Lead Opinion
|!Aрpellant Amanda Marie Scudder appeals the order entered by the Jackson County Circuit Court finding her in contempt and denying her motion to terminate the grandparent-visitation rights of appellee Raylinia Ramsey to P.S., Amanda’s daughter. The circuit court also awarded Raylinia $4,417.95 in attorney’s fees and costs. For reversal, Amanda contends that the circuit court erred by not terminating Raylinia’s grandparent-visitation rights upon Amanda’s adoption, by finding her in contempt, and by awarding attorney’s feеs and costs to Raylinia. We granted Raylinia’s motion to transfer the appeal to this court from the court of appeals, as this case involves significant issues of statutory construction and an issue of first impression. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) & (6). We reverse the circuit court’s decision declining to terminate visitation; we affirm the finding of contempt; and we reverse and remand the award of attorney’s fees and costs.
_|¿Factual Background
Amanda is Raylinia’s adult biological dаughter. The record reflects that their relationship has been punctuated by periods of estrangement. In 2006, when Amanda was fifteen years old, she left the home of Raylinia and her husband, and the Third Division of the Jackson County Circuit Court, Judge Kevin King presiding,
On November 22, 2010, Raylinia filed a petition in the Circuit Court of Jackson County to establish grandparent visitation with P.S., pursuant to Arkansas Code Annotated section 9 — 13—103(b)(2) (Repl.2009). This matter was assigned to Judge Philip G. Smith in the Second Division. Judge Smith held a hearing on February 7, 2011, and by an order dated February 22, 2011, he granted Raylinia’s petition for grandparent visitation. Pursuant to the order, Raylinia was to exercise visitation while Amanda was at work on weekdays during the hours of 4:45 p.m. to 7:45 p.m. and on Saturdays from 8:15 a.m. to 1:15 p.m. and from 4:45 p.m. to 7:45 p.m. The order also provided that, if Amanda changed employment or altered | sher work schedule, visitation would take place on alternating weekends from Saturday at 9:00 a.m. to 5:00 p.m. on Sunday. Exchanges of the child were to occur at the Jackson County Sheriffs Office. Amanda chose not to appeal this order.
On February 23, 2011, Melanie and Shane O’Banion filed a petition in the Circuit Court of Jackson County seeking to adopt Amanda. The adoption petition was assigned to Judge King. On March 3, 2011, Raylinia filed a motion for contempt in the visitation action before Judge Smith, who scheduled a hearing on April 4, 2011. In this motion, Raylinia alleged that Amanda had denied visitation on two occasions. Upon Amanda’s motion, Judge Smith continued the contempt matter. It is undisputed that Raylinia was not made aware of the pending adoption.
On April 18, 2011, Judge King entered a decree for the adoption of Amanda by the O’Banions. It is also undisputed that Judge King had not been made aware of Raylinia’s visitation rights with P.S. at the time he granted the adoption. Three days after the adoption, Amanda filed a motion bеfore Judge Smith to terminate Raylinia’s visitation rights with P.S. Amanda argued that Raylinia’s visitations rights with P.S. were derived from her relationship as a biological grandmother. She asserted that her adoption by the O’Banions severed this relationship and that Raylinia was no longer a grandparent entitled to visitation under section 9 — 13—103(b)(2).
On July 18, 2011, Judge Smith heard both Raylinia’s motion for contempt and Amanda’s motion to terminate visitation. At the hearing, Raylinia testified that Amanda had denied her visitation on Friday, February 25, 2011, because Amanda clаimed that Raylinia did |4not have an appropriate car seat for the child. Rayli-nia stated that Amanda refused her offer to immediately purchase a new car seat and that Amanda would not allow her to borrow Amanda’s car seat. She said that Amanda also refused visitation on Saturday, February 26. Raylinia testified that she missed visitation the following Monday to attend a funeral, but she stated that Amanda did not permit visitation for the rest of that week. Raylinia said that the order allowed visitation while Amanda was working and that she observed Amanda’s
Raylinia further testified that Amanda frequently babysat for the O’Banions before she begаn living with them in 2006. She acknowledged that Amanda referred to them as “mom” and “dad” and that Amanda considered the O’Banions’ children as her siblings.
