Walter John WILLIAMS v. Kimberly Williams RAMSEY
CA 07-221
Court of Appeals of Arkansas
December 19, 2007
270 S.W.3d 345
Affirmed.
HEFFLEY and BAKER, JJ., agree.
Naif S. Khoury, for appellant.
Boyer, Schrantz, Rhoads & Teague, P.A., by: Johnnie Emberton Rhoads, for appellee.
Visitation Reduction
For his first point of appeal, appellant contends that the trial court erred in reducing his visitation with his child, particularly in light of Dr. Martin Faitak‘s testimony that a reduction or change in visitation would not be beneficial to the child. We agree.
In Sharp v. Keeler, 99 Ark. App. 42, 56-57, 256 S.W.3d 528, 538 (2007), this court set forth the standard of review cоncerning modifications to visitation:
In reviewing domestic-relations cases, this court considers the evidence de novo, but will not reverse the trial court‘s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon
knowledge of facts not known at the time of the initial order. It is also well settled under Arkansas law that reversal is warranted where a trial сourt modifies visitation where no material change in circumstances warrants such a change. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage rеpeated litigation of the same issues. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation. The main consideration in making judicial determinations concerning visitation is the best interest of the child. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the рarties, and the relationship with siblings and other relatives. The fixing of visitation rights is a matter that lies within the sound discretion of the trial court.
As we often have repeated, the trial judge is the person in the best position to observe the parties and evaluate the witnesses, their testimony, and the child‘s bеst interest. Id.
Here, the trial court reduced appellant‘s visitation from every other weekend to one Saturday a month, with summer visitation eliminated. In reaching that conclusion, the trial court explained that the rules “that were put in place were not put in place to restrict Mr. Williаms as an effort to punish him, but rather to stop a pattern of undermining, alienation, and problems that were being created for this child as a result of the behaviors. This Court has seldom gone as far as I‘ve gone in this case. But what little support, what little cooperation I feel like I‘ve gottеn from Mr. Williams has been, primarily, such as the counseling efforts he made, window dressing.”
In the August 7, 2006 order, the trial court found, inter alia, “that the defendant has undermined the relationship of the minor child and the plaintiff by calling his wife ‘Mommy’ to the minor child and calling the plaintiff ‘Kim’ to her. The defendant has undermined the minor child‘s relationship with her therapist, Dr. Martin Faitеk. Further, he has undermined the minor child‘s acceptance of taking needed medication.” Summarizing the order, the following items were of concern to the trial court: 1) that appellant only now agrees to get counseling and make the child
It seems clear from the record of this case that appellant has effectively been a troublemaker concerning the interrelationships among himself, the child, and appellee. It is difficult under such circumstances to segregate conduct that establishes contempt from conduct that justifies a change in custody or visitation. In Sharp v. Keeler, 99 Ark. App. at 56, 256 S.W.3d at 538, which involved a change of custody, supervised visitation, and contempt, we explained:
On this point, the dissent argues that this case was one of contempt, not change of custody. It is not either/or; it is both. We cannot ignore the fact that the trial court did hold Sharp in contempt on two separate bases. The record reflects that the court specifically noted that if it thought placing Sharp in jail for several days would cure the problem, then it would indeed simply be a contempt issue, but that this was in fact more.
(Emphasis added.) In Sharp, the оffending parent‘s conduct was described as rising to the level of harassment and torment. We affirmed the change in custody, which was based on the trial court‘s determination that the mother acted in ways that were detrimental to the child and that parental alienation on her part cоnstituted a material change of circumstances that warranted a change of custody. We reversed the trial court, however, and remanded on the issue of the change to supervised visitation, explaining:
In short, we find that there was no evidence to support the trial court‘s deсision that Sharp should only receive four hours of supervised visitation per week, and we hold that that decision was clearly against the preponderance of the evidence. We direct that the trial court award Sharp the same unsupervised visitation that Keeler enjoyed prior to the change of custody....
Here, it is perfectly understandable that the trial court has grown frustrated and weary of dealing with a father who appears to put himself above the best interests of his child and who seems determined to act like a child himself in dealing with his own child and his ex-wife. However, even recognizing the father‘s bad conduct, we cannot overlook the evidence that was before the trial court, and we have concluded that it does not rise to the level that would constitute a change of circumstances, especially in light of the fact thаt Dr. Faitak testified that a reduction in visitation would not be beneficial to the child. We, therefore, reverse the trial court‘s decision to reduce visitation and order the trial court to reinstate the prior visitation schedule.
