Sherri Parker v. Mark Farmer

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

SHERRI PARKER

APPELLANT

V.

MARK FARMER

APPELLEE

CA 05-2

June 15, 2005

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

[NO. E 98-4]

HONORABLE MARK LINDSAY,

JUDGE

AFFIRMED

Terry Crabtree, Judge

In this post-divorce action, appellant contends on appeal that the trial court erred in refusing to modify the summer visitation schedule and by holding her in contempt of the previous visitation order. We find no error and affirm.

Appellant Sherry Parker and appellee Mark Farmer were divorced in February of 1998. Appellant was awarded custody of their two children, while appellee was granted visitation, including a period of continuous visitation for six weeks each summer. It is undisputed that appellee did not exercise summer visitation from 1998 through 2003. In August 2003, an agreed order was entered, which provided in pertinent part:

7. By agreement of the parties, the Court finds and orders that the [appellee's] visitation periods with the parties two children should be, and hereby is, modified to award the [appellee] that visitation specified in this Court's suggested visitation schedule, with the specific exception that the appellee shall remain entitled to have the children, as per the original Decree of Divorce, to six (6) weeks each summer. A copy of this Court's Suggested Visitation Schedule is attached hereto as Exhibit "A" and incorporated herein as though set forth verbatim.

8. Neither party shall partake of alcoholic beverages to excess while the children are in their care. Further, the parties shall refrain from directing profanities in reference to their children.

The court's visitation schedule, which was incorporated by reference, specifically provided that:

Child(ren) shall not be permitted to make decisions regarding visitation. The custodial parent is charged with the duty and responsibility to insure compliance with the visitation schedule and may not independently suspend or terminate visitation for any reason, absent an emergency.

In the summer of 2004, appellee's six-week visitation period was to begin on June 25. On May 13, appellant filed a motion for modification. In this motion, appellant asked the court to modify appellee's summer visitation to two, separate fifteen-day periods from July 1 until July 15, and August 1 through August 15, which was commensurate with the court's suggested visitation schedule. This motion was not set down for a hearing prior to the time for summer visitation.

The record shows that the children began the summer visitation on the appointed date. The children spent the day with appellant on the Fourth of July. On that day, appellant phoned the local police to ask if she were required to return the children for the remainder of the summer visitation, and she was advised that it was necessary to abide by the court's order. Appellant returned the children, but the children left appellee's home after midnight on July 6. They telephoned appellant, who picked them up and took them to her brother's house after gathering their belongings from her home. On July 27, appellee filed a motion for contempt alleging that appellant had violated the provision of the agreed order as it pertained to summer visitation.

The court held a hearing on appellant's motion for modification and appellee's motion for contempt. At the hearing, the parties' son, age fourteen, testified that appellee drinks all of the time, that he drives while he is drinking, and that sometimes appellee had been drinking when he had picked him and his sister up for visitation. He said that the drinking and driving scared him. He testified that appellee calls him names such a fat "A," that appellee used the "f'n" word a lot, and that he called appellant names beginning with the letter "B." He said that appellee yells and screams and calls him names when he is drinking. He told the court that he wanted supervised visitation because "I want somebody to keep him from blowing up at me. I don't want to hear cursing. I don't want drinking. I don't want to hear the name calling." He further testified that appellee made himdo chores, some reasonable and some not, and that appellee laughed at him one time when he got hot and went inside to get a drink of water. In addition, the child testified that appellant had once talked him out of running away from appellee's home, that appellant did not know that he was going to run away, that she had tried to get him to go back to appellee's, and that he had made the conscious decision not to return for the remainder of summer visitation, even though he knew that appellant might get into trouble. He said that he would have "just kept on going" had appellant not picked him up that night. He said that he had spoken to appellee a couple of times on the phone since running away.

The parties' daughter, age sixteen, also testified. She said that she had never been away from appellant for six weeks and that she had asked appellee if she could see appellant during visitation, but that appellee refused to let her. She also testified that appellee had a drinking problem, that he drank all of the time, and that it was a normal occurrence for him to drive and drink with her in the car. She said that his drinking causes problems because he "blows up." She testified that appellee got mad at them for not saying "good morning" to her stepmother, for not picking up wood, and for not picking up fireworks. She said that a note was left for appellee when they ran away which said that she was tired of his drinking, tired of him blowing up, tired of him cussing at her, and tired of working. She further testified that she did not spend any quality time with appellee and that the only time spent with him was when she had to work with him in his remodeling business, for which she was not compensated. She said that appellant had not known that they were going to run away and that she would have kept on walking had appellant not picked her up and that she would have slept in the dog pen if she had not been welcome at appellant's house. She had not spoken to appellee since she had run away. She, too, wanted supervised visitation.

