Marandi Shirley Bernal v. James Shirley
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DIVISION I
CA06-144
September 13, 2006
MARANDI SHIRLEY BERNAL
APPELLANT
v.
AN APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[DR-94-846-2]
JAMES SHIRLEY
HONORABLE VICKI SHAW COOK,
JUDGE
APPELLEE
REVERSED AND REMANDED
OLLY NEAL, Judge
Appellant Marandi Shirley Bernal appeals from an order of the Garland County
Circuit Court that found her in contempt of the court’s last custody order and awarded
appellee James Shirley custody of the parties’ three children. On appeal, appellant argues
that: (1) the trial court erred in changing custody of the children, as it did not find that there
had been a material change of circumstances since the last order affecting custody; (2) the
trial court erred in changing custody of the children, as it did not consider the best interest
of the children; (3) the trial court erred when it used the change of custody to punish
appellant for being in contempt of the trial court’s order. We reverse and remand.
The facts of this case are as follows. The parties were divorced on March 31, 1996.
Three children were born during the marriage, a daughter Cortnie, age ten, and twin sons,
Stephan and Shaun, age nine. Appellant was awarded custody of the children subject to
appellee’s visitation. Both parties have subsequently remarried and appellant has relocated
to Louisiana.
Since their divorce, the parties have filed several contempt motions and petitions to
change custody. Prior to the current matter, the last order affecting custody was entered on
June 29, 2004. That order found appellant to be in “willful and wanton” contempt of the
court’s previous order. The order provided that the contempt could be purged by allowing
appellee to exercise visitation from May 28, 2004, until June 9, 2004. The order further
provided that: (a) appellee was to have telephone visitation each Tuesday and Thursday
between 6:30 and 7:00 p.m.; (b) for subsequent visitations with appellee, the children were
to be exchanged at a gas station in Hope and, during the exchange, the parties were to have
no contact; (c) appellant was to provide appellee with a copy of each child’s school calendar;
and (d) each party was to share information about the children’s medical and scholastic
activities.
On April 1, 2005, appellee filed a petition for contempt and change of custody. In the
petition, appellee alleged that: 1) appellant had moved from her last known residence in
Louisiana and had failed to inform appellee of her new address; 2) appellant’s phone had
been disconnected and he was unable to exercise his telephone visitation; 3) he had been
denied spring-break visitation, Easter visitation, and visitation on his birthday; and 4)
appellant had failed to keep him abreast of the children’s scholastic activities and medical
needs. Appellee asserted that due to appellant’s contempt, he should be awarded custody of
the parties’ children. Appellee filed an amended petition for contempt and change of custody
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on June 3, 2005, alleging that there had been a material change of circumstances and that it
would be in the best interest of the children if he were awarded custody.
On June 24, 2005, appellee filed a petition for emergency ex-parte relief. He alleged
that he had been denied summer visitation. Attached to the petition was an affidavit from
appellee, in which appellee stated that the children’s last day of school was May 20, 2005,
that his summer visitation was to begin on May 27, 2005, and that appellant refused to meet
him on May 27. An emergency ex-parte order, ordering appellant to relinquish the children
to appellee’s custody, was entered on June 27, 2005. Appellant was served with the order
on July 5, 2005. On July 7, 2005, appellant filed a motion to set aside the ex-parte order.
That same day an order was entered setting the ex-parte order aside.
A hearing on appellee’s petition for contempt and change of custody was held on
August 11, 2005. At the hearing, Deputy Harlan Smith of the Garland County Sheriff’s
Department testified that he assisted in serving appellant with the ex-parte order. He said
that the order was served on appellant at the sheriff’s office. He testified that appellant
became upset when she learned she was being served with the order. Deputy Smith said that
appellant used profanity and had to be escorted out of the sheriff’s office. He testified that
the parties’ boys did not want to comply with the order and that the officers had to physically
carry one of the boys to appellee’s car and force him inside.
Appellee testified that, since the last hearing, appellant had changed residences in
Louisiana and had failed to give him her new address and phone number. He said that, as
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a result, he was unable to exercise his telephone visitation. He later testified that he received
appellant’s phone number on April 26. Appellee also testified that, since the last order, he
had missed seventy days of visitation with his children. He said that he had been denied
spring-break visitation, Easter visitation, and visitation on his birthday. Appellee conceded
that some of the days that he missed were the result of his not being able to pick the children
up due to work commitments.
