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Barham v. Bowman

Court of Appeals of Arkansas, Division II

October 4, 2017

JESSI BARHAM APPELLANT
v.
DANIEL BOWMAN APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-12-1278] HONORABLE DOUG SCHRANTZ, JUDGE

          James E. Hensley, Jr., for appellant.

          The Nixon Law Firm, by: Theresa L. Pockrus, for appellee.

          Virden and Murphy, JJ., agree.

          DAVID M. GLOVER, JUDGE

         Jessi Barham and Daniel Bowman were divorced by decree entered on September 4, 2012. They have three children together. At the time of the underlying proceedings in the instant case, M.B. was ten and the twins, K.B and J.B., were six. Jessi appeals from a post-divorce order addressing matters of child support, visitation, and contempt, contending the trial court erred in three ways: 1) the court held her in contempt based on the testimony of Daniel's wife, who claimed she had a recording of Jessi praying with the children over the phone that they would not have to return to Arkansas but failed to enter the proof into evidence; 2) the court placed Jessi in jail while allowing Daniel to avoid jail; and 3) the court ordered only Jessi to pay attorney's fees although Daniel was in arrears on child support for more than $19,000 and did not award her 10% interest. We affirm in part and remand in part.

         Soon after the parties divorced, Jessi remarried and moved to Washington state with the children. Daniel moved to Washington in March 2015, worked for Jessi's new husband, and saw the children often. He then returned to Arkansas in October 2015 and remarried in July 2016.

         On March 17, 2016, Jessi filed a petition for contempt, alleging Daniel was in arrears on child support and had refused to pay his share of dental, medical, and hospitalization expenses. She requested a show-cause hearing. On May 23, 2016, Daniel filed a counter-petition for contempt, alleging that Jessi had made derogatory remarks about Daniel to the children, had interfered with his telephone visitations with the children, and had failed to provide him with school and medical information about the children. He, too, requested a show-cause hearing.

         On May 26, 2016, the trial court entered a temporary order. The order provided in part that because of Jessi's move to Washington and Daniel's return to Arkansas, the previously ordered visitation schedule was no longer feasible; that Daniel would be filing a motion to modify visitation; that for the summer of 2016, Daniel was to have the children from July 11 to August 18; and that the contempt issues would be reserved until the final hearing in the matter. Daniel filed his motion to modify visitation on June 16, 2016.

         On July 14, 2016, Jessi filed an amended petition for contempt and also sought modification of Daniel's visitation and child-support obligations. An amended temporary order was entered on July 21, 2016, slightly altering the dates for the summer visitation set out in the May 26 order and also addressing the manner in which the children would be transported. On August 8, 2016, Daniel filed an amended motion for modification of visitation and an amended counter-petition for contempt. On September 15, 2016, Jessi filed an amended petition for contempt.

         A hearing on these matters was held on September 26, 2016. The testimony provided at the hearing will be discussed infra as it pertains to the issues raised in this appeal. At the conclusion of the hearing, the trial court entered its order of contempt against Jessi. In it, the trial court found Jessi to be in criminal contempt of court orders and sentenced her to five days in jail, to begin immediately. On September 27, 2016, the trial court entered its order releasing Jessi from jail and suspending the remaining four days of her sentence. She was further ordered to pay Daniel's attorney's fees in the amount of $1,000.

         On October 31, 2016, the trial court entered its order concerning the matters addressed at the September 26 hearing. The order provided in part that the parties had stipulated Daniel had paid only $22,553 of his $32,016 child-support obligation, leaving an arrearage of $9,463, which was "exclusive of $10,400 paid by [Daniel] from childcare tax credits received by [him] because [Jessi] allowed him to claim the minor children as tax dependents." In addition, the trial court found that Daniel was not entitled to a credit for the $10,400 payments he had made from the tax credits, which brought the total child-support arrearage to $19,863, through September 30, 2016. The order provided the manner in which the arrearage was to be paid; awarded Jessi attorney's fees in the amount of $1,986.30 (10 percent of the child-support arrearage); and ordered Daniel to pay Jessi's costs for having brought the action. No mention was made in the order regarding ten-percent interest on the arrearage. The trial court found Daniel to be in contempt for failing to pay his child-support obligation as ordered and sentenced him to thirty days in the county jail, which was held in abeyance on the condition that he pay his child support and arrears as ordered. The order modified Daniel's child-support obligation, setting the amount at $173 per week (based on Daniel's net income of $521 per week), effective July 14, 2016, which was the date the petition for modification had been filed. The order set forth the manner in which payments would be made and also noted that Daniel was entitled to an abatement of one-half of his child-support obligation anytime he exercised visitation with the children in excess of fourteen consecutive days. The trial court further specified the manner in which the children were to be transported, set the amount and timing for telephone visits, and modified the visitation schedule. Finally, the trial court set forth its contempt finding with respect to Jessi, which will be set out in more detail infra.

         Jessi's first two points of appeal challenge the trial court's contempt ruling with respect to her and can best be discussed together. For her first point, she contends that the trial court held her in contempt "based on the testimony of [Daniel's wife] who claimed she had a recording of [Jessi] praying with the children over the phone that they would not have to return to Arkansas but failed to enter the proof into evidence." For her second point, she contends that the trial court committed reversible error when it "placed [Jessi] in jail when allowing [Daniel] to avoid such." We find no merit in her arguments.

         At the September 26 hearing, Francis Bowman, Daniel's wife, testified on direct examination that she had had occasions to listen to the conversations between the children and their mother and that she had made some notes of the conversations. She stated that Jessi would tell M.B., the older child, to watch out for the twins because Daniel and Francis were unfit to do so. She said that Jessi never referred to Daniel as "dad" when she talked to the children, calling him Daniel instead and referring to him as a "deadbeat." She further recalled that Jessi would tell the children that she was trying to get them to never come back to Arkansas and that Jessi would pray with the children over the phone, praying to Jehovah that the children would never have to come back to "this awful place and be with us." She said that Jessi told M.B. she was trying to get Daniel put in jail because of the "I-Pad incident"; that she had assured Jessi she and Daniel had not pawned the I-Pad; and that they had just taken it away from M.B. because "no child in the home had any kind of electronics." On cross-examination, when asked if she listened to all the conversations between Jessi and the children, Francis responded, "No." When asked if she made them talk on the speaker phone, Francis explained that the children spoke to Jessi on the speaker phone so all three could speak to her at the same time. When asked if she recorded any of the conversations, Francis stated, "I recorded a few, yes, ma'am." And when asked if she had the recordings with her that day, Francis said she did not; when asked if they backed up the testimony she had given, she said, "No. The ones that I have recorded do not." In addition to Francis's testimony, Daniel was called as a witness in Jessi's case and in his own case. In Jessi's case, he testified in part that Jessi had labeled him "deadbeat dad" on M.B.'s I-Pad. Jessi testified in part that she had never prohibited Daniel from bringing the children to Arkansas; that she had never told the children she was going to have Daniel ...


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