Young v. Smith

Michelle Smith YOUNG v. Rodney SMITH

97-574                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1998


1.   Contempt -- order of -- remedy for review. -- Procedurally, an
     appellant's remedy for a review of a contempt order is appeal.

2.   Prohibition, writ of -- purpose -- such relief not available
     here. -- The purpose of the writ of prohibition is to prevent
     a court from exercising a power not authorized by law when
     there is no adequate remedy by appeal or otherwise; a writ of
     prohibition is an extraordinary writ that is appropriate only
     when the lower court is wholly without jurisdiction; a writ of
     prohibition is never issued to prohibit an inferior court from
     erroneously exercising its jurisdiction; writ-of-prohibition
     relief was not available where appellant's remedy was one of
     appeal from the trial court's contempt order.

3.   Divorce -- subject-matter jurisdiction -- act by court without
     subject-matter jurisdiction void. -- Lack of subject-matter
     jurisdiction is a defense that may be raised at any time by
     either a party or the court; it is a defect that is never
     waived by a failure to raise it at a particular point in a
     proceeding; a court that acts without subject-matter
     jurisdiction or in excess of its power produces a result that
     is void and cannot be enforced. 

4.   Jurisdiction -- defined -- subject-matter jurisdiction
     discussed. -- Jurisdiction is the power to hear and determine
     the subject matter in controversy between the parties to the
     suit and to adjudicate or exercise any judicial power over
     them; jurisdiction of the subject matter is power lawfully
     conferred on a court to adjudge matters concerning the general
     question in controversy; it is power to act on the general
     cause of action alleged and to determine whether the
     particular facts call for the exercise of that power; subject-
     matter jurisdiction does not depend on a correct exercise of
     that power in any particular case; if the court errs in its
     decision or proceeds irregularly within its assigned
     jurisdiction, the remedy is by appeal or direct action in the
     erring court; if it was within the court's jurisdiction to act
     upon the subject matter, that action is binding until reversed
     or set aside.

5.   Jurisdiction -- underlying cause of action was divorce decree
     -- chancery court properly had jurisdiction. -- The chancery
     court possessed the power to adjudge and act on the underlying
     general cause of action, which was a decree of divorce in
     which the chancery court granted appellant custody of the
     child and granted appellee visitation rights; issues of
     divorce, child custody, paternity, child support, and
     visitation, may properly be brought in the chancery court; all
     of these issues were addressed in the chancellor's original
     order, and they were squarely within the equity jurisdiction
     that the our legislature conferred on chancery courts; the
     chancery court had jurisdiction over the subject matter of
     this case.

6.   Courts -- chancery courts have authority to issue or deny
     injunctive relief -- all courts may punish for contempt. --
     Chancery courts have the authority to issue or deny injunctive
     relief and other equitable relief; the right to punish for
     contempt is inherent in all courts; here, the contempt orders
     from which appellant appeals were the chancery court's attempt
     to enjoin appellant from violating its orders relating to
     appellee's visitation rights.

7.   Courts -- appropriate remedy for error -- petitioner's remedy
     timely appeal or direct action to obtain modification of
     chancellor's order. -- Where an appellant claims error in a
     court's decision, the appropriate procedure is to obey the
     order and pursue a remedy by appeal or direct action in the
     erring court, rather than through an appeal from the order
     finding the appellant in contempt for its violation;
     petitioner's remedy lies either through a timely appeal from
     the original divorce decree, which she claims erroneously
     granted respondent visitation, or through direct action to
     petition the chancery court to modify the decree, based on
     changed circumstances, if any, relating to the welfare of the
     child.

8.   Courts -- chancery court acted upon subject matter within its
     jurisdiction -- appeal dismissed without prejudice to
     petitioner's right to seek to modify issue of visitation
     through direct action in chancery court. -- Where the chancery
     court acts upon a subject matter within its jurisdiction, that
     the action is binding until it is reversed or set aside; the
     chancery court's decision finding petitioner in contempt for
     failing to comply with prior visitation orders was affirmed
     and the appeal dismissed without prejudice to petitioner's
     right to seek to modify the issue of visitation through direct
     action in the chancery court.


