                    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

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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.




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