Wilburn v. Wilburn

• Decision Date: 02 October 2008
• Docket Number: No. 2007-CA-01385-SCT.,2007-CA-01385-SCT.
• Citation: 991 So.2d 1185
• Parties: Chasity Nicole Smith WILBURN v. William Haywood WILBURN.
• Court: Mississippi Supreme Court

991 So.2d 1185

Chasity Nicole Smith WILBURN v. William Haywood WILBURN.

No. 2007-CA-01385-SCT.

Supreme Court of Mississippi.

October 2, 2008.

John Thomas Lamar, Jr., David M. Slocum, Jr., Senatobia, attorneys for appellant.

T. Swayze Alford, attorney for appellee.

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 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 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 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 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...