Wendi Dow Litton v. William Powell Litton, III

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00712-COA

WENDI DOW LITTON APPELLANT

v.

WILLIAM POWELL LITTON, III APPELLEE

DATE OF JUDGMENT: 06/14/2022
TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS
COURT FROM WHICH APPEALED: COAHOMA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: T. SWAYZE ALFORD
KAYLA FOWLER WARE
ATTORNEYS FOR APPELLEE: MITCHELL D. MOSKOVITZ
CHARLES JONES SWAYZE III
CHARLES J. SWAYZE JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 10/03/2023
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. William Powell Litton III (Powell) filed a petition against his ex-wife Wendi Dow

Litton (Wendi) in the Coahoma County Chancery Court. Powell requested that his tie-

breaking authority over extracurricular activities for the parties’ minor children be upheld

and that the chancellor find Wendi in willful contempt of a prior agreed order. The

chancellor concluded that summer camps qualify as extracurricular activities and therefore

fall under Powell’s tie-breaking authority as specified in the prior agreed order. Wendi

appeals from the chancellor’s order. Finding no error, we affirm.

FACTS
¶2. The parties married in 2007. They had two minor children during their marriage: a

son born in 2008 and a daughter born in 2012. In 2014, Powell filed for divorce. Wendi

answered and filed a counter-claim for divorce. After their various filings, the parties

entered an agreed order in which they mutually consented to an irreconcilable-differences

divorce. The parties also agreed to have the chancellor determine all matters related to child

custody; equitable distribution of the marital estate; alimony; and attorney’s fees, expert-

witness fees, and lawsuit expenses. Following a sixteen-day trial, the chancellor granted the

parties an irreconcilable-differences divorce. The chancellor also granted the parties joint

legal custody of the children, awarded Powell physical custody of the children, and awarded

Wendi visitation. The chancellor ordered Wendi to pay monthly child support to Powell but

also awarded Wendi lump-sum alimony.

¶3. With regard to the parties’ summer visitation schedule, the divorce order decreed that

they were to alternate weeks with the children. In discussing the issue of child support, the

divorce order specifically stated, “Powell and Wendi shall equally divide the cost of the

children’s extracurricular activities, including summer camp(s).” (Emphasis added).

¶4. After conflicts arose regarding summer visitation and the children’s extracurricular

activities, the parties both signed and submitted to the chancellor an agreed order,1 which the

chancery court entered on February 6, 2020. Relevant to the present appeal, the agreed order

1
We distinguish this “agreed order” from the “divorce order” referenced in this
opinion.

2
provided the following:

That Powell shall have the tie-breaker vote in decisions made regarding
the children’s extracurricular activities when Wendi does not agree that it is in
the children’s best interest to participate in such activity. That parties shall
continue to consult, inform, and confer with one another regarding any and all
of the children’s extracurricular activities, regardless of whether or not the
parties have agreed to the children’s participation.

That Wendi shall bring the children to their extracurricular activities
unless participation in the activity is not reasonable due to illness or being out
of town on vacation.

In their agreed order, the parties specifically excluded “church” as an extracurricular activity

but did not designate any further exceptions.

¶5. The agreed order also provided that the summer visitation schedule set forth in the

divorce order would remain unchanged except with regard to the summers of 2020 and 2021.

As to those two summers, the agreed order stated the following:

For the month of July 2020, Powell shall have visitation with the minor
children the second week in July. Wendi shall have visitation with the minor
children from 5:00 p.m. on June 28th through 5:00 p.m. on July 5th and from
5:00 p.m. on July 12th through 5:00 p.m. on August 15th.

For the month of July 2021, Wendi shall have visitation with the minor
children from 5:00 p.m. on July 15th through 5:00 p.m. on August 15th with
the exception that Powell shall have visitation with the minor children the
second weekend from 5:00 p.m. on Thursday through 5:00 p.m. on Monday.

¶6. On March 4, 2022, Powell filed a petition and requested that the chancellor allow the

parties’ children to attend summer camp and hold Wendi in contempt of the agreed order.

In his petition, Powell asserted that he had sent Wendi an email entitled “Summer

Extracurricular Activities” on February 9, 2022, in which he had broached the topic of

3
“extracurricular opportunities for camp during the summer break.” According to Powell, the

proposed summer camps for each child would affect both parents’ summer parenting time.

Specifically, the proposed summer camps for the parties’ son “would impact approximately

fourteen (14) days of [Powell’s] summer parenting time and approximately fourteen (14)

days of [Wendi’s] summer parenting time.” The proposed summer camps for the parties’

daughter “would impact approximately seven (7) days of [Powell’s] parenting time and

approximately five (5) days of [Wendi’s] summer parenting time.”

¶7. Powell asserted in his petition that Wendi’s “refusal to allow the children to attend

summer camp, which will equally impact both parties’ parenting time, is contrary to the

children’s best interests and the Agreed Order[] entered with the Court on February 6, 2020.”

He therefore asked the chancellor to allow the children to participate in the proposed camps

for the summer of 2022 and to find Wendi in willful contempt of the agreed order’s provision

that granted him tie-breaking authority with regard to the children’s extracurricular activities.

