Baber v. Baber

• Court: Arkansas Supreme Court
• Writing for the Court: JIM HANNAH
• Citation: Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699 (Ark. 2011)
• Decision Date: 09 February 2011
• Docket Number: No. 10–285.,10–285.
• Parties: James R. BABER, Appellant v. Pamela P. BABER, Appellee.

2011 Ark. 40

378 S.W.3d 699

James R. BABER, Appellant

v.Pamela P. BABER, Appellee.

No. 10–285.

Supreme Court of Arkansas.

Feb. 9, 2011.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Barry E. Coplin and Jocelyn A. Stotts, for appellee.

JIM HANNAH, Chief Justice.

Appellant James R. Baber appeals from the Pulaski County Circuit Court's order granting appellee Pamela P. Baber's motion for modification of visitation to the parties' children, denying appellant's motion to reduce child support, and awarding appellee attorney's fees. On appeal, appellant contends that the circuit court erred in modifying visitation because it failed to consider the best interests of the children and modified visitation for the sole purpose of “punishing” him for violating the divorce decree. He also contends that the circuit court erred in denying his motion to reduce child support because it failed to consider his tax returns when determining his income. Finally, appellant contends that, because he should have prevailed on his claims before the circuit court, the circuit court erred in awarding attorney's fees to appellee. We affirm the circuit court's order.

The parties were divorced by a decree of the circuit court entered on September 19, [2011 Ark. 2]2008. Their property settlement agreement was incorporated, but not merged, into the decree. Appellant was ordered to pay child support in the amount of $2700 per month. Appellee was granted custody of the parties' two children, and appellant was granted visitation. The decree provided that appellant would not consume drugs or alcohol at any time during visitation periods and that appellee was entitled to deny appellant visitation with either child if she suspected that he was under the influence of drugs or alcohol. Subsequent to the entry of the decree, the parties filed various motions, two of which are relevant to the instant appeal—appellee's motion to modify visitation and appellant's motion to modify spousal and child support.

I. Motion to Modify Visitation

On April 27, 2009, appellee filed a motion to modify visitation, contending that material changes in circumstances had occurred since the parties last appeared before the circuit court and that these changes warranted the court's placing restrictions on appellant's visitation. In her motion, appellee made the following allegations: (1) appellant tested positive for THC on August 19, 2008; (2) appellee had reason to believe that appellant submitted himself to drug and alcohol tests in conjunction with the medical review board's suspension of his medical license and, although appellee requested copies of the tests from appellant, appellant refused to furnish the results to her; (3) appellee was contacted by a female friend of appellant's who informed her that appellant was not sober; (4) appellant admitted to drinking alcohol during his visitation with the parties' son, despite a provision in the parties' settlement agreement that prohibited appellant from drinking alcohol at any time during his visitation periods; (5) appellant has stated that his consumption of alcohol is not a problem and has expressed his intent to continue drinking alcohol; (6) appellant has exercised his visitation rights sporadically; and (7) appellant sent the parties' minor son home with third parties, who were strangers to their son and to appellee, rather than meet appellee at a public location to exchange him for visitation, and appellee was concerned that appellant avoided the visitation exchange to prevent her from observing that he was under the influence of drugs or alcohol. Appellee added that, based upon appellant's history of drug and alcohol abuse and the foregoing events, she suspected that appellant was under the influence of drugs or alcohol and therefore suspended his visitation pursuant to the parties' settlement agreement.

Appellant responded and denied that material changes in circumstances existed to warrant a modification of visitation. Specifically, he denied that his medical license was suspended or that it was suspended due to drug and alcohol use, denied that he consumed alcohol while the minor children were present, and denied that he was attempting to avoid a visitation exchange with appellee when he allowed his son to ride with friends. Pleading affirmatively, appellant asserted that appellee had unreasonably suspended visitation in violation of the divorce decree for the sole purpose to harass, embarrass, and punish him and asserted that she should be held in contempt of court. He further asserted that he should be given unqualified visitation to the children.

