Chasity Nicole Smith Wilburn v. William Haywood Wilburn ( 2007 )


Menu:
  •                     IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2007-CA-01385-SCT
    CHASITY NICOLE SMITH WILBURN
    v.
    WILLIAM HAYWOOD WILBURN
    DATE OF JUDGMENT:                          05/31/2007
    TRIAL JUDGE:                               HON. GLENN ALDERSON
    COURT FROM WHICH APPEALED:                 LAFAYETTE COUNTY CHANCERY COURT
    ATTORNEYS FOR APPELLANT:                   JOHN THOMAS LAMAR, JR.
    DAVID M. SLOCUM, JR.
    ATTORNEY FOR APPELLEE:                     T. SWAYZE ALFORD
    NATURE OF THE CASE:                        CIVIL - CUSTODY
    DISPOSITION:                               REVERSED AND REMANDED - 10/02/2008
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE DIAZ, P.J., CARLSON AND RANDOLPH, JJ.
    RANDOLPH, JUSTICE, FOR THE COURT:
    ¶1.    Chasity Nicole Smith Wilburn and William Haywood Wilburn divorced on grounds
    of irreconcilable differences. Their “Property Settlement Agreement” provided for joint legal
    custody of their two minor children “with [William] having primary physical custody and
    [Chasity] having reasonable periods of visitation . . . .” Following an agreed modification
    by the parties increasing Chasity’s visitation, Chasity filed an “Amended Petition for
    Modification of Divorce Decree” in the Chancery Court of Lafayette County, Mississippi,
    seeking a modification of custody and/or visitation rights. At the subsequent hearing, the
    chancellor stayed the proceedings and appointed an independent psychologist to interview
    the parents and children, then report his recommendations.        In the interim, Chasity’s
    visitation was increased further by order of the chancery court. Following receipt of the
    psychologist’s report, a hearing was held and an order subsequently entered providing that
    William would retain primary physical custody of the minor children and reducing Chasity’s
    visitation to essentially that provided for in the original “Property Settlement Agreement.”
    Following denial of her “Motion for Reconsideration,” Chasity filed notice of appeal.
    FACTS
    ¶2.     On April 15, 2004, William and Chasity filed a “Joint Complaint for Divorce” in the
    chancery court on the basis of irreconcilable differences. The joint complaint further
    requested that William and Chasity “be awarded joint legal custody of the parties’ minor
    children[1 ] . . . .” On June 8, 2004, William and Chasity filed a “Property Settlement
    Agreement” providing, in pertinent part, that the couple would have joint legal custody of
    the minor children, “with [William] having primary physical custody and [Chasity] having
    reasonable periods of visitation . . . .” Specifically, Chasity would have visitation with the
    minor children every other weekend from 6:00 p.m. on Friday evening through 6:00 p.m. on
    Sunday evening; for six weeks during the summer in two-week, non-consecutive intervals;
    for holidays alternating yearly; and “such other periods of visitation as may be mutually
    agreed upon between the parties.” The “Property Settlement Agreement” expressly added
    that:
    it is understood and agreed between the parties that this Agreement is entered
    into without undue influence, fraud, coercion, or misrepresentation, or for any
    reason not herein stated. The provisions in this Agreement and their legal
    effect are fully known and understood by each of the parties, and each party
    1
    The couple had two children, T.W., born April 3, 1994, and C.W., born June 14,
    1995.
    2
    acknowledges that the Agreement is fair and equitable regardless of any
    grounds for divorce, known or unknown, that may now or hereafter exist, and
    that it is being entered into voluntarily . . . .
    ...
