Kilman v. Kennard, 2011 Ark. App. 454

Kilman and Kennard are nonmarital parents of E.K., born May 22, 2004.
Paternity was established after genetic testing showing 99.99% improbability Kilman is father; paternity judgment entered Feb. 14, 2006.
Agreed visitation and child-support orders were entered, funded by Kilman’s personal-injury judgment and a trust.
Kennard filed multiple contempt petitions; earlier agreed orders resolved them with suspensions.
A Feb. 14, 2008 agreed order imposed suspended 45-day sentence, required Kilman to undergo psychiatric/psychological treatment, and to have supervised visitation via Kilman’s mother; Kilman was to pay Kennard’s attorney’s fee.
In Jan. 2010 Kennard’s petition alleged violations of the Feb. 2008 order; Kilman failed to appear at a Jan. 7, 2010 hearing; Kilman was later found in contempt and sentenced to 100 days; drug testing was ordered; the court reserved issues for later order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether circuit court erred by aggregating prior suspended sentences with current contempt	Kilman argues prior suspensions expired; should not be counted	Kennard argues court could consider prior violations in determining the new sentence	No reversible error; prior suspensions were effectively waived; court could consider prior violations
Whether Kilman’s 180-day sentence is warranted given context	Sentence excessive when including suspended portions	Pattern of repeated contempt justifies substantial sentence	Court did not abuse discretion; long-term behavior supports punishment; no modification warranted
Whether court could increase time if Kilman tested positive for drugs	Kilman contends no proven drug test post-2010; increase not warranted	Record is insufficient to show post-2010 positive test; tense evidentiary basis lacking	No basis to modify; insufficient record of post-2010 positives
Whether contempt finding for psychiatric/psychological-treatment requirement was valid	Treatment provisions were not directly related to visitation	Treatment related to visitation; Kilman agreed to it; cannot challenge now	Valid; provisions related to visitation; authority to enforce upheld
Whether Kennard’s sanctions for denial of visitation were inadequate	Should have imposed 45-day sentence as warned	Kennard previously not contemnor; court can tailor sanctions based on recurrence risk	Affirmed; court’s discretion to base sanctions on recurrence

Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002) (contempt requires willful disobedience; civil vs. criminal distinction matters)
Omni Holding & Dev. Co. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004) (distinguishes civil from criminal contempt; standard of review depends on relief type)
Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985) (criminal vs. civil contempt; focus on relief type)
Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992) (suspension of contempt sentences limited to definite period; complete remission possible)
Donovan v. State, 95 Ark. App. 378, 237 S.W.3d 484 (2006) (suspensions cannot be indefinite; reliance on prior suspended sentences is error but not reversible here)
Stilley v. University of Ark. at Ft. Smith, 374 Ark. 248, 287 S.W.3d 544 (2008) (court may not look behind contempt order to challenge validity of underlying terms)
Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000) (willful disobedience required; validity of order not presumed when challenged)
Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993) (court may modify punishment in proper contempt case)
Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993) (burden on party to present sufficient record on appeal)
Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988) (contempt standard focused on nature of relief)