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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-180
Opinion Delivered September 24, 2014
RAYNE PHILLIPS
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
[NO. 63DR 2010-60-4]
V.
HONORABLE ROBERT LEO
HERZFELD, JUDGE
DAVID PHILLIPS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Rayne Phillips seeks a reversal of the August 7, 2013 and November 8,
2013 orders of the Saline County Circuit Court. Appellant argues that the circuit court erred
in finding her in contempt, limiting her visitation rights, and imposing attorney’s fees to be
paid by her. We affirm.
Appellant and appellee David Phillips are the parents of three minor children, and
pursuant to a previous order of the circuit court, appellee has primary custody subject to the
visitation rights of appellant. When appellee originally was awarded custody, appellant was
granted standard visitation of every other weekend, certain holidays, and summer.
Approximately two months later, the circuit court found appellant in contempt of court,
sentenced her to thirty days in jail with twenty-eight days suspended, limited visitation for
thirty days to four hours on every other Saturday and Sunday, and required the visitation to
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be supervised. Without any further incident during the thirty-day period, the visitation
would be every other weekend but would still be supervised. Five months later, appellant’s
visitation with the minor children was limited to supervised visits of four hours on every
other Saturday and Sunday. Within three months of the entry of the order, appellee filed
yet another motion for contempt and to terminate visitation. After appellant filed a response
to the motion, the circuit court held two hearings on the motion.
At the hearings, appellee testified about negative communications made by appellant
to him and to the children and also presented exhibits of the communications. Appellant did
not dispute the fact that she sent the communications, but she explained that during the
period between the two hearings she sought counseling and completed anger-management
and transparenting classes. The record indicates that there were no additional negative
comments around the children during this time period.
Following the hearings, the circuit court entered an order finding appellant in
contempt of court. She was sentenced to twenty-eight days in jail, her visitation was limited
to four hours every other Sunday, and she was ordered to pay $2500 in attorney’s fees.
Appellant filed a timely notice of appeal.
Child-visitation cases are reviewed de novo on the record and will not be overturned
unless clearly erroneous. Johnson v. Cheatham, 2014 Ark. App. 297, 435 S.W.3d 515. The
circuit court maintains continuing jurisdiction over visitation and may modify or vacate those
orders at any time when it becomes aware of a change in circumstances or of facts not
known to it at the time of the initial order. See id. This turns largely upon the credibility
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of the witnesses; though the appellate court typically defers to the superior position of the
circuit court to determine credibility. Id. Here, as in Sharp v. Keeler, 103 Ark. App. 233, 288
S.W.3d 256 (2008) (“Sharp II”), and Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d
836 (1989), the circuit judge was familiar with the parties because they had been before him
several times.
This court in Albarran v. Liberty Healthcare Management, 2013 Ark. App. 738, 431
S.W.3d 310, noted that the proper standard of review of a contempt order depends on the
type of contempt. The court stated:
The standard of review in contempt cases depends on the kind of contempt
that is at issue. Contempt is divided into criminal contempt and civil contempt.
Criminal contempt preserves the power of the court, vindicates its dignity, and
punishes those who disobey its orders. Civil contempt, on the other hand, protects
the rights of private parties by compelling compliance with orders of the court made
for the benefit of private parties. Because civil contempt is designed to coerce
compliance with the court’s order, the civil contemnor may free himself or herself by
complying with the order. This is the source of the familiar saying that civil
contemnors “carry the keys of their prison in their own pockets.”
Albarran, 2013 Ark. App. 738, at 3–4, 431 S.W.3d at 313 (internal citations omitted).
Although a sentence of twenty-eight days in jail was imposed on appellant by the circuit
court, we hold that the substantial-evidence standard of review for a criminal contempt is not
applicable in this case. The Albarran case, as with the current case, involved the circuit court
directing a litigant to do something—in Albarran to pay attorney’s fees, and here to comply
with the circuit court’s directives concerning negative communications directed toward
appellee and the parties’ children. The imposition of punishment in both cases was
postponed pending compliance. That suspension or delay, as held specifically in Albarran and
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in this case, was itself intended to be, and was, coercive pending the party’s failure to comply.
At some point appellant demonstrated that the sanction had not coerced her behavior, and
the later imposition of the sentence does not convert it into a criminal contempt.
There is a less stringent standard to sustain civil-contempt orders. In Dennison v.
Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974), the Arkansas Supreme Court noted that civil-
contempt orders are reviewed on appeal to determine whether they are arbitrary or against
the weight of the evidence, as opposed to the substantial-evidence standard of review for
criminal-contempt orders. The Dennison court clarified that, under either standard, on
appeal, every presumption must be indulged in favor of the circuit court’s judgment. Id.
I. Incarceration
Appellant was originally punished for contempt in October 2012 by the imposition
of a sentence of thirty days in jail with twenty-eight days suspended, provided that she
continued to obey the orders of the circuit court. The circuit court’s November 8, 2013
order states that “the Court hereby imposes the remaining 28 days of that 30 day suspended
sentence of incarceration previously imposed for prior such contempts.” Appellant claims
that the circuit court was without authority to impose the suspended sentence.
She cites Higgins v. Merritt, 269 Ark. 79, 80, 598 S.W.2d 418, 419 (1980), for the
argument that an attempt to suspend the execution of a sentence for contempt of court,
other than a mere postponement, is invalid and amounts to a complete remission of the
punishment. See also Sharp II, supra. Alternatively, assuming that the circuit court had the
authority to impose a new sentence for her violation of the circuit court’s orders, appellant
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urges that the amount of jail time imposed was excessive. She maintains that when there are
mitigating circumstances, as there are here, and the ends of justice can be adequately
sustained by the serving of some part of a jail sentence, our practice has been to modify the
judgment by reducing the punishment imposed. See Dennison, supra. Appellant argues that
her attempt to seek professional help and her change of behavior since the first hearing
constitute mitigating circumstances that should be considered by the court and that, at a
minimum, the amount of jail time imposed for contempt should be reduced.
We find no error and affirm the circuit court’s findings on this issue. Although a
circuit court cannot indefinitely suspend a contempt sentence, it can conditionally postpone
it. See Kilman v. Kennard, 2011 Ark. App. 454, 384 S.W.3d 647. In the current case, the
circuit court repeatedly made clear that the previously postponed sentence remained capable
of being imposed, specifically conditioned on appellant’s future harassing or alienating
behavior. While in some cases Arkansas appellate courts have sustained findings of contempt
but reduced the punishments, that usually occurs on the basis that the deterrent effect had
already been accomplished. We note that here, the deterrent effect was not met by the serial
progressive prior sanctions ordered in this case. Accordingly, we hold that incarceration for
such repeated disrespect toward the circuit court, as well as the defamatory comments toward
the opposing party and his new wife, and to the children, is appropriate. See Williams v.
Ramsey, 101 Ark. App. 61, 270 S.W.3d 345 (2007).
As to severity of punishment, we hold that the twenty-eight-day incarceration
imposed was not arbitrary or against the weight of the evidence, particularly in light of the
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history of this case. The evidence before us supports the punishment imposed by the circuit
court after multiple and consistent prior warnings and sanctions. Additionally, in scheduling
the time to be served on Saturdays, with an option to serve her sentence in advance, the
circuit judge attempted to ensure appellant’s punishment conflicted neither with her job nor
the visitation time she still enjoyed with the children and was as “convenient” as possible for
her.
II. Limitation on Visitation
Appellant next argues that the circuit court attempted to further punish her by
limiting her visitation rights. Her visitation went from standard visitation to four hours’
supervised visitation every other Saturday and Sunday, to four hours’ supervised visitation
every other Sunday. An order regarding custody or visitation cannot be modified to reward
or punish either party, see Fitzpatrick, supra, and appellant claims that here, visitation was not
limited in the best interest of the children, but rather for the purpose of punishment.
Appellant notes that appellee acknowledged that the children want to see her, and she claims
that the continued reduction in her visitation rights is not improving the situation between
the parties.
Appellant acknowledges that the circuit court included specific language in its order
that the further limitation in visitation was in the best interest of the children. But she claims
that the mere use of the language does not mean there was an actual showing that the further
limitation on visitation was in the best interest of the children. Appellant maintains that there
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is no evidence in the record that the children were actually harmed by her actions, even
though, in addressing the issue, the circuit court stated:
And I don’t agree at all with Ms. Skarda’s characterization that there’s been no harm
to the children. It would be impossible for them not to have been affected negatively
by the despicable things that Ms. Phillips has done and said to them about their family
and to them about their role in her being punished and their role in minimizing or
limiting her ability to see them. That will carry with them the rest of their lives.
