Debra Eades (Smith) v. Robert P. Eades

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June 16, 2004


[NO. DR-1998-312-1]




John Mauzy Pittman, Judge

The parties were divorced in December 1998 by an order granting physical custody of their minor child to appellant. Following a motion and hearing, custody of the child was changed from appellant to appellee in December 2000. Some four months later in April 2001, appellant filed a motion alleging a change of circumstances and seeking to have custody of the child returned to her. This was denied in an order entered July 24, 2002, in which the trial court expressly found that appellant had been attempting to influence the child to return to her, warned that there would be no tolerance of any further efforts by appellant to do so, and ordered both parties to not discuss the custody case with the child, other than to inform him that he would remain with appellee. In that same order, appellant was expressly ordered to refrain from making any comments about the child living with her or her desire for the child to live with her. No appeal was taken from that order.

On July 31, 2002, appellee filed a motion for contempt, alleging that appellant had continued to discuss the case with the child in greater detail than permitted by the prior order, including discussing the child returning to live with her and her desire that the child should do so, and had continued to engage in conduct that was detrimental to the child's emotional, physical, and psychological health. After a hearing, the trial court found that appellant had violated the terms of the prior order and was in contempt of court; ordered appellant to serve two weekends in the White County Jail; suspended appellant's visitation with the child until suitable supervision for visitation could be arranged; and ordered appellant to seek counseling and treatment for her continued refusal to accept and recognize that the child was going to live with appellee for the foreseeable future. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in finding her in contempt of court, and in refusing to admit into evidence a document purporting to have been authored by the Arkansas Department of Human Services. We affirm.

We first address appellant's contention that the trial court erred in finding her to be in contempt of the provisions of the July 24, 2002, order prohibiting her from discussing any possible future litigation of custody with the child. On appeal, appellant does not deny discussing custody with the child, but instead argues that the provisions of the order of July 24, 2002, prohibiting her from doing so were unreasonable. However, appellant never appealed from that order and cannot attack it collaterally by arguing that it was invalid in the context of an appeal from an order finding her to be in contempt of it. Nelson v. Nelson, 20 Ark. App. 85, 723 S.W.2d 849 (1987).

Appellant also argues that the evidence is insufficient to show that she violated the order because there was nothing to show that she "initiated" any of the conversations with the child concerning custody. We see no merit in this argument. Appellant was not ordered to refrain from initiating discussions concerning possible future custody litigation; she was ordered to refrain from any participation in such discussions. There was evidence that she did not so refrain. Dr. Ann Clark testified that, in the course of a counseling session that took place after appellant was ordered to refrain from discussing custody litigation with the child, the eight-year-old child informed her that his mother would appeal the custody decision and that the litigation would continue. Dr. Clark also testified that this was increasing the child's anxiety level and was harmful to his health. The trial judge expressly found Dr. Clark's testimony to be credible, and expressly found that appellant's testimony to the contrary was not credible.

Insomuch as the order was punitive in nature rather than coercive, this appeal is from a criminal contempt citation. Hutchins v. Hutchins, 330 Ark. 426, 954 S.W.2d 249 (1997). In cases of criminal contempt, we view the evidence in the light most favorable to the trial court's finding and we will affirm the decision if it is supported by substantial evidence. Page v. Anderson, ___ Ark. App. ___, ___ S.W.3d ___ (April 7, 2004). Viewing the evidence in that light, we cannot say that the trial court's finding of contempt is not supported by substantial evidence.

Appellant further argues that the trial court erred in refusing to admit a document she proffered purporting to be a report from the Arkansas Department of Human Services finding that appellee had choked the child. We disagree. The circuit court has broad discretion in its evidentiary rulings; hence, the circuit court's findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Hunt v. Perry, ___ Ark. ___, ___S.W.3d ___ (April 29, 2004). The document at issue contained a written assertion by Linda Taylor (who was not present at the hearing) that there was evidence to support a finding that appellee had mistreated the child, and it was proffered for the truth of the matter asserted. The document therefore falls under the definition of hearsay set out in Ark. R. Evid. 801(c). Appellant contends that the document was admissible under the exception to the hearsay rule contained in Ark. R. Evid. 804(b)(5) because there were substantial guarantees of the document's trustworthiness, and because the statement contained therein was more probative on that point than any other evidence that the proponent could procure through reasonable efforts. Even were we to agree with this characterization of the document, which we do not, appellant's argument would fail because the exceptions set out in Rule 804(b) apply only when there has been a showing that the declarant is unavailable as a witness under Rule 804(a). No such showing was attempted in the present case, and we therefore cannot say that the trial judge abused his discretion in refusing to admit the proffered hearsay.


Neal and Baker, JJ., agree.