dissenting. This case involves multiple instances of contempt of court by refusal to permit appellee’s court-ordered visitation, including instances that took place after the show cause order had issued. No one can contest that appellant’s behavior shows a clear pattern demonstrating complete disregard of the trial court’s orders. Nor can it be contested that appellant’s contumacious actions are harmful to her child. Nevertheless, the majority holds that an Arkansas court of equity lacks the authority to permit police officers directly charged with enforcement of its restraining order to make arrests for violations of the order committed in their presence. I respectfully dissent.
Based upon the trial court’s finding of chronic and unrelenting refusal to comply with the visitation order, the permanent restraining order authorized police officers to pick up the child and deliver her to appellee for visitation. It also authorized those police officers to arrest appellant should she again willfully violate the restraining order. Appellant argues that this authorization to arrest is outside the scope of the trial court’s authority because it violates separation of powers by vesting in officers of the executive branch the judicial power to find and punish for contempt.
Appellant’s argument that the order appealed from runs afoul of the separation-of-powers doctrine is specious at best. First, appellant’s argument fails because it is based on a false premise. The restraining order does not permit police officers to make a finding of contempt and imprison appellant as punishment therefor, but instead merely permits them to arrest appellant upon reasonable belief that she has violated the restraining order. Nothing in the order implies that appellant would not then be brought before the court as required by law. See, e.g., Ark. Code Ann. § 12-ll-104(a) and (b) (Supp. 2007). Authority to arrest in such circumstances is no more an imposition of punishment than is any other arrest based on reasonable cause. It is simply execution of an order of body attachment. Whether or not the appellant would be found in contempt, and whether any contempt found would be coercive or punitive, is simply not addressed in the order. To simply assume, as the majority does, that the order in fact authorized an illegality is to disregard the presumption of regularity that attaches to judgments rendered by courts of general jurisdiction. See Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); Bramucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001). Instead of applying this strong presumption of correctness to the trial court’s order, the majority, for reasons that are not entirely clear, turns the law on its head by presuming that an order regular on its face is not in accordance with the law. See Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937).
The underlying question is whether the trial court has authority to “pre-authorize” arrest for contempt.1 Arkansas has a statute governing contempt, Ark. Code Ann. § 16-10-108 (Supp. 2007), but the Arkansas Supreme Court has made it very plain that the power to punish for contempt is inherent in the courts under the Arkansas Constitution and that the legislature may neither enlarge nor diminish it. See, e.g., Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002); Osborne v. Power, 322 Ark. 229, 908 S.W.2d 340 (1995). The law relating to contempt is thus based in the common law, and is limited only by the federal and state constitutions. T. Crabtree, Contempt Law in Arkansas, 51 Ark. Law Rev. 1 (1998). There is common-law authority for the proposition that police officers may, under certain circumstances, make arrests for contempt of court when they are acting in the capacity of officers of the court charged with enforcing the court’s orders. In State v. Compton, 96 Ohio App. 541, 123 N.E.2d 43 (1953), the trial court found that its previous orders in a labor dispute had been inadequately implemented and therefore directed the sheriff to assign deputies to prevent violations of the court’s order and to make arrests whenever warranted. The appellate court approved that order in the following language:
The deputies appointed by virtue of that order were officers of the court and were cruising the district. Consequently, it may well be said that violations of the injunction in the presence of these deputies was in the presence of the court, and that they would have been justified in making arrests for a violation thereof on the spot.
State v. Compton, 96 Ohio App. at 550-51, 123 N.E.2d at 48.
In the present case, the trial court directed police officers to assist in the implementation of its order by transporting the child; as such, they were officers of the court for that purpose and were, pursuant to Compton, authorized to make arrests for violation of the order. See Ark. Code Ann. § 16-81-106(e) (Repl. 2005) (arrest authorized when ordered by magistrate or judge for offense committed in presence of the court); Lockett v. State, 145 Ark. 415, 224 S.W. 952 (1920) (refusal to answer a question posed by the grand jury punishable as a contempt committed in the presence of the court because “[t]he grand jury system is a part of the machinery of the court. Under our system of procedure, the court could not function without this strong arm. In the hearing and presence of the court necessarily relates to its constituent, functioning parts”); see generally 17 C.J.S. Contempt § 76 (1999).
