Harris v. Harris

379 S.W.3d 8, 2010 Ark. App. 160, 2010 Ark. App. LEXIS 163
CourtCourt of Appeals of Arkansas
DecidedFebruary 17, 2010
DocketNo. CA 09-639
StatusPublished
Cited by18 cases

This text of 379 S.W.3d 8 (Harris v. Harris) 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
Harris v. Harris, 379 S.W.3d 8, 2010 Ark. App. 160, 2010 Ark. App. LEXIS 163 (Ark. Ct. App. 2010).

Opinion

RITAW. GRUBER, Judge.

11 This case involves a change of child custody by the Circuit Court of Pulaski County. Appellant Stephanie Harris contends that the circuit court erred in determining 1) that it retained jurisdiction to hear the change-of-custody motion filed by appellee Stephen Harris, and 2) that there had been a material change of circumstances and it was in the best interest of the parties’ two minor children to award appellee custody. We affirm.

The circuit court’s order for change of custody and contempt, entered on February 2, 2009, reflects the early procedural history of this case. In January 2001 appellant filed for divorce. In March 2001 the circuit court entered a temporary order. In May 2001 appellant was found in contempt for failure to comply with visitation orders, but the court imposed no punishment “conditioned on her future compliance.” In June 2001 the divorce decree was entered and appellant received custody. A February 2003 order reflects that “no contempt |%was proven” but that the parties continued to have problems with visitation. In March 2004 appellant was found in willful contempt for denying visitation; she was ordered “to complete community service” as punishment. In August 2005 she again was found in willful contempt for denying visitation, and a pick-up order was issued because she failed to attend the hearing as ordered. In June 2006 she moved with the two minor daughters to Atlanta, Georgia.

The appeal before us focuses on proceedings that began in June 2008, when appellee filed a motion for “Change of Visitation and ... Change of Residence Back to Arkansas.”1 He stated in his motion that appellant had moved to Georgia after the “last order of contempt,” he had disagreed with the move because of possible conflicts with court-ordered visitation, he had been unable to reason with appellant about visitation, and appellant had refused his requests that she deliver their daughters to Arkansas for visits and he return them. In July 2008 appellant asked that the motion be denied and counterclaimed for increased child support. She stated that she did not object to reasonable visitation but that changing visitation or requiring her to move back to Arkansas was not in the children’s best interest. She stated that she and the children had lived outside Arkansas for several years, and they were happy and content where they resided.

The circuit court heard testimony from the parties at a hearing on August 19, 2008. In an August 29, 2008 order, the circuit court granted appellee Arkansas visitation on a temporary basis for the upcoming weeks of Thanksgiving, Christmas, and spring break. |3Appellant was ordered to provide all transportation. The court reserved the issue of incarceration or other sanctions against appellant regarding its 2005 pick-up order, and it reserved a possible citation for contempt should she come to Arkansas but not bring the girls and allow appellee to see them. The court did not address appellant’s request for increased child support, finding that she came to court with unclean hands and owed appellee money under the August 2005 order. Appellant was warned that future violation of court orders would “probably result in severe sanctions.”

Also in August ‘2009, appellee filed a motion for a change of custody on the basis that it would be in the children’s best interests for the court to transfer custody to him. He stated that the parties were divorced by the Arkansas court in June 2001 and that appellant had custody of the two children, born in January 1998 and April 2001, subject to specific privileges of visitation. He alleged that there had been a material change in circumstances in that

the children had failing grades in school; appellant continued to lie to him about the children’s progress in school, telling him the children were “doing fine”; the children were having behavioral problems in school;
appellant consistently interfered with appellee’s visitation, had been found in contempt more than once, and still failed to comply with visitation; appellant failed to show up for a show-cause hearing in 2005 and currently had a pick-up order in which the court reserved the right to punish her; appellee had remarried not long after the divorce and had a stable, loving environment|4to provide the children; appellee’s wife previously had worked in Little Rock with both children [on] their education;
appellee had stable employment; appellee and his wife had attempted to assist the children with homework over the phone since they had been in Atlanta;
appellee had been in constant email communication with the children’s school over the last school year, which was how had he discovered that appellant was lying to him about the children’s progress;
appellant had allowed different male companions to spend the night at her residence when the minor children were present, in violation of the divorce decree;
appellant had failed to follow the decree’s allowance for unrestricted phone calls by the non-custodial parent on a daily basis;
appellant had a history of willfully failing to follow the court’s orders; appellant moved without the court’s modifying appellee’s visitation, thus intentionally denying visitation as was her continued pattern; and appellant was in further contempt of the court’s August 26, 2005 order to pay appellee sums of $67.50, $4.65, and $34.00 within thirty days of the order.

Appellee also stated in his motion that he believed the children needed counseling and tutoring, that he would like to have them tested for possible learning disabilities, and that they had family in Little Rock, including the maternal grandmother and stepsiblings they had been very close to before moving. He expressed fears that if care and custody were left with appellant, she would continue to neglect the children’s education; lie to appellee about their progress in school; alienate them from appellee and other family members; introduce them |-to men to whom she was not married, who stayed overnight; fail to provide the children with structure; and ignore court orders. He concluded that without the change of custody, the children would have behavioral problems culminating in legal problems. For these reasons, appellee prayed that the court grant him custody.

Appellant responded that it was not in the children’s best interest that appellee have custody. She stated that the children had lived their entire lives with her, and had lived in and attended school in Atlanta for the last two years. She stated that appellee’s allegations of a material change in circumstances were for the most part false.

In October 2008 appellee filed a motion for contempt based upon provisions of the 2001 divorce decree. He averred that appellant was in contempt by allowing men to whom she was not related as overnight guests, not allowing unrestricted phone calls between appellee and the children, making negative comments about him to the children, not communicating with him about the children’s school and other matters, and frustrating his visitation since his last visit in December 2007. Appellant responded, denying every material allegation and asking that the motion be dismissed.

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 8, 2010 Ark. App. 160, 2010 Ark. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-harris-arkctapp-2010.