James v. Walchli

2015 Ark. App. 562, 472 S.W.3d 504, 2015 Ark. App. LEXIS 631
CourtCourt of Appeals of Arkansas
DecidedOctober 7, 2015
DocketCV-15-51
StatusPublished
Cited by10 cases

This text of 2015 Ark. App. 562 (James v. Walchli) 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
James v. Walchli, 2015 Ark. App. 562, 472 S.W.3d 504, 2015 Ark. App. LEXIS 631 (Ark. Ct. App. 2015).

Opinion

KENNETH S. HIXSON, Judge

| lAppellant Elizabeth James appeals the entry of an order by the Sebastian County Circuit Court' that required her to pay $4,929.58 as a reasonable attorney’s fee to her ex-husband, appellee Butch Lee Wal-chli. Elizabeth contends that the trial court’s award of this fee constitutes an abuse of discretion. We disagree and affirm.

The parties married in 2008, and their son CW was born in June 2009. 1 The parties separated in- May 2011. That same year, Elizabeth moved from Sebastian County to Beebe, in White County. Their Sebastian County divorce was finalized by a decree" filed in July 2012. At the time the divorce decree was entered, Butch Walchli was incarcerated for violating a prior suspended sentence for criminal mischief. The parties agreed that Elizabeth |2would have primary custody of CW and that Butch’s visitation rights would be held in abeyance until after Butch was released from prison.

Elizabeth Walchli married Steven James within days of her divorce from Butch being final. Butch was released from prison on November 9, 2012, and ■ shortly thereafter attempted to arrange for visitation with CW. While Butch was incarcerated and during the period that his visitation schedule with CW was specifically held in abeyance by the.Sebastian County Circuit Court, Elizabeth’s new husband Steven filed a petition to- adopt CW in White County Probate Court. In the petition to adopt, Steven (and Elizabeth) alleged that Butch’s consent was not required for the adoption of CW.

On November 16, 2012, Butch filed a petition for contempt and for a change of custody of CW in the Sebastian County domestic-relations proceedings. Butch contended that Elizabeth was actively attempting to terminate his parental rights to CW by virtue of the adoption petition. Further, he asserted that there were material changes in circumstances justifying a change in custody because Elizabeth was acting against CW’s best interest by referring to Steven as CW’s father and having CW refer to Steven as his father. Butch sought an immediate hearing to address visitation alleging, inter alia, that because of the upcoming holidays, the issue of temporary visitation was a sufficient reason for an emergency hearing.

Elizabeth resisted Butch’s petition, and she sought a continuance of the temporary hearing planned for December 2012. The continuance was not granted. The trial judge awarded Butch visitation for three days in December, with standard weekend visitation to ^commence at the end of December 2012. A temporary order was filed of record in January 2013.

Another hearing was conducted in May 2013 to address various motions by the parties. There were persistent problems with visitation, miscommunications between the parties about drop off and pickup, and general discontent between the parties. An amended temporary order filed in June 2013 ordered Butch to provide the transportation for both pickup and delivery of CW for visitation, due to Elizabeth’s current pregnancy. The order stated that Butch’s prior missed visitation would be worked out between Elizabeth’s attorney and Butch so that he could recover that time.

In August 2013, Elizabeth filed a motion for the presiding judge to recuse based on alleged bias or prejudice. In November 2013, that judge recused, and in December 2013, Judge James Cox was reassigned to hear this case.

In December 2013, Elizabeth filed another motion for contempt against Butch, alleging that he had wrongfully taken CW out of state without court permission during November and December 2013. In late December 2013, Butch filed a response, denying that this brief excursion was any violation of a court order. Butch countered with his own motion for contempt, alleging that Elizabeth had wrongfully denied him weekend visitation in mid-December, in line with her pattern of behavior.

A hearing was conducted in May 2014 to consider the cross-motions for contempt and Butch’s motion to change custody. Elizabeth, her husband Steven, and Butch testified. At the end of the hearing, Elizabeth withdrew her motion for contempt and agreed to dismiss |4a pending appeal on the denied petition for adoption. 2 Closing arguments were presented by each party’s attorney. The trial court also heard recommendations by CW’s attorney ad litem, who was prepared to recommend a change of custody prior to Elizabeth’s stated intent to drop the adoption appeal. The attorney ad litem made detailed recommendations about standard and extra visitation that should be permitted to Butch.

The trial court issued an order finding that Elizabeth had made efforts to alienate CW from his father, exemplified by a failed attempt to have CW adopted. The trial judge found that, although there had not been “a strong enough showing of a change of circumstances” sufficient to support a change of custody, any continued efforts to have Elizabeth’s husband adopt CW would constitute a material change of circumstances.

Butch was awarded standard visitation, with an additional two weeks of summer visitation. Butch was also awarded seven additional days of visitation with CW to make up for the days that Elizabeth had not permitted. This comported with the trial judge’s remark from the bench that the make-up and extra visitation would “take care of’ Butch’s motion for contempt. The trial judge ordered that Butch be allowed additional reasonable visitation as the parties agreed. Elizabeth was ordered to make CW available for brief visits when Butch was in the area, provided that Butch gave her reasonable notice.

The trial court found that “there has been a good deal of noncooperation on Plaintiff Mother’s part in the past and she is ordered to stop that behavior and cooperate with | ^Defendant Father.” Both parties were ordered “to operate in good faith in facilitating visitation and good relations.” Also in the order, the judge authorized Butch to file a motion for attorney fees and for visitation transportation costs. Elizabeth does not appeal this order.

The motion for attorney fees and transportation costs filed by Butch contended that Elizabeth was never agreeable to any requests Butch made about visitation and, rather, she interfered and refused to permit make-up visitations. He alleged that, even after Elizabeth’s baby had been born, she refused to share in transporting CW to and from- visits. Butch pointed to the failed attempt at adoption, further proof of her interference and attempts to alienate the child. Butch requested attorney’s fees in the amount of $8,866.08, attaching an itemized billing statement. Butch also requested $4,000 in reimbursement for Elizabeth’s half of transportation expenses he incurred, attaching a handwritten exhibit to show thousands of miles he had driven CW.

Elizabeth filed a response to the petition for .fees and request for travel cost reimbursement. She challenged the accuracy of details and lack of appropriate supportive documentation for Butch’s travel reimbursement request.

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Bluebook (online)
2015 Ark. App. 562, 472 S.W.3d 504, 2015 Ark. App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-walchli-arkctapp-2015.