. David is presently seeking modification of the prior decrees enrolled in this cause. The requested relief by way of modification includes an award of full care, custody and control of the minor child of the parties subject only to the reasonable and liberal rights of visitation to Machelle, an order terminating his duty of support payments for the benefit of Paul as earlier awarded, an assessment of support on behalf of Machelle to be paid to him for the care, support and maintenance of the minor child and finally an order directing Machelle to turn over to David all of Paul's personal property. At the trial of this cause, David testified and produced nine witnesses in support of his request for modification of the provisions of child custody. Machelle testified on her own behalf and called no other witnesses. Furthermore, it is important to note that Machelle did not file a brief in response to David's appeal to the Supreme Court; however, her letter is in the nature of a response and is considered accordingly. Also, David does not dispute the chancellor's finding of facts. After a thorough review of the record, this Court agrees with the chancellor's finding of facts and has adopted them.
¶3. David is a forty-one (41) year old resident of Lake Forest, California. He has resided in the state of California since January of 1994 and is employed as a property manager at this time. He resides in a five bedroom home in an upscale neighborhood and earns a gross annual salary of approximately $40,000.00.
¶4. Following the divorce of the parties in 1987, the minor child resided with David for a period of less than one year. At that time, because he felt that his lifestyle as a single person was not conducive to the rearing of a minor child, he relinquished physical custody of Paul to Machelle. David has throughout the post-divorce period of his life consistently exercised visitation with Paul, having him at his home in California for extended weeks during the summer. David expresses a love and affection for Paul which was unquestioned by the chancellor. He has seen to Paul's needs during the period of time in which Paul has lived with him by furnishing him with not only the necessities of life, but also providing him with certain luxuries including access and use of a home computer which Paul enjoys, availability of an "800" number for the child to contact him at any time he desires, accompanying the child to museums, dinners, shopping and amusement parks as well as other extracurricular activities. He has consistently encouraged Paul to develop his writing skills for which the child shows a talent. David expressed a desire for Paul to receive the highest quality education possible.
¶5. In anticipation of Paul coming to live with David, should David be successful in this modification, David has remodeled and refurbished Paul's room at his home, thoroughly investigated the local school system as well as a local university, and purchased computer and word processing programs for Paul to enhance his writing skills. David also sought information concerning Paul's publication of short stories he has written, which publication would enhance the possibility of Paul's admission to the university program.
¶6. David openly and freely admits to engaging in a homosexual lifestyle for a number of years. He presently resides in a jointly owned home with his life partner of eight years, Wayne Fields. Although prohibited from marrying under California law, David and Wayne have entered into a living trust agreement and domestic partnership agreement, holding themselves out as a couple and describing their relationship as monogamous. According to David, they regularly engage in homosexual activities which include both oral and anal intercourse. However, they described their sexual relations, as well as their open affections between each other, at least in the presence of the child, to be discreet and performed only behind closed and locked doors.
¶7. When Paul was examined in chambers by counsel for both parties as well as the chancellor, he acknowledged that he had been previously embarrassed when he appeared in public with both his father and Wayne "while here in the South." He further indicated that a show of affection between the two might bother him and "definitely would bother me" if any of his friends were present when that affection was shown. While on vacation trips with his father and Wayne, Paul slept in the same hotel room with the two, sleeping in his own bed while David and Wayne slept in the adjacent bed. Paul also indicated that he would be uncomfortable if he believed himself to be a homosexual because of his religious beliefs. He stated that he believed the relationship between his father and Wayne was wrong.
¶8. Paul is an "A" student with no behavioral problems. He presently resides in the custody of his mother and his stepfather, Jeff Houghton, formerly convicted of felony assault and theft in the state of Kansas. He routinely attends the First Baptist Church in Horn Lake, Mississippi. Although of a sufficient age in which he may voice a preference for the parent with whom he would desire to reside, Paul has expressed no clear choice, testifying that he wanted to continue to reside with his mother yet he had a desire to live with his father in California as well. However, Paul did testify that if the recent stress in his home following his stepfather's accident had not occurred, he would not have been interested in moving in with his father, David.
¶9. David seeks a change of custody based upon a material and substantial change in the circumstances of the parties which adversely affects Paul. In support of this he testified that the present custodial situation is exposing Paul to mental and emotional abuse as a consequence of the volatile relationship between Paul's mother and stepfather. As evidence David points to two separate incidents of domestic disturbance involving Machelle and Jeff. On November 4, 1996, Jeff was arrested for disturbance of family and simple assault by the Horn Lake Police Department. This was a result of a domestic disturbance occurring at the home of the parties in which Jeff caused physical injury to Machelle by striking her in the face. As a result of this incident he was subsequently convicted by the municipal court on a charge of simple assault after the entry of a plea of guilty. As a result of this incident, Jeff was sentenced to complete a course in anger management. Subsequently on January 11, 1997, Jeff was again arrested at the family home following an altercation between the parties. As a result of that incident the charge of disturbance of family was remanded and he was convicted of the charges of public drunk and malicious mischief. The use of alcohol by him was also present at this incident.
¶10. Both of the above incidents occurred while Paul was present and apparently greatly disturbed him. The latter incident resulted in Paul himself summoning the police following a 911 emergency call. It is apparent from the testimony of Paul that the relationship between his mother and Jeff is explosive at times, but Paul acknowledges that he has never personally been physically abused by his stepfather.
¶11. Machelle testified in her own behalf. She testified that she had no idea that there was any problem perceived by David in the custody arrangement until she received a letter of March 19, 1997, where David indicated a desire to seek the physical custody of Paul. She further testified that she assisted Paul in school, including extracurricular activities such as the BETA club. She has in recent months begun sending Paul to the First Baptist Church. Both she and Jeff, along with Paul, attend regularly. She is employed at two separate jobs, Wal-Mart and Federal Express, working an average of 50-52 hours per week at both jobs. She admits that the time with the child is limited now because of her two jobs but has intentions of resigning one in August of this year. ¶12. Machelle admits that her relationship and home situation with her current husband has placed a strain on her relationship with Paul. In May of 1996 Jeff was seriously injured in an automobile accident in Memphis, Tennessee and has since been unable to work causing severe financial strain on the family as a result of his absent income and excessive medical bills. Jeff's depression because of his inability to work has caused a strain on the relationship between both him and Machelle as well as he and the child.
¶13. Machelle acknowledged the two incidents as testified by David which involve the arrest of Jeff, but believes them to be isolated incidents which she does not anticipate reoccurring. She is expecting her second child and ...