Butler v. Comer

Lisa R. Comer BUTLER v. Carson COMER

CA 96-232                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 23, 1997


1.   Appeal & error -- arguments raised for first time on appeal will not be
     addressed. -- Arguments that are raised for the first time
     on appeal will not be addressed; because appellant's ARCP Rule
     12 arguments were not raised below, the appellate court did
     not consider them.

2.   Contempt -- process for contempt can be used in certain cases for civil
     remedies -- award of travel expenses incurred as result of appellant's
     contempt affirmed. -- In certain cases, process for contempt can
     be used to effect civil remedies, the result of which is to
     make the innocent party whole from the consequences of
     contemptuous conduct; the appellate court held that, as a
     result of appellant's contempt, appellee's father reasonably
     incurred $884 in travel expenses when he attempted to pick up
     the minor child in accordance with the visitation arrangement
     prescribed by the most recent custody order; thus, the
     appellate court affirmed the award.

3.   Attorney's fees -- award granted for out-of-state attorney's fees and
     travel expenses reduced. -- Where appellant and the child had
     resided in Idaho for five years and the State of Idaho may
     have acquired jurisdiction under the Uniform Child Custody
     Jurisdiction Act and the federal Parental Kidnapping
     Prevention Act to modify custody and visitation; where,
     although appellant selected a court of improper venue in Idaho
     to file her action seeking modification of appellee's
     visitation rights, there was nothing in the record to show
     that this was done for the purpose or with an intent to delay
     or frustrate appellee's defense of the action; and where the
     proceeding had been transferred to a court of proper venue
     and was still pending when this appeal was taken, the
     appellate court held that, under the circumstances,
     the chancery court's decision to award attorney's fees and
     expenses related to the Idaho claim was an abuse of
     discretion; consequently, it reduced the judgment granted to
     appellee for travel expenses and Idaho attorney's fees from
     $4,204 to $884.


     Appeal from Madison Chancery Court; John Lineberger,
Chancellor; affirmed as modified.
     Vowell & Atchley, P.A., by: Stevan E. Vowell, for appellant.
     Billy J. Allred, for appellee.