Appellee testified that he and appellant do not get along. He said that appellant
refuses to discuss why the boys fail to bring their glasses and hearing aids when they visit
him. He also said that there was a physical altercation between the parties and their
respective spouses during an exchange on October 31, 2004. Appellee later testified that
appellant never brings the children to Hope for the exchange. He said that appellant’s mother
usually brings the children to Hope. He admitted that on May 27, appellant’s mother brought
the children to Hope. He also admitted, “It could have been misleading to the court when
I stated in my affidavit that [appellant] didn’t bring the kids for visitation when in fact her
mother did bring them.” He said that, during the May 27 exchange, one of the boys refused
to go with him.
Appellee thought that it would be in the children’s best interest if he were awarded
custody. He said that, in addition to the child he has with his wife, his wife has three children
that live with them. Appellee admitted that he has trouble disciplining the boys and that he
sometimes has his brother discipline the boys. Appellee denied making derogatory remarks
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about appellant in front of the children. He accused appellant of making derogatory remarks
about his wife in front of the children.
Appellee testified that, in February 2005, he sent a letter to appellant expressing
concern about a date Cortnie was to have. However, he denied writing a letter in which he
stated that, if the boys did not want to visit him, then he would no longer make them visit.
During his testimony, appellee stated that, since giving the children’s school copies of the
court orders, he does not have trouble getting reports from their school.
Cindy Shirley, appellee’s wife, testified that she kept a calendar of the children’s
visitation. She said that, since April 2004, Cortnie had only visited ninety-one days, Shaun
had visited forty-eight days, and Stephan had visited forty-two days. Mrs. Shirley believed
that the children would be better off in her husband’s custody. She testified that they live in
a mobile home that consist of two single-wides and that the home has four bedrooms and one
bathroom. She said that she was prepared to do whatever it took to make sure the children
had a good relationship with appellant.
Mary Cooper, appellant’s grandmother, testified that, on July 5, she took the children
to meet appellee. She said that, when Cortnie expressed a desire to stay with her, appellee
started yelling and cursing at Cortnie. She said that appellee accused her of brainwashing
the children and that appellee left without the children.
She said that appellant has
encouraged the children to visit appellee; however, despite appellant’s encouragement, the
boys refuse to visit appellee. Ms. Cooper testified that the children loved both parents, but
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wanted to live with appellant.
Mary Goin, appellant’s mother, testified that she had brought the children to Hope
every time appellee was to have visitation. She said that, almost every time, the boys refused
to go with appellee. Ms. Goin testified that she did not take the children on October 31,
because appellee had insisted that appellant bring the children. During her testimony, Ms.
Goin explained that one time, prior to his scheduled visitation, appellee told Stephan he could
not come because he was grounded for refusing to talk to appellee during his telephone
visitation. She said that, when she took the children to Hope, appellee sent Stephan back to
her car. Ms. Goin stated that appellant had never discouraged the boys from visiting
appellee. She also said that appellee has always had her address and phone number and
could have reached appellant through her. She testified that she had mailed a letter to
appellee that contained appellant’s new address.
Appellant testified that, on the day she was served with the ex-parte order, she had just
learned that her father and three other family members had been killed in an accident. She
said that she had called appellee and asked to pick up Cortnie. She said that she thought she
was at the sheriff’s office to pick up Cortnie. Appellant testified that, in the last order, she
was ordered to take the children to Hope so appellee could exercise his visitation. She said
that, since then, except when appellee was unable to pick the children up, the children had
been taken to Hope each time appellee had a scheduled visitation. Appellant said that she
had encouraged the children to visit appellee. She testified that if she had known that the
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order meant that she was to take the children to Hope and force them into appellee’s car, she
would have done so.
Appellant testified that, in June, she received a letter from appellee saying that, since
the children did not want to visit, he was no longer going to pick them up. Appellant denied
refusing to give appellee her new address and phone number. She said that appellee had her
mother’s address and phone number and that he had called her several times. She said that
when she got a phone, she gave appellee her phone number. Appellant explained that, when
she moved, the children’s spring break changed, so appellee’s spring-break visitation was cut
short. She pointed out that appellee’s birthday was in June, and that his petition was filed
in April 2005. She said that appellee did have his birthday visitation in June 2004. She also
said that appellee was allowed his Easter visitation. Appellant maintained that she had made
every effort to comply with the court’s order. She accused appellee’s wife of making
derogatory remarks about her.