In her testimony, Amanda explained that she wanted the O’Banions to adopt her because they had taken care of her and had acted as her parents since age fifteen when Raylinia kicked her out of the house. She testified that extinguishing Raylinia’s rights as a grandparent of P.S. was not the full purpose for the adoption, but she admitted that it was one of the reasons for pursuing the adoption. Amanda stated that she no longer wanted a relationship with Raylinia and did not want Raylinia to be her mother. Amanda described their relationship as “rocky,” and she testified that they parted ways in September 2010 when 1,^Raylinia physically attacked her during an argument concerning Amanda’s removal of Raylinia from her Facebook page.
Amanda acknowledged that she did not allow Raylinia to visit with P.S. on February 25, 2011, because Raylinia’s car seat was too small. She bеlieved that, based on the language of the order, Raylinia was not to have visitation the next day and the following week because her work schedule had changed. Amanda testified that, because of the change in her working hours, they agreed to weekend visitation as stated in the order. Amanda said that she had been compliant with the order ever since.
Melanie O’Banion testified that Amanda lived with her family through high school and that she left their home after a disagreement over a phone bill. Melanie said that she and her husband petitioned to adopt Amanda because they loved her and had acted as her parents, even after Amanda had moved out of their home. She testified that the adoption was “absolutely sincere” and that “she’s been mine since she was fifteen years old.” Melanie recalled that Raylinia told Judge King in 2006 that she did not want Amanda anymore. She spoke of Raylinia as being abrasive and hostile and said that Rayli-nia’s home had not been a happy place for Amanda.
After, the hearing, Judge Smith took both motions under advisement. A few days later, Raylinia’s counsel informed the court of his intent to file a petition to set aside the adoption. Consequently, Judge Smith delayed ruling on the motions for contempt and for termination of visitation rights, pending the outcome of the adoption matter. On October 24, 2011, Judge King set aside the adoption decree and held a hearing to give Raylinia the opportunity |fito be heard. That same day, Judge King entеred an order granting the O’Banions’ petition to adopt Amanda. In the adoption decree, dated November 22, 2011, Judge King stated that he “gave due consideration to the effect that this Decree of Adoption will have on Raylinia Ramsey’s grandparent visitation rights with Amanda Scudder’s daughter.”
Thereafter, Judge Smith conducted a brief status hearing. On February 14, 2012, Judge Smith issued a memorandum opinion setting forth his decision. After recounting the facts, he held Amanda in contempt on two grounds. The judge
Amanda filed a motion for reconsideration, challenging the circuit court’s findings and ^conclusions of law. On March 22, 2012, the circuit court entered its order incorporating the decision set out in its memorandum opinion. In this order, the court awarded Raylinia costs and attorney’s fees in the amount of $4,417.95, payable within 120 days. This appeal followed.
Termination of Visitation Rights
As her first point оn appeal, Amanda contends that the circuit court erred by not terminating Raylinia’s grandparent-visitation rights. She asserts that Raylinia’s rights in P.S. were derivative of the mother-daughter relationship between her and Raylinia, and Amanda argues that the adoption decree severed all rights and legal relations between them, including Raylinia’s visitation rights. Amanda also asserts that the circuit court misapplied section 9-9-223. Further, she contends that the adoption and resulting severance of the biological mother-daughter relationship constitutes a material change in circumstances, and she argues that termination of Raylinia’s visitation rights was in the best interest of the child.
The issues raised on appeal require us to construe the relevant statutes. The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Broussard v. St. Edward Mercy Health Sys., Inc.,
This court has made clear that a grandparent’s rights are derivative of his or her son’s or daughter’s parental rights. Suster v. Ark. Dep’t of Human Servs.,
We have not had the opportunity to address the effect оf an adoption on the visitation rights of a grandparent where, as here, the individual adopted is the adult daughter of the 110grandparent who enjoys visitation with the offspring of the daughter. Thus far, our cases have dealt with the more typical situation involving the severance of grandparent-visitation rights when parental rights are terminated or where the offspring of a parent is adopted. See Vice, supra; Suster, supra. However, section 9-9-215(a)(l) and our caselaw applying the statute portend that a grandparent’s
The circuit court also reasoned that the court presiding over the adoption did not specifically terminate Raylinia’s visitation rights in the adoption decree. This statement made |nby the court stems from section 9-9-223,
Except as provided in this subchapter with regard to parental rights, any rights to a child which a nonparentаl relative may derive through a parent or by court order may, if the best interests of the child so require, be terminated in connection with a proceeding for adoption or for termination of parental rights.
