Amanda Beatrice Lyman and Christopher Paul Lyman v. Tracey E. Ivy

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA02-722

MARCH 12, 2003

AMANDA BEATRICE LYMAN AND

CHRISTOPHER PAUL LYMAN AN APPEAL FROM THE APPELLANTS WASHINGTON COUNTY CIRCUIT

v. COURT [J98-1302]

TRACEY E. IVY HONORABLE STACEY A. ZIMMERMAN, APPELLEE JUDGE

AFFIRMED

Appellants, Amanda and Christopher Lyman, appeal from an order of the Washington County Circuit Court denying their petition to relocate to Incline Village, Nevada, with the minor child of Amanda and appellee, Tracey Ivy, and finding her in contempt and ordering her to pay appellee's attorney's fees. Finding no error, we affirm.

The minor child, L.I., was born in May 1997. At the time of L.I.'s birth, her mother, appellant Amanda Lyman, was married to appellant, Christopher Lyman, but was living with appellee, Tracey Ivy. Ivy filed a paternity action after he and Amanda parted ways and in December 1998, a temporary order was entered establishing him as the biological father of the child and awarding him visitation rights, subject to Amanda's temporary primary custody. Pursuant to an agreement between the parties, Amanda thereafter receivedpermanent custody of L.I. subject to Ivy's reasonable visitation rights. The court ordered and directed both parties to notify the other if either had knowledge of any illness, accident, or other matter seriously affecting the well-being of L.I. and ordered that except in cases of emergency, neither party take action without consulting the other.

Due to allegations of sexual abuse and molestation against L.I. brought by both parties, the trial court also prohibited either party from allowing further medical examinations without its approval unless either observed injury to L.I. for which immediate medical care should be sought. Pending results of a psychological examination, a hearing was scheduled. The results of the examination revealed that L.I. had been acting out in a sexually inappropriate manner, even licking on Ivy's wife, Betty. She had observed Amanda and Christopher engaging in oral sex, and had also witnessed sexual acts between Ivy and Betty. The results also indicate that L.I. had observed fights between appellee and Betty and that because Betty was pregnant, L.I. was afraid that Ivy "was going to kill the baby." After hearing these results, the trial court entered an order prohibiting the minor child from being left alone with any male, including Amanda's husband, Christopher. The trial court further ordered that both parties notify the other of any of the minor child's doctor appointments, visits, or any other medical care received.

In 2000, Amanda petitioned the court to relocate with L.I. to Nevada. The trial court denied the request and that decision was not appealed; the court also denied appellee's request for change of custody. The court also modified its earlier order, permitting Christopher Lyman to be alone with L.I. In September 2000, Amanda Lyman, withoutconsulting Ivy, took L.I. to a therapist, Ms. Marcy, because L.I. was "pooping in her pants, going hiding in a corner and talking about mean Tracey." L.I. saw this therapist for over a year.

Again in April 2001, Amanda, who was expecting her first child with Christopher, requested to relocate with him to Nevada. He had obtained full-time employment in Nevada and was enrolled in school there. In September 2001, Amanda and Christopher filed an amended petition, requesting an emergency hearing and further requesting that L.I.'s visitation with Ivy be terminated or limited pending completion of therapy concerning alleged violence in Ivy's home between him and his wife. On October 1, 2001, Ivy also filed a petition, requesting that Amanda be held in contempt as he was denied visitation with L.I. Ivy also asserted that Amanda had not notified him of his child's whereabouts and had taken L.I. to therapy without his knowledge or consent.

On October 25, 2001, the trial court entered an order requiring L.I. to obtain an evaluation from a local psychologist regarding the allegations of misconduct by both parties and further ordering the psychologist to submit recommendations regarding the continuing need for therapy. A trial on the merits was held December 20, 2001. The trial court denied Amanda and Christopher's petition to relocate and further denied Ivy's request for change of custody. The court found Amanda in contempt for failing to notify Ivy that the minor child had been in therapy for over a year and for denying him visitation with L.I. for over a month while she was visiting Christopher in Nevada. In lieu of jail time, the court ordered Amanda to pay appellee's attorney's fees. It is from this order that appeal is taken.

On appeal, Amanda and Christopher Lyman argue that (1) the trial court's denial of their request to relocate with L.I. is clearly erroneous when reviewing the entire evidence of record; and (2) the trial court's award of attorney fees is clearly erroneous as it awards Ivy attorney fees for charges incurred outside the issues of contempt.

In cases involving child custody and related matters we review the case de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001); Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In child-custody cases we give special deference to the trial court's position to evaluate what is in the best interests of the child. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998).

