Jones v. Jones, 94-1088

• Decision Date: 08 May 1995
• Docket Number: No. 94-1088,94-1088
• Citation: 320 Ark. 449,898 S.W.2d 23
• Parties: Christine M. JONES, Appellant, v. Jerry A. JONES, Appellee.
• Court: Arkansas Supreme Court

Page 23

898 S.W.2d 23

320 Ark. 449

Christine M. JONES, Appellant, v. Jerry A. JONES, Appellee.

No. 94-1088.

Supreme Court of Arkansas.

May 8, 1995.

Samuel A. Perroni, J. Nicole Graham, Little Rock, for appellant.

Helen Rice Grinder, Conway, for appellee.

BROWN, Justice.

This case involves the parties' minor son, Cameron Jones, and the chancellor's dismissal of a contempt petition against appellee Jerry A. Jones for his failure to release Cameron on a certain date to appellant Christine Jones for visitation purposes. It further involves the constitutionality of alleged local rules employed by the chancellor and legal fees assessed against appellant Christine Jones for filing the contempt petition.

The parties were married in 1981 and divorced on November 13, 1990. The chancellor granted custody of Cameron to Christine Jones as part of the divorce. On December 14, 1992, a temporary change of custody was granted to Jerry Jones, and on March 7, 1994, the custody grant was made permanent with visitation rights provided to Christine Jones. The March 7, 1994 order expressly states that visitation shall be in accordance with the Handbook for Domestic Relations Litigants used by the Twentieth Chancery District of Arkansas which includes Faulkner, Van Buren, and Searcy Counties. The visitation language in the March 7, 1994 order that stands at the core of this lawsuit reads: "(d) the [appellant] shall have summer visitation with the minor child beginning on the third Sunday following the last day the child is required to attend school of the spring term...." This language is taken word-for-word from the Domestic Relations Handbook.

During the 1993/94 school year, Cameron as a four-year-old was not required by law to attend public schools. He attended a preschool in Conway named the UCA Child Study Center, and the last day of that school was May 13, 1994. On May 31, 1994, Christine Jones filed a motion for contempt against Jerry Jones for his violation of the March 7, 1994 order due to his refusal to release Cameron to her on May 29, 1994, which was the third Sunday following the last day of Cameron's preschool at the UCA Child Study Center. Jerry Jones responded that the last day of the Conway public schools was the operable date to be used because Cameron was not required to attend school and that date meant the third Sunday fell on June 12, 1994.

Following a hearing on Christine Jones's contempt motion on June 15, 1994, the chancellor dismissed the petition and granted Jerry Jones's request for attorney's fees in the amount of $650.

Christine Jones first contends that the chancellor abused his discretion in refusing to hold Jerry Jones in contempt. On de novo review, we disagree and hold that the result reached by the chancellor was correct but not for the reasons stated by the chancellor in open court.

Our standard of review when a chancellor has refused to punish an alleged contemnor is abuse of discretion. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Id. A person cannot be held in contempt for failing to do something which the trial court did not order. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Waldon v. Waldon, 34 Ark.App. 118, 806 S.W.2d 387 (1991).

In the case at hand, the chancellor found no basis for contempt because when interpreting the required-school language in the Domestic Relations Handbook, the local practice had always been to rely on the public school schedule for determining the last day of school. We refuse to countenance this justification as a legitimate precept for interpretation. Local practices and local interpretations work to the disadvantage of parties and attorneys outside of the district, the same as do local rules. See In the Matter of the Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990). We note as an adjunct to this point that this controversy could have been easily avoided had the parties used language specifically related to this case in the March 7, 1994 order rather than boilerplate language from the Domestic Relations Handbook. Also related to this point is the question of whether this matter is moot due to Cameron's change of schools. There was testimony from Jerry Jones that Cameron would be attending a different pre-school in the 1994-95 school year. But the record is not definite on whether this actually occurred so as to obviate the dispute before us in this appeal. We have opted, therefore, to consider the merits.

We conclude that the required-school language in the March 7, 1994 order is ambiguous. Christine Jones interprets those words as pertaining to the last day of the school Cameron actually attended. Jerry Jones, on the other hand, interprets them in accordance with the public school schedule since Cameron was not yet required to go to school. We believe that both interpretations are reasonable. Because the language at issue is imprecise and unclear, we affirm the chancellor's dismissal of the contempt motion.

Christine Jones next raises two points: (1) the chancellor erred in using local rules and local interpretations in this case, and (2) use of the Domestic Relations Handbook by the chancellor violates the doctrine of separation of powers in that it removes judicial discretion. Though local practice and interpretation of what is required school is more the issue here, we decline to entertain both issues because they are being presented for the first time on appeal. See Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994). The appellant urges in contravention of this conclusion that she had no opportunity to raise these issues because reliance on the Domestic Relations Handbook and local practice first occurred in the chancellor's ruling and that in any event, this court reviews chancery matters de novo on appeal and, accordingly, can decide the questions.

The appellant, however, was well aware that the Domestic Relations Handbook was being used by the chancellor prior to his ruling and order dismissing her contempt petition. The Handbook was expressly referenced in the March 7, 1994 order. It was also very much at issue when the question of required school was extensively debated at the contempt hearing on June 15, 1994. Indeed, the chancellor made reference to the...