    It is also understood and agreed that this Agreement stands alone as a contract
    between the parties and shall remain in full force and effect unless and until
    modified by subsequent Agreement of the parties or superseded by a lawful
    Order of a [c]ourt of competent jurisdiction.[2]
    (Emphasis added). On June 16, 2004, the chancery court entered a “Judgment for Divorce
    – Irreconcilable Differences” in accord with the “Joint Complaint for Divorce” and “Property
    Settlement Agreement.” 3
    ¶3.    Nearly six months later, on December 12, 2004, Chasity filed a “Petition for
    Modification of Visitation Rights and For Citation of Contempt,” which included the
    allegation that:
    [s]ince the parties’ separation before their divorce and prior to entry of the
    Decree of Divorce, the parties shared physical custody on an alternating
    weekly basis. [Chasity] was led to believe by [William] that the same schedule
    would continue, and it did so until entry of the decree in this case.
    Chasity maintained that but for this purportedly fraudulent action, “she would not have
    executed the Property Settlement Agreement and proceeded forward without seeking advise
    [sic] of counsel.” She further asserted that strict adherence to the visitation schedule outlined
    in the “Property Settlement Agreement” constituted “a material change in circumstances
    2
    In entering into the “Property Settlement Agreement,” William was represented by
    counsel, while Chasity was not.
    3
    Regarding the “Property Settlement Agreement,” the chancery court found “it to be
    a complete, fair, and equitable settlement of the property rights and obligations of the parties
    as to the parties’ . . . child support and visitation.”
    3
    adverse to the best interests of the children warranting modification of the Divorce Decree.”
    William’s subsequently-filed answer denied Chasity’s allegations. A May 2, 2005, hearing
    before the chancery court resolved the matter. The following agreement was read into the
    record by counsel for Chasity:
    based upon an agreement between the parties the visitation schedule that is
    currently incorporated into the Final Decree of Divorce was modified to
    include visitation between [Chasity] and the two children every Wednesday
    night. There will also be increased visitation during the Christmas [h]oliday,
    and also with [Chasity] on every Spring Break. . . . [A] part of the agreement
    is when they are not in school the holiday visitation that is set forth in the
    agreement will control, that while the [children] are in school it will be on
    each Wednesday night.
    (Emphasis added).
    ¶4.    On February 23, 2006, William and Chasity filed a “Joint Motion” requesting “a
    hearing in relation to unresolved matters stemming from their Final Decree of Divorce.” The
    motion provided that:
    [t]he parties were before this Honorable Court [i]n May . . . 2005 and were
    admonished in regard to the same. However, a dispute has arisen in relation
    to the Court’s input. Therefore, the parties respectfully request that the [c]ourt
    hear testimony and evidence and clearly establish parameters for visitation,
    contact between the minor children and [Chasity], and related issues pertaining
    to visitation.
    On May 19, 2006, Chasity filed an “Amended Petition for Modification of Divorce Decree”
    claiming that “[t]he actions of [William] toward his children and [Chasity] since entry of the
    last decree in this case constitutes a material change in circumstances warranting
    modification of custody or, in the alternative, modification of visitation rights.” Chasity
    sought “temporary relief in order to increase the amount of time when the children are in her
    care and custody and would show the intense anguish and resulting effect of the Divorce
    4
    Decree warrants the same.” William’s answer and counter-complaint denied Chasity’s
    allegations; requested that Chasity be held in contempt for allegedly “willfully and wantonly”
    refusing to reimburse William for her one-half of the children’s expenses and declining to
    return the children to William at the conclusion of her visitation; and added that:
    Chasity continues to tell the minor children that they can choose where they
    want to live once they reach the age of 12 years old. This action and attitude
    by Chasity has had an adverse effect on the minor children. Chasity has
    purchased inappropriate reading material and clothing for the minor children.
    Chasity has encouraged the minor children to lie to [William]. Chasity’s
    actions constitute a material change in circumstances adverse to the health and
    welfare of the children since the Judgment of Divorce and [William] requests
    the Court to modify Chasity’s visitation . . . .
