Angela Styles v. James Styles ( 2024 )

Cite as 2024 Ark. App. 435ARKANSAS COURT OF APPEALS
DIVISION II
NO. CV-22-152
Opinion Delivered September 18, 2024
ANGELA STYLES APPEAL FROM THE POPE
APPELLANT COUNTY CIRCUIT COURT
[NO. 58DR-18-53]
V.
HONORABLE GORDON W. “MACK”
MCCAIN, JR., JUDGE
JAMES STYLES
APPELLEE AFFIRMED IN PART; REVERSED IN
PART; REVERSED AND REMANDED
IN PART; DISMISSED IN PART
KENNETH S. HIXSON, Judge
This is a divorce case. Appellant Angela Styles and appellee James (Jamey) Styles were
divorced by a decree entered on February 10, 2020. The trial court noted in the divorce
decree that the decree was not a final order because numerous issues remained undecided,
and a final order was entered on July 27, 2021, that decided the issue of child custody and
the other issues relevant to this appeal. Among other provisions, the July 27, 2021, order
awarded Jamey custody of the parties’ four minor children subject to Angela’s visitation and
ordered Angela to pay child support. On August 24, 2021, the trial court entered an order
awarding Jamey attorney’s fees and costs of $54,737.52. Angela timely appealed from both
the final order and the order awarding attorney’s fees.
Angela raises eight arguments on appeal. Angela argues that (1) the trial court erred
in awarding custody of the children to Jamey; (2) the trial court erred in limiting Angela’s
visitation; (3) three contempt findings were erroneous; (4) the award of child support going
forward was erroneous; (5) the award of back child support was erroneous; (6) the trial court
erred in requiring Angela to pay half of the private-school expenses Jamey incurred; (7) the
restrictions on the children’s relationship with Angela’s twin sister, Andrea Chrisman, was
erroneous; and (8) the attorney-fee order was erroneous. For the reasons explained herein,
we affirm in part; reverse in part; reverse and remand in part; and dismiss in part.
I. Standard of Review
Our standard of review in domestic-relations cases is well settled. This court reviews
domestic-relations cases de novo, but we will not reverse the trial court’s findings unless they
are clearly erroneous. Doss v. Doss, 2018 Ark. App. 487, 561 S.W.3d 348. A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake has been committed. Id.Due deference is given to the trial court’s superior position to determine the credibility of
witnesses and the weight to be given their testimony. Id. As to issues of law, however, we
give no deference to the trial court; rather, we review issues of law de novo. Hargrove v.
Hargrove, 2015 Ark. App. 45, 453 S.W.3d 683.
II. Facts and Procedural History
2
Angela and Jamey were married in 1985. The parties have five children: Silas, born
in 2000;1 MC1, a girl born in 2003; MC2, a girl born in 2005; MC3, a girl born in 2011;
and MC4, a boy born in 2011. During the marriage, the parties lived with their children in
a house in Coal Hill, and they also had a nearby farm. Angela is a dermatologist with her
own clinic, and Jamey is a farmer. All the children were home schooled, primarily by Angela,
during the marriage.
The parties’ relationship began to deteriorate over the years and became particularly
contentious around 2014. In February 2017, the parties separated; Jamey moved out of the
marital home and into a vacant employee-housing cabin on the family farm. For the next
year, the children lived with Angela in the marital home while Jamey maintained contact
with the children.
On February 5, 2018, Jamey filed a complaint for divorce alleging general indignities
as grounds, and in his complaint, Jamey asked to be awarded custody of the children. 2 At
the time Jamey filed for divorce, he had moved from the cabin on the family farm to a house
in Russellville. Contemporaneous with his divorce complaint, Jamey also filed a motion for
1
Although Silas was a minor when Jamey filed for divorce, he was an adult at the time
of the parties’ divorce and when the final order was entered. The other four children were
still minors at the time of the final order.