Appellee testified that he did not drink every day and that he did not drink and drive. He said, however, that he may on occasion have had a couple of beers before picking them up for visitation. He said that he had not drunk in excess when the children were with him. He felt that the children were "hedging the truth" about his drinking. Appellee testified that he did not use the children as workers and that he planned at least one activity with them every weekend, such as canoeing, swimming at the river, cooking out, or going to a movie or the mall shopping. He had planned a trip that summer to the Big Cedar Lodge. He said that he had no objection to the children seeing appellant every two weeks during his summer visitation.

Appellee further testified that he had not previously exercised summer visitation because appellant would not allow it and that she also would not permit him to see the children at Christmas. He said that the previous litigation had involved his visitation and appellant's complaints about his drinking and cursing, and he said that he thought that the agreed order had taken care of these matters.

Appellee said that on July 5, he had come home from work early to find that the children were sitting around and had not picked up the fireworks from the night before, as they had been asked to do. He had them clean up the fireworks, and mow and weed eat the yard. He said that his son used the riding lawnmower to mow half the yard, but that he had refused to finish. After some urging, the child finished mowing the yard, and then appellee and the child planted a tree. Appellee said that he had not laughed at his son for getting a drink of water. He also testified that on the evening of the 5th he had coached a tee-ball game, which the children had attended, and that afterwards more fireworks had been shot. He said that nothing seemed wrong and that the children were not upset or unhappy. He called appellant when he discovered that the children were gone the next morning, but he said that appellant would not allow him to speak to them. He said that, when he called back, appellant threatened him with harassment charges.

Appellant testified that the children often complained about appellee's drinking and driving, and about having to work all of the time when they were with appellee. She said that things had become worse since the last court date as appellee calls her names, screams, and loses his temper. In this regard, a recording of one of appellant and appellee's phone conversations was played for the court. Appellant testified that she had done nothing to encourage bad feelings between appellee and the children and that she had told the children not to run away. She said that she had donenothing to cause the children to leave appellee's home after just nine days of visitation. Appellant stated that the children did not know that she had called the police to get advice about not returning them on the Fourth of July. She testified that she did not return the children to appellee after they ran away because they said that they would leave again.

In its ruling, the trial court found that visitation had gone well until it became time for the extended visitation period in the summer. The court stated that the children had not ever been away from appellant that long and that this caused the breakdown to occur. It found that appellant had gone out of her way to not violate the order directly but that in spirit she had tried to get around it. The court noted that, instead of returning the children, she had taken them to the home of a third party and ruled that she was in contempt for not returning the children. The court thus sentenced appellant to four days in jail, but withheld imposition of sentence on the condition that she comply with the court's orders in the future. The trial court further found that there was no credible evidence that appellant drank to excess or that he mistreated or abused the children. As there was no change in circumstances, the court denied appellant's motion to modify the six-week summer visitation.

Appellant first contends that the trial court erred by not modifying the summer visitation schedule to two, fifteen-day periods so as to allow her some time with the children in the summer. In reviewing domestic-relations cases, this court considers the evidence de novo, but will not reverse the trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. Hass v. Hass, supra. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation.

We are not able to say that the trial court's decision that there had been no material change in circumstances is clearly erroneous. The last visitation order addressed concerns over appellee's drinking and his use of profanity. Those claims were once again made in the present action, and the trial court, in its assessment of the credibility of the witnesses's testimony, determined that those allegations were unfounded. Also, when the last custody order was entered and appellee was once again accorded six weeks of continuous visitation in the summer, appellee had not previously kept the children for such an extended period of time. Thus, the present situation was the same as when the last order was entered. We also note that a trial court has the discretion to decline to give weight to a child's preference, and it is not binding on the court. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). As there was no change in circumstances, we affirm on this point.

As her second issue, appellant contends that the trial court erred in finding her in contempt of court. We do not reach the merits of this argument because the trial court suspended imposition of the four-day sentence conditioned upon her future compliance with the visitation order. A suspension of the punishment for contempt is in effect a complete remission. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). This renders the issue moot, and we do not decide moot issues. Id. See also Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Taylor v. Taylor, 26 Ark. App. 31, 759 S.W.2d 222 (1988).

Appellant also argues under this point that the trial court's award of attorney's fees should be set aside if we reverse the finding of contempt. We have not reversed on that issue, and we note that our courts recognize the inherent power of a court to award attorney's fees in domestic-relations proceedings, and whether the trial judge should award fees and the amount thereof are matters within the discretion of the trial court. Rogers v.Rogers, 83 Ark. App. 206, 121 S.W.3d 510 (2003).

Affirmed.

Pittman, C.J., and Hart, J., agree.