This is an appeal by the mother of James E. Evans, a minor, from the decree of the chancery court of Jones County, modifying a decree made at a former term of the court with a reference to the custody of the child as between herself and the appellee, George W. Evans, her husband and father of the child. They were divorced in November, 1941. At that term of the court a decree was made awarding the father, to a very large extent, the custody of the child, who was about seven years of age. At the November, 1942, term of the court, on the application of the mother (the father having married again) the decree was modified to the extent that the father was only permitted to have the custody of the child Sunday afternoons from one to six o'clock.
At the April term of the court, on the application of the father, a decree was rendered giving the father exclusive custody of the child for the month of July of each year. That decree left the Sunday visits in force, as provided in the modified decree. In addition, it provided as follows: "Thereafter the said mother shall have the exclusive possession of the said child except Sunday afternoons between the hours of one o'clock and six o'clock, as heretofore fixed by the decree of this court. The period during *Page 323 which a parent shall have exclusive custody of the said child is subject to the normal health and normal conditions and in the case of sickness or other urgent necessity, then the parent not having at the time exclusive custody of the said child, shall have the right to visit said child at any and all reasonable times."
The changes in the surroundings and relations of the parties, as alleged in the petition of the father, and supported by the evidence, were that the child was approaching nine years of age; that he was devoted to his father; that his father had horses, and the child loved to go on horseback trips with his father; that the father desired, and the boy would love, to go on business trips with him; that such plans were materially interfered with, and often prevented, by the decree fixing the father's custody on Sunday from one to six o'clock in the afternoon. The chancellor found that these were material changes, and modified the former decree to the extent above set out.
We are of the opinion that, under the authority of section 1421, Code 1930, the decree ought to be affirmed, notwithstanding the former decree was, as contended by the appellant, the ex-wife, res judicata as to the facts then existing, upon which it was based. We think the subsequent changes in the relations of the parties were sufficient to justify the decree. "In any contest concerning the custody of a minor child, the best interests and welfare of the child are the matters of chief importance." 39 Am. Jur., page 607, sec. 20. "In view of the ever-changing conditions of fortune and society, it is clear that if the courts are adequately to carry out their duty of protecting and fostering the welfare of children in making awards of their custody, it is necessary for them to reconsider such awards where the circumstances of the case change after the entry of the original decree, and if the welfare of the child requires it, to modify the decree and make a changed or altogether different disposition of the custody of the child. There would seem to be no question but that the courts have the *Page 324 power to do this. . . . Unless new facts are shown to exist, the previous decision of a competent court with respect to the custody of a child will ordinarily be regarded as res judicata, although not where the circumstances have changed since the entry of the original decree." 39 Am. Jur., page 614, section 25.
Affirmed.