2
Although Angela contested the grounds of general indignities, Jamey later filed an
amended complaint for divorce on July 23, 2019, adding the ground that the parties had
lived separate and apart in excess of eighteen months. In Angela’s answer to the amended
complaint, she admitted that the parties had lived separate and apart in excess of eighteen
months, but she denied that Jamey should be awarded custody of the children. Grounds for
divorce are not at issue in this appeal.
3
emergency custody. In that motion, Jamey alleged that Angela had suffered extreme mental-
health problems over the last two years that resulted in two suspensions of her medical
license in March 2016 and again in April 2017. Jamey further alleged that Angela had been
acting irrationally in front of the children. He cited numerous examples, including her being
vocal about her belief in the spiritual world of demons and witches. On February 5, 2018,
the trial court entered an ex parte order granting Jamey emergency custody of the children,
and a temporary hearing was scheduled for February 8, 2018.
After the February 8, 2018, temporary hearing, the trial court entered an order on
March 26, 2018, that awarded temporary custody of the children to Jamey and permitted
him to enroll the children in the Community Christian School in Russellville. Angela was
awarded standard visitation, which included visitation with the children every other weekend
and on holidays. In the temporary order, the trial court encouraged and approved of the
parties agreeing to additional visitation and encouraged the parties to be flexible with
visitation. The trial court appointed an attorney ad litem and ordered the parties to
cooperate with the ad litem. The temporary order also enjoined the parties from talking
negatively about the other party or their family in the presence of the children and enjoined
the parties from harassing, molesting, or vilifying the other party.
On June 19, 2018, Jamey filed a motion for contempt and for other relief. In this
motion, Jamey alleged that Angela had engaged in contemptuous conduct by making
derogatory remarks about him in front of the children, including that she did not trust him
with the children and she was afraid he would hurt them. Jamey also asked for an injunction
4
enjoining Angela from allowing the children contact with Angela’s twin sister, Andrea
Chrisman, alleging that Andrea—in the presence of the children—had called Jamey’s sister
the devil and said that his sister was a witch and controls other people’s minds. Finally, in
this motion, Jamey also asked for temporary child support retroactive to when he received
custody of the children in February 2018.
On October 26, 2018, the trial court entered a second temporary order that modified
Angela’s visitation with the children. In addition to the previously awarded weekend
visitation, Angela was awarded visitation during the school year on Mondays, Wednesdays,
and Thursdays from the time school let out until 9:00 p.m.
On November 6, 2018, Jamey filed another petition for contempt against Angela,
alleging that Angela had violated the trial court’s order prohibiting each party from harassing
the other party. Jamey alleged that Angela had sent him harassing text messages first
regarding the parties’ property and then regarding the school the children were attending.
On December 20, 2018, Angela filed a motion to exclude evidence from the Arkansas
State Medical Board relevant to the proceedings that had resulted in the previous
suspensions of her medical license. In her motion, Angela noted that the ultimate outcome
of those proceedings was the reinstatement of her license, and she argued that the
psychological testing and opinions generated therein regarding her mental health were for
the limited purpose of those proceedings and should not be admitted in the divorce case.
On December 28, 2018, Jamey filed a response to Angela’s motion in limine, stating that
5
Angela’s mental state was at issue in the divorce proceedings and that her motion in limine
should be denied.
On March 1, 2019, the trial court entered an order appointing Dr. Glen Adams to
perform psychological evaluations on both parties. On April 15, 2019, the trial court entered
an order denying Angela’s motion to exclude evidence from the Arkansas State Medical
Board relevant to the proceedings involving the suspensions and subsequent reinstatement
of her medical license.
A contempt hearing was held, and on May 10, 2019, the trial court entered an order
finding Angela in contempt. Based on evidence at the contempt hearing that Angela had
argued extensively with Jamey in front of one or more of the children while they were in a
church gymnasium—while Jamey was admonishing her to stop—the trial court found that this
was “uncalled for continued communication around . . . these children in a public place”
and that “it appears there is an extreme controlling nature on the part of the mother.” The
trial court further found that “the evidence is clear . . . that there is an overbearing nature of
the mother, that when she is around these children she incites them, she tries to control
them, [and] she directs their behavior,” which resulted in the children telling Jamey that he
had abandoned them. The trial court found that Angela had willfully refused to adhere to
the court’s orders, and for the contempt it sentenced her to thirty days in the county
detention center, suspended on the condition there be no further violations of the court’s
orders. The trial court also ordered Angela to pay Jamey’s attorney’s fees with regard to the
matter and, in a separate order, awarded Jamey $2250 in attorney’s fees.