    ¶5.    On October 18, 2006, a hearing on Chasity’s amended petition and William’s answer
    and counter-complaint was held before the chancery court. Julie Davidson, a graduate-
    student therapist at the University of Mississippi Psychological Services Center, who had met
    with the entire Wilburn family at various times but primarily saw the minor children, was the
    only witness examined. According to Davidson, T.W. had threatened to commit suicide and
    had made suicidal gestures at various times. Davidson testified that on February 22, 2006,
    T.W. had stated the desire to self-injure only when at William’s house. Davidson added that
    T.W. reported that this depression was the result of a poor relationship with William and a
    desire to spend more time with Chasity. Davidson further testified that both T.W. and C.W.
    reported concerns about excessive consumption of alcohol by William. Finally, Davidson
    testified that Chasity had informed T.W. about what transpired in one of Davidson’s sessions
    with William and Chasity. According to Davidson, this led to T.W.’s claim of being “upset
    that [William] was mean to [Chasity].” Thereafter, the chancellor decided “to stop the trial
    5
    at this stage and . . . appoint Dr. Wyatt Nichols as a psychologist.” 4 According to the
    chancellor:
    [Chasity] is complaining about a visitation schedule that she agreed to and
    signed . . . . And, evidently, she’s been discussing it in front of the children.
    That’s what is troubling me. . . . [I]t appears that these children are being
    manipulated by a mother that wants to set the visitation the way she wants to
    set it; and by a daddy that’s so doggone strict you can’t knock him in the head
    and get any sense in him. Your problem here is that you’ve got two people
    that are so strong willed and so self-centered . . . that these two [children] are
    suffering.
    The October 24, 2006, order of the chancery court appointed Dr. Nichols “to interview the
    parents and children in this action” and continued the matter “until the report of Dr. Nichols
    has been received and he advises that the matter should go forward.” Regarding visitation,
    the order provided that “[Chasity’s] visitation will be increased to include, in addition to
    every Wednesday night visitation, that her every other weekend visits will conclude when the
    children resume school on Monday mornings rather than terminating on Sunday evenings”
    and “[t]he minor children shall have telephone access to [Chasity] when in the custody of
    [William] and will have access to [William] when in the custody of [Chasity].” (Emphasis
    added).
    ¶6.    Following receipt of Dr. Nichols’ report,5 the chancellor set the matter for hearing on
    May 30, 2007. The transcript of that hearing is absent from the record, but the subsequently-
    4
    The chancellor noted, “no more sessions [at Ole Miss]. After what I saw this
    morning I was appalled.” Furthermore, as William’s appellate brief notes, “[n]either party
    objected to the [c]ourt’s order appointing Dr. Nichols, and neither party objected to the
    continuance of trial.”
    5
    This report is not contained in the record.
    6
    entered June 1, 2007, order of the chancery court provided that William retained primary
    physical custody of the minor children and Chasity’s “minimum visitation” was reduced to:
    [e]very other weekend from 5:00 p.m. on Friday until 5:00 p.m. Sunday.
    ...
    Six (6) weeks of visitation during the summer being the first two full weeks in
    June, the last full week of June, the first full week of July, and the last two
    weeks of July.
    ...
    Chasity shall have telephone visitation with the minor children each Tuesday
    and Thursday night at 7:00 p.m. The children may have additional telephone
    visitation with Chasity and be allowed to call her when they desire.[6 ]
    According to the chancellor:
    at the conclusion of the matter [Chasity] became very loud and boisterous in
    the courtroom. I directed her counsel . . . to get her out of the courtroom
    before I jailed her. She left the courtroom talking back to the [c]ourt, and as
    [he was] about to exit the courtroom her father cursed the [c]ourt. So I issued
    a capias for her father and he went to the Lafayette County Detention Center
    as the result of that.[7 ] And [Chasity] has gone to the Lafayette County
    6
    Chasity contends that this order “changed her visitation in three ways: (1) it revoked
    her Wednesday night visitation with the minor children; (2) it changed her alternating-
    weekend visitation to end on Sunday night instead of Monday morning; and (3) it granted
    her telephone visitation every Tuesday and Thursday night and additionally, whenever the
    minor children desire.”