     John B. Robbins, Chief Judge.
     Appellant Lisa R. Comer (now Butler) and appellee Carson Comer
were divorced in Madison County Chancery Court on February 13,
1989.  Pursuant to a written agreement by the parties, which was
incorporated by reference into the divorce decree, Mrs. Butler
received primary custody of their minor child.  Mr. Comer was
awarded certain visitation during the summer and during the
Christmas holidays.  By order of the Madison County Chancery Court,
the visitation arrangement was modified on November 6, 1989, on
December 20, 1990, and again on May 3, 1993.  The May 3, 1993,
modification provided that Mr. Comer was to have visitation for
six weeks during the summer and one week during Christmas in odd-
numbered years.  In even-numbered years, he was to have seven weeks
of summer visitation with no visitation during Christmas.
     On July 5, 1995, Mrs. Butler and the minor child resided in
Idaho.  On that date, Mrs. Butler received a letter notifying her
that Mr. Comer would pick the child up on July 8 for his 1995
summer visitation.  However, when Mr. Comer's parents attempted to
pick the child up on that date, Mrs. Butler refused to allow it. 
Thereafter, on July 21, 1995, Mr. Comer filed a motion for contempt
against Mrs. Butler in Madison County Chancery Court.
     The Madison County Chancery Court issued an order directing
Mrs. Butler to appear on September 11, 1995, and show cause
why she should not be held in contempt of court.  Mrs. Butler
responded with a motion to dismiss the action on September 8, 1995,
in which she alleged that the chancery court lacked subject-matter
jurisdiction because she had filed a petition to modify custody in
the State of Idaho on June 29, 1995.  The case eventually came to
a hearing on September 29, 1995, at which Mrs. Butler failed to
appear.  The Madison County Chancery Court found Mrs. Butler in
contempt of court and ordered her to serve ten days in jail. 
She was also ordered to pay $4,204.00 for Mr. Comer's lost wages,
travel expenses, and attorney's fees related to the action filed in
Idaho and his father's travel expenses incurred when he attempted
to pick up the child for visitation in July 1995.
     Mrs. Butler now appeals from the order of the Madison County
Chancery Court.  For reversal, she argues that the trial court
erred in proceeding with a hearing on the merits on September 29,
1995, without giving her an opportunity to plead further or appear
and defend the case on the merits.  In addition, Mrs. Butler
asserts that the chancery court erred in awarding attorney's fees
and expenses related to the Idaho case.
     During the September 29, 1995, hearing, Mr. Comer testified
about his attempt to exercise his visitation rights during the
summer of 1995.  He indicated that, prior to that time, he was
always able to visit his son in the summer.  He stated that in late
June of 1995, however, Mrs. Butler notified him that he would not
be able to visit the child.  Thereafter, Mr. Comer's attorney sent
a letter informing Mrs. Butler of Mr. Comer's intention to pick the
child up on July 8, 1995.  Proof was introduced that Mr. Comer's
father incurred travel expenses in an unsuccessful attempt to
pick the child up for summer visitation, and attorney's fees in
defending the action that Mrs. Butler filed in Idaho.  Mr. Comer
incurred travel expenses and lost wages in defending the Idaho
court action.
     After the adverse ruling of the Madison County Chancery Court,
Mrs. Butler filed a motion for relief from the order.  In this
motion, she alleged that her attorney instructed her not to attend
the September 29, 1995, hearing because of his mistaken belief that
the scope of the hearing would be limited to the jurisdictional
issue.  Mrs. Butler asserted that she stood ready and willing to
appear and respond to the allegations of contempt.  The chancery
court dismissed this motion for failure to state a claim for which
relief can be granted.
     Mrs. Butler's first argument is that she should have been
given an opportunity to appear and defend on the merits prior to
the chancery court's September 29, 1995, decision.  She notes
that the chancery court's docket sheet reflects that on September
11, 1995, a hearing on her motion to dismiss was scheduled for
September 29, 1995.  However, the docket was silent as to the
setting of any hearing on the merits.  Mrs. Butler's motion to
dismiss was premised on three of the grounds listed in Rule 12(b)
of the Arkansas Rules of Civil Procedure.  Rule 12(d) provides:
     The defenses specifically enumerated (1) -- (8) in
     subdivision (b) of this rule, whether made in a pleading
     or by motion, and the motion for judgment mentioned in
     subdivision (c) of this rule shall be heard and
     determined before trial on application of any party,
     unless the court orders that the hearing and
     determination thereof be deferred until the trial.
Mrs. Butler submits that, since the chancery court did not defer
the hearing on her motion to dismiss until the time of the hearing
on the merits, she should have been granted a later hearing at
which she could have appeared and defended the contempt charges
against her.  Rule 12(j) provides:
     Attorneys will be notified of action taken by the court
     under this rule, and, if appropriate, the court will
     designate a certain number of days in which a party is to
     be given to plead further.
Pursuant to the above rule, Mrs. Butler argues that, in addition
to being entitled to a hearing on the merits, the chancery court