     Appeal from Randolph Chancery Court; Tom L. Hilburn,
Chancellor; affirmed and Petition for Writ of Prohibition;
dismissed.
     Dunham & Faught, P.A., by: James Dunahm, for petitioner.
     George R. Wadley, for respondent.

     Ray Thornton, Justice.
     The issue in this a case is whether a chancery court has the
power to enforce its order awarding visitation to a stepparent in
the context of a divorce decree.  Appellee Rodney Smith filed a
complaint for divorce from appellant Michelle Smith Young on May 6,
1992, in the Randolph County Chancery Court.  In his complaint,
appellee requested custody of Dustin, the child whom he regarded as
his own although Dustin was born prior to the parties' marriage. 
In her answer, appellant denied that appellee was the child's
biological father and protested any custody or visitation award. 
The chancellor ordered a paternity test, which proved that Dustin
was not appellee's biological child.  The chancery court entered
the divorce decree on December 23, 1992.  In its decree, the court
granted the parties an absolute divorce, noted that appellee was
not Dustin's biological father, granted appellant custody of
Dustin, awarded appellee the right to visitation, and awarded
appellant child support.  We note that appellant elected not to
appeal from the chancery court's divorce decree granting the
visitation rights.
     Appellant brings this appeal from the September 9, 1996 order
of the chancery court, finding her in contempt.  In the contempt
order, the chancery court found that appellant had wilfully
violated its prior visitation orders and been held in contempt for
refusing to comply with those orders, and sentenced appellant to
serve thirty days in the Randolph County Detention Center.  The
chancery court also required appellant to place a $5,000 bond with
the chancery clerk to secure future compliance with the court's
orders.  On appeal, appellant argues (1) that the chancery court
erred by enforcing its visitation orders that granted appellee
visitation rights with Dustin, and (2) that the divorce decree and
other orders of the chancery court that granted appellee visitation
rights are void because the chancery court lacked subject-matter
jurisdiction.  This appeal has been certified to this court from
the court of appeals.
     Appellant has also filed a petition for writ of prohibition to
enjoin both the orders of the chancery court finding her in
contempt and the decision of our court of appeals affirming a
February 9, 1996 contempt order.  In her petition, appellant argues
that the visitation orders issued by the chancery court and
affirmed by the court of appeals exceeded the chancery court's
jurisdiction and are therefore void and unenforceable.  Appellant
also argues that the court of appeals' affirmance was an illegal
expansion of the chancery court's jurisdiction.
     The principal issue presented for decision in both the appeal
and the petition is whether the chancery court exceeded its power,
and thereby its subject-matter jurisdiction, in granting visitation
rights to a stepparent.  Procedurally, appellant's remedy for a
review of a contempt order is appeal.  Frolic Footwear v. State,
284 Ark. 487, 683 S.W.2d 611 (1985); Higgenbotham v. Williams,
Chancellor, 227 Ark. 126, 296 S.W.2d 897 (1956).  Moreover, the
purpose of the writ of prohibition is to prevent a court from
exercising a power not authorized by law when there is no adequate
remedy by appeal or otherwise.  Tatro v. Langston, 328 Ark. 548,
944 S.W.2d 118 (1997).  It is well settled that a writ of
prohibition is an extraordinary writ that is appropriate only when
the lower court is wholly without jurisdiction.  Nucor Holding
Corp. v. Rinkines, 326 Ark. 217, 222, 931 S.W.2d 426, 429 (1996). 
We have stated that a writ of prohibition is never issued to
prohibit an inferior court from erroneously exercising its
jurisdiction.  Dougan v. Gray, 318 Ark. 6, 17, 884 S.W.2d 239, 242
(1994).  In the case before us, writ-of-prohibition relief is not
available because appellant's remedy is one of appeal from the
trial court's contempt order.
     This appeal and the appeal upon which the court of appeals
acted arise from chancery-court orders finding appellant in
contempt.  Appellant argues that the chancery court lacked the
authority to issue the contempt orders to enforce its visitation
orders because the court lacked subject-matter jurisdiction to
enter the visitation orders.  We first consider whether the
chancery court had jurisdiction to hear this case.
     Although the divorce decree granting visitation is not before
us, we address whether the lower court had subject-matter
jurisdiction because lack of subject-matter jurisdiction is a
defense that may be raised at any time by either a party or the
court, and it is a defect that is never waived by a failure to
raise it at a particular point in a proceeding.  Ark. R. Civ. P.
12(h)(3).  A court that acts without subject-matter jurisdiction or