It is difficult to understand how the majority arrived at its conclusion that the trial court’s order violated the separation-of-powers doctrine. It is more difficult still to understand how appellant could possibly have been prejudiced by the asserted error. The officers in this case were charged pursuant to the restraining order with enforcement of the visitation order, by arrest if necessary. Keeping or enticing a minor from a person entitled by court order to visitation with the minor is criminally proscribed as Interference with Child Visitation, a Class C misdemeanor, pursuant to Ark. Code Ann. § 5-26-501 (Repl. 2006). Because the police officers were charged with enforcement and facilitation of visitation pursuant to the restraining order, they would necessarily be present at the time that this offense was committed, and police officers are authorized by law to make arrests for misdemeanors committed in their presence. Ark. R. Crim. P. 4(a)(iii); Ark. Code Ann. § 16-81-106(c)(l) (Repl. 2005). Therefore, the restraining order did not authorize police officers to do anything that they were not already authorized to do pursuant to rule and statute, and appellant suffered no prejudice.
Today’s holding strips Arkansas courts of equity of their historic ability to mold a remedy suitable to the evil to be addressed. See Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986). This is particularly lamentable in this case. Without the ability to authorize the immediate arrest of a parent for violation of a restraining order based on intransigent and continuous refusal to allow court-ordered child visitation, the trial court is left with no alternative other than ignoring the violation, or instead ordering punitive imprisonment of the offending parent, a measure that generally will be tantamount to a change of custody. Furthermore, in a case such as this where our review of the trial court’s order is de novo, to reverse, rather than simply modify the trial court’s order to comport with the majority’s view of the dictates of the constitution, demonstrates great insensitivity to the situation in which a noncustodial parent is placed when the custodian systematically refuses to comply with a visitation order. In such circumstances, the evil to be remedied is delay, yet we compound the delay by reversing rather than simply affirming the order as modified. Today’s decision will encourage more bitter parents to use their children as pawns in their pointless, egotistical battles with noncustodial parents. Because the law does not require this result, and because the majority’s holding will have disastrous consequences for the children of these shattered families, I respectfully and earnestly dissent.
The majority holds that the trial court’s order violated the separation-of-powers doctrine. Article 4, section 1 of the Arkansas Constitution divides the governmental power of the State of Arkansas into legislative, executive, and judicial departments, and article 4, section 2 provides that no person or collection of persons, being one of these departments, shall exercise any power belonging to either of the others except as expressly permitted. In this context, it has been held that, although the legislature may not delegate its legislative authority, it may, by providing guidelines, delegate to officials belonging to another branch of government the power to determine certain facts, or the occurrence of a certain contingency, upon which the operation of a statute is by its terms made to depend. Venhaus v. State ex rel. Lofton, 285 Ark. 23, 684 S.W.2d 252 (1985). Here, the trial court’s order directed police officers to arrest appellee if they determined that appellee was in violation of the court’s visitation order. To my mind, the analogy is perfect: nothing in the trial court’s order permitted executive-branch police officers charged with its execution to impose punishment for contempt, but instead the order simply and expressly permitted them to arrest appellee if they determined that the fact or contingency of a violation of the visitation order occurred in their presence. This the Arkansas Constitution does not forbid.
In our earlier opinion in this case, from which this rehearing arose, we stated in dicta that there had been no constitutional violation. It is important to note that this was dicta: our holding that no error was committed in directing police officers to arrest appellee for violation of the order was based not on the Arkansas Constitution but instead on an Arkansas statute that made interference with visitation a criminal offense. Today’s holding, however, rests squarely upon the majority’s interpretation or construction of the Arkansas Constitution. I find it ironic that the majority’s erroneous decision that the trial court exceeded its constitutional authority is itself a clear and gross violation of the constitution; that is, Amendment 80, section 5 of the Arkansas Constitution vests in the Arkansas Supreme Court exclusive authority to determine the jurisdiction of the Arkansas Court of Appeals, and the supreme court has exercised that authority by reserving unto itself the exclusive jurisdiction to either interpret or construe the Arkansas Constitution. Ark. Sup. Ct. R. l-2(a)(l).