Payne v. White

• Decision Date: 06 May 1981
• Docket Number: No. CA,CA
• Citation: 614 S.W.2d 684,1 Ark.App. 271
• Parties: Helen E. White PAYNE, Appellant, v. James WHITE, Jr., Appellee. 80-439.
• Court: Arkansas Court of Appeals

Page 684

614 S.W.2d 684

1 Ark.App. 271

Helen E. White PAYNE, Appellant, v. James WHITE, Jr., Appellee.

No. CA 80-439.

Court of Appeals of Arkansas.

May 6, 1981.

Richard D. O'Brien, Little Rock, for appellant.

Sharpe & Morledge, Forrest City, for appellee.

CRACRAFT, Judge.

The appellant, Helen White Payne, brings this appeal from an order of the St. Francis County Chancery Court adjudging her in contempt for willful noncompliance with its order, imposing upon her a fine of $1500, allowing appellee an attorney's fee in the proceedings of $1500 and directing that she reimburse appellee for his attorney's fee paid in California as a result of her noncompliance. Appellant urges on this appeal that the court abused its discretion in holding her in contempt, that the fees for the attorneys were excessive and unauthorized by law. We do not agree.

The action was originally brought by the appellant in the St. Francis County Chancery Court praying for a divorce, property settlement and custody of the minor child of the parties. The appellee, James White, Jr., filed an answer and cross-complaint in which he claimed that he was entitled to a divorce and also prayed that he be awarded custody of their minor child.

Thereafter the matter was set down for trial by the court on the 5th day of September, 1979. The appellant did not appear and the court proceeded to hear testimony and granted a divorce to the appellee, in which decree appellee was granted "sole and exclusive custody of Amy Louise White, minor child of the parties." No right of visitation was granted to the appellant. On September 13, 1979, the appellant filed a motion to modify the decree stating that at the time of the trial she was without funds with which to make the trip from California where she then was, to attend the trial. Also she claimed that at the time of the trial the child was not within the jurisdiction of the court but with her in California.

On the 20th day of September, 1979, a hearing was heard on that motion at which the appellant appeared with the child. After a hearing thereon the court refused to modify the order with respect to the custody of the child but did allow visitation with appellant for one week during the Christmas season and three weeks during summer vacations, authorizing such visitations to take place either in the State of Arkansas or in the State of California.

During the course of this hearing the appellee voiced an objection to out of state visitation by the appellant, believing that once the child was removed from the state appellant would not return her. The court order contained the following admonition:

In making this award of visitation beyond the jurisdiction of this court, the court is mindful of defendant's fear that the plaintiff would refuse to return the child to the jurisdiction of this court at the end of the visitation term, and specifically cautions the plaintiff that failure to return the child at the end of visitation will be a specific violation of the custody orders of this court, to be dealt with accordingly.

During the Fall of 1979 negotiations were had between the appellant and appellee with regard to the visitation during the Christmas season. On December 26, 1979, the appellee, pursuant to the order of the court and agreement made with appellant through her attorney, delivered the minor child to appellant at the Memphis Airport for a one week visitation in the State of California upon the specific agreement of the parties and order of the court that the child be returned to appellee at the San Diego Airport on January 2, 1980, at a time agreed upon.

The day before the child was taken to the Memphis Airport the appellee spoke with the appellant by telephone at a number furnished him by appellant as her resident telephone. Two days later he learned that the number she had furnished him had been disconnected and the address she had given him was not her true address. On December 28, 1979, two days after receiving custody of the child, the appellant filed an action in the Superior Court of San Diego County seeking custody of the minor child and obtained an ex parte order for custody. The appellant on that same day by telephone notified appellee's mother that the child would not be returned on January 2nd, and that there was no need to come to California to pick up the child in accordance with their prior agreement.