in excess of its power produces a result that is void and cannot be
enforced.  West v. Belin, 314 Ark. 40, 45, 858 S.W.2d 97, 100
(1993).
     This court has defined jurisdiction as "the power to hear and
determine the subject-matter in controversy between the parties to
the suit; to adjudicate or exercise any judicial power over them." 
Lamb & Rhodes v. Howton, 131 Ark. 211, 213, 198 S.W. 521, 522
(1917).  The following language from the court of appeals is
instructive on the issue before us:
     The rule of almost universal application is that
there is a distinction between want of jurisdiction to
adjudicate a matter and a determination of whether the
jurisdiction should be exercised.  Jurisdiction of the
subject matter is power lawfully conferred on a court to
adjudge matters concerning the general question in
controversy.  It is power to act on the general cause of
action alleged and to determine whether the particular
facts call for the exercise of that power.  Subject
matter jurisdiction does not depend on a correct exercise
of that power in any particular case.  If the court errs
in its decision or proceeds irregularly within its
assigned jurisdiction, the remedy is by appeal or direct
action in the erring court.  If it was within the court's
jurisdiction to act upon the subject matter, that action
is binding until reversed or set aside.
Banning v. State, 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987)
(citations omitted).
     Here, if the issue is properly phrased as one of "subject-
matter jurisdiction," our analysis is confined to whether the
Randolph County Chancery Court possessed the power to adjudge and
act on the general cause of action alleged.
     The underlying general cause of action in this case goes back
to the decree of divorce, filed on December 23, 1992, in which the
chancery court granted appellant custody of Dustin and granted
appellee visitation rights.  This case involves issues of divorce,
child custody, paternity, child support, and visitation, each of
which could properly be brought in the chancery court.  See, e.g.,
McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990) (stating
that chancery courts have subject-matter jurisdiction to make
custody, support, and visitation determinations); Quarles v.
French, 272 Ark. 51, 611 S.W.2d 757 (1981) (noting that visitation
rights are exclusively within the jurisdiction of the chancery
courts); see also Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933
(1988) (stating that a chancery court may award custody of a child
to a stepparent, although we held that it was not in the best
interest of the child do so under the facts of that case).  All of
these issues were addressed in the chancellor's original order, and
they are squarely within the equity jurisdiction that the
legislature conferred on chancery courts in this state.  See Ark.
Code Ann.  16-13-304 (Supp. 1997).  We conclude that the Randolph
County Chancery Court had jurisdiction over the subject-matter of
this case.
     Having determined that the chancery court had subject-matter
jurisdiction to enter the visitation orders, we next consider
appellant's argument that the chancery court erred in enforcing its
visitation orders.  Chancery courts clearly have the authority to
issue or deny injunctive relief and other equitable relief.  West
v. Belin, 314 Ark. at 44, 858 S.W.2d  at 101.  The right to punish
for contempt is inherent in all courts.  Dougan v. Gray, 318 Ark.
at 17, 884 S.W.2d  at 245.  Here, the contempt orders from which
appellant appeals were the chancery court's attempt to enjoin
appellant from violating its orders relating to appellee's
visitation rights.
     Where an appellant claims error in a court's decision, the
appropriate procedure is to obey the order and pursue a remedy by
appeal or direct action in the erring court, rather than through an
appeal from the order finding the appellant in contempt for its
violation.  See Casey v. Self, 236 Ark. 496, 367 S.W.2d 114 (1963). 
We have held that a party who violated an order of injunction could
not test the validity of the original order upon which the
injunction was based only after being found in contempt for its
violation.  Carnes v. Butt, 215 Ark. 549, 551, 221 S.W.2d 416, 417
(1949).  This case law clearly requires that appellant's remedy
lies either through a timely appeal from the original divorce
decree, which she claims erroneously granted appellee visitation,
or through direct action to petition the chancery court to modify
the decree, based on changed circumstances, if any, relating to the
welfare of the child.
     Where, as here, the chancery court acted upon a subject matter
within its jurisdiction, we maintain that the action is binding
until it is reversed or set aside.  We therefore affirm the
chancery court's decision and dismiss this appeal without prejudice
to appellant's right to seek to modify the issue of visitation
through direct action in the chancery court.
     Affirmed.
     Glaze and Corbin, J.J., concur.

