dissenting. I agree with the majority’s decision that, because Judge Capeheart acknowledged that he could not be fair when he recused from presiding over this proceeding, he should not have found appellant in contempt, and Judge Lowery’s revocation of the $500.00 sanction imposed by Judge Capeheart was invalid. However, I disagree with the majority’s conclusion that Judge Lowery erred in finding Ms. Wakefield in contempt after she denied visitation on November 1 and 2 of 1996.
In a contempt proceeding, it is the chancery court’s duty to determine whether the alleged contemnor willfully disobeyed a previous court order. Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993). When there are conflicts in the testimony, it is the duty of the appellate court to give the same force to findings of the trial court in contempt proceedings as in other cases when the testimony is conflicting, and every presumption must be indulged in favor of the trial court’s judgment. Dennison v. Mobley, Chancellor, 257 Ark. 217, 515 S.W.2d 215 (1974).
In the instant case, the chancery court gave great credence to the testimony of Dr. Feir. It was her opinion that there was insufficient evidence of sexual abuse and that visitation should not be restricted in any way. While it may be true that Ms. Wakefield’s fears were not completely unfounded, it is undisputed that, prior to deliberately denying visitation, she failed to petition the chan-eery court for a temporary, emergency waiver of the visitation schedule. Indeed, the chancery court was not notified of her failure to permit the scheduled visitation until Mr. Wakefield subsequently filed a petition for change of custody and motion for contempt.
I am not unsympathetic to a parent’s interest in protecting his or her child from what is perceived to be a potentially dangerous situation. However, in my view, if a parent willfully disregards a court order regarding visitation, and does so without any effort to obtain emergency relief from the appropriate chancery court, the parent proceeds at his or her peril. If the evidence adduced at a subsequent hearing reveals to the satisfaction of the chancellor that the child’s safety would not have been compromised, then the intentional failure to allow visitation is without justification and an order of willful contempt is the proper sanction. I submit that this is exactly what occurred in this case.
I would affirm Judge Lowery’s finding of contempt1, and would further affirm the $4,550.00 expert-witness fee award and the chancellor’s decision to require court approval prior to seeking further psychiatric evaluations. A chancellor has the inherent power to make an innocent party whole from the consequences of another party’s contempt, see Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995), and in the case at bar it is apparent that the retention of Dr. Feir as an expert witness was necessitated by Ms. Wakefield’s refusal to permit visitation. This is true because her testimony was elicited to rebut the evidence tending to show that Heather showed signs of being abused by her grandfather, and that as a result the denial of visitation was justified. As for the requirement that any further psychiatric treatment is prohibited without prior court approval, it is important to note that Ms. Wakefield is still able to seek DHS counseling for her children, and she is free to petition the court for further counseling or treatment if more substantial symptoms of abuse surface. This requirement was warranted based on the chancellor’s finding that there was insufficient evidence of sexual abuse and Ms. Wakefield was exposing Heather to a potentially damaging situation.
For the reasons expressed above, I respectfully dissent.
Rogers, J., joins in this dissent.
While the majority finds that Judge Lowery’s finding of contempt was ineffective because it was premised on a violation of visitation orders set by Judge Capeheart in a proceeding in which he should have recused, I disagree with this assessment. Judge Capeheart’s order recited that the $500.00 attorney’s fee was suspended conditioned on Ms. Wakefield’s compliance with orders previously entered. The order does not reflect the imposition of any additional visitation requirements. Therefore, it is apparent that Judge Lowery’s finding of contempt was for a violation of visitation orders that were issued prior to the October 30, 1996, hearing before Judge Capeheart.