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James v. Walchli

Court of Appeals of Arkansas, Division III

November 29, 2017



          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

          Phillip J. Milligan and Robert S. Tschiemer, for appellee.


         Liz James and Lee Walchli were divorced by decree entered on July 9, 2012. They have one child together, CW, and while they were married Liz adopted AW, who is Lee's child born before the marriage. Primary custody of AW was awarded to Lee, and primary custody of CW was awarded to Liz. The parties have been before the trial court several times since the divorce decree was entered. See, e.g., James v. Walchli, 2015 Ark.App. 562, 472 S.W.3d 504. In the instant appeal, Liz challenges the trial court's order directing her to cooperate with Lee in acquiring passports for the children by signing necessary application documents; the trial court's denial of her request for child support; and the trial court's award of attorney's fees to Lee. We do not address Liz's challenge of the order directing her to sign the passport applications because that issue is now moot. Otherwise, we reverse and remand the trial court's denial of child support; and we affirm the award of attorney's fees to Lee.

         The pending matter began with an April 6, 2015 "Motion for Court Order" filed by Lee in which he sought an order from the trial court directing Liz to fully cooperate, including any and all signatures needed, in order to secure the passports for the parties' youngest child, CW, as well as for AW. Lee wanted to secure the passports to ensure CW and AW would be able to travel with his family to Cancun, Mexico, for a vacation that was scheduled for June 26 through July 5, 2015.

         On April 20, 2015, Liz filed a motion for modification of order and motion to establish child support. On April 29, 2015, Lee filed a response. Then, there followed a series of motions for continuance, letters, and e-mail correspondence among the parties and trial court, and an order concerning how the matter of passport application would be heard by the court. As a convenience to the parties, the trial court offered a telephone hearing, but that provoked objections from Liz's counsel. Finally, the court decided to hold a telephone conference in the courtroom on May 28, 2015, with a court reporter present, which the parties could attend in person or not.

         The trial court opened the telephone conference by noting that "[W]e're here on - there's a number of motions pending, all of which are set for final resolution on a different date than today." Early in the conference, Liz's counsel raised the following objection: "My objection is, the Arkansas Rules of Civil Procedure do not provide for hearings to take place by phone. I object to anything dispositive taking place over the phone, whether it's called a telephone conference or a temporary hearing."

         Liz's position was that she is the custodial parent; she did not believe it was in CW's best interest to be issued a passport; she did not have a passport and could not get to CW if something were to happen; and she did not object to vacations within the United States, just no travel that involved a passport. She also raised a due-process-clause issue, citing Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), stating she was the custodial parent, entitled to the presumption she was acting in the child's best interest, extreme circumstances were not involved, and therefore intervention by the court violated her fundamental rights.

         Lee's position was that the telephone hearing was necessary to obtain an emergency order (not a dispositive order) to obtain Liz's consent and cooperation in executing the necessary documents for CW to get a passport. The trial court agreed, explaining the telephone hearing was to facilitate CW's getting a passport; any objections to his traveling to Mexico on June 26 could be dealt with at the subsequent hearing; and the court could decide then whether CW would be allowed to travel. The court then directed that a temporary or emergency order be drafted directing Liz to sign the papers necessary to facilitate CW's passport and to get them to Lee's counsel by the close of business on Friday, May 29, 2015.

         On May 29, 2015, the trial court entered its temporary order, which permitted Lee to apply for the passports for CW and AW; directed Liz to immediately sign any necessary consent forms to allow for the passports to be obtained; and specified that the necessary papers were to be delivered to Lee's counsel by May 29, 2015. The temporary order also directed Lee to file all discovery, including the requested financial information from him, which was to be provided under a protective order. The trial court revised its earlier oral ruling allowing a Rule 54(b) certificate, explaining in the temporary order it was denying Liz's request for Rule 54(b) certification because the matter was scheduled for a June 25, 2015 hearing at which time a final order would be entered. Liz proffered her Rule 54(b) certificate. Liz also filed her first notice of appeal on May 29, 2015.

         On June 1, 2015, Lee filed a motion for contempt, alleging Liz had failed to supply the passport documents as ordered. On June 2, 2015, the trial court entered its order for purposes of obtaining passports for the minor children. The order explained the history of Liz's noncompliance with the temporary order, and specifically provided that Lee could apply for and obtain United States passports for the parties' minor children without Liz's consent.

         On June 15, 2015, Liz filed her response to the motion for contempt. The gist of her response was to affirmatively state she had a good-faith basis for refusing to execute the documents because she believed the trial court was without jurisdiction to enter the order; the trial court's refusal to execute a Rule 54(b) certificate prevented her from appealing the temporary order; she was not successful in obtaining a writ of certiorari from the Arkansas Supreme Court; if she had executed the documentation for the passports as ordered, her issue for appeal would have been deemed moot; and regardless, the contempt motion had been rendered moot because Lee was able to obtain the passports with the entry of the trial court's subsequent order. On June 18, 2015, the trial court entered an amended order for purposes of obtaining the passports for the minor children.

         The scheduled June 25 hearing did not take place, but all the outstanding issues, including Liz's request for child support, were heard and addressed by the trial court in a hearing that took place the following year on July 11, 2016. Pertinent testimony from that hearing will be discussed under ...

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