Laura B. Cross v. Larry Justin Tittle

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-426

NOVEMBER 29,2000

LAURA B. CROSS APPEAL FROM THE SALINE

APPELLANT COUNTY CHANCERY COURT

[P-96-1292-3]

v.

LARRY JUSTIN TITTLE HONORABLE GARY M. ARNOLD,

APPELLEE CHANCERY JUDGE

AFFIRMED

The custodial parent, appellant Laura B. Cross (Stephenson), appeals from an order of the trial court establishing the visitation rights of the non-custodial parent, appellee Larry Justin Tittle, following her move to California with the parties' child. On appeal, appellant argues that the chancellor erred in ordering her to be responsible for all transportation expenses of the child for Christmas, spring break, and summer visitations from California to Arkansas.

At a hearing held April 2, 1997, appellee was determined to be the natural and biological father of his minor daughter, Larkin. Pursuant to an order filed April 21, 1997, appellee was ordered to pay child support in the amount of $76.00 per week as well as otherrelated expenses associated with the birth of the child. The trial court granted appellee reasonable visitation upon request. Following a hearing held July 30, 1999, the trial court entered an order granting appellee specific visitation of increased hourly visits during a sixteen-week period, followed by regular visitation of every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In addition, appellee was granted visitation of alternating legal holidays; the last three weeks in June and the first three weeks in August each summer, during which time child support would abate by 50%; Father's Day each year; and the child's birthday every other year.

On October 6, 1999, appellee filed a motion for contempt alleging that appellant had moved to California and had taken the parties' child with her, without prior permission of the trial court. Appellee alleged that appellant had violated the trial court's visitation order and that appellant should be held in contempt and required to pay reasonable attorney's fees and costs. Appellee requested the trial court to issue a citation directing appellant to appear before the court to show cause why she should not be held in contempt of court for failure to comply with the trial court's orders. On the same day the motion was filed, the trial court entered an order directing appellant to appear before the court on October 21, 1999, to show cause why she should not be punished for contempt of the court for failure to comply with its order. In her answer filed October 14, 1999, appellant admitted that she had moved to California with the parties' child, but stated that she had given ample notice of the move to appellee along with a proposed modified visitation schedule.

After a hearing held November 8, 1999, the trial court did not rule on appellee'smotion for contempt, but it did establish a new visitation schedule. In its order filed December 20, 1999, the trial court made the following findings:

1) That defendant, Larry Justin Tittle, shall be entitled to visitation with the parties' minor child as follows:

Christmas- This year (1999), seven (7) days, December 20th, through December 26th; Next year (2000), seven (7) days, December 26th through January 1st; and thereafter the parties shall alternate the above-dates from year to year. Spring Break- The first seven (7) days of April. Summer- The whole month of August of each year. Plaintiff, Laura B. Cross (Stephenson), shall be responsible for all transportation expenses for the Christmas, Spring Break and Summer visitations to Arkansas and the return trip home. February-The first seven (7) days; June- The first seven (7) days; and October- The first seven (7) days. Defendant shall be responsible for paying the transportation expenses for the minor child to come to Arkansas, and Plaintiff shall be responsible for paying the transportation expenses for the minor child to return to her home.

. . . . Appellant argues on appeal that the trial court erred in ordering her to be responsible for all transportation expenses for Christmas, spring break and summer visitations from California to Arkansas. Appellant asserts that at the time of trial, the air fare to bring the child to Arkansas was $455.22 per person, which totaled $910.00 for each trip. She argues that the total allocation of transportation costs attributed to her, which include the three visitation periods at issue and the February, June and October visitations, would cost her around $6,142.00 per year. Appellant further asserts that she only receives $76.00 per week for child support and that her only source of income comes from her husband's employment. The appellate court reviews chancery cases de novo on the record, but does notreverse a finding of fact by the chancellor unless it is clearly erroneous. Bean v. Officer of Child Support Enf., 340 Ark. 286, 9 S.W.3d 520 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Bharodia v. Pledger, 340 Ark. 546, 11 S.W.3d 540 (2000). In reviewing a chancery court's findings, due deference is given to that court's superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

Appellee contends that the trial court did not err in its findings on the allocation of transportation costs because appellant produced no documentation that the move to California, resulting from the transfer of her husband's job, was not voluntary. He further argues that the appellant provided no proof to the trial court as to the costs of airline tickets when purchased in advance.

Despite appellee's contentions, appellant strongly insisted that at the time of the July 30 hearing, she was not certain that her family would be moving to California. Appellant also testified that she is currently unemployed and that her only source of income comes from her husband, who is a Secret Service employee. Although appellant testified that she does not have to work due to her husband's income, she did testify that she has to work limited hours because her husband's job requires him to travel. Appellant further testified that she was unaware of her husband's salary, and there was no evidence presented to the contrary. The chancellor even acknowledged while allocating transportation costs that "thisis expensive and neither of you can really afford it."

In Coder v. Coder, 226 Ark.478, 290 S.W.2d 678 (1956), the supreme court modified a chancellor's decree that required the appellant to pay all travel expenses for her son from Fort Smith to California and return, and directed both appellant and appellee to equally share the child's travel expenses. In Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000), this court modified an order of the trial court that required appellant to be responsible for all transportation costs associated with his visitation.

Here, however, the chancellor has not ordered appellant to pay all the transportation costs pertaining to visitation, but rather has allocated seventy-five percent of the costs to appellant. Furthermore, although the chancellor made no findings explaining why transportation costs incident to the visitation were to be paid seventy-five percent by appellant and twenty-five percent by appellee, appellant did not request the court to set out his findings as provided in Ark. R. Civ. P. 52. Consequently, we indulge in the presumption that the trial court acted properly and made the findings necessary to support its judgment. Jocon, Inc. v. Hoover, 61 Ark. App. 10, 964 S.W.2d 213 (1998); Ingram v. Century 21 Caldwell Realty, 52 Ark. App. 101, 103 n. 1, 915 S.W.2d 308, 309 n.1 (1996).

The chancellor may have weighed the relative financial circumstances of the parties, i.e., appellee's policeman's salary, and the fact that while appellant was employed full-time before moving to California, she now prefers only part-time employment. The chancellor may also have found it likely that appellant would be returning to Arkansas from time to time to visit family who lives here and that it would be unfair to require appellee to subsidizethose trips. There are other conceivable findings that the chancellor may have made with the evidence before him, which would support his conclusion to apportion transportation expenses in the manner that he did, and we cannot conclude that the chancellor's decision was clearly erroneous.

We affirm.

Robbins, C.J., and Hart, J., agree.