Evans v. Evans , 195 Miss. 320 ( 1943 )

A close and candid examination of this record discloses, in my judgment, that no substantial change in the factual circumstances had occurred between October 29, 1942, when the decree awarding the custody of the child to the mother with right of visitation and temporary custody once each week to the father was made, and April 30, 1943, when the modified decree here complained of was entered. Indeed, the only factual change was that the child had become six months older; but this of itself and in such a short time is not enough to permit a modification of a former decree, for this change is present in all such cases.

What happened here was that it was found during and by the experience of the six months' time, the arrangement of the October decree was one which was impracticable and unworkable if either the child or his father were to obtain any benefit or pleasure from their association with each other, and the court upon a more mature consideration and reflection saw that such was the case and modified the decree so as to give such time to the father as would make the association of some benefit to the child, rather than scarcely any at all as resulted from the October decree, and hence the court modified the decree so as to allow the father the temporary custody during the vacation month of July.

Under modern authorities this minor measure of modification is allowable even in the absence of any substantial changes in the surrounding circumstances when viewed merely from the factual standpoint. The modern rule is that it is only when there is a substantial modification of the custody decree that a substantial change of circumstances must first be shown. And time out of mind the chancellors of this state have so construed their powers under what is now Section 1421, Code 1930; they have modified custody decrees in matters of minor detail when experience under a former decree has shown the modification to be to the child's interest, and this although the general situation of the parties remained substantially the same, and in this they are within their authority.

This is illustrated by the case, Garner v. Garner,143 Okla. 183, 288 P. 298, 299, under statutes similar to ours, and where the facts are squarely in point. There the decree was modified from a week-end custody to one allowing the father the entire week at the end of each of the vacation months of June, July, and August. It was complained that there had been no proof of any change in the circumstances, but the court said that the rule as to change in circumstances applies only in cases "where the general or permanent custody of the child is changed from one party to another," — not "in cases where there is only a change in dates or periods within which one party may have the temporary care and custody of the child for the purpose of visitation, where there is no general change in its custody, such as in the instant case."

The modification within the rule contended for by appellant has reference to a major modification, one which goes to the general force and effect of the decree, not to a minor modification, which, when made, still leaves the former decree in its substantial aspects in full force. And since decisions of courts are to be interpreted in the light of the precise facts in respect to which the decision is made, which has actually been decided by the court in this case has been that which is set out in this and the two foregoing paragraphs of this concurring opinion — a matter which any party interested in such cases may ascertain for himself by an examination of this record as it remains on file in this court.

McGehee, J., and Smith, C.J., concur in this opinion.