White v. Taylor

• Decision Date: 15 October 1986
• Docket Number: No. CA,CA
• Citation: 717 S.W.2d 497,19 Ark.App. 104
• Parties: Mary Lois (Taylor) WHITE, Appellant, v. James E. TAYLOR, Appellee. 86-175.
• Court: Arkansas Court of Appeals

Page 497

717 S.W.2d 497

19 Ark.App. 104

Mary Lois (Taylor) WHITE, Appellant, v. James E. TAYLOR, Appellee.

No. CA 86-175.

Court of Appeals of Arkansas.

Oct. 15, 1986.

Gibson, Gibson & Hashem by John F. Gibson, Monticello, for appellant.

Paul Petty, Searcy, for appellee.

CORBIN, Judge.

This appeal comes to us from the Jefferson County Chancery Court. Appellant, Mary Lois (Taylor) White, appeals the decision of the chancellor denying her petition for change of custody. We affirm.

Appellant petitioned the court to hold appellee, James E. Taylor, in contempt for failing to comply with appellant's visitation rights and for a change of custody. Appellant alleged in her petition for change of custody that appellee had subjected the child to immoral and indecent behavior in that he had resided with a married woman in the presence of the child. Appellant also asserts on appeal that the only reason the court changed custody of the child from the mother to the father in a previous proceeding was because appellant failed to comply with the property settlement provisions in the divorce decree.

On August 1, 1984, an order was filed in the Chancery Court of Jefferson County which held that the parties continued to have joint custody of the child; however, it changed primary custody of the child from appellant to appellee. Appellant filed a notice of appeal August 24, 1984, on the August 1, 1984, order changing custody to the father. However, on February 11, 1985, appellee filed a motion to dismiss the appeal for failure to file the record on appeal within 90 days, a violation of Arkansas Rules of Appellate Procedure Rule 5(a). On February 15, 1985, this motion was granted and the appeal was dismissed. Therefore, appellant has lost her right to appeal the August, 1984, decision changing custody.

Appellant's petition for modification of custody decree and for order of contempt were properly made. The trial court made the following findings:

The Court finds that Mr. Taylor has violated the order concerning visitation. If either party has any problem in exercising any visitation or exchange they should contact the Court immediately, through their attorneys if possible, and the Sheriff will be requested to assist. Neither Mrs. Dew [appellant's mother] nor Mrs. White have been very diligent in attempting to exercise visitation in the past but the Court wishes to assure both of them that the Court will assist in any way possible when and if any problems are brought to its attention.

Mary Lois Taylor White remains in flagrant and willful contempt of the orders of this Court pertaining to the division of property and has been since it was entered. The failure to pay the sums owing Plaintiff has been solely the fault of Mrs. White and she has had ample time, means, and opportunity to correct this situation. She has exasperated this Court in her refusal to comply with its orders (or to even bother to read the Court's orders according to her testimony). Her present financial condition, even if her testimony is completely believed, which it is not, is not a sufficient excuse as she has had ample funds to pay during the past two years. She may purge herself yet of this contempt by paying to the Clerk the sum of $6,983.51 on or before November 20, 1985. If payment has not been made in full by that time then the Sheriff of any County wherein Mrs. White may be located is ordered to incarcerate her promptly notifying the Court of such action and to hold her until further order of this Court or the receipt of $18,775.00, the total sum ordered previously. As a further condition to Mrs. White's purging herself of this contempt, she shall within 180 days of this order, have established and made all contributions due the trust fund for her son.

This order was dated October 18, 1985. Appellant raises the following points on appeal: (1) The trial judge erred in refusing to recuse from the case; (2) the court erred in denying appellant's petition for change of custody; and (3) the court erred in denying appellant any reasonable means to purge herself of contempt of court.

Appellant alleges that it was error for the chancellor to refuse appellant's motion for change of judge. Appellant's mother testified at the hearing on the motion that appellee had bragged to her about knowing all the judges and that he could "put them in his hip pocket." Another witness, James Merritt, testified that appellee's girlfriend, Merritt's wife, told him that appellee had worked for the judges, done favors for them, and that "it was time for a payback."

In Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), the Arkansas Supreme Court set out the following standard of review:

The fact that a judge may have, or develop during the trial, an opinion, or a bias or prejudice does not make the trial judge so biased and prejudiced as to require his disqualification in further proceedings. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. We find no Arkansas case where a trial judge has stated that he was without prejudice and could hear a case and, without more, we reversed that decision. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause us to reverse a judge's decision on disqualification.

Id. at 331, 651 S.W.2d at 455. It appears that we cannot say that there was an objective demonstration of prejudice by the judge in the case at bar. We cannot hold that the judge should have recused merely because of allegations of prejudice by a concerned party. There must be an objective demonstration of prejudice by the judge and none was proven here.

It is well-settled that the paramount and controlling consideration in custody cases is the welfare of the child. Bond v. Rich, 256 Ark. 51, 505 S.W.2d 488 (1974). The decree fixing custody of the child is final on conditions then existing and should not be changed afterwards unless on conditions altered since the decree was rendered or on material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. Id. at 53, 505 S.W.2d at 489. The evidence appellant presented as to change of conditions was the following: Testimony that appellant had remarried and was a permanent resident of Alabama and testimony that a married woman had resided in appellee's home for approximately four weeks while the child lived there also. Evidence indicated that the woman no longer lived there.

In cases involving child custody a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child's best interest. This court has no such opportunity. We know of no case in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great weight as one involving minor children. Calhoun v. Calhoun, 3 Ark.App. 270, 625 S.W.2d 545 (1981). In custody matters, the chancellor's finding of facts will not be overturned on appeal unless they are clearly erroneous. ARCP Rule 52; Calhoun v. Calhoun, 3 Ark.App. 270, 625 S.W.2d 545 (1981). In the case at bar, the chancellor's finding of no material change in circumstances substantial enough to justify change of custody is not clearly erroneous. Therefore, we find no merit in appellant's second point for reversal.

As her third point for reversal appellant alleges that the court erred by denying appellant any reasonable means to purge herself of contempt. The record indicates that since October 19, 1983, appellant has been held in contempt for failure to comply with the October 7, 1983, order. On August 1, 1984, appellant was found in willful contempt. It appears to this court that the chancellor in this case has made numerous attempts to allow appellant opportunities to purge herself of contempt.

The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). Punishment for contempt is an inherent power of the court. Id. at 710, 574 S.W.2d at 666. On appeal from a finding of contempt this court will reverse only where the finding of the chancellor is against the preponderance of the evidence. C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980). We find that the chancellor's...