Williams v. Ramsey

• Court: Arkansas Court of Appeals
• Writing for the Court: David M. Glover
• Citation: Williams v. Ramsey, 101 Ark. App. 61, 270 S.W.3d 345 (Ark. App. 2007)
• Decision Date: 19 December 2007
• Docket Number: No. CA 07-221.,CA 07-221.
• Parties: Walter John WILLIAMS, Appellant, v. Kimberly Williams RAMSEY, Appellee.

270 S.W.3d 345

101 Ark. App. 61

Walter John WILLIAMS, Appellant, v. Kimberly Williams RAMSEY, Appellee.

No. CA 07-221.

Court of Appeals of Arkansas.

December 19, 2007.

Naif S. Khoury, Fort Smith, for appellant.

Boyer, Schrantz, Rhoads & Teague, P.A., by: Johnnie Emberton Rhoads, Rogers, for appellee.

DAVID M. GLOVER, Judge.

This case, involving a thirteen-year-old child, represents the latest battle in a long court war between the parents following the entry of the divorce decree on September 17, 1993. Their daughter had been born only a few months earlier, on May 21, 1993. Primary custody of the child was awarded to the mother, appellee Kimberly Williams Ramsey. In this latest chapter of the couple's history of prolonged acrimony, appellee filed a petition/amended petitions for contempt, which included a request for modification of appellant Walter John Williams's visitation. The first petition in this regard was filed on November 1, 2005, and the last amended petition was filed on December 29, 2005. The hearing on the petitions began on June 20, 2006, and continued on June 28, 2006. The court's order was entered on August 7, 2006, finding that appellant was in contempt of prior court orders and also that appellant's visitation should be reduced to one Saturday a month, with summer visitation eliminated. This appeal followed. We affirm the trial court's decision with respect to contempt, but reverse and remand on the reduction in visitation.

Visitation Reduction

For his first point of appeal, appellant contends that the trial court erred in reducing his visitation with his child, particularly in light of Dr. Martin Faitak's testimony that a reduction or change in visitation would not be beneficial to the child. We agree.

In Sharp v. Keeler, 99 Ark.App. 42, 56-57, 256 S.W.3d 528, 538 (2007), this court set forth the standard of review concerning modifications to visitation:

In reviewing domestic-relations cases, this court considers the evidence de novo, but will not reverse the trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. It is also well settled under Arkansas law that reversal is warranted where a trial court modifies visitation where no material change in circumstances warrants such a change. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation. The main consideration in making judicial determinations concerning visitation is the best interest of the child. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. The fixing of visitation rights is a matter that lies within the sound discretion of the trial court.

As we often have repeated, the trial judge is the person in the best position to observe the parties and evaluate the witnesses, their testimony, and the child's best interest. Id.

Here, the trial court reduced appellant's visitation from every other weekend to one Saturday a month, with summer visitation eliminated. In reaching that conclusion, the trial court explained that the rules "that were put in place were not put in place to restrict Mr. Williams as an effort to punish him, but rather to stop a pattern of undermining, alienation, and problems that were being created for this child as a result of the behaviors. This Court has seldom gone as far as I've gone in this case. But what little support, what little cooperation I feel like I've gotten from Mr. Williams has been, primarily, such as the counseling efforts he made, window dressing."

In the August 7, 2006 order, the trial court found, inter alia, "that the defendant has undermined the relationship of the minor child and the plaintiff by calling his wife `Mommy' to the minor child and calling the plaintiff `Kim' to her. The defendant has undermined the minor child's relationship with her therapist, Dr. Martin Faitek. Further, he has undermined the minor child's acceptance of taking needed medication." Summarizing the order, the following items were of concern to the trial court: 1) that appellant only now agrees to get counseling and make the child take her medication, which had been previously ordered; 2) that appellant continues to believe that it is best for the child to live with him and call his wife "Mommy"; 3) that appellant has engaged in a consistent pattern of behavior violating the court's orders; 4) that because of appellant's actions, the child still holds out hope that she will be allowed to live with him, which destabilizes her home situation; 5) that his actions show a focus on himself rather than the child. In light of the foregoing, the trial court determined that a material change of circumstances had occurred and that it was in the child's best interest to modify visitation.

It seems clear from the record of this case that appellant has effectively been a troublemaker concerning the interrelationships among himself, the child, and appellee. It is difficult under such circumstances to segregate conduct that establishes contempt from conduct that justifies a change in custody or visitation. In Sharp v. Keeler, 99 Ark.App. at 56, 256 S.W.3d at 538, which involved a change of custody, supervised visitation, and contempt, we explained:

On this point, the dissent argues that this case was one of contempt, not change of custody. It is not either/or; it is both. We cannot ignore the fact that the trial court did hold Sharp in contempt on two separate bases. The record reflects that the court specifically noted that if it thought placing Sharp in jail for several days would cure the problem, then it would indeed simply be a contempt issue, but that this was in fact more.

(Emphasis added.) In Sharp, the offending parent's conduct was described as rising to the level of harassment and torment. We affirmed the change in custody, which was based on the trial court's determination that the mother acted in ways that were detrimental to the child and that parental alienation on her part constituted a material change of circumstances that warranted a change of custody. We reversed the trial court, however, and remanded on the issue of the change to supervised visitation, explaining:

In short, we find that there was no evidence to support the trial court's decision that Sharp should only receive four hours of supervised visitation per week, and we hold that that decision was clearly against the preponderance of the evidence. We direct that the trial court award Sharp the same unsupervised visitation that Keeler enjoyed prior to the change of custody....

99 Ark.App. at 58, 256 S.W.3d at 539.

Here, it is perfectly understandable that the trial court has grown frustrated and weary of dealing with a father who appears to put himself above the best interests of his child and who seems determined to act like a child himself in dealing with his own child and his ex-wife. However, even recognizing the father's bad conduct, we cannot overlook the evidence that was before the trial court, and we have concluded that it does not rise to the level that would constitute a change of circumstances, especially in light of the fact that Dr. Faitak testified that a reduction in visitation would not be beneficial to the child. We, therefore, reverse the trial court's decision to reduce visitation and order the trial court to reinstate the prior visitation schedule.

Contempt

For his remaining...