    7
    The May 30, 2007, order of the chancery court provides that Chasity’s father, John
    Henry Smith, referred to the chancellor as “a sorry piece of shit!” As a result, Smith was
    deemed in contempt of court, ordered incarcerated for thirty (30) days in the Lafayette
    County Detention Center, and fined $100.00. Chasity subsequently filed a “Motion for
    Reconsideration,” providing that Smith is “the sole provider for his household” and that “[i]t
    is believed that incarceration will cost [Smith] his job.” The June 1, 2007, “Order of
    Release” of the chancery court suspended the remaining twenty-eight (28) days of Smith’s
    incarceration and ordered him released upon payment of the $100.00 fine.
    7
    Detention Center cursing the [c]ourt and everybody else, and has continued to
    do it.[8 ]
    ¶7.    On June 12, 2007, Chasity filed a “Motion for Reconsideration” of the June 1, 2007,
    order of the chancery court regarding custody and visitation. According to Chasity, “Dr.
    Nichols advised that the [children] ‘do need to spend more time with her[,]’ referencing
    Chasity. He recommended that ‘more time with [Chasity] might be the best option’ with the
    father having custody.”     Notwithstanding the recommendation of Dr. Nichols, “[t]he
    schedule implemented by the [c]ourt decreased the visitation arrangement in place when Dr.
    Nichols made his report . . . and decreased [Chasity’s] telephone contact.”          William
    responded that “any additional contact with Chasity is only more disruptive to the routine of
    the minor children. Chasity continues to discuss the court proceedings with the minor
    children, even to the extent of allowing the children to listen to a tape recording of the
    Court’s ruling of May 30, 2007.”
    ¶8.    On July 2, 2007, a hearing on Chasity’s “Motion for Reconsideration” was held before
    the chancery court. At the hearing, the chancellor asked Chasity, “it is alleged here that you
    allowed the children to listen to the tape recording of the Court’s ruling on May 30, is that
    correct?” Chasity responded that no such recording existed, but that “[William] told the kids
    some things that did not happen in court on that day, so it was stated to him that they would
    know what happened.” She then admitted that she told the minor children they could listen
    to a tape recording of the May 30, 2007, proceeding, “[t]o get [William] to tell the truth.”
    The chancellor responded:
    8
    This Court notes that this finding is suspect as no evidence was presented that the
    described conduct was within hearing of the circuit judge.
    8
    [y]ou are going to learn some day to do what the [c]ourt has told you to do, but
    you go against the [c]ourt Order all of the time.[9 ] I was prepared to give you
    extended or additional visitation until this happened. I am sorry. The
    disruption that you and your family caused in the courtroom, and you continue
    to discuss these legal proceedings with your children, and the [c]ourt has
    admonished you time and time again not to. I’m denying the motion.
    The July 19, 2007, order of the chancery court denied Chasity’s “Motion for
    Reconsideration.” On August 10, 2007, Chasity filed “Amended Notice of Appeal.” 10
    ISSUES
    ¶9.    This Court will consider:
    (1) Whether Chasity’s appeal is untimely.
    (2) Whether the chancery court erred in not allowing Chasity a hearing on her
    amended petition for modification of the divorce decree.
    (3) Whether the chancery court erred in failing to find a material change in
    circumstances or substantial evidence to support a modification of custody.
    (4) Whether the chancery court erred in modifying Chasity’s visitation.
    STANDARD OF REVIEW
    ¶10.   “This Court will not disturb the findings of a chancellor when supported by substantial
    evidence unless the chancellor abused his discretion, was manifestly wrong, clearly
    erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 
    824 So. 2d 623
    , 625-26 (Miss. 2002).         In short, “our standard of review defers much to the
    chancellor’s final judgment.” 
    Id. at 626
    . Regarding legal questions, this Court applies a de
    novo standard of review. See Russell v. Performance Toyota, Inc., 
    826 So. 2d 719
    , 721
    (Miss. 2002).
    9
    The court order to which the chancellor refers is unclear from the record.