Contrary to the circuit court’s reasoning, this statute does not diminish the effect of an adoption on established visitation rights as provided in section 9-9-215. By its plain language, section 9-9-223 merely grants a court in an adoption proceeding the authority to terminate visitation rights granted by another court. However, we agree with Amanda that section 9-9-223 does not apply in this situation. The adoption code defines “child” as a son or daughter, whether by birth or by adoption. Ark. Code Ann. § 9-9-202(2) (Repl.2009). The “child” referred to in the statute is the adopted child, which is Amanda, not P.S. Because the visitation rights in this case involve P.S., the statute is not applicable here.
In accordance with section 9-9-215(a)(l), we hold that Amanda’s adoption terminated Raylinia’s visitation rights in P.S. Accordingly, the circuit court erred by сontinuing to recognize Raylinia’s visitation rights following the adoption. In light of this holding, we need not consider Amanda’s alternative argument that a material change in circumstances occurred such that continuing visitation was no longer in the child’s best interest.
Contempt and Attorney’s Fees
Amanda asserts that the circuit court erred in finding that she was in contempt of court 112and in imposing the sanctions of incarceration and attorney’s fees and costs. She contends that the court erred in finding that she willfully denied visitation, and she argues that she cannot be held in contempt for exercising her legal right to
The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Guffey v. Counts,
Amanda maintains that the circuit court’s finding that she willfully denied visitation is contrary to the evidence. She asserts that she complied with the visitation order after the first week' and that she refused visitation only one time when Raylinia allegedly did not have an appropriate car seat. We find no merit in this argument. The order granted Rayli-nia visitation while Amanda was at work on weekdays from 4:45 p.m. to 7:45 p.m. The order permitted alteration of the schedule to weekend visitation should Amanda’s working hours change. The testimony established that Raylinia did not receive visitation on the Friday or Saturday after the visitation order was entered and that she was denied scheduled visits the following week. Although Amanda testified that her work schedule had changed, Raylinia testified that she observed Amanda’s car at work during the hours when visitation was to occur. In contempt proceedings, the judge determines the credibility of witnesses. Ivy v. Keith,
With regard to attorney’s feеs, as a general rule, such fees are not allowed in the absence of a statute permitting their allowance. Artman v. Hoy,
Here, the circuit court awarded Raylinia $4,417.45 in attorney’s fees and costs. We find no abuse of discretion in the decision to award fees. However, we agree with Amanda that a portion of the attorney’s fee cannot stand. A review of the time sheet shows that counsel included hours devoted to the adoption proceeding. As we noted, the circuit court has the authority to award fees in the contempt matter. However, that authority does not extend to fees incurred in separate litigation. Therefore, the circuit court abused its discretion in the amount of fees awarded, and we reverse and remand on that issue.
Affirmed in part; reversed in part; reversed and remanded in part.
Notes
. Citing Troxel v. Granville,
. The exceptions include the spouse of the petitioner in a stepparent adoption. Ark. Code Ann. § 9-9-215(a)(1). The statute also grants visitation rights to parents of a biological parent who dies before the petition for adoption is filed. Id. In addition, sibling visitation in certain cases may continue following an adoption under the circumstances specified in section 9-9-215(c).
. Amanda maintains that this statute may be unconstitutional because it does not give a presumption in favor of a fit parent's rights. This argument was not raised below. It is well settled that this court will not address an issue raised for the first time on appeal, even a constitutional argument. Bayer CropScience LP v. Schafer,
Concurrence in Part
concurring in part and dissenting in part.
I disagree that Ms. Scudder’s adult adoption is legally and factually conclusive in this case. In my view, the majority has interpreted Arkansas Code Annotated section 9-9-215 far too broadly. While the plain wording of the statute certainly аffects all the legal relationships where Ms. Scudder is concerned, I cannot agree that its proper application affects the status of | ifiP.S., who is a person in her own right. While it may be a legal fact that Ms. Ramsey is no longer Ms. Scudder’s legal mother, it is a biological fact that Ms. Ramsey is, and will always be, P.S.’s biological grandmother. I am aware that this court has diminished the importance of a biological link to a child by its decisions in Bethany v. Jones,
Also troubling is the majority’s decision to completely ignore our standard of review in this visitation case. I find myself echoing the concern expressed by Justice Danielson in his dissent in Daniel v. Spivey,
I concur with the majority to the extent that they find error in the trial court’s decision to reject Ms. Scudder’s challenge to Ms. Ramsey’s grandparent visitation. In my view, while not conclusive, Ms. Scudder’s adult adoption proceeding did constitute a material change in circumstances. Accordingly, I would reverse and remand this case for the trial court to consider the best interest of the child in regard to visitation in light of the current circumstances.