Phillips v. Phillips

2014 Ark. App. 486, 442 S.W.3d 901, 2014 Ark. App. LEXIS 672, 2014 Ark. LEXIS 493
CourtCourt of Appeals of Arkansas
DecidedSeptember 24, 2014
DocketCV-14-180
StatusPublished
Cited by3 cases

This text of 2014 Ark. App. 486 (Phillips v. Phillips) 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
Phillips v. Phillips, 2014 Ark. App. 486, 442 S.W.3d 901, 2014 Ark. App. LEXIS 672, 2014 Ark. LEXIS 493 (Ark. Ct. App. 2014).

Opinion

ROBERT J. GLADWIN, Chief Judge.

| Appellant Rayne Phillips seeks a reversal of the August 7, 2013 and November 8, 2013 orders of the Saline County Circuit Court. Appellant argues that the circuit court erred in finding her in contempt, limiting her visitation rights, and imposing attorney’s fees to be paid by her. We affirm.

Appellant and appellee David Phillips are the parents of three minor children, and pursuant to a previous order of the circuit court, appellee has primary custody subject to the visitation rights of appellant. When appellee originally was awarded custody, appellant was granted standard visitation of every other weekend, certain holidays, and summer. Approximately two months later, the circuit court found appellant in contempt of court, sentenced her to thirty days in jail with twenty-eight days suspended, limited visitation for thirty days to four hours on every other Saturday and Sunday, and required the visitation to |2be supervised. Without any further incident during the thirty-day period, the visitation would be every other weekend but would still be supervised. Five months later, appellant’s visitation with the minor children was limited to supervised visits of four hours on every other Saturday and Sunday. Within three months of the entry of the order, appellee filed yet another motion for contempt and to terminate visitation. After appellant filed a response to the motion, the circuit court held two hearings on the motion.

At the hearings, appellee testified about negative communications made by appellant to him and to the children and also presented exhibits of the communications. Appellant did not dispute the fact that she sent the communications, but she explained that during the period between the two hearings she sought counseling and completed anger-management and trans-parenting classes. The record indicates that there were no additional negative comments around the children during this time period.

Following the hearings, the circuit court entered an order finding appellant in contempt of court. She was sentenced to twenty-eight days in jail, her visitation was limited to four hours every other Sunday, and she was ordered to pay $2500 in attorney’s fees. Appellant filed a timely notice of appeal.

Child-visitation cases are reviewed de novo on the record and will not be overturned unless clearly erroneous. Johnson v. Cheatham, 2014 Ark. App. 297, 435 S.W.3d 515. The circuit court maintains continuing jurisdiction over visitation and may modify or vacate those orders at any time when it becomes aware of a change in circumstances or of facts not known to it at the time of the initial order.

See id. This turns largely upon the credibility lsof the witnesses; though the appellate court typically defers to the superior position of the circuit court to determine credibility. Id. Here, as in Sharp v. Keeler, 103 Ark.App. 233, 288 S.W.3d 256 (2008) (“Sharp II”), and Fitzpatrick v. Fitzpatrick, 29 Ark.App. 38, 776 S.W.2d 836 (1989), the circuit judge was familiar with the parties because they had been before him several times.

This court in Albarran v. Liberty Healthcare Management, 2013 Ark. App. 738, 431 S.W.3d 310, noted that the proper standard of review of a contempt order depends on the type of contempt. The court stated:

The standard of review in contempt cases depends on the kind of contempt that is at issue. Contempt is divided into criminal contempt and civil contempt. Criminal contempt preserves the power of the court, "vindicates its dignity, and punishes those who disobey its orders. Civil contempt, on the other hand, protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. This is the source of the familiar saying that civil contemnors “carry the keys of their prison in their own pockets.”

Albarran, 2013 Ark. App. 738, at 3-4, 431 S.W.3d at 313 (internal citations omitted). Although a sentence of twenty-eight days in jail was imposed on appellant by the circuit court, we hold that the substantial-evidence standard of review for a criminal contempt is not applicable in this case. The Albarran case, as with the current case, involved the circuit court directing a litigant to do something — in Albarran to pay attorney’s fees, and here to comply with the circuit court’s directives concerning negative communications directed toward appellee and the parties’ children. The imposition of punishment in both cases was postponed pending compliance. That suspension or delay, as held specifically in Albarran and |4in this case, was itself intended to be, and was, coercive pending the party’s failure to comply. At some point appellant demonstrated' that the sanction had not coerced her behavior, and the later imposition of the sentence does not convert it into a criminal contempt.

There is a less stringent standard to sustain civil-contempt orders. In Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974), the Arkansas Supreme Court noted that civil-contempt orders are reviewed on appeal to determine whether they are arbitrary or against the weight of the evidence, as opposed to the substantial-evidence standard of review for criminal-contempt orders. The Dennison court clarified that, under either standard, on appeal, every presumption' must be indulged in favor of the circuit court’s judgment. Id.

I. Incarceration

Appellant was originally punished for contempt in October 2012 by the imposition of a sentence of thirty days in jail with twenty-eight days suspended, provided that she continued to obey the orders of the circuit court. The circuit court’s November 8, 2013 order states that “the Court hereby imposes the remaining 28 days of that 30 day suspended sentence of incarceration previously imposed for prior such contempts.” Appellant claims that the circuit court was without authority to impose the suspended sentence.

She cites Higgins v. Merritt, 269 Ark. 79, 80, 598 S.W.2d 418, 419 (1980), for the argument that an attempt to suspend the execution of a sentence for contempt of court, other than a mere postponement, is invalid and amounts to a complete remission of the punishment. See also Sharp II, supra. Alternatively, assuming that the circuit court had the authority to impose a new sentence for her violation of the circuit court’s orders, appellant purges that the amount of jail time imposed was excessive. She maintains that when there are mitigating circumstances, as there are here, and the ends of justice can be adequately sustained by the serving of some part of a jail sentence, our practice has been to modify the judgment by reducing the punishment imposed. See Dennison, supra.

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Bluebook (online)
2014 Ark. App. 486, 442 S.W.3d 901, 2014 Ark. App. LEXIS 672, 2014 Ark. LEXIS 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-phillips-arkctapp-2014.