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IN THE COURT OF APPEALS 04/08/97 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00932 COA

WILLIAM ORMAN PEARSON APPELLANT v. MARY W. PEARSON APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. DONALD B. PATTERSON COURT FROM WHICH APPEALED: CHANCERY COURT OF COPIAH COUNTY ATTORNEY FOR APPELLANT: ROBERT W. LAWRENCE ATTORNEY FOR APPELLEE: JEFFREY A. VARAS NATURE OF THE CASE: CIVIL-DIVORCE PROCEEDING DIVIDING PROPERTY AND DETERMINING VISITATION RIGHTS TRIAL COURT DISPOSITION: FATHER AWARDED RESTRICTED VISITATION RIGHTS IN WHICH HE WAS DENIED OVERNIGHT VISITATION WITH HIS DAUGHTER

EN BANC COLEMAN, J., FOR THE COURT

William Orman Pearson appeals from an order of the Chancery Court of Copiah County which restricted his visitation rights with his then eight-year old daughter, Mary Elizabeth Pearson, because he was cohabiting with a woman, Harriet Garner, who was not then his wife but to whom he had once before been married. The father appeals to present but one issue, which is whether the chancellor erred by restricting his visitation rights with Beth solely because of his cohabitation with Garner. Because precedent established by the Mississippi Supreme Court requires that we hold that the chancellor erred in so restricting the father's visitation rights, we reverse and remand for further proceedings which are consistent with this opinion. I. FACTS William Orman Pearson (father) and Mary W. Pearson (mother) were married on October 5, 1986, in Rankin County, and they separated on June 1, 1994, in Copiah County, the place where they subsequently moved. Their only child, Mary Elizabeth Pearson (Beth), was born to their marriage on May 20, 1987. Their daughter Beth was eight years old when this case was tried on July 11, 1995. II. Litigation On February 2, 1995, the mother filed an amended complaint for divorce against the father on the alternative grounds of adultery and irreconcilable differences. In her complaint, the mother sought a division of certain property, custody of Beth, and restriction of the father's visitation rights. In her amended complaint, the mother offered the following explanation for her request that the father's visitation rights with their daughter Beth be restricted: . . . [The mother] requests that this Court restrict the . . . [father's] visitation with their minor child due to the fact that he is living in open and notorious adultery which has had an adverse impact on the parties['] minor child and requests that he be prohibited from exercising his visitation while in the company of his paramour. The . . . [mother] makes said request due to the fact that in the past, when the . . . [father] has exercised his visitation in the company of his paramour, this has had a detrimental effect upon the emotional health of their child which has caused her to suffer emotionally.

In his answer to the mother's complaint, the father counter-claimed for divorce on the grounds of habitual drunkenness, cruel and inhuman treatment, and irreconcilable differences. The Pearsons eventually entered into a consent agreement whereby they jointly asked for a divorce on the ground of irreconcilable differences. They agreed that the mother should have custody of Beth. In their consent agreement, the Pearsons also asked the chancery court to decide the issues upon which they were not able to agree, among which were: (1) the division of various items of real and personal property and (2) the father's visitation rights with his daughter, Beth. The chancellor conducted a trial on these issues on July 11, 1995. At this trial, both the mother and the father were represented by counsel. At the conclusion of the trial, the chancellor rendered his findings and opinion from the bench, and later, on August 11, 1995, he entered an order by which he divided the Pearsons' real and personal