6
Although there were many hearings conducted in this case, the most significant
hearings were held over four days between July 30 and August 7, 2019. Both parties and
numerous other witnesses testified at these hearings. A summary of the relevant testimony
follows.
Angela testified that her desire was to have her husband back at home, but that if a
divorce was granted, she wanted primary custody of the children. She stated that before
Jamey filed for divorce, the children had been home schooled all their lives and that she
wanted to resume home schooling them. Angela also testified that if the trial court did not
grant her primary custody, in the alternative, she wanted joint custody3 and stated that if
joint custody was awarded, she was willing to cooperate with Jamey in raising their children.
Angela denied that she created an environment around her children that discouraged them
from loving their father.
Angela testified that during the marriage, there were altercations between the parties
in which Jamey became violent, which escalated beginning in 2016. Angela testified that
during some of these altercations, Jamey had caused bruises on her, and she introduced
photographs showing bruises on her arm and foot. Angela also testified that there were
incidents when Jamey had become violent with the children. Angela acknowledged that she
never filed a police report regarding any incident involving her or the children. However,
3
In her pleadings below, Angela requested only primary custody of the children.
Moreover, in her argument on appeal pertaining to custody, she argues only that she should
have been awarded primary custody and does not argue in the alternative that joint custody
should have been awarded.
7
there had been investigations by the Arkansas Department of Human Services (DHS), one
of which resulted in a true finding of abuse against Jamey for slapping MC3 on the leg, but
that finding was later reversed.
Angela also discussed the temporary suspensions of her medical license, which
occurred in March 2016 and April 2017. These proceedings involving the Arkansas State
Medical Board had been initiated by Jamey when he contacted the Board expressing
concerns over Angela’s mental health. Angela testified that her license was reinstated, and
the proceedings before the Board were dismissed in February 2019, although upon dismissal,
she voluntarily agreed to see a psychiatrist, Dr. Richard Sundermann, every three months.
Angela also testified about the time she had spent with children since the children
were placed in Jamey’s custody in February 2018. Angela testified that the parties voluntarily
deviated from the temporary visitation awarded by the trial court, that she exercised more
visitation than had been awarded, and that during the school year, the children “spent over
sixty percent of their waking hours, apart from the time they were in school,” with her.
Angela stated further that the children spent most of the summers with her.
Jamey testified that when he contacted the Arkansas State Medical Board about
Angela during their marriage, he did so because she had been engaging in bizarre behavior,
he was concerned about her mental health, and he was trying to get her some help. Jamey
gave examples of Angela’s behavior that concerned him during the latter part of their
marriage. Jamey stated that that Angela would dance around singing that his sisters were
Satan in the flesh to a tune in hopes that the children would remember it. Angela had also
8
accused Jamey’s sisters of murdering their mother and accused one of them of being a witch.
On another occasion Angela accused Jamey, in front of the children, of having sexual
relations with a puppy. According to Jamey, Angela accused a woman of stealing three inches
of MC1’s height to pass it on to her children. Jamey stated that Angela spoke often about
the spiritual world of demons and witches and that Angela had withheld medicine from the
children saying that prayer would heal them.
Jamey testified that, after he separated from Angela in February 2018 and moved to
the employee-housing cabin on their farm, Angela would visit him often and would bring
the children there and tell him he needed to come home. On dozens of occasions, Angela
beat on the windows and doors screaming and hollering, once stating, “I’ll see you are broke
and destitute.” Jamey stated that on another occasion Angela had taken everything out of
the cabin and had thrown his mattress in a horse trough filled with water. Due to Angela’s
erratic behavior, Jamey would sometimes hide in the closet or the bathroom when she came
to see him. Jamey stated that during this time, he visited the children at the marital home
on a regular basis. Jamey stated that due to Angela’s continuous harassment of him at their
farm cabin, he decided to move from there into a house in Russellville, and at the same time,
he filed for divorce.
