Bittick v. Bittick
| Docket Number: | 2007-CP-00401-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-22-2008 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Material change in circumstances - Visitation schedule - Child support - Mortgage payment arrearage - Contempt Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 02-12-2007 Appealed from: Lauderdale County Chancery Court Judge: Lawrence "Larry" Primeaux Disposition: NATURAL MOTHER RETAINED CUSTODY OF MINOR CHILD DESPITE ALLEGATION OF MATERIAL CHANGE OF CIRCUMSTANCE Case Number: 04-608-S |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | THOMAS G. BITTICK |
THOMAS G. BITTICK (PRO SE) |
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| Appellee: | STACY ELIZABETH BITTICK | JOSEPH A. KIERONSKI | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Material change in circumstances - Visitation schedule - Child support - Mortgage payment arrearage - Contempt |
| Summary of the Facts: | Thomas Bittick and Stacy Bittick received an irreconcilable differences divorce. The decree granting their divorce contained a property settlement agreement and custody agreement which granted joint legal custody of the couple’s child to both Thomas and Stacy, but primary physical custody to Stacy. Three months after the divorce, Stacy filed a complaint for contempt against Thomas and moved to modify the custody agreement. Thomas counterclaimed for contempt against Stacy and also moved for a modification of the custody agreement. The chancellor found that a modification of the primary custody arrangement was not necessary, but he did modify certain aspects of the visitation schedule. The chancellor declined to find either party in contempt. Thomas appeals. |
| Summary of Opinion Analysis: | Issue 1: Material change in circumstances Thomas argues that the chancellor erred in failing to find a change in material circumstances in Stacy’s home sufficient to support a modification of the custody arrangement. Generally, in order to obtain a new custody order, the non-custodial parent must first show that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. The chancellor correctly identified Thomas’s primary argument concerning material change to be based on the facts he alleged about Stacy’s interference with his visitation. Interference with visitation may constitute a material change in circumstances given sufficient severity. Although there was evidence adduced at trial that Stacy interfered with Thomas’s visitation rights under the custody agreement, there was also evidence presented that Thomas had, to some degree, interfered with Stacy’s rights under the agreement as well. Additionally, none of the evidence shows that Stacy’s interference with Thomas’s visitation rights was of a sufficient degree of severity that the chancellor was manifestly wrong or clearly erroneous in failing to find a material change in circumstances due to the issues with visitation. Issue 2: Visitation schedule Thomas argues that the chancellor erred in modifying the visitation schedule because that modification unnecessarily interfered with his right to contract To modify a visitation schedule, the chancellor need only find that the original schedule is not working and a change is in the best interest of the child. Here, the record is replete with evidence indicating that the visitation schedule agreed to by Thomas and Stacy in the original divorce decree was not working, and that a modification of that schedule could benefit their son. Issue 3: Child support Thomas argues that the chancellor erred by ordering him to pay child support for the months of June and July 2006, because a clause contained in his original divorce decree and property settlement agreement allowed him a “grace period” of sixty days relief from paying the agreed $200 a month child support. Parents cannot contract out of their obligation to pay child support, even for a short time. Therefore, the clause in the original divorce decree was void as a matter of public policy. Issue 4: Mortgage payment arrearage Thomas argues that Stacy is in arrears $5,531 on mortgage payments she agreed to make under the original property settlement and that, therefore, he should have been awarded this sum by the chancellor. The chancellor allowed Thomas to keep all profits from the sale of the former marital home, as well as all of the money that remained in the court register at the time this matter was decided. Stacy has now filed for bankruptcy and listed Thomas as an unsecured creditor. Accordingly, the chancellor did not commit manifest error in failing to order Stacy to repay the entire $5,531. Issue 5: Contempt Thomas argues that the Court should remand this case with an order that the chancellor find Stacy in contempt of court for her interference with his visitation rights. There is no compelling reason to hold Stacy in contempt. |
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