Michael J. Sisson v. Stacey (Sisson) Cousar

Annotate this Case
ca04-814

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

MICHAEL J. SISSON

APPELLANT

V.

STACEY (SISSON) COUSAR

APPELLEE

CA 04-814

April 27, 2005

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT

[DR-98-326]

HONORABLE JOHN S. PATTERSON,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Michael Sisson, and appellee, Stacey (Sisson) Cousar, were divorced on April 12, 1999. They have two minor children, Sarah and Joshua. Appellant appeals from a March 4, 2004 post-divorce order in which the circuit court found him in contempt, sentenced him to serve thirty days in jail with twenty-three days suspended, and awarded appellee $1,200 in attorney's fees and $130 in costs. We affirm.

Appellant raises twelve points of appeal:

I. The court erred in finding appellant in contempt for discussing sex education with his non-custodial son.

II. The trial court erred in finding appellant in contempt for removing a disciplinary form from the school when the testimony was clear and unrebutted that he had been given the document by the teacher.

III. The trial court had insufficient evidence before it to support its finding that appellant was in contempt for removing a disciplinary form from the school when the testimony was clear and unrebutted that he had been given the document by the teacher.

IV. The trial court erred in finding appellant in contempt for removing school forms from the children's backpacks and correcting them and then returning them to the school on his own.

V. The trial court erred in finding that appellant was in contempt with regard to the lunch times and the morning and afternoon contacts. The trial court should have allowed appellant to have contact with the children at school as long as he did not violate school guidelines. This also holds true for extra-curricular activities.

VI. The trial court had insufficient evidence before it to support its finding that appellant was in contempt with regard to the lunches at school simply because appellee would like to prohibit them.

VII. The trial court has insufficient evidence before it to support its finding that appellant was in contempt for having contact with the children that caused the daycare van to be delayed.

VIII. The trial court erred in allowing Dr. Shry to testify regarding the need for psychological testing after hearing only appellee's witnesses' testimony, and having only observed the children in the presence of appellee and her husband and her counsel, and having observed the appellant only in the contentious atmosphere of the courtroom. This error resulted in the court giving undue weight to Dr. Shry's testimony.

IX. The trial court erred in finding appellant in contempt with regard to the incident at the soccer field because the prohibition in the original decree did not apply to appellee's husband, nor was the evidence sufficient to support a finding that she heard or understood the profanity.

X. The trial court erred in giving undue credence to appellee and appellee's counsel's references to past findings of contempt against appellant because the case file does not bear out the inference that appellant had been found in contempt "numerous times."

XI. The trial court erred in awarding attorney fees and costs to the appellee in light of the errors made by the trial court as set out herein.

XII. The trial court had insufficient evidence before it to support any finding that appellant was in contempt.

For ease of discussion, we will address the points in an order that is different from that presented by appellant.

Points I, V, VI, & VII

We will begin with Points I, V, VI, and VII, which can be summarily dismissed. Under these points, appellant contends that the trial court erred in finding him in contempt based upon the following conduct: 1) discussing sex education with his son (Point I); 2) having lunchtime, morning, and afternoon contacts with his children at school (Points V and VI); 3) having contact with his children that caused the daycare van to be delayed (Point VII). As part of its order, the trial court admonished appellant not to engage in some of these actions; however, none of these actions served as a basis for the trial court's finding of contempt. Accordingly, appellant's contentions that the trial court found him in contempt on these bases have no foundation in fact and cannot serve as a basis for reversal of the contempt holding.

Overnight Stay and Points II, III, IV, IX, & XII

The trial court actually found appellant in contempt based upon only three of his actions: 1) taking the children with him on an overnight trip that also involved a person with whom appellant had a romantic interest; 2) cursing the stepfather in front of the daughter, Sarah; 3) intercepting school documents. In his initial brief to this court, appellant did not challenge the trial court's finding of contempt that was based upon the overnight trip; rather, he addressed it for the first time in his reply brief. We do not consider arguments raised for the first time in a reply brief because the appellee would have no opportunity to rebut the argument. See Helena/West Helena Schools v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002). Because appellant first raised this argument in his reply brief, it is not properly before this court.