    10
    “Notice of Appeal” was filed on August 8, 2007.
    9
    ANALYSIS
    I.     Whether Chasity’s appeal is untimely.
    ¶11.   Mississippi Rule of Civil Procedure 59(e) provides that “[a] motion to alter or amend
    the judgment shall be filed not later than ten days after entry of the judgment.” Miss. R. Civ.
    P. 59(e) (emphasis added). This ten-day requirement is absolute, and “the court is not
    permitted to extend this time period.” Miss. R. Civ. P. 59(e) cmt. Only if a party files a
    timely motion to alter or amend the judgment under Rule 59 does “the time for appeal for all
    parties ru[n] from the entry of the order disposing of the last such motion outstanding.”
    Miss. R. App. P. 4(d). Otherwise, “the notice of appeal required by Rule 3 shall be filed with
    the clerk of the trial court within 30 days after the date of entry of the judgment or order
    appealed from.” Miss. R. App. P. 4(a). That thirty-day requirement is inflexible in the case
    sub judice as, in civil cases, “the time for taking an appeal as provided in Rules 4 or 5 may
    not be extended.” Miss. R. App. P. 2(c).
    ¶12.   On June 12, 2007, Chasity filed a “Motion for Reconsideration” 11 of the June 1, 2007,
    order of the chancery court.       Applying the time-computation standards outlined in
    Mississippi Rule of Appellate Procedure 26(a), Chasity’s motion should have been filed no
    later than Monday, June 11, 2007. See Miss. R. App. P. 26(e); Miss. R. Civ. P. 59(e). As
    such, William contends that Chasity’s time for filing an appeal commenced on June 1, 2007,
    and, as she did not file notice of appeal until sixty-eight days later, on August 8, 2007, her
    11
    A motion for reconsideration is treated as a motion to alter or amend judgment
    pursuant to Mississippi Rule of Civil Procedure 59(e). See Boyles v. Schlumberger Tech.
    Corp., 
    792 So. 2d 262
    , 265 (Miss. 2001).
    10
    appeal is barred as untimely. Chasity responds that this issue is procedurally barred as
    “[b]efore an issue can be presented to this Court, it must first be presented to the trial court.”
    ¶13.   This Court finds that Chasity’s “Motion for Reconsideration” was untimely.
    However, there is no evidence in the record that William either objected or responded to
    Chasity’s “Motion for Reconsideration.” The Mississippi Court of Appeals addressed a
    similar issue in Scally v. Scally, 
    802 So. 2d 128
     (Miss. Ct. App. 2001), stating:
    [t]his Court does not review matters on appeal that were not first raised at the
    trial level. Shaw v. Shaw, 
    603 So. 2d 287
    , 292 (Miss. 1992). Before an issue
    can be presented to this Court, it must first be presented to the trial court. This
    is done by an objection. Queen v. Queen, 
    551 So. 2d 197
    , 201 (Miss. 1989).
    A timely objection brings the issue to the court’s attention, and gives it the
    opportunity to address the issue. Kettle v. State, 
    641 So. 2d 746
    , 748 (Miss.
    1994).
    Scally, 
    802 So. 2d at 132
    . Based upon that same reasoning, this Court concludes that
    William is procedurally barred from raising this issue for the first time on appeal.
    II.     Whether the chancery court erred in not allowing Chasity a
    hearing on her amended petition for modification of the divorce
    decree.
    ¶14.   “Before an issue may be assigned and argued in this Court, it must first be presented
    to the trial court.” In re: Hampton, 
    919 So. 2d 949
    , 957 (Miss. 2006) (citation omitted).
    Chasity argues that she:
    was denied the opportunity to present factual support for her Amended Petition
    for Modification of Divorce Decree. In fact, her visitation was modified in a
    manner to reduce her visitation even though the only evidence in the record is
    the direct examination of Julie Davidson, which encouraged the court to
    increase [Chasity’s] visitations with the minor children. Clearly, [Chasity] was
    denied her due process rights. As a result, this matter should be reversed and
    remanded for a hearing on the merits of the issues of child custody and
    visitation.