property and ordered the father to pay the mother "$163.00 per month child support and an additional $67.00 per month to be applied toward the child's health insurance which . . . [the mother] shall be responsible for providing, making . . . [the father's] total child support obligation to be $230.00 per month." In his bench opinion, the chancellor opined about the father's visitation rights as follows: The next issue has to do with visitation. It seems the ever recurring problem is becoming more and more frequent, that is, that the non-custodial parent is living with a member of the opposite sex to whom he or she is not married. Obviously, in this case, there can be no marriage, otherwise in this court it would have been a bigamist marriage. The evidence is undisputed that Mr. Pearson is living with Mrs. Harriet Garner in a home that she apparently owns with other parties through an estate. There was a time not too long ago, perhaps no longer than the limited time I have been on the bench, where the chancellors took the position that non-custodial parents would not be permitted to exercise visitation rights in the presence of a paramour. The law seems to be certainly revolving away from that restricted viewpoint, the most recent application, Chamblee v. Chamblee, 637 So. 2d 862, wherein the Supreme Court held that the fact that a parent was having an affair was not enough to create the danger requisite to limit visitation. Absent evidence that visitation with lover would be harmful, restriction is abuse of discretion and that child cannot be in the presence of any member of the opposite sex not related by blood or marriage is overbroad. That means we have no judicial discretion to at least prohibit overnight visitation in the home of a paramour, or when the paramour is living in a non-custodial parent's home, I think not. I think it is detrimental to a child, any child, to send a message that the courts of this state condone adultery. For that reason, I believe I have the right to place some restrictions on visitation insofar as overnight is concerned. It is therefore the decision of this court that Mr. Pearson will have visitation with Mary Elizabeth on every other Saturday from 9 a.m. to 7 p.m. and on the following Sunday from 1:30 p.m. to 7:30 p.m. .... If and when Mr. Pearson marries Mrs. Garner, or for that matter any other female, or should he remove himself from Mrs. Garner's residence and secure satisfactory quarters where he is living alone, his visitation will be expanded to this court's guideline schedule for visitation, that is, alternating weekends, as set forth in my guidelines and holiday visitation, as set forth in the guidelines, and in addition, thirty consecutive days of summer visitation.

The chancellor incorporated the operative aspects of his opinion on the subject of the father's visitation rights into an order from which the father has now appealed. This order further provided: Should . . . [the father] acquire a residence of his own and cease to live with a female to which he is not married, or should . . . [the father] marry, then his visitation rights will be

the standard visitation rights set by the Court as follows; 1. Weekend Visitation: The non-custodial parent will have the child(ren) on alternate weekends beginning Friday at 6:00 P.M. and ending Sunday at 6:00 P.M.

The chancellor's standard visitations rights also included several provisions for visitation on other holidays such as Christmas and Thanksgiving and summer vacation. However, the father received none of these other visitation rights so long as he continued to cohabit with his paramour. III. Issue and precedent Although it is composed with prolixity, we quote verbatim from the father's brief the one issue on which he has appealed the order of the chancery court: The sole issue on this appeal is the restriction on the Appellant's overnight visitation rights with his daughter. The Chancellor promulgated a general prophylactic rule barring all overnight visitation in the presence of a paramour without any showing of harm or injury to the child. If Appellant marries the paramour all restrictions are lifted. The Appellant seeks this Court's relief to grant him overnight visitation rights with his daughter the same as any other father.

Dunn v. Dunn, 609 So. 2d 1277 (Miss. 1992), resolves and disposes of the issue of whether the chancellor erred. In Dunn , the father admitted that he had engaged in an adulterous affair with his former employee. Id. at 1282. The chancellor granted custody of the couple's children to the mother and enjoined the father from having his children in the presence of his paramour with whom he had admitted having an adulterous affair. Id. at 1286. The Mississippi Supreme Court reversed the chancellor's decision to enjoin the father from visiting with his children in the presence of his lover. In explaining its reversal, the supreme court stated: Visitation and restrictions placed upon it are within the discretion of the chancery court. Visitation should be set up with the best interests of the children as the paramount consideration, keeping in mind the rights of the noncustodial parent and the objective that parent and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house. White v. Thompson, 569 So.2d 1181, 1185 (Miss.1990). In Cox [ v. Moulds, 490 So. 2d 866 (Miss. 1986)], this Court found that in order for a chancellor to restrict visitation he would have to find "something approaching actual danger or other substantial detriment to the children." Id. at 868. This Court in Newsom [v. Newsom, 557 So. 2d 511 (Miss. 1990)] held that the chancery court could restrict visitation in circumstances which present "an

appreciable danger of hazard cognizable in our law." Id. at 517. There was no evidence presented that visitation in the mere presence of a lover of Michael's would be detrimental to the children or dangerous in any way. Discussing standards to follow in custody modifications, in Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991), we stated: [a]n extramarital relationship is not, per se, an adverse circumstance. Ballard [v. Ballard], 434 So.2d [1357] at 1360 [Miss.1983] defined the inquiry as ensuring against harm to the child, noting parenthetically, "whether such [parental] behavior is immoral or not . . . ." . . . . Absent any evidence that visitation with Michael and his lover would be harmful to the children, the chancellor erred and abused his discretion in placing such a restriction on Michael's visitation. We must reverse the chancellor's decision on this issue and remand to the Chancery Court of Jackson county for a determination not inconsistent with this opinion.

