472 S.W.3d 159
Ark. Ct. App.2015Background
- Parents divorced; October 24, 2013 order awarded custody of son J.S. (b. 2004) to father Marvin Stout and granted mother Angela Erskin visitation; order required Stout to effectuate paperwork so Erskin could access J.S.’s medical and educational information.
- March–June 2014: J.S. exhibited self‑mutilating behavior (pulled a permanent tooth; chewed inside of his lip) and was admitted to Vantage Point for mental‑health treatment for about eight weeks; J.S. expressed suicidal/homicidal ideation and stress related to parents’ custody dispute.
- Erskin filed (June 2014) a motion to modify custody, alleging Stout failed to provide medical/dental care and withheld access to records; she later amended and also sought contempt and modification of visitation/support.
- Emergency hearing denied a temporary change of custody; trial court ordered Stout to add Erskin as a primary medical contact and later appointed an attorney ad litem for J.S.
- At the November 2014 modification hearing, J.S.’s counselor (Faith Berry) and the attorney ad litem expressed concerns about the effect of the custody battle on J.S.; Berry recommended against placing J.S. primarily with Erskin; ad litem reported J.S. preferred to live with his mother but noted serious concerns.
- December 3, 2014 order: trial court found Erskin failed to show a material change in circumstances or that change was in J.S.’s best interest, denied contempt, and awarded Stout $2,000 in attorney’s fees. Erskin appealed.
Issues
| Issue | Plaintiff's Argument (Erskin) | Defendant's Argument (Stout) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances warranting modification of custody | J.S.’s self‑mutilation and decline in mental health, plus alleged lack of medical care by Stout, show a material change and custody should be awarded to Erskin | Stout obtained appropriate treatment and J.S. was doing well in his custody; custody battles cause J.S.’s stress | Court held Erskin failed to prove a material change; modification not in child’s best interest |
| Whether placement with Erskin would be in J.S.’s best interest | J.S. expressed preference to live with mother; Erskin argues she better understands his condition | Counselor and treatment team had no concerns with Stout; counselor worried extended time with Erskin would be detrimental | Court credited counselor and found continuing custody with Stout served J.S.’s best interest |
| Whether Stout was in civil contempt for failing to effectuate paperwork to give Erskin access to records | Stout failed to timely complete authorizations, denying Erskin access to medical/educational records and appointments | Any omissions were not willful; Erskin was not actually denied access to treatment or records in practice | Court found no willful disobedience and denied contempt |
| Whether awarding attorney’s fees against Erskin violated 42 U.S.C. § 407(a) (Social Security protection) | Erskin argued fees would effectively attach her Social Security disability benefits, barred by federal statute | Judgment for fees is not a levy/garnishment and does not directly affect federal benefits | Court held fee award was a judgment (not a garnishment) and § 407(a) did not prevent entering a money judgment against Erskin |
Key Cases Cited
- Harris v. Harris, 379 S.W.3d 8 (Ark. Ct. App. 2010) (standard of review and burden for custody modification and deference to trial‑court credibility findings)
- Stehle v. Zimmerebner, 291 S.W.3d 573 (Ark. 2009) (supreme court affirmed deference to trial court on custody modification where child was doing well in current placement)
- Kilman v. Kennard, 384 S.W.3d 647 (Ark. Ct. App. 2011) (elements and standards for civil contempt; order must be definite and willful disobedience shown)
- Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 156 S.W.3d 228 (Ark. 2004) (standard of review for civil contempt findings)