Baker v. Murray

• Decision Date: 23 April 2014
• Docket Number: No. CV–13–896.,CV–13–896.
• Citation: Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (Ark. App. 2014)
• Parties: Christopher Charles BAKER, Appellant v. Staci Baker MURRAY, Appellee.
• Court: Arkansas Court of Appeals

2014 Ark. App. 243

434 S.W.3d 409

Christopher Charles BAKER, Appellant

v.Staci Baker MURRAY, Appellee.

No. CV–13–896.

Court of Appeals of Arkansas.

April 23, 2014.

Stephanie Chamberlin P.A., by: Stephanie Chamberlin, for appellant.

Satterfield Law Firm, PLC, Little Rock, by: Cynthia S. Moody, for appellee.

BRANDON J. HARRISON, Judge.

Christopher Baker appeals a Pulaski County Circuit Court order denying his motion to hold his ex-wife, Staci Murray, in contempt and his attempt to change custody of his eight-year-old daughter, K.B., from Staci to himself.The heart of Baker's appeal is that the court misapplied the law and made clearly erroneous findings of fact.We affirm.

I.Background

Christopher and Staci divorced in 2006, when K.B. was less than three months old.The divorce decree stated that the parties agreed that Staci would have custody of K.B.Both parties have since remarried and have families.Christopher moved to change custody in 2011, which the circuit court denied in an unappealed May 2011 order.Important to this appeal is the order's paragraph 11, titled “Counseling for the Child” and which states that Staci “shall enroll the minor child in counseling with a therapist who is qualified under her health insurance program.”It also provides, among other things, that the parties and their spouses

shall cooperate with the therapist and participate in the counseling as directed by the therapist.The parties are ordered to comply with all requests of the therapist and to continue in the therapy sessions, allowing the child to do the same, until released by the therapist.

Staci was found in contempt of paragraph 11 in September 2011 because she had failed to promptly enroll K.B. in therapy.Over a year later, in December 2012, Christopher filed another motion for contempt and to change custody.Christopher alleged various ways in which Staci was in contempt and listed thirteen grounds for a material change of circumstances to support his change-of-custody argument.The court devoted two days to hearing Christopher's motion.

II.Custody–and–Contempt Hearing

Matthew Frederick, Yolanda Thomas, Tonya Thomas, Patricia Baker, Christopher Baker, Chanti Edwards, and Staci Murray testified at the hearing.The testimony revealed that the parties have an acrimonious relationship and that K.B. has a difficult time going between houses.We summarize some of the testimony below.

Matthew Frederick, an expert in children and family social work, testified that K.B. had “shown marked improvement” in handling her anxiety about her parents' conflict since starting therapy in 2011.Frederick told the court that he had not released Staci from counseling when she withdrew from co-parenting therapy in May 2012 and that he had wanted Staci and her husband to continue coming.Frederick felt that it was in K.B.'s best interest for Staci to remain in the court-ordered, co-parenting therapy.

The families, by Frederick's suggestion, shared a Google calendar so everyone could schedule and stay informed about events in K.B.'s life.Patricia Baker, K.B.'s stepmother, testified that the calendar became ineffective because Staci would either put events on there at the last minute or not at all so that she and Christopher would be left out.Staci produced some evidence that she had put events on the Google calendar.Christopher does not use email, so the couple uses Patricia's email account as a primary means to communicate with Staci.Patricia testified that there were some communication problems between she and Staci about agreed times for holidays and therapy appointments, but no “real issues with visitation.”

During the course of the counseling, Frederick recommended that K.B. enroll in dance classes “because that's her passion.”Staci eventually enrolled K.B. at a local dance studio that Frederick had suggested.K.B. regularly participates in dance and church activities, but Frederick testified that there is an excessive amount of parent tension surrounding K.B.'s dancing events at the studio and at church.Christopher was concerned that Staci did not let K.B. participate in more extracurricular activities and did not allow K.B. to call Christopher or to hang out with him apart from the standard visitation times.Staci denied keeping K.B. from Christopher.

