Bernal v. Shirley

239 S.W.3d 11, 96 Ark. App. 148, 2006 Ark. App. LEXIS 608
CourtCourt of Appeals of Arkansas
DecidedSeptember 13, 2006
DocketCA 06-144
StatusPublished
Cited by13 cases

This text of 239 S.W.3d 11 (Bernal v. Shirley) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernal v. Shirley, 239 S.W.3d 11, 96 Ark. App. 148, 2006 Ark. App. LEXIS 608 (Ark. Ct. App. 2006).

Opinion

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 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 Sheriffs Department testified that he assisted in serving appellant with the ex-parte order. He said that the order was served on appellant at the sheriffs 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 sheriffs 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 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 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.

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Bluebook (online)
239 S.W.3d 11, 96 Ark. App. 148, 2006 Ark. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernal-v-shirley-arkctapp-2006.