Shannon L. (Hampton) Brown v. Kevin Gene Ashcraft
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JUDGE KAREN R. BAKER
AR COURT OF APPEALS
DIVISION I
CA07782
SHANNON L. (HAMPTON) BROWN
APPELLANT
v.
JANUARY 30, 2008
APPEAL FROM THE WHITE COUNTY
CIRCUIT COURT
[NO. DR03227]
KEVIN GENE ASHCRAFT
APPELLEE
HONORABLE ROBERT CRAIG HANNAH,
CIRCUIT JUDGE
AFFIRMED
Appellant Shannon L. (Hampton) Brown challenges the trial court’s removal of a condition
in a previous visitation order requiring that appellee Kevin Gene Ashcraft be present during his
visitation with the parties’ minor child and not absent for extended periods of time or overnight. For
the reasons stated herein, we find no error and affirm.
The initial visitation order in this case was entered as a result of appellant’s petition to
establish paternity for the minor child. The child was born December 11, 2001, and the order
establishing paternity and setting visitation was filed of record on September 22, 2003. This order
contained the following provision: “That defendant shall be present with the minor child during
visitation and shall not be away from the minor child for any extended period of time or overnight.”
This original order was subsequently modified in an agreed order for modification filed on May 11,
2005. This order modified provisions addressing midweek visitation, Christmas vacation, and
transportation for visitation. The restriction requiring appellee’s presence during visitation was not
modified and the trial court admonished that “all previous orders of the Court not specifically
modified herein shall remain in full force and effect.”
On March 9, 2007, appellee filed a petition for contempt against appellant alleging that
appellant had failed and refused to allow appellee visitation with the parties’ minor child. In
defending against the charge of contempt, appellant relied upon the provision in the order requiring
appellee’s presence for visitation and his extended absences while fulfilling his responsibilities as
a truck driver. In denying appellee’s petition from the bench, the trial court found that appellant had
“done nothing wrong. She’s followed the order as it was written ....” However, the trial court
removed the provision restricting appellee’s visitation to times when he would be physically present.
In removing the restriction, the trial court stated the following from the bench:
It’s always been this Court’s position that a noncustodial parent’s time is his time or her
time, whatever the case may be, to spend with the child and to acquaint that child with their
side of the family. That’s a very short period of time. I don’t view that as grandparent
visitation, that’s just his family’s time to visit. As long as he has the child in an appropriate
environment with appropriate people to supervise then I don’t have a problem with that,
other than, Mr. Ashcraft, if it’s your weekend and if you’re working, Ms. Brown has every
right to know where the child is–and be able to contact the child and know who is
supervising the child. That’s how I handle these type of cases, I always have, and I don’t
see any reason to deviate from that today.
Although appellee did not file a petition to modify visitation, appellant never objected at trial
or on appeal that the modification was entered without petition nor that consideration of the
modification was improper. From our review of the record, it is clear that the issue was tried by
consent. Rule 15(b) of the Arkansas Rules of Civil Procedure allows for issues not raised by the
pleadings to be tried by consent:
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment; but failure so to amend does not affect the
result of the trial of these issues. If evidence is objected to at the trial on the ground that it
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is not within the issues made by the pleadings, the court may allow the pleadings to be
amended in its discretion. The court may grant a continuance to enable the objecting party
to meet such evidence.
Ark. R. Civ. P. 15(b) (2007).
Accordingly, the issue of modification was tried by consent of the parties. Furthermore,
appellant has neither objected to the modification by challenging the trial court’s finding that there
was a change of circumstances nor by asserting that the change was not in the child’s best interest.
On appeal, appellant asks this court to reinstate the restriction that appellee must be present during
visitation and not gone for extended periods of time or overnight because our case law and statutes
clearly prohibit awarding visitation rights to other family members absent certain safeguards that
were not present here. She argues that the trial court erred when it stated that, as long as the child
is with an appropriate person, then other family members should be allowed to exercise visitation
absent the noncustodial parent. In asserting error, appellant focuses on the effect of the removal
as providing visitation with parties who are not subject to the court’s order by virtue of their failure
to intervene.
We do not agree with appellant’s characterization that the removal of the restriction was in
essence an award of grandparent visitation. As appellant acknowledges, the visitation period
primarily affected is the Christmas and summer vacation times when appellee’s work schedule
requires that he be gone for days at a time. Nothing in the order awards visitation to the
grandparents or other family members, nor does it prohibit appellant from seeking a future
modification of the existing visitation provisions, if appellee’s work schedule causes difficulties in
the future.
The trial court’s removal of the restriction was consistent with the court’s continuing
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responsibility in visitation matters. The trial court maintains continuing jurisdiction over visitation
and may modify or vacate those orders at any time when it becomes aware of a change in
circumstances or of facts not known to it at the time of the initial order. Meins v. Meins, 93 Ark.
App. 292, 218 S.W.3d 366 (2005). Determining whether there has been a change of circumstances
that materially affects the child's best interest requires a full consideration of the circumstances that
existed when the last order was entered in comparison to the circumstances at the time the change
is considered. See Blair v. Blair, 95 Ark. App. 242, 235 S.W.3d 916 (2006). Furthermore, the party
seeking the modification has the burden below to show a material change in circumstances
warranting the change in visitation. See Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998).
The party seeking the change also has the burden to show that the modification is in the best interest
of the child. See Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990).
Important factors to be considered in determining reasonable visitation are the wishes of the
child, the capacity of the party desiring visitation to supervise and care for the child, problems of
transportation and prior conduct in abusing visitation, the work schedule or stability of the parties,
and the relationship with siblings and other relatives. Marler v. Binkley, 29 Ark. App. 73, 776
S.W.2d 839 (1989). The establishment of visitation rights is a matter that lies within the sound
discretion of the trial court. Davis v. Davis, 248 Ark. 195, 451 S.W.2d 214 (1970).
In this case, the parties were in conflict over the restriction and its application to the present
facts and circumstances. The trial court’s discussion of the appropriateness of the individuals to
whom appellee delegated his supervisory duties, the environment in which that supervision was
performed, and the desirability of strong relationships with the extended family demonstrates the
trial court’s proper evaluation of the factors to be considered in its decision. Accordingly, we find
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no error in the trial court’s decision and affirm.
Affirmed.
PITTMAN, C.J., and GLADWIN, J., agree.
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