Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 04/11/1997
TRIAL JUDGE: HON. EDWARD C. PRISOCK
COURT FROM WHICH APPEALED: CARROLL COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CUSTODY
TRIAL COURT DISPOSITION: DENIAL OF CHANGE OF CUSTODY FROM APPELLEE TO APPELLANT; APPELLANT ORDERED TO PAY $90 PER MONTH CHILD SUPPORT
DISPOSITION: AFFIRMED - 2/9/99
MOTION FOR REHEARING FILED:
¶1. Shonna Upchurch McGehee appeals the judgment of the Carroll County Chancery Court denying her motion for modification of former judgment of divorce which granted primary physical custody of the minor child to the natural father, Anthony Upchurch, granting the counterclaim of Anthony for child support payments, and establishing structured visitation rights of Shonna. Finding Shonna's assignments of error to be without merit, we affirm.
¶2. Anthony Upchurch was granted a divorce from Shonna Upchurch McGehee on the ground of adultery by decree of the Carroll County Chancery Court on February 22, 1996. Upon agreement of the parties, both were granted joint legal custody of their minor child, Hillary Lauren, and Anthony was granted primary physical custody, subject to visitation rights granted to Shonna. Shonna's visitation rights were described in the final judgment of divorce as "liberal reasonable visitation with Hillary, subject to the following restriction: So long as Shonna Upchurch is unmarried to Gary McGehee, Shonna Upchurch shall keep Hillary out of the presence of Gary McGehee at all times when she is exercising her visitation rights with Hillary." Shonna and Gary McGehee were married on March 15, 1996.
¶3. Since the rendition of the divorce decree until September 1996, Anthony allowed Shonna to exercise her visitation rights liberally (approximately fourteen days a month). In September 1996 when Hillary began kindergarten, Anthony restricted Shonna's visitation rights to alternating weekends beginning at 11:30 a.m. when Hillary is dismissed from kindergarten until Monday at 8:00 a.m. when Shonna takes Hillary to kindergarten.
¶4. On September 23, 1996, Shonna filed a motion to modify former judgment of divorce seeking a change in the primary physical custody of the minor child. In his answer to motion to modify judgment of divorce and counterclaim, Anthony requested that Shonna be ordered to pay reasonable child support and attorney fees in defending the modification action.
¶5. The matter was tried on January 27 and 28, 1997. At the Conclusion of the trial, the chancellor found Shonna had failed to prove that a material change in circumstances had occurred within the custodial home which adversely affected the best interest of the minor child. Therefore, the chancellor denied Shonna's motion to modify the primary physical custody provisions of the divorce decree.
¶6. On March 4, 1997, Shonna filed a motion for a new trial, or in the alternative, for the court to amend its findings or make additional findings alleging that the opinion rendered from the bench on January 28, 1997, and written opinion rendered on February 6, 1997, were contrary to the overwhelming weight of credible evidence and not supported by the law or the evidence.
¶7. The chancellor entered judgment on April 11, 1997, denying the motion for modification of the original judgment of divorce and granting Anthony's counterclaim for child support and ordering Shonna to pay child support to Anthony for the minor child in the amount of $90 per month commencing on March 15, 1997 and continuing on the fifteenth of each month thereafter until the child is emancipated, self sustaining, or by order of the court. The court denied Anthony's request for attorney fees. Further, the chancellor set forth structured visitation arrangements of the non-custodial parent: Shonna would have visitation rights with the minor child commencing every other weekend starting the first week of March 1997 from Thursday after school when Shonna will pick up the child from school until the following Monday morning when Shonna will return the child to school and Anthony will pick the child up from school; and Shonna will have the child on alternate weeks (i.e., during those weeks when she does not have visitation with the child beginning on Thursday) from Wednesday after school, and she will return the child to school the following Thursday morning and like visitation to continue until further order of the court.
¶8. The motion for new trial or for additional findings of facts was denied on October 21, 1997.
Aggrieved, Shonna perfected this appeal alleging:
I. THE LOWER COURT ERRED BY FAILING TO EXCLUDE ANY AND ALL TESTIMONY REGARDING ISSUES PRIOR TO THE COURT'S FINAL DIVORCE DECREE.
II. THE LOWER COURT ERRED BY HOLDING THAT NO MATERIAL CHANGE IN CIRCUMSTANCES ADVERSE TO THE CHILD OCCURRED SINCE THE ...