Amanda and Christopher argue first that the trial court's denial of her request to relocate with L.I. is clearly erroneous when reviewing the entire evidence of record. They state that the court acknowledged that it found that there would be a financial benefit to the move, and that there were other advantages to the move to Nevada, including economic benefits as well as the fact that L.I. and her baby sister would benefit from living in a two-parent household. Amanda and Christopher contend that the court erroneously placed emphasis on matters not pertinent to relocation, like the facts that (1) Amanda failed to follow a court order, (2) L.I. needed therapy, and (3) the court would have no way to monitorthe therapy to ensure that Amanda is following its order in getting the child counseling and involving Ivy.

The best interest of the child remains the ultimate objective in resolving child custody and related matters. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). The standard must be more specific and instructive to address parental relocation disputes, however, as determination of a child's best interests cannot be made in a vacuum but requires that the interests of the custodial parent be taken into account as well. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001). Where the custodial parent seeks to move with the parties' child to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move. Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001). Once the custodial parent meets the threshold burden, the court should then consider a number of factors in order to accommodate the compelling interests of all the family members, including as established in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d (1994), (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting theremoval; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. See id.

Although it denied Amanda and Christopher's request to relocate, the trial court found that there had been a substantial change in circumstances, given the fact that Christopher had relocated to Nevada, had obtained a good paying job there, and Amanda had given birth to L.I.'s half-sister. The court noted that it knew that it must have been quite difficult for Amanda and Christopher to live separate and apart, but that "it was Mr. Lyman's decision to relocate [to Nevada] without his wife." Further, the court stated that there would be a financial benefit to the family if allowed to relocate; however, it found that although the move would be a benefit to the family unit as a whole, other factors had to be applied "with respect to the Hass case . . . with the tantamount polestar in the case being the best interest of the child."

From the bench, the court stated, in pertinent part, the following:

What gives me most concern in this case are these ongoing allegations going back and forth about possible sexual abuse of the child, and that's been going on since I first heard this case to the point that back in May of 1999 I ordered that this child should not be subjected to any more vaginal exams. They were taking her to the doctor, and I made it very clear that that needed to stop.

The Court ordered the parties, specifically in paragraph 11 of the Court's Order from March 25, 1999, paragraph 11: "Both parties shall consult with each other as often as may be necessary regarding matters pertaining to the children." How much clearer can a person be? Ms. Lyman is a very articulate, smart, attractive woman, she knew what that meant. ["]If either party shall have knowledge of any illness, accident, or other matter seriously affecting the well-being of the minor child, he or she, "as the case may be" shall promptly notify the other, and except inemergencies, shall not take any action without consulting the other."

Ms. Lyman testified that back in September of 2000 she took the child to Ms. Marcy because the child was pooping in her pants, going hiding in a corner and talking about mean Tracey. That is a matter seriously affecting the well-being of the minor child. She takes her there for a year, doesn't tell the dad. It's total contempt of Court because we've already been around this once before. I find that Ms. Lyman is in violation of the Court Order, paragraph 11 specifically, that she took the child to a counselor for a whole year, didn't notify the daddy.

Not only did the mother violate this Court's Order about notifying the dad of taking the child to Ms. Marcy, but she took the child out-of-state from September 14th or thereabout until October 16th or thereabout, a whole month. And at that time she had a Petition pending for Modification. In her own Petition she stated . . . "since the entry of the Court's Order dated June 2, 2000, Defendant/Petitioner has not obstructed or impeded in any fashion Respondent's visitation privileges with the minor child." After she files that, guess what? She impedes his visitation not one week, two weeks, three weeks, but for a month. And she said, well, I was concerned about, you know, the allegations that Ms. Marcy said, and Ms. Marcy said his visitation should stop. Well, Ms. Marcy ain't the Judge in this case. Mother's response to that was, well, we thought we could get an emergency hearing, and it would have been while we were in Nevada, and we were going to have a quick hearing, and it just took too long. Well, this Court would note for the record that before their answer on the other side was due, which would have been twenty days after September 26th on October the 15th, before the other side's Answer was even due, they filed a Petition for Contempt on October 1, and this Court set it for a hearing - set it for a hearing for October 12th at 2:00.

We came in on October 25th for a hearing, and there were allegations that counsel had advised me of in Chambers about the child acting out sexually, and we needed to explore that to the best interest of the child. So I sent everybody to see Dr. VanKirk or some psychologist they agreed upon. Lo and behold, it comes out that this child has been acting out sexually inappropriate.