should also have granted her an opportunity to plead further.
     We reject Mrs. Butler's first argument because it was not
properly raised before the trial court, and the supreme court has
repeatedly stated that arguments that are raised for the first time
on appeal will not be addressed.  See Sebastian Lake Pub. Util. Co.
v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996). 
During the hearing held September 29, 1995, no objection was made
to the court's consideration of the merits of the contempt motion. 
Rather, Mrs. Butler's attorney simply stated:
     My client is not here at this time.  I was under the
     understanding from [the appellee's attorney], just
     yesterday, that there was a possibility this might go to
     the merits after the jurisdiction question has been
     addressed.
Although Mrs. Butler now submits that the above statements
should have made it apparent that her attorney was objecting to
a hearing on the merits, we disagree.  Furthermore, we find that
Mrs. Butler's motion for relief from the contempt order fell short
of apprising the chancery court of the arguments that are now being
raised.  In that motion, Mrs. Butler indicated only that she missed
the hearing pursuant to the advice of her attorney and that she
stood ready to appear and defend on the merits of the contempt
motion.  She made no mention of entitlement to another hearing
pursuant to Rule 12, as is now being asserted.  Because her present
Rule 12 arguments were not raised below, we need not consider them
here.
     Mrs. Butler's remaining argument is that the chancery court
erred in assessing attorney's fees and travel expenses against her. 
The chancery court determined that Mrs. Butler was responsible
for the expense incurred by Mr. Comer's father when he attempted
to pick the child up in Idaho on July 8, 1995.  In addition,
the chancery court awarded attorney's fees and travel expenses
incurred as a result of Mr. Comer defending the action that
Mrs. Butler brought in Idaho.  Mrs. Butler argues that these awards
were erroneous, citing Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981).  In that case, attorney's fees were awarded for
services performed in a California child-custody case based, in
part, on the fact that the attorney's services in California were
necessary to protect the appellee's rights in the child-custody
case pending in Arkansas.  Mrs. Butler points out that, in Payne v.
White, supra, the California court concluded that it was without
jurisdiction to hear the case, and in the case at bar the Idaho
court made no such determination.  Mrs. Butler contends that this
distinction requires a disallowance of attorney's fees in the
instant case.  In addition, she argues that no travel expenses
should have been awarded because it was unnecessary for Mr. Comer
or his father to travel to Idaho because they knew in advance that
she would not allow the ordered visitation and because their
presence was not necessary during the initial proceedings in the
Idaho court.
     In Payne v. White, supra, we recognized the principle that, in
certain cases, process for contempt can be used to effect civil
remedies, the result of which is to make the innocent party whole
from the consequences of contemptuous conduct.  In the case now
before us, we hold that, as a result of Mrs. Butler's contempt,
Mr. Comer's father reasonably incurred $884.00 in travel expenses
when he attempted to pick up the minor child in accordance with the
visitation arrangement prescribed by the most recent custody order. 
Thus, this award is affirmed.  However, we find that the award for
attorney's fees and travel expenses incurred in Mr. Comer's defense
of the Idaho action was inappropriate.  These fees and expenses
were not a result of Mrs. Butler's contempt.  Nor were these
expenses related to the contempt hearing that took place in the
Madison County Chancery Court.
     The circumstances here differ significantly from those in
Payne v. White, supra, where the contemnor mother sought a custody
modification in the State of California.  The child resided in
Arkansas with his father, who had court-ordered custody.  During a
visit with the child's mother in California, the mother filed an
action there for custody and refused to return the child.  The
custodial father participated in the California proceeding and
ultimately it was dismissed for lack of jurisdiction.  A basis for
California jurisdiction was not at all apparent.  Here, however,
Mrs. Butler and the child have resided in Idaho for five years
and the State of Idaho may have acquired jurisdiction under the
Uniform Child Custody Jurisdiction Act and the federal Parental
Kidnapping Prevention Act to modify custody and visitation. 
Although Mrs. Butler selected a court of improper venue in Idaho
to file her action seeking modification of Mr. Comer's visitation
rights, there is nothing in the record to show that this was
done for the purpose or with an intent to delay or frustrate
Mr. Comer's defense of the action.  The proceeding had been
transferred to a court of proper venue and was still pending when
this appeal was taken.  Under these circumstances we find that
the chancery court's decision to award attorney's fees and
expenses related to the Idaho claim was an abuse of discretion. 
Consequently, we reduce the judgment granted to Mr. Comer for
travel expenses and Idaho attorney's fees from $4,204.00 to
$884.00.  The judgment is otherwise affirmed.
     Affirmed as modified.
     Stroud and Neal, JJ., agree.