Norman v. Cooper

• Decision Date: 05 March 2008
• Docket Number: No. CA 07-247.,CA 07-247.
• Citation: 278 S.W.3d 569
• Parties: Donald L. NORMAN, Appellant, v. Juanita COOPER, Appellee.
• Court: Arkansas Court of Appeals

278 S.W.3d 569

Donald L. NORMAN, Appellant, v. Juanita COOPER, Appellee.

No. CA 07-247.

Court of Appeals of Arkansas.

March 5, 2008.

Lynn Frank Plemmons, Conway, for appellant.

Tom Allen, Batesville, for appellee.

The genesis of this appeal was a divorce complaint filed by appellee Juanita Cooper on August 9, 1994. On September 27, 1994, Cooper was granted an uncontested divorce and awarded custody of the parties' minor children, and appellant Donald Norman was awarded visitation. Although the divorce was granted and an agreement regarding visitation and support was accepted by the court, the parties continued to live together for approximately one year thereafter, at which point they finally and permanently separated. The parties engaged in sporadic litigation in the ensuing years, with Norman claiming to have been denied visitation and Cooper claiming not to have been paid child support. Following an agreement to resolve their issues, Norman exercised visitation twice in 1996. However, Norman has had no visitation with his children since 1996.

In September 2004, the Office of Child Support Enforcement sought to collect child support arrears on behalf of Cooper in Prairie County Circuit Court. However, Child Support Enforcement dismissed the case and closed its file at the request of Cooper. Norman continued the action in Prairie County seeking a finding of contempt against Cooper and an order to enforce visitation. Due to the fact that Cooper and her children had moved to Independence County, she objected to the case being set for a hearing in Prairie County. Consequently, Norman requested that the case be transferred to the Circuit Court of Independence County.

Following Norman's transfer request, a hearing was scheduled in Independence County for January 6, 2006, and notice was sent to Cooper via her attorney, Jill Blankenship. After Cooper's counsel received notice, by order entered on December 21, 2005, Blankenship was permitted to withdraw as counsel. (The record does not explain why Blankenship was allowed to withdraw so close to the date of the hearing.) Neither Cooper nor her counsel attended the hearing. Norman, accompanied by his counsel, was present at the hearing.

As the hearing began, the trial judge, the Honorable Tim Weaver, recalled that he had previously been consulted, in his capacity as a private attorney, about the parties' dispute in relation to a step-parent adoption question. As such, he decided to recuse from the matter and requested that Judge John Norman Harkey accept the case and continue the hearing.

Judge Harkey accepted the case and summoned Cooper's former counselor, Jill Blankenship, who acknowledged receipt of the notice of the hearing and gave the court Cooper's telephone number. The trial court permitted the hearing, but informed the parties that it would be treated as an ex parte hearing. At the conclusion of the hearing, the court ordered that visitation with Norman commence immediately. On January 6, 2006, the order was filed and served on Cooper. In response to the ordered visitation, as noted by Judge Harkey, there was "correspondence from one of the children, a petition for contempt, a counter-petition for contempt, a medical report, interrogatories, and lots of paper work; ... the children are now, respectively, 15 years old and 14 years old; and ... these matters are now [set] for what the Court hopes is a final hearing."

A full hearing was held on July 28, 2006. Following this hearing, the trial court found both parties to be in contempt of court and took the other issues under advisement. In a judgment entered on November 14, 2006, the trial court found that Norman owed a child-support arrearage in the amount of $25,000, and was in contempt for willfully and intentionally disobeying the court's order by failing to provide child support for his minor children. Norman was ordered to jail for sixty days, and thereafter "an automatic pickup order" would be issued if he missed any support payments.¹ Norman was also ordered to pay Cooper $2,000 in attorney's fees. Finally, the trial court found Cooper to be in contempt (for violating the visitation order) and ordered her to serve a term of seventy-two hours in jail. Only Norman appealed.

Norman first argues that the trial court erred in its display of bias against him and by "acting upon said bias in its rulings." Although the great majority of Norman's brief is dedicated to this allegation of error, we are unable to reach the merits of his claim because he makes this argument for the first time on appeal. Our supreme court has repeatedly held that appellants are precluded from raising arguments on appeal that were not first brought to the attention of the trial court. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Issues raised for the first time on appeal will not be considered because the trial court never had an opportunity to rule on them. Id. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Lewis v. Robertson, 96 Ark.App. 114, 239 S.W.3d 30 (2006). Because Norman's allegation of trial-court bias was not raised and decided below, we are precluded from reaching its merits now. Id.

Next, Norman argues that the trial court erred by allowing appellee to solicit testimony on cross-examination relating to his prior incarceration for failure to pay child support in an unrelated case. At trial, Cooper's counsel asked Norman "How many times did you go to jail because of support problems with Ms. Francis?" Norman's counsel objected, claiming the evidence was "not relevant." The objection was overruled, and Norman answered that he "went to jail one time because of support problems with Ms Francis." Norman also noted that he "stayed in jail for 40 days ... for nonpayment of support." Cooper's counsel followed up by asking when the incarceration occurred. Norman's counsel responded that he would like to "[r]enew the objection." Once again, the objection was overruled and Norman answered "1989, I believe."

On appeal Norman concedes that the "question is plainly relevant as defined in Rule 404 of the Rules of Evidence," but argues that it was not "admissible pursuant to Rule 402, and not allowable pursuant to Rule 404(b)." Specifically, he argues that evidence of other "crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." However, Norman's only objection below was to the relevance of the inquiry—a point that he now concedes. Because we cannot reach the merits of newly crafted appeal arguments where the trial court was neither put on notice of the alleged error nor given the opportunity to right the wrong, we affirm on this point without considering the merit-or lack thereof—of Norman's prior — bad acts argument. See Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006).

Norman also claims that the trial court erred in its decision to treat the January 6, 2006, proceeding as an ex parte hearing. This hearing was held at the request of Norman. He attended, as did his counsel. The trial court explained at the outset of the hearing that because neither Cooper nor her counsel were present, it would be considered an ex parte proceeding. Norman made no objection to the trial court's ex parte designation at the time. The trial court then entered an order granting Norman immediate visitation with his children—the precise relief that he had requested. Although, as previously discussed, we are prohibited from addressing Norman's claim of error because it is made for the first time on appeal, we are confounded by what possible wrong Norman might have suffered by being granted the immediate relief that he requested following a hearing where he was...