On the prudent advice of his counsel appellee sent his present wife to San Diego on January 2nd as agreed. She had appellant paged and remained in the terminal for some period past the appointed hour. Appellant did not bring the child to the airport that day and so admitted in open court. Appellee's wife remained in the State of California and the appellee, after conferring with his local counsel, and engaging counsel in California, joined her in San Diego where they remained for more than one week. On January 7th, 1980, the California court conducted a hearing and after hearing the evidence and examining the certified record of the Arkansas proceedings, found that it had no jurisdiction of the matter and that the courts of the State of Arkansas had at all times complete jurisdiction over the issue of the custody of the minor child. The California court directed that the child be returned to the appellee and that all proceedings with reference to her custody would remain in the court in Arkansas. That order also contained a finding that appellant had acted on advice of counsel and that she had no intention to violate the Arkansas decree, and expressed a desire that she not be penalized for taking the action that she took in the courts in California.

The appellee testified that he had incurred expenses in preserving his rights in the California court in excess of $6,600 for airline tickets for him and his witnesses, housing, shelter and attorney's fee. He further testified and introduced into evidence a statement from his California attorney in the amount of $3,906.28, of which amount he had paid the sum of $2,000. There was also testimony that at the time this occurred the appellee was forced to take time off from work for over ten days, as a result of which he lost his job and remained unemployed for a period of about two weeks thereafter.

Upon his return to the State of Arkansas the appellee immediately filed a petition for modification of the decree so as to preclude further visitation by appellant or in the alternative that any visitation be restricted to that which might be exercised in his presence. He prayed that he have judgment against the plaintiff for all his expenditures, that she be held in contempt and that he be awarded his attorney's fee in these proceedings. The appellant filed her answer and counterplea in which she prayed that the petition of appellee be dismissed and that she be awarded the custody of the minor child based on change in circumstances.

After a hearing at which evidence was heard and appellant appeared, the trial court in written findings found her to be in willful noncompliance with the orders of the court. The court then further found that if the appellant "purge herself of the contempt, as hereinafter set forth," further visitation might be permitted but only then upon the posting of a substantial bond guaranteeing the performance of her obligation to return the child. A condition of her purge was that she be required to reimburse the appellee the sum of $2,000 actually paid by him to the attorneys in California. The court did not require her to reimburse any of the other undisputed expenses. The trial court further found that she should be responsible for, and directed her to pay, the expenses of appellee's Arkansas attorney in the amount of $1500. The court further imposed upon her a fine of $1500.

The appellant argues that the court abused its discretion in holding her in contempt because it was required to give full faith and credit to the expression of desire in the California court's decree, that the Arkansas court not hold her in contempt. We find no merit to this contention. The expression of the California court's sympathy for her is certainly not binding upon this court and is not such an order as is contemplated by the full faith and credit clause. The expression referred to was nothing more than a suggestion by the California court as to action it felt should be taken by the chancellor in Arkansas. It could be nothing more, as a court in one state cannot adjudicate what a court in another state should do with regard to enforcement of its own orders or the manner in which it should do so. Nehring v. Taylor, 266 Ark. 253, 583 S.W.2d 56.

Nor do we find the fine of $1500 to be excessive when the circumstances are considered. In his findings the trial court recited that in the earlier proceedings he had found her to be unfit because of her manner of living and conduct in general, and particularly her conduct and attitude toward the child. Notwithstanding that, she had by scheme undertaken to circumvent the order of the court by removing the child and secreting her outside the jurisdiction of the court. The court commented that although she might have relied on advice of counsel, it could not permit erroneous advice of counsel to shield her from a direct, willful and contumacious violation of the order of the court of which she was well aware. In its findings the court also noted that this type of conduct was receiving national attention and that courts had a duty to deal with such conduct harshly not only as punishment for the violation of the act, but as a deterrent to others. The trial judge, according to the record, had conducted all of the proceedings in this matter and was well aware of and acquainted with the background and all attending circumstances. His discretion in this matter should not be disturbed unless it has been clearly abused. When the amount of this fine is compared with the enormity of her...