Dykes v. McMurry
| Docket Number: | 2005-CA-00929-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-19-2006 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of child custody - Child support Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 03-30-2005 Appealed from: Perry County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: DENIED FATHER’S PETITION FOR MODIFICATION OF CUSTODY ORDER. Case Number: 2003-0039-Th |
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| Party Name: | Attorney Name: | |||
| Appellant: | James Terry Dykes |
JAMES R. HAYDEN |
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| Appellee: | Shelia Edwards Dykes McMurry | WILLIAM E. ANDREWS |
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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: | Modification of child custody - Child support |
| Summary of the Facts: | James Dykes and Sheila Dykes McMurry were granted a divorce on the ground of irreconcilable differences. Shelia was granted custody of the couple’s three children. Thereafter, James requested a modification of the custody order to change the primary physical custody of his sons to him rather than Shelia. James also filed a complaint requesting that the court grant him relief from his child support obligations to his oldest son. The court declined to alter the custody arrangement or alter James’child support obligations, and James appeals. |
| Summary of Opinion Analysis: | Issue 1: Child support James argues that the court erred in requiring him to continue paying child support for his son, because his son refused to pursue a relationship with him. In order for a child to reject the parent-child relationship to the point where child support is forfeited, the child’s actions would have to be both clear and extreme. In this case, the son’s actions are not clear and extreme. When asked why he had stopped visiting his father, he testified that he stopped visiting his father because he was hurt by the lawsuit against his mother and by his father’s petition to terminate child support. However, he testified that he still loves his father. It is conceivable that the relationship between James and his son can be repaired. Furthermore, given the petition filed by James and the allegations contained therein, namely that Sheila abused her son and his siblings, the son’s current unhappiness with his father is not extreme. Issue 2: Custody In order to successfully petition for a modification of an existing custody order, a party must show that there has been a material change in circumstances which adversely affects the welfare of the child and that the best interest of the child requires the change of custody. The record shows little change in circumstances in the present case other than Shelia’s remarriage to her current husband. Specifically, the evidence presented clearly showed that the son who expressed a wish to live with his father has suffered no abuse at his mother’s house. Evidence indicated that the son has enjoyed himself while on trips with Shelia and her new husband, and is healthy and well-adjusted in his mother’s home. Shelia’s testimony indicated that he only complained of wanting to live with his father when he got in trouble. Furthermore, while testimony indicated that the son would prefer to live with his father, it is not clear from the record that such a placement is in his best interests. |
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