Staci Murray testified that she had remarried since the last order was entered in the case, that K.B. has a good relationship with her son, T.M., and that she was due to give birth to a baby girl in a few months.Staci did not have any concerns about K.B. being jealous of her siblings or adjusting to the new baby.Frederick testified that K.B. had given him a drawing that K.B. interpreted to mean that her mom loved the new baby more than her.Frederick spoke with Staci about K.B.'s concerns and reported to the court that Staci was “very, very reassuring with K.B.She was very positive in her response to K.B. and tried to clarify that she loves her as much as she loves her son [the baby].”

Both parents alleged that the other had physically abused K.B. in the past.According to Frederick, K.B. is spanked occasionally at her mother's house, but is not spanked at her father's house.Frederick explained that he is not “anti-corporal punishment” but had told the parents that he did not believe that corporal punishment is the best way to discipline K.B. because there were pictures of bruises (from a year and a half ago) and “who created the bruises ... is up for debate.”The court ruled that the bruising issue was raised and decided at the last hearing.Regarding a specific incident of corporal punishment of K.B., Frederick agreed that “Staci's spanking ... was inappropriate in that context.”On cross-examination Frederick said that spanking had only been brought up one time by K.B. and concluded that the spanking was “maybe not the best choice, but [it was] not [done] in an abusive manner.”

Christopher told the court that he believed custody should be changed to him because, among other things, he did not feel that Staci was in tune with K.B.'s needs and strongly disagreed with her disciplinary methods.Patricia Baker testified that she and K.B. “have an excellent relationship.”According to Matthew Frederick, K.B. puts the level of comfort she feels in expressing herself to people in this order: stepmother, father, mother, and when prompted, her stepfather.Based on his observation, Frederick indicated that Christopher and his wife were more likely to facilitate an equal and healthy relationship between both parents, and Staci caused more conflict than Christopher.Frederick, however, acknowledged that the parties had spoken harshly about one another at various times and had a general inability to communicate or get along.When asked about Staci's behavior, Frederick specifically stated, “I have not seen something [from Staci] that rises to the level of parental alienation.”

Frederick declined to make any change-of-custody recommendation to the court.

Yolanda Thomas, K.B.'s elementary school principal, testified that K.B. was either absent or tardy twenty days in three semesters.The school's policy requires parents to volunteer if their child receives six tardies in a semester as a deterrent to future tardies, and Staci performed the required volunteer work.According to K.B.'s third-grade teacher, Tonya Thomas, “K.B. is very outgoing.She's a very smart girl, at the top of her class.All positive things about her.”Ms. Thomas did not think that K.B.'s tardiness adversely impacted her grades.Chante Edwards, who is the director of the daycare that K.B. attends and Staci's sister-in-law, said that K.B. is happy at the daycare and is never a discipline problem.

III.The Court's Order

The court entered its final order on 5 July 2013.After a brief statement of the procedural and factual history between the parties and the testimony at the hearing, the court wrote:

The continuing problem between the parties is a lack of communication.The parties have both remarried and even though the Plaintiff and Defendant will text each other on their phones, most of the communication is between the motherand step-mother.In fact, the stepmother types out all her husband's responses to the Defendant before sending them to her.Matthew Frederick testified that both parties have “fairly healthy relationships” with the new spouses and both are loving and caring couples.He admits that there is acrimony between the parties which causes the minor child to have anxiety and places her in a position of trying to make everyone happy.Therapy continued through August 2012 when the Defendant decided additional counseling was unnecessary.Mr. Frederick stated that the Defendant's attitude was always respectful but she did not want to continue in a joint co-parenting situation....Mr. Frederick concluded that the parents need to change how they interact with each other around the child and stated that both parents improved when they were in joint counseling.Mr. Frederick stated that he does not make a recommendation for a change of custody at this time but believes that the minor child should have more access with her father.Both parties and the other witnesses testified as to instances where they believe the other party was at fault in harming the relationship between the parties and K.B.Both parties are not perfect, but both parties and their new spouses are good, loving and caring adults who love K.B. very much.

The court ordered that the parties and K.B. continue in counseling with Matthew Frederick.The court noted that K.B. is an active child and is involved in many activities, and it required her parents to communicate and notify the other parent of K.B.'s activities using a calendar.The court ordered that both parties have access to the calendar and any updates that are made.The court also stated: “[Staci] has allowed the minor child to be tardy over twenty (20) times during the 2...