At a hearing on the motion, evidence was introduced that on October 6, 2008, appellant entered a drug-and-alcohol-treatment program at Talbott Recovery in Atlanta, Georgia, and was discharged from treatment on January 3, 2009. Julia Marable testified that she and appellant consumed alcohol together the same day he returned from treatment. She further testified that, over the next three weeks, she saw appellant every day, and they drank alcohol every day. Marable stated that, at times during the three weeks they spent together, appellant used marijuana. Marable also related that, during that time, appellant drove after consuming alcohol and that, when people came over to appellant's house, she hid alcohol in a recycling bin in the garage, per appellant's instructions. Admitted at the hearing, over appellant's objection, were two photographs; one was a photo of appellant and Marable, and the other was a photo of another individual and appellant, who was holding a beer bottle. Marable testified that, at the time the photographs were taken, she and appellant were at someone's house to purchase marijuana. Both photographs bore a date stamp of January 19, 2009, and Marable testified that the date accurately reflected when the photographs were taken.

Appellee testified that, immediately after the divorce, per the parties' agreement, appellant presented her with an evaluation from the Palmetto Treatment Center and the results of a drug screen. Appellee stated that the drug screen was positive for marijuana and that the evaluation indicated that appellant needed intensive, inpatient treatment. Appellee stated that, after seeing the positive drug screen and the evaluation, she was unwilling to send the children to appellant for unsupervised visitation, so some of appellant's family members supervised visitation.

Later, appellant informed appellee that he was entering inpatient treatment at Talbott Recovery Center. Appellee stated that, while there, appellant received periodic leaves from treatment and saw the children in Little Rock and in Fayetteville. She also stated that, as soon as appellant was discharged from treatment, he immediately exercised alternate weekend visitation.

Appellee testified that Marable contacted her via text messages and a Facebook message and told her that appellant was not sober and that he was worse after treatment. Appellee stated that she contacted appellant about Marable's statement and that, while she had reason to believe that Marable might have had some mental-health issues, she had no reason to doubt what Marable was telling her. Appellee also related that she was upset that appellant had allowed their son to be transported for visitation by an individual that she did not know.

Paul James testified that he had known appellant for many years and that, in the past nine months, he had worked with appellant on cases and interacted with him on a daily basis. He stated that, in the past, he thought appellant might have been impaired by drugs or alcohol, but he did not believe appellant currently had any problems with “impairment.” He also testified that, while he saw appellant in person on occasion, most of his communication with appellant was by telephone or e-mail.

Nancy Ogden, who met and began dating appellant in January 2009, testified that she had not observed appellant using any illegal or illicit drugs and had not observed appellant consume alcohol to the point of intoxication. She also testified that she had never observed appellant drinking alcohol when his son was visiting.

Appellant testified that he is a recovering alcoholic. He disputed Marable's accountof the events that took place when he returned from treatment, stating that she was “a lush and a drug addict.” He admitted that he had “a couple of beers” at his home while his son was visiting. He stated that his son was asleep at the time, that he did not drink to the point of intoxication, and that he did nothing to jeopardize his son's safety. Appellant further testified that he was not aware that the divorce decree contained a provision prohibiting him from drinking alcohol when the children were visiting. Appellant stated that he did not regularly attend Alcoholics Anonymous meetings and that, while he had seen a local counselor for his addiction problems, he had to stop going because he could no longer afford the counselor's fees. Appellant further stated that he could not remember the name of the counselor he had seen. When asked if he would “rather not have visitation at all with [his] children rather than have it in Little Rock at a public location,” appellant responded:

That's my—my testimony is I'll—it's not appropriate and I will not comply with babysitting them for two hours at lunch or whatever. I'm not—that's not—now when I was coming to town and they were—we'd get a place at the hotel and march the ducks in and out and ride the trolley down to the—you know, have a pizza and stuff like that, that, of course, I would do every chance I got. But to—to be treated like a child, I'm not going to do it.

In a letter opinion dated November 9, 2009, the circuit court made the following findings:

Dr. Baber has clearly violated the terms of the Decree of Divorce and Property Settlement Agreement by consuming alcohol while he had...