Jamey acknowledged that there was DHS involvement regarding the children, but he
denied abusing them. He stated that he slapped MC3’s leg because she was telling him that
she does not have to listen to him and that he is not her father. Jamey admitted that he hit
MC3 harder than he had intended because it left a handprint, but he stated that by the next
9
morning there we no marks on her leg. Jamey also acknowledged that, after he filed for
divorce and was awarded temporary custody of the children, he initiated a Family in Need
of Services (FINS) petition with respect to two of the children, but he explained that he did
so only because the children were misbehaving and refusing to turn in their homework.
With respect to his alleged violence toward Angela, Jamey stated that he once grabbed her
by the shoulder when she was saying horrible things about him, and that on another
occasion, he accidentally stepped on her foot when he was trying to get away.
Jamey stated that since he has had temporary custody of the children, they have been
defiant toward him and that he believes that this is under the direction of Angela. Jamey
stated that on one occasion, he was driving with the children in his car, and the children
were being “totally belligerent” and were throwing things at him and calling him names.
Jamey stated that his children had told him he should just commit suicide and had also told
him to watch out when he goes to sleep. Jamey’s children had called him Hitler and said,
“Hitler must die,” and had told him he was going to hell for getting a divorce.
Jamey stated that on one occasion the children ransacked his house in Russellville,
turning over the furniture, knocking things off the walls, and putting shampoo and laundry
detergent on the floors. According to Jamey, after this occurred, MC4 stated, “Yeah, we are
supposed to treat dad as bad as we can.” The other children overheard this and admonished
him, “MC4.” MC4 then told Jamey, “I didn’t mean to say that.”
Jamey testified that the children would berate him in Angela’s presence and that
Angela would encourage them to do so. Jamey testified:
10
They (the children) were on a mandate that they were supposed to treat me as bad as
possible and they did their best to do it. Their goal was and they would tell me, ‘we
are gonna treat you so bad you are gonna let us go back to mom.’ . . . [T]he kids have
been told several times that I have abandoned them, by their mom, because I couldn’t
live in that situation any longer. And after I got out of that situation, I realized they
don’t need to be living in that situation.
Jamey testified that he thought that Angela had “poisoned” the children against him.
Jamey also testified about Angela’s twin sister, Andrea, with respect to his request that
the children have no contact with her. Jamey stated that both Angela and Andrea had
prayed, in front of the children, for a spirit of confusion to come upon one of Jamey’s sisters
and her family. Jamey also stated that Andrea has bizarre beliefs about his family, including
that his sister is a witch and controlled Andrea’s mind, and that he does not want his
children around these beliefs.
Jamey stated that the children did not want to attend private school because they have
been told it is terrible. However, he stated that despite their claimed aversion to their school,
they all did very well in school and that he wanted them to continue to attend private school.
Jamey indicated that since these proceedings began, his communication with Angela
regarding the children has been strained, and he described their level of cooperation as
hostile. However, during the pendency of the case, the trial court ordered the parties’
communications to be limited to texting, which Jamey said “has helped a lot.”
Angela’s sister, Andrea Chrisman, testified that she formerly worked at Angela’s
dermatology clinic, and she acknowledged engaging in some unusual behavior at the clinic,
where the parties’ children were frequent visitors. As a result of the proceedings involving
11
Angela before the Arkansas State Medical Board, the Board ordered that Andrea could no
longer work at the clinic.
Velda Bean is a former employee at Angela’s clinic who had worked there with
Andrea. Velda testified that on one occasion at the clinic, Andrea put a Walmart sack on
her head and stated that she had to wear it to keep the sex witches away. Velda had also
heard Andrea call one of Jamey’s sisters, Jan Storms, a witch.