¶8. Wendi responded to Powell’s petition and filed her own counter-claim for contempt

and for a modification of summer visitation. Wendi disputed Powell’s contention that

summer camps qualified as extracurricular activities. She also argued it was in the children’s

best interests to have a month of uninterrupted time with her during the summer. To that end,

Wendi requested that the chancellor specifically require the parties to continue the schedule

set forth in the agreed order for the summer of 2021 rather than to revert to the summer

schedule established by the divorce order. In addition, Wendi asked the chancellor to find

4
that Powell was in willful contempt of the joint-legal-custody provision of the divorce order.

¶9. Following a hearing on the parties’ filings, the chancellor entered an order in the

matter on June 14, 2022. The chancellor concluded that summer camps qualified as

extracurricular activities and that under the prior agreed order, Powell had the “tie-breaker

vote in decisions made regarding the children’s extracurricular activities, including summer

camps, when [Wendi] does not agree that it is in the children’s best interest to participate in

such activity.” The chancellor held, however, that when Powell “exercises his tie-breaker

vote for the minor children to participate in the summer camp and said summer camp impacts

[Wendi’s] summer parenting time,” July 4th holiday, or time on the daughter’s birthday,

Wendi was “entitled to make up the days of parenting time that she missed while the child

attended the summer camp in question.” The chancellor also held that the parties were to

return to summer visitation in accordance with the weekly alternating schedule set forth in

the divorce order and that all issues “pertaining to custody, visitation, holidays, summers, and

parental rights shall remain in full force and effect pursuant to the Final Decree of Divorce

and all subsequent orders.” Aggrieved by the chancellor’s decision, Wendi appeals.

STANDARD OF REVIEW

¶10. “This Court ‘will not disturb the chancellor’s opinion when supported by substantial

evidence unless the chancellor abused her discretion, was manifestly wrong or clearly

erroneous, or applied an erroneous legal standard.’” Williams v. Williams, 359 So. 3d 217,

220 (¶11) (Miss. Ct. App. 2023) (quoting Stuckey v. Waid, 195 So. 3d 872, 875 (¶13) (Miss.

5
Ct. App. 2016)). We review questions of law de novo. Id.

DISCUSSION

¶11. Wendi argues that the chancellor erroneously classified summer camps as

extracurricular activities and that the error has the potential “to allow Powell to unilaterally

schedule summer camp during her summer visitation time” without providing sufficient time

to make up the missed days. Wendi further contends that it “would be in the best interests

of the minor children for [her] to receive the month of July each and every year for her

summer visitation.” She therefore asserts that the chancellor also erred by finding the parties

were to resume the divorce order’s weekly alternating summer schedule rather than to

continue the month-long schedule that the agreed order specified for the summer of 2021.

¶12. In the divorce order, the chancellor stated more than once that “Powell and Wendi

shall equally divide the cost of the children’s extracurricular activities, including summer

camp(s).” (Emphasis added). In their subsequent agreed order, the parties further discussed

how they wished to handle their summer visitation schedule and the children’s extracurricular

activities. They specifically excluded “church” as an extracurricular activity. Although the

parties could have made a similar decision with regard to summer camps, they failed to do

so. Our caselaw recognizes “that an agreed order or consent judgment ‘acquires the incidents

of and will be given the same force and effect as . . . judgments rendered after litigation. It

is binding and conclusive, operating as res judicata and an estoppel to the same extent as

judgments after contest.’” In re Est. of Smith v. Boolos, 204 So. 3d 291, 309 (¶37) (Miss.

6
2016) (quoting Smith v. Malouf, 826 So. 2d 1256, 1259 (¶10) (Miss. 2002)). We therefore

conclude that no abuse of discretion or manifest error arose from the chancellor’s

determination in her June 14, 2022 order that summer camp qualifies as an extracurricular

activity that falls under Powell’s tie-breaking authority.

¶13. Likewise, we find no abuse of discretion or manifest error arising from the

chancellor’s holding that the parties were to resume the alternating weekly summer schedule

set forth by the divorce order rather than to continue the agreed order’s month-long schedule.

As discussed, Wendi contends that the chancellor’s order could allow Powell to usurp her

summer visitation without sufficient time to make up the missed days. Wendi does not,

however, assert that such a usurpation has actually occurred—only that the potential for such

an issue exists.

¶14. Relevant to this portion of Wendi’s claim, the chancellor’s June 14, 2022 order

provided that if Powell’s use of his tie-breaking vote impacts Wendi’s summer visitation,

Wendi “shall be entitled to make up the days of parenting time that she missed while the

child attended the summer camp in question.” The order further directed the parties to “work

together to coordinate a schedule to ensure [Wendi] shall be entitled to make up her missed

summer parenting time during the summer.” Moreover, as with the matter of summer camp,

the parties specifically referenced summer visitation in their agreed order. Although they

could have included different language in their agreed order, they specifically stated that the

divorce order’s summer visitation schedule would remain in effect except with respect to the

7
summers of 2020 and 2021. Thus, based upon the language contained in the parties’ own

agreed order and our review of the record as a whole, we find no abuse of discretion or

manifest error in the chancellor’s decision.

CONCLUSION

¶15. Because we find no abuse of discretion or manifest error, we affirm the chancellor’s

order.

¶16. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ.,
CONCUR.

8