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Phillips v. Phillips

Court of Appeals of Arkansas, Division III

September 24, 2014

RAYNE PHILLIPS, APPELLANT
v.
DAVID PHILLIPS, APPELLEE

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63DR 2010-60-4. HONORABLE ROBERT LEO HERZFELD, JUDGE.

Skarda Law Firm, bye: Cecily Patterson Skarda, for appellant.

Jensen Young & Houston, PLLC, by: Perry Y. Young, for appellee.

WOOD and BROWN, JJ., agree.

OPINION

Page 902

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 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.

Page 903

See id. This turns largely upon the credibility 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 ...


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