Contempt
For his remaining issue, appellant contends that there was insuffiсient evidence presented to show that he willfully and intentionally violated the court‘s previous orders sufficient to be held in contempt and placed in jail. We disagree.
As our supreme court explained in Arkansas Department of Health & Human Services v. Briley, 366 Ark. 496, 500, 237 S.W.3d 7, 9-10 (2006):
We begin by distinguishing civil and criminal contempt:
Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power оf the court, vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. This court has often noted that the line betwеen civil and criminal contempt may blur at times. Our Court of Appeals has given a concise description of the difference between civil and criminal contempt. (“Criminal contempt punishes while civil contempt coerces.“) In determining whether a particular action by a judge constitutes criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Because civil contempt is designed to coerce compliance with the court‘s order, the civil contemnor may free himself or hersеlf by complying with the order. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own
pockets.” Criminal contempt, by contrast, carries an unconditional penalty, and the contempt cannot be purged.
(Citations omitted.)
Here, both types of contempt werе imposed by the trial court. The trial court incarcerated appellant for ten days, which commenced immediately for calling his wife “Mommy” and for failing to give the child her medication. Furthermore, the trial court also ordered appellant to remain in jail after his ten-day incаrceration until he paid $1500 in previously ordered attorney fees. The initial ten-day period of incarceration falls under the category of criminal contempt because it carried an unconditional penalty, i.e., it could not be purged. The period of incarceration that followed falls within the category of civil contempt because it was designed to coerce appellant to pay the monies for attorney‘s fees that he had been previously ordered to pay. He was able to free himself by complying. Appellant chаllenges only the initial ten-day period of incarceration.
The standard of review of a case of criminal contempt is well-settled: an appellate court views the record in a light most favorable to the trial judge‘s decision and sustains that decision if it is supported by substantial evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Where a person is held in contempt for failure or refusal to abide by a judge‘s order, the reviewing court will not look behind the order to determine whether it is valid. Id.
In making his argument, appellant focuses his attention upon a July 20, 2005 order that was not actually entered until December 28, 2005, which was after the instant contempt proceedings were initiated. With respect to that order, he contends that “the order was not in writing for the appellant to refer to in order to insure he was in compliance with the ruling of the Court.” He then proceeds to go through this order and explain why he was not in contempt of it. What he neglects to mention, however, and does not include in his addendum, is an order that was entered on May 12, 2005.
In the May 12, 2005 order, the trial court provided that both parties were to give the child her medication as prescribed and that appellant was to refer to appellee as “Mommy,” and not to refer to the step-mother as “Mommy.” In its August 7, 2006 order finding appellant in contempt, the trial court specifically found that appellant had violated the court‘s order concern-
Reversed in part and affirmed in part.
HEFFLEY, J., agrees.
BAKER, J., concurs.
KAREN R. BAKER, Judge, concurring. I agree that a violation of the court‘s previous directives does not compel a change in custody. See Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007) (Baker, J., dissenting) (citing Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003)). Examining Mr. Williams‘s individual acts, they each appear to be almost trivial; however, taken as a whole, a continuing failure to abidе by the trial court‘s orders could well provide a basis for the trial court to curtail Mr. Williams‘s opportunity to influence the child with his behavior. Certainly, if Mr. Williams persists in this behavior despite the trial court‘s punishment of the violations by its contempt powers his conduct will, at some point, affect the bеst interest of the child. See Carver, supra (appellant‘s interference with visitation was so extreme that the best interest of the children required that they be removed from the situation).
In light of the fact that appellant contends that the trial court erred in reducing his visitation with his child, particularly in light of Dr. Martin Faitеk‘s testimony that a reduction in visitation would not be beneficial to the child, I emphasize that the trial judge was entirely correct in her determination that Dr. Faitek‘s expert opinion is not dispositive of the case. A trial judge does not have to accept an
Furthermore, while I concur in the decision to reverse and remand with instructions to reinstate the previous visitatiоn schedule based on the facts now before us, a significant period of time has passed while this appeal has proceeded. If the situation has changed, the trial court is always free to enter such orders as may be necessary to protect the best interest of the child.