On September 1, 2005, the trial court entered an order finding appellant in “wanton
and willful contempt” of the court’s orders. The court found that appellant had: (1) refused
to allow appellee to exercise his visitation; (2) failed to keep appellee abreast of the
children’s scholastic activities, growth, and development; and (3) failed to provide appellee
with her address and phone number. The trial court sentenced appellant to thirty days in the
Garland County Detention Center with twenty days suspended.
In the September 1 order, the trial court also granted appellee’s petition for change of
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custody. The order provided that after thirty days, appellant would have visitation every
other weekend and that the parties would continue to exchange the children at the Hempstead
County Sheriff’s Department. The order also provided that appellant would have telephone
visitation every Tuesday and Thursday. From that order, appellant now brings this appeal.
In child-custody cases, the primary consideration is the welfare and best interest of
the child involved. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004). Custody
will not be modified unless it is shown that there are changed conditions demonstrating that
a modification is in the best interest of the child. Id. In cases involving child custody and
related matters, we review the case de novo, but we will not reverse a trial judge’s findings
in this regard unless they are clearly erroneous. Jowers v. Jowers,
S.W.3d
Ark. App.
,
(Sept. 28, 2005). A finding is clearly erroneous when, although there is evidence
to support it, the reviewing court is left with the definite and firm conviction that a mistake
has been made. Id. Because the question of whether the trial court’s findings are clearly
erroneous turns largely on the credibility of the witnesses, we give special deference to the
superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s
best interest. Id.
Custody should not be changed unless conditions have altered since the decree was
rendered or material facts existed at the time of the decree but were unknown to the court,
and then only for the welfare of the child. Middleton v. Middleton, 83 Ark. App. 7, 113
S.W.3d 625 (2003). The court must first determine that a material change in circumstances
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has occurred since the last order of custody, if that threshold requirement is met, it must then
determine who should have custody with the sole consideration being the best interest of the
child. Id. The party seeking the modification has the burden of showing a material change
of circumstances sufficient to warrant a change in custody. Id.
Appellant argues that the trial court failed to find that a material change of
circumstances had occurred and that the trial court also failed to consider the best interest of
the children. We agree. A review of the trial court’s order reveals that the trial court never
made a finding that a material change of circumstances had occurred and based upon the
record before us, we are unable to find that a material change of circumstances had occurred.
It was undisputed at the hearing that the children were well-cared for and doing well in
school. There was no evidence of the children’s preference.
Furthermore, the living
conditions with appellee would be significantly less advantageous – nine people sharing four
bedrooms and one bath in two single-wide mobile homes pushed together. Accordingly, we
hold that the decision of the trial court to award custody of the parties’ children to appellee
was clearly erroneous, and we reverse and remand.
Appellant also argues that the trial court erred when it used the change of custody of
the children to punish appellant for contempt of the court’s orders. A violation of the court’s
previous directives does not compel a change in custody. Carver v. May, 81 Ark. App. 292,
101 S.W.3d 256 (2003). The fact that a party seeking to retain custody of a child has violated
court orders is a factor to be taken into consideration, but it is not so conclusive as to require
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the court to act contrary to the best interest of the child. Id. To hold otherwise would permit
the desire to punish a parent to override the paramount consideration in all custody cases, i.e.,
the welfare of the child involved. Id. Instead, to ensure compliance with its orders, a trial
court has at its disposal the power of contempt, which should be used prior to the more
drastic measure of changing custody. Powell v. Marshall,
Ark. App.
,
S.W.3d
(Nov. 3, 2004).
Without a finding of a material change of circumstances and a discussion of what was
in the best interest of the children, the trial court could not use the mere violation of its
previous orders as the sole justification for changing custody of the children. We are unable
to say that appellant’s contemptuous behavior alone was a material change of circumstance
and, accordingly, we reverse and remand the trial court’s decision.
Reversed and remanded.
H ART and V AUGHT, JJ., agree.
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