Dunn, 609 So. 2d at 1286. (citations omitted). In her brief, Beth's mother notes that in her amended complaint for divorce, the relevant portion of which we have quoted, she charged that Beth's overnight visitation with her father while he was living with his paramour had an adverse impact on Beth's emotional well-being. She then argues that Beth's father "had not had any consistent visitation with . . . [Beth], reasons for which are in dispute between the parties." She then concludes her argument with the allegation that "[Beth] was emotionally upset after returning from visiting with . . . [her father] while in the company of his paramour which caused . . . [Beth] to undergo an adverse impact on her emotional health." With respect to this last argument, the record contains the following direct examination testimony of Beth's mother: Q. Now regards to Beth and visitation. Do you understand what the visitation guidelines are of this court, correct? A. Yes. Q. What is your objection to Mr. Pearson in regards to him having visitation in accordance with those guidelines? A. I have one objection to him seeing his daughter. I do have an objection, a strong objection, to him exposing her to the relationship that he has with Ms. Garner. Q. O.K. Now, has Ms. Garner ever accompanied him to come pick up Beth for visitation here and was she there when Beth was brought back? A. I don't know.

Q. Well, anytime such visitations were taken when Beth came home did you notice anything unusual? A. Very definitely. She was usually quite upset when she got home. Q. You say upset, would you describe upset. A. All right. Couldn't sleep at night, this went on for usually several days. Clearly, this testimony fails to connect Harriet Garner, the father's paramour, with the father's visitation with Beth in any way. The record also contains the following cross-examination of Beth's mother by her father's counsel: Q. Do you know this lady? A. I have never met her, sir. Q. Know anything about her? Lows, highs, what you've seen, observed? A. No. Q. Have you ever seen the living arrangements where they live? A. No sir, I have not. Q. You know anything about her? A. All I know is they live in Byram somewhere, I don't know the address. Finally, on direct examination, the father admitted that he intended to exercise his visitation rights with his daughter with Harriet Garner and her daughter, who also lived in Harriet Garner's home, but he denied that, as of the date of the trial, he had ever taken Beth to Harriet Garner's home. Again we quote from the record: Q. And you say there has not been any kind of adverse effect on Beth . . . A. . . . Sir, I don't know, she's never been there, sir. She's never been to that house. The transcript of the testimony in the trial of this case contains no other evidence about the impact of Harriet Garner, adverse or otherwise, on Beth when Beth's father visited with her. Indeed, the father's denial that Beth had ever been in Harriet Garner's home combined with the mother's statement that she didn't know whether Harriet Garner had ever accompanied Beth and her father when he came for her or returned her to the mother's home hardly laid the predicate for any determination by the chancellor that the father's visitation with Beth in the mere presence of Harriet Garner would be detrimental to Beth or dangerous to her in any way. While this Court will not reverse a chancellor's findings of fact so long as they are supported by substantial evidence in the record, Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983), it "will

reverse when he is manifestly in error in his finding of fact or has abused his discretion." Hammett v. Woods, 602 so. 2d 825, 828 (Miss. 1992). We previously quoted in full the chancellor's explanation for denying the father overnight visitation with Beth to demonstrate that in not making a finding that such overnight visitation in Harriet Garner's home would be detrimental to Beth or dangerous to her in any way, he failed to conform to the standard set forth in Dunn. Furthermore, even if he had specifically made such a finding, this Court would have been unable to find any evidence in the record to support it. Thus, we hold that the chancellor erred when he denied Beth's father the right to overnight visitation in the presence of Harriet Garner, and we therefore reverse and remand this case to the Copiah County Chancery Court for further proceedings consistent with this opinion. THE ORDER OF THE CHANCERY COURT OF COPIAH COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE, MARY W. PEARSON.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., DIAZ, HERRING, KING, PAYNE, AND SOUTHWICK, JJ., CONCUR.



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