    11
    As Chasity’s due-process argument is raised for the first time on appeal, this Court deems
    it procedurally barred. See In re Hampton, 919 So. 2d at 957. Nonetheless, this Court will
    also address this issue on the merits.
    ¶15.   This Court has stated that:
    [t]he parties should be afforded a full, complete hearing at which the parties
    have an opportunity to call witnesses in their behalf and be heard by
    themselves or counsel. Fortenberry v. Fortenberry, 
    338 So. 2d 806
     (Miss.
    1976). If a full and complete hearing is not allowed by refusing the defendant
    his opportunity to present evidence, then the defendant is thereby deprived of
    due process. 
    Id.
    Weeks v. Weeks, 
    556 So. 2d 348
    , 349-50 (Miss. 1990). See also Morreale v. Morreale, 
    646 So. 2d 1264
    , 1270 (Miss. 1994) (“[e]very defendant has a right to introduce evidence at a
    hearing.”). In Weeks:
    the defendant offered to prove, by his own testimony and the testimony of
    other witnesses, that he had, indeed, paid his ex-wife the money she claimed
    he had not paid for the nonpayment of which he was held in contempt.
    However, the Chancellor shut off defendant’s proof, saying that he was
    satisfied that the defendant was in contempt.
    Weeks, 556 So. 2d at 349. This Court concluded that the defendant was deprived of his right
    to a judicial hearing “by the Chancellor’s refusal to allow the defendant to present his
    evidence.” Id. Similarly, in Childers v. Childers, 
    717 So. 2d 1279
     (Miss. 1998), this Court
    found that:
    [i]t was a denial of James’ rights to due process for the Chancellor to deny his
    motion without holding a hearing where James is given the opportunity to
    provide factual support for the allegation in the pleading that there has been a
    material change in circumstances since the rendering of the former decree.
    Id. at 1281.
    12
    ¶16.   The case sub judice, however, is plainly distinguishable from Weeks and Childers.
    Chasity did not object to the appointment of Dr. Nichols on October 18, 2006, or
    subsequently object at the May 30, 2007, hearing, in her June 12, 2007, “Motion for
    Reconsideration,” or, finally, at the July 2, 2007, hearing that she was being denied her due
    process in not being able to present further witnesses. As William contends:
    [i]t was Chasity’s burden to put on her proof. If she felt that she was not
    allowed to put on evidence in support of her [p]etition, then she should have
    moved the court for an opportunity to put those witnesses on, and if the
    Chancellor did not allow her to do so, then she should have made an offer of
    proof as to the testimony she was not allowed to present.
    The more analogous case is Morreale in which “Martin offered no testimony, evidence,
    argument or statement, and . . . there was no objection filed with the court.” Morreale, 646
    So. 2d at 1270. Based thereon, this Court found that “[h]ad he objected . . . and offered proof
    of evidence that was to be presented, a different outcome might result, but there is no error
    to complain of in the chancellor’s confirmation.” Id. Similarly, this Court concludes that
    in the absence of an objection and offer of proof by Chasity, her due-process argument is
    without substantive merit.
    III.   Whether the chancery court erred in failing to find a material
    change in circumstances or substantial evidence to support a
    modification of custody.
    ¶17.   The June 8, 2004, “Property Settlement Agreement” between William and Chasity
    provided that the couple would have joint legal custody of the minor children, “with
    [William] having primary physical custody and [Chasity] having reasonable periods of
    visitation . . . .” The June 1, 2007, order of the chancery court regarding custody and
    visitation followed that agreement, providing that “primary physical custody of the minor
    13
    children shall remain in [William], with Chasity having visitation.” Chasity argues on
    appeal, however, that William “agreed to split weeks with the children and his breach of this
    agreement had an adverse effect on the minor children which necessitated a change in
    custody.” (Emphasis added). As such, she asserts that the chancery court erred in not
    modifying custody.