     Tom Glaze, Justice, concurring.  I join the majority, but write
to address only the subject-matter jurisdiction issue, since I
agree entirely with the majority's procedural holding that writ of
prohibition is not the vehicle for review of this cause.  The
majority court also correctly holds that the chancery court had
subject-matter jurisdiction in granting appellant-stepparent Rodney
Smith visitation, but I concur to offer further support for that
conclusion.  
     Michelle Young is correct that Smith has no statutory right
under which he can demand visitation with Dustin.  Even so,
visitation privileges may be extended to nonadoptive stepparents
who have stood in loco parentis to the child.  See 27C C.J.S.
Divorce  632 (1986); see also Golden v. Golden, 57 Ark. App. 143,
942 S.W.2d 282 (1997), citing Riddle v. Riddle, 28 Ark. App. 344,
775 S.W.2d 513 (1989); contra 27C C.J.S.  632 (Cum. 1997).
     Concerning the Golden and Riddle cases, Young makes a strong
argument that those cases fail to support the proposition that a
stepparent is entitled to visitation with a stepchild.  I agree. 
Riddle never decided the issue, and Golden simply mischaracterized
the Riddle holding.  Nevertheless, our court, in Stamps v. Rawlins,
297 Ark. 370, 761 S.W.2d 933 (1988), did address the issue as to
whether a chancery court can award custody of a child to a
stepparent, and held a chancellor may do so.  The Stamps court did
so even though Arkansas's statute makes no reference to a
stepparent, but instead reads, ". . .[T]he award of custody of the
children of the marriage shall be made without regard to the sex of
the parent, but solely in accordance with the welfare and best
interests of the children." 
     Given the rule that a stepparent may be awarded custody of a
stepchild if the child's welfare and best interest warrant such
placement, I submit that a stepparent standing in loco parentis may
be awarded visitation rights.  See also Jeff Atkinson, Modern Child
Custody Practice  8.18 (1986 and Cum. 1987) (case law from at
least nine states has recognized a right of stepparents to seek
visitation); see also Koelle v. Zwiren, 672 N.E.2d 868 (Ill. App.
1 Dist. 1996) (awarding custody or visitation rights to nonparent
over objection of natural parent is permissible if it would be in
best interests of child). 
     In conclusion, I note Young's reliance on two earlier cases of
this court, Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978), and
Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981), that dealt
with grandparent visitation rights.  She suggests those holdings
provide visitation orders that lack statutory authority and are
void and unenforceable.  I disagree.  Poe merely holds that probate
court is a court of special and limited jurisdiction and a probate
court decree attempting to grant visitation rights to a natural
grandparent as an incident to an adoption, or to enforce a
grandparent's visitation rights without specific statutory
authority, is surplusage and void.  And the Wilson case, a chancery
court case, involved whether paternal grandparents were entitled to
visitation rights after the widowed mother remarries and the second
husband adopts her child.  The Wilson court said no, but it denied
visitation based upon the legislature having enacted law that
"terminated all legal relationships between the adopted individual
and his relatives . . . so the adopted individual thereafter is a
stranger to his former relatives for all purposes."  Here, the
Arkansas General Assembly has enacted no law that proscribes
stepparents, standing in loco parentis, from visiting with a
stepchild.  In sum, I find the cases Young cites inapplicable to
the situation now before this court.  I concur with the results
reached by the majority.  
     Corbin, J., joins this concurrence.