Jan Storms is also a former employee at Angela’s clinic who had worked there with
Andrea, and Jan testified that Andrea had told her she had demons. Jan quit working at the
clinic after Angela told her she was filled with demons and spirits and called her a witch. Jan
stated that she was once very close to the parties’ children but that the children now treat
her like a stranger. Jamey’s other sister, Joy Wilson, similarly testified that her relationship
with the parties’ children had been lost.
Dr. Glen Adams was appointed to perform psychological evaluations on the parties,
and he testified about his findings. With respect to Angela, Dr. Adams’ diagnostic
impression was unspecified personality disorder and adjustment disorder with mild anxiety.
Dr. Adams made no diagnosis for Jamey, although he did note mild defensiveness on two of
the tests and reported that it is likely that his anger can escalate quickly when challenged.
Dr. Richard Sundermann, a psychiatrist, testified that he began seeing Angela in April
2017 in connection with her proceedings before the Arkansas State Medical Board and that
he continues to see her every three months. Dr. Sundermann opined that Angela does not
suffer from any psychiatric illness. He testified that the statements Angela made about
12
demons were not due to irrational thinking or a psychiatric illness but were the result of very
fundamental religious upbringing combined with marital stress. Dr. Sundermann found no
psychiatric reason to question Angela’s parenting.
Donnie Baker has been friends with both parties for many years. Donnie testified
that he was at Jamey’s house after the children had ransacked it. Donnie stated that the
children were very angry and disrespectful toward Jamey, telling him that he was the devil
and they hated him. On another occasion, Donnie was riding with Jamey and the children
in a vehicle while the children constantly insulted Jamey, telling him that he had abandoned
them, that they did not have to obey him, and that he is not their dad. According to Donnie,
the children read scriptures to Jamey and told him it was his fault for separating the family,
and one of the children told Jamey it was probably best that he kill himself. Donnie stated
that the youngest child, MC4, misbehaved and then told Jamey, “That’s what we are
supposed to do,” before realizing he was not supposed to say that. Donnie stated he could
tell this from MC4’s facial expression.
Silas Styles, the parties’ oldest child, was eighteen when he testified at the hearing.
Silas testified that after Jamey was awarded temporary custody of the children, they spent
most weekends at their mother’s house and stayed with their mother frequently during the
summer. Silas stated that when he turned eighteen, he moved out of his father’s house and
resumed living with his mother. According to Silas, Jamey had told him that he moved out
“because I’m punishing your mom.” Silas stated that he had very little respect for his father
after that. Silas indicated that none of the children wanted to live with their father and that
13
there was an environment of disrespect toward him while living in his house. He
acknowledged that the children called their father an idiot and a jerk and “Hitler all the
time.” Silas denied telling his father to commit suicide and explained that what he did say
was that it would have been better if he had committed suicide a long time ago “so we
wouldn’t have to mess with all this trauma.”
MC1, the parties’ oldest daughter, was fifteen when she testified at the hearing. MC1
stated that during the one-year period between when Jamey left the marital home and filed
for divorce, she and her siblings lived with their mother, and Jamey was not around and did
not attend church or the children’s activities. MC1 described her relationship with her
father as “real bad” beginning when he “took us away.” She also stated that “he won’t talk
to me or my sisters.” MC1 indicated that there was a general disrespect between her father
and the children, and she admitted that they had turned over furniture in his house but
denied that they had destroyed anything. MC1 stated that she is making good grades in
private school but that she and her siblings would rather be home schooled. MC1 further
testified:
I want to live with my mom to actually have a home. This has been going on for four
or five years now and this isn’t the best to happen. He has been trying to call my
mom crazy for a long time and I don’t know where he came up with that, but he
always tells us mom is crazy and he would say stuff like that. And I’m like, ‘Hey, dad,
she’s not crazy.’ And I don’t think he cares about us.