    ¶18.   This Court has stated that “[i]t would be tantamount to defrauding the court for parties
    to present to the court a property settlement agreement, which is subsequently incorporated
    into the final decree, while actually intending to abide by a contradictory private contract.
    This is clearly against public policy.” Sullivan v. Pouncey, 
    469 So. 2d 1233
    , 1234 (Miss.
    1985). See also Traub v. Johnson, 
    536 So. 2d 25
    , 26 (Miss. 1988) (“[t]he Sullivan opinion
    clearly states that a prior agreement entered into by the parties is not enforceable if it is not
    approved by the court.”). The “Property Settlement Agreement” expressly states that “[i]t
    is . . . understood and agreed that this Agreement stands alone as a contract between the
    parties and shall remain in full force and effect unless and until modified by subsequent
    Agreement of the parties or superseded by a lawful Order of a [c]ourt of competent
    jurisdiction.” (Emphasis added). Though Chasity entered into the “Property Settlement
    Agreement” without counsel, this Court has stated that “having elected to proceed without
    an attorney, a person is bound by the same rules of practice and procedure as an attorney.”
    Bullard v. Morris, 
    547 So. 2d 789
    , 790 (Miss. 1989). Therefore, Chasity is bound by the
    terms of the “Property Settlement Agreement” regarding custody “unless and until modified
    by subsequent Agreement of the parties or superseded by a lawful Order of a [c]ourt of
    14
    competent jurisdiction.” In the case sub judice, neither modification nor supersession
    occurred as to custody.
    ¶19.   Regarding the modification of child custody, the test is “(1) whether there has been
    a material change in circumstances which adversely affects the welfare of the child and (2)
    whether the best interest of the child requires a change of custody.” Floyd v. Floyd, 
    949 So. 2d 26
    , 29 (Miss. 2007) (citing Weigand v. Houghton, 
    730 So. 2d 581
    , 585 (Miss. 1999)).
    As the chancellor made no specific finding on this fact issue, “we are required by our prior
    decisions and by sound institutional considerations to assume that the chancellor resolved all
    such fact issues in favor of appellee.” Cheek v. Ricker, 
    431 So. 2d 1139
    , 1143-44 (Miss.
    1983) (citing Harris v. Bailey Ave. Park, 
    202 Miss. 776
    , 791, 
    32 So. 2d 689
    , 694 (1947)).
    Chasity alleges that the purported separate agreement, and William’s refusal to abide thereby,
    is a “material change in circumstances” which “had an adverse effect on the minor children
    . . . .” However, as the “Property Settlement Agreement” expressly provides that it was “fair
    and equitable” and freely entered by Chasity, this Court concludes that the chancellor did not
    abuse his discretion in keeping custody consistent with the “Property Settlement Agreement”
    in his June 1, 2007, order. See Yates v. Yates, 
    284 So. 2d 46
    , 47 (Miss. 1973) (“even though
    the record does not clearly and precisely show on what ground or specific finding of fact the
    decision of the lower court was made, we, as an appellate court, will affirm the decree if the
    record shows any ground upon which the decision may be justified.”).
    15
    IV.     Whether the chancery court erred in modifying Chasity’s
    visitation.
    ¶20.   However, as to visitation:
    [a]ll that need be shown is that there is a prior decree providing for reasonable
    visitation rights which isn’t working and that it is in the best interests of the
    children as fostering a positive and harmonious relationship between them and
    their divorced parents to have custody provisions made specific rather than
    flexible and attendantly vague.[12 ]
    Cox, 490 So. 2d at 869.          The chancellor is granted “broad discretion” in visitation
    determinations and “[t]his Court will not reverse a chancellor’s findings of fact so long as
    they are supported by substantial evidence in the record.” Weigand, 730 So. 2d at 587
    (citing Tedford v. Dempsey, 
    437 So. 2d 410
    , 417 (Miss. 1983)) (emphasis added). See also
    Olson, 799 So. 2d at 929 (“[o]n visitation issues, as with other issues concerning children,
    the chancery court enjoys significant discretion in making its determination of what is in the
    best interest of the child.”).
