Bamburg v. Bamburg

Decision Date30 April 2014
Docket NumberNo. CV–13–501.,CV–13–501.
Citation435 S.W.3d 6,2014 Ark. App. 269
PartiesRobert E. BAMBURG, Appellant v. Lisa J. BAMBURG, Appellee.
CourtArkansas Court of Appeals


Allred Law Firm, by: Allison R. Allred, for appellant.

Kathy L. Hall and Carol D. Nokes, for appellee.


This is the second appeal between divorced parents, appellant Robert (Bob) Bamburg and appellee Lisa Bamburg regarding orders issued by the Pulaski County Circuit Court. The parties were married for over twenty years and had two children—daughter EB born in 1995 and son JB born in 1996. JB suffers from significant disabling non-verbal autism. The July 2010 decree awarded the parties joint custody of the minor children, but determined that Lisa was to be the primary custodian and awarded Bob liberal visitation. 1 Pertinent to this appeal, the decree provided that when the minor children were present, neither party was to have “an overnight guest with whom the party has a romantic relationship” including “vacations or any trips.” In the first appeal, Bob contended that the trial court clearly erred in awarding primary custody of the parties' two minor children to Lisa, and both parties appealed the trial court's findings on division of specific marital assets. We affirmed the award of custody and the majority of marital-property-division findings in an opinion handed down on September 21, 2011. See Bamburg v. Bamburg, 2011 Ark. App. 546, 386 S.W.3d 31. In that opinion, our court recounted the extensive history of the parties' divorce proceedings and the evidence leading to the custody decision.

While the first appeal was still pending, the parties continued to vociferously litigate multiple matters relating to their divorce and filed numerous competing motions for contempt. Each party accused the other of being noncompliant with issues that included child-related reimbursements, child support, educational decision-making, property exchanges, payments for various debts, and asset distribution. Relevant here, Bob sought to have Lisa held in contempt for violating the “overnight guest” provision of the decree by having her romantic partner, Mary Alice Hughes, accompany her and the children on overnight trips to Hawaii, Texas, and Tennessee, all within six months of the divorce decree. Bob's motion for contempt was filed in December 2010.

After a hearing on these issues in March 2011, the trial judge found Lisa in contempt of court for violating the “overnight guest” provision of the decree. In an order dated April 15, 2011, the trial court found that the “out of town trips with Mary Alice Hughes staying in another room different from [Lisa] and the children is merely splitting hairs and is an attempt by [Lisa] to circumvent the court's order.” Further the trial court stated: This court has no interest in controlling the romantic interests of either the defendant or the plaintiff, but it does have an interest in adhering to established case law when it concerns the children.” Lisa filed a motion for reconsideration and for clarification. The trial court thereupon clarified the “overnight guest” provision in a June 14, 2011 order:

2. The court has given considerable thought to this issue and acknowledges that because of the specific facts of this case, it is necessary to be as clear as possible regarding the contact either party may have with a romantic partner while in the presence of the minor children.

3. The parties have a distinct difference of opinion as to what is in the children's best interest regarding the contact of the Plaintiff's romantic partner with the children on both a daily basis and an overnight basis. They have an intense distrust of each other which has heightened the animosity between them.


7. The court finds that a clear bright line rule must be established in this case so that the parties will understand their limitations. It is not the intent of the Court to punish either Plaintiff or Defendant for having romantic partners in their lives, as it is normal to bring romantic partners around the children. However, it is the responsibility of the Court to ensure that the sole emphasis remains on what will be in the best interest of the children, especially in a case like this where the parties cannot agree and constantly debate about what is best for their children. The Court does this by setting out guidelines and limitations that apply until the children turn age 18 and graduate from high school.


9. The Court, therefore, orders that when the children are present neither party shall allow an overnight guest with whom the party has a romantic relationship. This prohibition also includes taking a romantic partner on any vacations or any trips when the children are present, regardless of whether the romantic partner has separate accommodations, lodgings or sleeping arrangements. The Court is aware that it has no jurisdiction over the romantic partners and they are free to travel as they desire. The Court does have jurisdiction over the Plaintiff and Defendant and will view any variation of this ruling as a violation of not only the spirit of this Order but the specific prohibitions contained in the Order.