So we get the report from Dr. VanKirk, and when you flesh it out, basically, the child has observed mamma and the step daddy having oral sex. Now, how many times she observed it, I don't know, but enough to be licking on Ms. Betty over here, so I'm guessing maybe more than just once to the point that Ms. Marcy, the secret therapist that mamma has picked for the child, even says that, "I believe she has been exposed to inappropriate sexual behavior on the part of her mother and stepfather."

Part of the reason I wanted everybody to know who the child was seeing was so each side could tell their story. Ms. Marcy, not until quite recently, got to hear dad's side of the story. It also talks about dad getting into fights with his wife, Ms. Betty, and the child gets afraid, and I think that probably does happen. Dad and mom get into a fight, the child sees it, and she doesn't like that, I mean dad and stepmom.

Then we find out that the child is afraid about this baby, the pregnancy, and that she is afraid that daddy was going to kill the baby, and that might have been just said in jest, but it concerned [L.I.] enough to mention it. And we have some concern that the child has witnessed a little foreplay between Mr. Ivy and his wife.

So mom is asking to be able to move. Yes, stepdad has a better job. Yes, they have a family unit now with the inclusion of a new sibling. That changes the picture. But the other factors we have to look to are the integrity and the ability to follow Court Orders. Mom is in contempt right now for not following the Court Orders not only about the counseling, not letting daddy know for a whole year, and number two, by denying this man's visitation for a whole month when her own petition to move was pending. Now, if she is going to violate Court Orders when the Judge has a pending case to let her move, that doesn't give me much thought that she is going to follow Court Orders in the future. I find that she has shown an inability to follow Court Orders and that her integrity in this move is lacking, but most importantly, I find that this child needs to get some serious therapy and that Mr. Ivy and Ms. Lyman need to just get along.

Regarding custody, a change of [L.I.'s] physical custody does not appear warranted. Based upon the Hass case, and taking into account the factors that are listed in that case, based on the fact that I found mother in contempt for two very specific reasons involving the best interest of this child, I have no way to monitor the situation to make sure that the mother is following Court Orders, getting the child in counseling, involving the father.

I find that it is not in the best interest of this child to move with her mother. With respect to the contempt finding, I am going to Order that mother is Ordered to pay the attorney fees of father in this case. We are going to come back here to check on [L.I.'s] progress and therapy on Friday, April 26th at 1:30.

(Emphasis added.)

Giving special deference to the trial court's position to evaluate what is in the child's best interest and reviewing the entire record de novo, we are not left with the definiteconviction that a mistake was committed; accordingly we affirm on this point.

As their second point on appeal, Amanda and Christopher argue that the trial court erred in awarding Ivy attorney fees for charges incurred outside the issue of contempt. Specifically, they state that the affidavit "includes matters that would have occurred regardless of `contemptuous behavior' by the Appellant," and request that the finding be remanded back to the trial court for specific findings of fact as to what attorney fees apply to the contemptuous conduct.

The decision to award attorney's fees and the amount of an award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion, Boatman's Trust Co. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000), and we have held that a court has inherent power and jurisdiction to allow attorney's fees in matters not specifically covered by statute, including contempt proceedings. Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995)(citing Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955); Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981)). Due to the trial judge's intimate acquaintance with the record and the quality of service rendered, we usually recognize and defer to the superior perspective of the trial judge in assessing the applicable factors. Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002). In setting the amount of fees awarded, it is well settled that the chancellor is in a better position to evaluate counsel's services than an appellate court, and, in the absence of clear abuse, the chancellor's award of an attorney's fee will not be disturbed on appeal. Ishmael v. Ismail, 66 Ark. App. 232, 989 S.W.2d 923 (1999) (citing Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640(1987)).

In the case at bar, we find nothing in the record before us to show that the court's considerable discretion was abused. The trial court ordered Amanda and Christopher to pay Ivy's attorneys fees. In her affidavit of attorneys fees, Ivy's attorney lists charges in the amount of $4,343.74. In a letter to the court, dated February 25, 2002, Amanda and Christopher's counsel stated that "I do not believe that Ms. Storey's [appellee's counsel] fees are excessive but, would request that the Court only award those fees attributable to the Petition for Contempt." In response, the trial court, in an amended order filed March 8, 2002, ordered Amanda and Christopher pay $4,343.74 to Ivy's attorney. The court specified that this amount was due to Amanda's violation of court orders and was in lieu of jail time. Under these circumstances, we cannot say that the trial court abused its discretion, and we affirm.

Affirmed.

Stroud, C.J., and Vaught, J., agree.