Johnson v. Cheatham

2014 Ark. App. 297, 435 S.W.3d 515, 2014 Ark. App. LEXIS 365
CourtCourt of Appeals of Arkansas
DecidedMay 14, 2014
DocketCV-13-1008
StatusPublished
Cited by2 cases

This text of 2014 Ark. App. 297 (Johnson v. Cheatham) 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
Johnson v. Cheatham, 2014 Ark. App. 297, 435 S.W.3d 515, 2014 Ark. App. LEXIS 365 (Ark. Ct. App. 2014).

Opinion

ROBERT J. GLADWIN, Chief Judge.

|, Levi Johnson appeals the July 16, 2013 order of the Faulkner County Circuit Court denying his contempt motion and request for attorney’s fees and forbidding contact between the parties’ child, MGJ, and the paternal step-grandfather. Johnson contends that the trial court erred by forbidding contact with the paternal step-grandfather because there was no pleading making such a request and no evidence presented. We reverse.

The parties were divorced by decree filed November 15, 2012, and by agreed order of the same date, appellee Heather Johnson Cheatham was granted custody of MGJ, born April 26, 2010, and Johnson was granted visitation. No restrictions regarding the step-grandfather were included in either order.

Johnson filed a contempt petition on January 23, 2013, alleging, among other claims, that Cheatham had refused to allow visitation since she had filed a petition for order of protection against MGJ’s step-grandfather, Raul Salas. In her response, Cheatham admitted |2to filing an order of protection against Salas and refusing visitation. She asserted that she was also forced to file an order of protection against the paternal grandmother due to a sexual allegation made by the child against Salas. She claimed that it was Johnson’s “lack of care and concern about the sexual allegations” that concerned her about the child’s well being in Johnson’s care.

At the March 7, 2013 hearing on the contempt petition, Cheatham testified that Johnson had missed three weeks of visitation because she would not allow it, although she had not filed anything to amend visitation. She said that she kept MGJ away from Johnson because she felt that the child was not safe with him, as she did not trust him to keep MGJ from his mother and Salas. She claimed that when she received the letter in which Johnson reassured her that he would not have MGJ around his mother or Salas, she allowed visitation to resume.

She explained that she obtained an order of protection against Johnson’s mother and Salas, but was not able to obtain an order against Johnson “because there was no allegation that Mr. Johnson did anything sexually toward her. The allegation was against his step-father.” She testified that during their marriage, the parties did not allow their daughter to be around Salas because they felt he was abusive to Johnson’s mother. 1 She admitted that since Johnson’s letter of assurance that he would protect the child, visitation had resumed and lsshe did not have any other concerns about her daughter when she was with Johnson. A final hearing on the petition for order of protection had not yet been held.

Johnson testified that he missed three weekends of visitation and asked that he be allowed to make up the lost visitation time. He said that since he filed the contempt motion, he had been allowed to resume visitation, and he asked for his attorney’s fees. On cross-examination, he testified that if his daughter had been molested by Salas, it was while she was in his own care. He claimed that he did not remember if he had prevented their daughter from visiting his mother and Salas while he and Cheatham were married. 2 He said that his mother was not abused, that he never heard that she had been abused, and that he never made the statement that he would “whoop [Salas’s] ass if [he] got the chance.” He admitted that during their marriage, Cheatham would never allow their daughter to be around his mother and Salas.

The trial court ordered that over the following sixty days, Johnson would be allowed to make up the missed visitation with his daughter. The court took the issue of contempt |4under advisement and stated, “I have not made a decision about the validity of the allegations against Mr. Johnson’s mother and step-father, but I believe that Ms. Cheatham believes them.” The court further reasoned:

I realize the order of protection is not in this case, but until that issue is resolved, I am going to incorporate certain aspects of that order into my order in this case to this extent: I direct that Mr. Salas is not to be around the child. I am going to allow Ms. Salas to have visitation with her granddaughter. I am going to provide that that visitation be supervised, and I charge Mr. Johnson with the responsibility for seeing to it that when his mother is busy with the child, that Mr. Salas not be anywhere around, and that he supervises that visitation. While the allegations are being addressed in the proper forum, I am telling the two parents to do what both of them are smart enough to do ... The problem with Mr. Johnson’s mother having visitation is based on the concern that she will not adequately protect her and keep Mr. Salas away from her.

These findings were memorialized in an order filed April 17, 2013.

At the review hearing held on June 17, 2013, counsel for Johnson explained that they were meeting to determine whether Cheatham was going to be found in contempt and ordered to pay attorney’s fees. He said that the Arkansas State Police had found that the, allegations against Salas were unsubstantiated and that the order of protection had been dismissed. He argued that his client’s contempt petition and the question of attorney’s fees were the only things pending before the trial court, as Johnson had not filed any pleading seeking modification of visitation as to Johnson’s mother or Salas.

Counsel for Cheatham responded,
The court heard other evidence of abuse at the last hearing and made the decision that the grandmother’s visitation would be supervised and that Mr. Salas could not be around the child. We are asking that that remain the same. Mr. Salas is a step-grandparent, and Ms. Johnson [Cheatham] has protected her child.

IsCounsel for Johnson- responded that there was no petition in front of the court and no evidence of the allegation of abuse. He continued,

We are here because Ms. Johnson [Cheatham], instead of filing a petition, just on her own didn’t allow Mr. Johnson to have visitation. There are ways to do that, and if she thought that there was an emergency, she should have filed a petition. If we hadn’t filed a petition for contempt, Mr. Johnson still probably wouldn’t be getting visitation. That is why we are here — a petition for contempt. There is nothing before the court that there was any sexual abuse by the step-grandfather, except argument.

Counsel for Cheatham argued that the trial court’s authority to grant the relief she requested was based on its plenary powers to protect the child, regardless of whether a specific petition had been filed. She claimed that her client responded to the petition and presented evidence of why the child was not allowed to go for visitation. She requested that Salas have no contact with the child.

The trial court explained that it would review its notes to make certain that it had not presumed some facts that were not supported by evidence before issuing its final order. By order filed July 16, 2013, the trial court found that Cheatham was not in contempt because her denial of Johnson’s visitation was reasonable’ and justifiable.

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Bluebook (online)
2014 Ark. App. 297, 435 S.W.3d 515, 2014 Ark. App. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-cheatham-arkctapp-2014.