There is no doubt in my mind. For anybody to say otherwise - - well, I think it’s on
its face just terribly, terribly wrong.
Appellant urges that the circuit court’s conjecture is not sufficient and that there must be
concrete proof of likely harm to the children. Moix v. Moix, 2013 Ark. 478, 430 S.W.3d
680. She claims that none was presented in this case, and the circuit court erred in further
limiting her visitation.
In Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664, we held that contempt
should be first used to address minor visitation issues, and that supervision or other
curtailment of visitation should be reserved for the extraordinary case. Here, in addition to
the written orders entered in this case, appellant had been admonished directly by the circuit
court in at least the three hearings held March 1, 2013, July 22, 2013, and October 21, 2013,
referencing the prior warnings that led to the circuit court’s earlier orders. This matter was
the fifth time the parties had returned to circuit court since their January 2011 divorce, and
each time related to the same issues.
Appellant’s verbal assaults continued to place the children in the middle of
proceedings telephonically, and by electronic correspondence directed to the children, before
and after the July 22, 2013 hearing. Appellant repeatedly referred to appellee and his family
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as “liars,” “bastards,” and “dumb-ass people.” Appellant’s activities that were the subject of
these proceedings occurred long after she attended the transparenting class, took anger-
management classes, and even as counseling was ongoing. Appellant’s testimony on July 22,
2013, proves that, even at that point in the proceedings, she at best still did not understand
what constituted proper communication, and at worst could not restrain herself from
engaging in inappropriate communication.
We distinguish Moix, supra, because appellant’s pattern of communication at issue here
was objectively and specifically intended to undermine and erode the children’s respect and
love for appellee and his family. In Moix, the father’s partner, exposure to whom formed the
basis of the complaint, was described as “loving,” “caring,” and “fun.” Even the supreme
court, in its ruling limiting contact between children and the allegedly “harmful influence,”
indicated that he posed “no threat to the health, safety, or welfare” of the children. No
similar characterization can be made of appellant’s statements, and no expert testimony or
further translation is required to prove that the communications were harmful on their face
to the children to whom they were directed. In limiting Moix, this court has held that where
the harm, particularly of alienation, is self-evident, it does not need to wait for proof of actual
harm to befall the children by completion of the alienation process to protect them from it.
Boudreau, supra; Hanna v. Hanna, 2010 Ark. App. 58, 377 S.W.3d 275.
The circuit judge unsuccessfully explored many alternatives by the time that he ruled
on October 21, 2013. In light of appellant’s continued refusal to control herself when
communicating to the children despite numerous admonitions, orders, threats, and
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punishments by the circuit court, we hold that this is an example of an extraordinary case
where the circuit court’s ruling severely curtailing visitation should be affirmed. See Grove
v. Grove, 2011 Ark. App. 648, 386 S.W.3d 603 (upholding supervised visitation following
alienation). The circuit judge had attempted to prevent the children’s exposure to
appellant’s communication, but the multiple attempted potential punishment options
imposed to prevent further such communication were unsuccessful. We hold that the record
contains sufficient evidence to support the circuit court’s decision to further limit appellant’s
visitation.
III. Attorney’s Fees
In the present case, the circuit court awarded $2500 attorney’s fees to appellee based
on the testimony of appellee as to the amount he incurred in the litigation. It is appellant’s
position that the proper procedure was not followed by the circuit court as governed by
Arkansas Rule of Civil Procedure 54(e), in that appellee never filed a motion with the circuit
court and never stated under which rule or statute he was entitled to attorney’s fees. In
addition, she argues that there was no opportunity for her to challenge the exact amount of
attorney’s fees requested or a chance to review the actual billing statements of appellee’s
attorney.
We do not reach the merits of appellant’s argument on this issue because her
arguments against the award of attorney’s fees were never made below to the circuit court.
Arkansas appellate courts have repeatedly stated that they will not consider arguments not
made below, see Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008), and that one
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cannot change the basis for an objection on appeal. Boellner v. Clinical Study Ctrs., LLC,
2011 Ark. 83, 378 S.W.3d 745.
Affirmed.
WOOD and BROWN , JJ., agree.
Skarda Law Firm, by: Cecily Patterson Skarda, for appellant.
Jensen Young & Houston, PLLC, by: Perry Y. Young, for appellee.
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