After the conclusion of the four-day hearing, on August 24, 2019, the children’s
attorney ad litem issued a report containing his recommendations. In the report, the
attorney ad litem expressed the following concerns and opinions:
14
Regardless of the diagnoses, or lack thereof, it is apparent that Angela’s
behavior has influenced and affected her children’s behavior. She has repeatedly
involved the children in matters that are strictly adult, parental matters, which should
not be fostered upon the parties’ children, seemingly without regard for the
psychological well-being of the children, especially concerning their relationship with
their father.
To his detriment, Jamey has fostered the children’s behavior to some degree
by moving out of the Coal Hill marital residence in February 2017 and moving into
the farmhouse on the same property next to the Arkansas River. Angela had daily
contact while the children lived almost exclusively with her for approximately the next
year, while Jamey had sporadic contact during that same time. Angela has had ample
opportunity to instill in the children a dislike of their father and his life choices.
All the minor children will today state that they all want to be in the custody
of and live with their mother, that they do not want to attend Valley Christian School,
and that they do not want to have anything to do with Jamey. While I express their
desires, I do not believe that it is in the minor children’s best interest to allow the
minor children to make parental decisions concerning their welfare.
The attorney ad litem recommended that Jamey be awarded sole custody of the children and
stated that joint custody is not appropriate because the parties obviously do not get along
with each other well enough for joint custody to work. The attorney ad litem recommended
that Angela be awarded standard visitation in addition to overnight visitation every
Wednesday. The attorney ad litem recommended that the parties continue to communicate
through text message only. The attorney ad litem recommended that the children have no
contact with Andrea Chrisman unless supervised by someone other than a person related to
the children. Finally, the attorney ad litem recommended that the children be allowed to
continue to attend the Church of Christ in Clarksville.
15
On January 7, 2020, the trial court, for the first time in the proceedings, entered an
order awarding temporary child support to Jamey. In that order, Angela was ordered to pay
$4850 in temporary monthly child support beginning on November 22, 2019.
On February 10, 2020, the trial court entered a divorce decree granting Jamey a
divorce based on eighteen months’ separation. The divorce decree, however, did not resolve
the custody issue or any other issues in the case. The decree stated that it was not a final
order and that there would be a subsequent order regarding the final disposition of custody
and the division of the parties’ real and personal property. Thereafter, hearings involving
the parties’ property were held, but those hearings are not relevant to this appeal because
there is no issue on appeal regarding the disposition of the parties’ property.
On July 8, 2020, Angela filed a motion to modify the temporary child support. In
her motion, Angela noted that Administrative Order No. 10 had been recently revised and
that the newly adopted Income Shares Model was to be used for all support orders entered
after June 30, 2020. Angela asked that child support be reset using the new guidelines.
On May 25, 2021, Jamey filed a motion for attorney’s fees, noting that there had not
yet been a final order entered in the case. Jamey asserted that attorney’s fees should be
allowed because the amounts he paid in attorney’s fees were not available to support the
minor children, who had been in his custody since the proceedings began.
The last hearing in the case was held on May 26, 2021. At that hearing, no testimony
was taken, and the parties argued the issues of child support and contempt.
III. The Final Order and Order Awarding Attorney’s Fees
16
The final order was entered on July 27, 2021.4 In the final order, the trial court
found:
During the course of the last two and one-half years this Court has conducted
numerous hearings, initially in open court and subsequently via [Z]oom. I have had
many opportunities to observe both parties carefully during sworn testimony as well
as observing their general demeanor in open court. I have paid careful attention to
each parties’ testimony, observing their individual presentations, comparing their
testimony and evidence submitted with that submitted by the opposing party for the
purpose of determining their credibility and the weight to be afforded each
presentation.
As between Jamey and Angela, Angela is the least credible. I find Angela’s
credibility challenged by her personality traits of self-importance, self-righteousness,
refusal to recognize authority other than her own, and an aggressive attitude toward
anyone that disagrees with her.
As to contested points between the parties, in particular with regard to the
children, I have consistently found Jamey’s position not only more credible than that
of Angela, but in addition, Jamey’s requests, recommendations and actions toward
the children have been in the children’s best interest whereas Angela has looked to
her own interests throughout this litigation.