    ¶21.   The “Property Settlement Agreement” provided Chasity with visitation every other
    weekend from 6:00 p.m. on Friday through 6:00 p.m. on Sunday; six weeks of summer
    visitation in two-week, non-consecutive intervals; holidays alternating yearly; and any other
    visitation as mutually agreed upon with William. The “Property Settlement Agreement”
    added that it would “remain in full force and effect unless and until modified by subsequent
    Agreement of the parties or superseded by a lawful Order of a [c]ourt of competent
    jurisdiction.” The post-hearing resolution of May 2, 2005, constituted such a modification
    12
    The “material change in circumstances” rule has no application regarding visitation
    modification. See Cox v. Moulds, 
    490 So. 2d 866
    , 869 (Miss. 1986).
    16
    of visitation. That agreement provided for added visitation between Chasity and the minor
    children each Wednesday night during the school year, as well as increased visitation during
    the Christmas holiday and spring break. The October 24, 2006, order of the chancery court
    amounted to a subsequent supersession “by a lawful Order of a [c]ourt of competent
    jurisdiction.” That order granted Chasity further visitation, extending weekend visitation to
    Monday morning when the children resumed school and providing for unlimited telephone
    access by the children with each parent.
    ¶22.   Following the May 30, 2007, hearing, the June 1, 2007, order was entered, sharply
    reducing Chasity’s visitation rights, see footnote 6 supra, without providing an explanation
    therefor. According to Chasity’s undisputed assertion, this decision plainly conflicted with
    the recommendation of Dr. Nichols that the minor children “do need to spend more time with
    [Chasity.]” At the July 2, 2007, hearing on Chasity’s “Motion for Reconsideration,” the
    chancellor upheld the visitation provided in the June 1, 2007, order, due to “[t]he disruption
    that [Chasity] and [her] family caused in the courtroom, and you continue to discuss these
    legal proceedings with your children, and the [c]ourt has admonished you time and time
    again not to.” Just prior to that explanation, however, the chancellor noted, “I was prepared
    to give you extended or additional visitation until this happened.”
    ¶23.   “Our Court has held that the best interest of the child is the main concern in
    determining visitation.” Rogers v. Morin, 
    791 So. 2d 815
    , 820 (Miss. 2001) (citing Dunn
    v. Dunn, 
    609 So. 2d 1277
    , 1286 (Miss. 1992)). Given the May 2, 2005, modification and
    the October 24, 2006, order of the chancery court, each granting Chasity additional visitation,
    along with the recommendation of Dr. Nichols, not contested by the parties, the chancellor’s
    17
    subsequent decision to reduce Chasity’s visitation raises a question as to whether that
    decision was retributive, rather than in the “best interest[s] of the child[ren].” 
    Id.
     Moreover,
    the record is void of any court order which Chasity openly went “against . . . all of the time.”
    Accordingly, this Court concludes that the chancellor’s findings of fact reducing Chasity’s
    visitation constitute an abuse of discretion, as they are not “supported by substantial evidence
    in the record.” Weigand, 730 So. 2d at 587. See also Sanderson, 824 So. 2d at 625-26.
    CONCLUSION
    ¶24.   Based upon the aforementioned analysis, this Court reverses the Chancery Court of
    Lafayette County’s June 1, 2007, order and subsequent denial of Chasity’s “Motion for
    Reconsideration,” and remands this case for a hearing on visitation.
    ¶25.   REVERSED AND REMANDED.
    SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, GRAVES AND
    DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE
    WRITTEN OPINION. LAMAR, J., NOT PARTICIPATING.
    18
    

Document Info

Docket Number: 2007-CA-01385-SCT

Filed Date: 5/31/2007

Precedential Status: Precedential

Modified Date: 10/30/2014