Thereafter, Lisa filed a timely notice of appeal designating an appeal of the contempt order and clarification order. Ultimately, though, Lisa filed a motion to dismiss her appeal in September 2011, just prior to our court's decision in the first appeal.

In April 2012, Lisa filed a Motion to Modify Summer Vacation and Travel Restrictions.” In her motion, Lisa requested that the court modify Bob's summer visitation schedule with JB due to the fact that JB was currently enrolled in a year-round school and that the existing summer visitation plan was not compatible with year-round schooling. Lisa also requested that the court lift the “overnight guest” prohibition because the eldest daughter was going to attend college at Baylor in the fall and “because of the severity of the younger child's disability, [JB] is unable to understand romantic relationships and will not be negatively impacted by an overnight guest in his presence.” Further, Lisa requested the court to allow her romantic partner to move into the same residence with her and her son because “the younger child cannot understand the implications of overnight guests.” And, thereafter in an amended motion, for the same reasons, Lisa requested that the court remove the prohibition against Mary Alice Hughes traveling with her and JB.

In May 2012, Bob filed a motion to dismiss Lisa's motion to modify, contending that it was barred by res judicata and collateral estoppel, along with a request that custody be changed to him based on Lisa's “continued illicit behavior and non-compliance with Court orders.” Bob formally denied Lisa's allegations that there needed to be any changes to his visitation schedule or to the rules of behavior related to travel or cohabitation.

After a hearing in October 2012, the trial court denied Bob's motion to dismiss, finding that because Lisa had alleged a material change in circumstances, she would be given an opportunity to establish those asserted changes. By the time these issues were fully litigated by the trial court, the parties' daughter EB had graduated high school, moved to college in Texas, and reached the age of majority. JB, then sixteen years old, remained legally impacted by the trial court's orders.2

The trial court took evidence and testimony in January 2013 over these issues. Testimony was given by Tim Thomas, clinical administrator at Pathfinder Academy, who holds a master's degree in early childhood special education. JB attends Pathfinder Academy, and Mr. Thomas stated that the year-round school schedule at Pathfinder was implemented for the benefit of children with autism and that routine and consistency are very important for autistic children. He opined that JB understands relationships as they relate to himself but has limited understanding of relationships between other people. Lindsey McDaniel, one of JB's speech-language pathologists, affirmed that JB remained nonverbal, but said that he uses an electronic device to help communicate. Ms. McDaniel testified that JB could answer more concrete or visual questions but had difficulty answering abstract questions. She stated that JB exhibited anxiety-ridden behaviors when he would be going to, or coming back from, his father's for extended periods of time. JB's occupational therapist, Alisa Hooper, testified that she worked with JB on a daily basis to improve his ability to perform self-care activities like brushing his teeth, taking care of money, dressing, and going to the bathroom. Ms. Hooper confirmed that JB has great difficulty with changes in his schedule and, like others with autism, needs consistency.

Lisa testified at length about how much she had come to depend upon Mary Alice Hughes as a vital part of JB's daily-care team. She stated, by way of example, that it was very difficult for her to handle JB's recent stomach illness all on her own without help. She stated that to some degree, she was dependent on Mary Alice to help with caring for JB because he had certain things that he wanted only Mary Alice to do for him. Lisa said that Mary Alice arrived early in the morning to help get him up, fed, and ready for school, and she helped with transportation to and from school, as well as with playtime, meals, and bedtime, after which Mary Alice would leave. She described Mary Alice Hughes as “one of his caretakers” and “part of his routine.” She said that JB was accustomed to spending time with her, that he loved and adored her, and that Mary Alice was a big part of JB's life. Lisa amplified what the professionals at Pathfinder Academyhad stated, as it concerned JB's regression in academic and social settings when there was extended visitation with his father.

Bob testified that he was actively engaged in his children's lives and...

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  • Holmes v. Jones
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    • Arkansas Court of Appeals
    • December 14, 2022
    ...622, 625 (2007). Additionally, the doctrine of res judicata is not strictly applicable in child-custody matters. Bamburg v. Bamburg , 2014 Ark. App. 269, 435 S.W.3d 6. The supreme court has held that in proceedings concerning custody and support, the rules of civil procedure do apply, but t......
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