Wilburn v. Wilburn


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Docket Number: 2007-CA-01385-SCT

Supreme Court: Opinion Link
Opinion Date: 10-02-2008
Opinion Author: Randolph, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Child custody - Timeliness of appeal - M.R.C.P. 59(e) - M.R.A.P. 4(a), (d) - M.R.A.P. 2(c) - M.R.A.P. 26(a) - Due process - Material change in circumstances - Modification of visitation
Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Carlson, Grave, and Dickinson, JJ.
Non Participating Judge(s): Lamar, J.
Dissenting Author : Easley, J., without separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 05-31-2007
Appealed from: Lafayette County Chancery Court
Judge: Glenn Alderson
Disposition: The chancellor ruled that William Wilburn would retain primary physical custody of the minor children and reduced Chasity’s visitation to essentially that provided for in the original Property Settlement Agreement.
Case Number: 2001-148(A)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CHASITY NICOLE SMITH WILBURN




JOHN THOMAS LAMAR, JR., DAVID M. SLOCUM, JR.



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: WILLIAM HAYWOOD WILBURN T. SWAYZE ALFORD  

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    Topic: Child custody - Timeliness of appeal - M.R.C.P. 59(e) - M.R.A.P. 4(a), (d) - M.R.A.P. 2(c) - M.R.A.P. 26(a) - Due process - Material change in circumstances - Modification of visitation

    Summary of the Facts: Chasity Wilburn and William 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” seeking a modification of custody and/or visitation rights. The court entered an order 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 agreement. Chasity appeals.

    Summary of Opinion Analysis: Issue 1: Timeliness of appeal M.R.C.P. 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. This ten-day requirement is absolute. 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 run from the entry of the order disposing of the last such motion outstanding as provided by M.R.A.P. 4(d). Otherwise, M.R.A.P. 4(a) provides that 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. Under M.R.A.P. 2(c), that thirty-day requirement is inflexible in civil cases. On June 12, 2007, Chasity filed a “Motion for Reconsideration” of the June 1, 2007, order of the chancery court. Applying the time-computation standards outlined in M.R.A.P. 26(a), Chasity’s motion should have been filed no later than Monday, June 11, 2007. William argues that Chasity’s appeal was untimely since she did not file notice of appeal until sixty-eight days after June 1, 2007. While Chasity’s “Motion for Reconsideration” was untimely, there is no evidence in the record that William either objected or responded to the motion. As such, he is procedurally barred from raising this issue for the first time on appeal. Issue 2: Due process Chasity argues that was denied the opportunity to present factual support for her Amended Petition for Modification of Divorce Decree. 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. However, in the absence of an objection and offer of proof by Chasity, her due-process argument is without substantive merit. Issue 3: Material change in circumstances Chasity argues that the chancery court erred in not modifying custody, because 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. It is against public policy 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. 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 competent jurisdiction.” Neither modification nor supersession occurred as to custody. The property settlement agreement expressly provides that it was “fair and equitable” and freely entered by Chasity. Therefore, the chancellor did not abuse his discretion in keeping custody consistent with the agreement. Issue 4: Modification of visitation The best interest of the child is the main concern in determining visitation. Given the court’s two modifications of visitation, each granting Chasity additional visitation, along with the recommendation of a psychologist, not contested by the parties, the chancellor’s subsequent decision to reduce Chasity’s visitation raises a question as to whether that decision was retributive, rather than in the best interests of the children. Thus, the chancellor’s findings of fact reducing Chasity’s visitation constitute an abuse of discretion.


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