Moreover, the trial court found appellant to be in contempt of court based upon three independent sets of circumstances. By not challenging in his initial brief the trial court's finding of contempt based upon the overnight trip, that independent basis for the contempt ruling remains in place. When two or more alternative reasons are given for a decision and an appellant does not attack them all, we must affirm. See Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Moore v. Mueller Indus., ____ Ark. App. ____, ____ S.W.3d ____ (Nov. 10, 2004).

In addition, even if we were to address this issue, we would find no error. Our supreme court has stated that an act is contemptuous if it interferes with a court's business or proceeding, or reflects upon the court's integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). Contempt is divided into criminal contempt and civil contempt. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). The purpose of criminal contempt is to preserve power, vindicate the dignity of the court, and punish for disobedience of the court's order. Id. Civil contempt is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Id. A judge's power to punish for criminal contempt is not limited by Arkansas Code Annotated section 16-10-108 (Repl. 1999). Id. The power to punish for contempt is inherent in the courts, and it goes beyond the power given to judges by statute. Id. Before a person may be held in contempt for violating a judge's order, the order alleged to be violated must be definite in its terms as to duties imposed, and the command must be express rather than implied. Id. When a party does all that is expressly required of him, it is error to hold him in contempt. Id. The standard of review in a case of criminal contempt is settled; an appellate court views the record in the light most favorable to the trial judge's decision and will sustain thedecision if supported by substantial evidence and reasonable inferences therefrom. Hodges v. Gray, supra.

Here, the original divorce decree provided, "Neither party shall have anyone with whom they are romantically involved in an overnight situation unless they are married when they have the minor children with them." In its March 4 order, the trial court reiterated the divorce decree's language and found that "[d]efendant has violated that provision of the Decree by having the minor children around a person with whom he has a romantic interest in an overnight situation." The court held appellant in contempt for violating the prior orders of the court.

According to appellant's testimony, the overnight stay occurred at his former girlfriend's grandmother's house, and Wendy, the former girlfriend, and her grandmother slept in the upstairs bedroom while everyone else was downstairs. Wendy testified at the hearing, but she was not asked about sleeping arrangements. The trial court did not indicate whether it found appellant's testimony to be credible regarding the sleeping arrangements, but even if it did, this conduct violated a definite and express command of the court. We hold, therefore, that the trial court's finding of contempt on this basis would be supported by substantial evidence.

Accordingly, as we have found two bases upon which to affirm the trial court on the overnight stay issue, it not necessary to address appellant's other arguments challenging the other two bases that the trial court gave for finding him in contempt, which are contained in Points II, III, IV, IX, and XII.

Point X

Next, under Point X, appellant contends that the trial court "erred in giving undue credence to appellee and appellee's counsel's references to past findings of contempt against appellant because the case file does not bear out the inference that appellant had been found in contempt `numerous times.'" We do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Lambert v. Firstar Bank, N.A., 83 Ark. App. 259, 127 S.W.3d 523 (2003). Appellant cites no legal authority for his position on this point, and it is not otherwise apparent that the argument is well taken.

Point VIII

We now turn to Point VIII, in which appellant contends that the trial court "erred in allowing Dr. Shry to testify regarding the need for psychological testing after hearing only appellee's witnesses' testimony, and having only observed the children in the presence of appellee and her husband and her counsel, and having observed the appellant only in the contentious atmosphere of the courtroom." Appellant further contends under this point that allowing the testimony under these circumstances resulted in the trial court giving undue weight to Dr. Shry's testimony. We find no error. We will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002). Here, Dr. Shry, a clinical psychologist, did not offer an opinion; rather, he advised the trial court that he would need to conduct testing in order to develop an opinion. We hold that the trial court did not abuse its discretion by allowing Dr. Shry to testify. Moreover, appellant cites no legal authority for his position on this point, and it is not otherwise apparent that the argument is well taken. Again, we do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Lambert v. Firstar Bank, N.A., supra.

Point XI

The one remaining point of appeal is Point XI, in which appellant contends that the trial court "erred in awarding attorney fees and costs to the appellee in light of the errors made by the trial court as set out herein." We find no error. We have recognized that a trial judge in domestic proceedings has inherent power and jurisdiction to allow attorney's fees in matters not specifically covered by statute, including, for example, contempt proceedings. 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). Clearly, the trial court had the authority to award the fees, and without a more convincing argument or legal authority from appellant, we find no basis for reversing the award of attorney's fees and costs, particularly in light of the fact that we have found no error by the trial court.

Affirmed.

Bird and Roaf, JJ., agree.