This Court appointed an Ad Litem for the children … [whose] work in this
challenging case has been most admirable…. With the exception of two points noted
below I hereby adopt his post-trial brief in its entirety as if it were set out herein and
attached hereto. I adopt his findings of fact and conclusions of law found therein as
they are consistent with the findings and facts and conclusions of law of this Court
herein stated. The Court for reasons stated below does not accept the Ad Litem’s
recommendation of mid-week visitation with Angela and further does not accept the
directive as to where the children will attend church.
4
In the final order, the trial court noted that much of the evidence submitted at trial
involved Angela’s mental condition as it applied to the previous proceedings before the
Arkansas State Medical Board and the temporary suspensions of her medical license. The
trial court stated further that such evidence pertained to Angela’s fitness to practice medicine
and not her fitness as a parent. That being the case, the trial court stated that it disregarded
all the medical evidence related to the suspensions of Angela’s medical license.
17
In the final order, the trial court also adopted Jamey’s post-trial brief to the extent it was not
inconsistent with the court’s rulings, which will be discussed as necessary in our analysis of
Angela’s points on appeal.
On the issue of child custody, the trial court found that although joint custody is
favored in Arkansas, it was not appropriate in this case because Angela lacked the ability to
set herself aside for the benefit of the children and would not or could not work with Jamey
to coparent and could not foster a relationship between the children and Jamey. The trial
court agreed with the attorney ad litem’s recommendation and awarded primary custody to
Jamey, making these findings in support of its custody decision:
Angela has used the children in an attempt to make Jamey’s life unbearable to
the point that he would have to return to the marriage. When it became apparent to
Angela that the divorce was inevitable, she used her influence to create a hatred in
the children toward Jamey to such a degree that the children’s mental and emotional
well-being may be permanently impaired. In seeing how the children treated Jamey
as a result of Angela’s direction and encouragement I found it understandable if
Jamey had given up custody and taken the easy road of submitting the children to the
custody of Angela. Fortunately for the children this did not happen. If these children
have any hope of recovery from the negative results of Angela’s actions, it will only be
because of Jamey’s efforts.
With respect to visitation, the trial court awarded Angela standard visitation but
stated that Angela’s manipulation of the children and the likelihood that it would continue
militated against additional midweek visitation as recommended by the attorney ad litem.
The trial court also found that Jamey would be in charge of all aspects of the children’s lives,
including which church they attend.
18
The final order also addressed current child support and back child support. In
setting Angela’s current support going forward, the trial court adopted Angela’s child-
support worksheet that was submitted using the Income Shares Model and set the child-
support amount at $2745 a month. The trial court also gave Angela a credit for $23,155 in
overpaid temporary support, which pertained to the time period from when the Income
Shares Model went into effect and the entry of the final order, during which time Angela
was paying $4850 a month and should have been required to pay only $2745 a month under
the revised child-support guidelines. With respect to back child support, the trial court
ordered Angela to pay $99,363.71,5 which represented the amount of retroactive temporary
child support that accrued between February 2018 when Jamey was awarded temporary
custody and November 2019 when Angela was first ordered to begin making monthly
support payments. In setting the back child support, the trial court stated that the evidence
did not warrant giving Angela a setoff for her expenditures on behalf of the children, and in
denying such setoff, the court considered the fact that Angela had occupied the parties’
marital residence for twenty-nine months at no cost to her. The trial court also ordered
Angela to reimburse Jamey $23,427.40, which represented one-half of the education costs of
the children’s private schooling.
The trial court ordered that Angela’s sister, Andrea Chrisman, shall not be left alone
with or communicate with any of the children except as authorized in the final order. The
5
This award of back child support was based on Jamey’s calculations as set forth in
his post-trial brief.
19
trial court found that Andrea posed a clear threat to the emotional well-being of the children
and that if she wished to see the children, she must notify Jamey in writing. In that event,
Jamey would hire a person of his choice to supervise the visitation at a time and place of
Jamey’s choosing, with Andrea to pay the cost of the supervision.
In the final order, the trial court also found Angela in contempt based on the
allegations made by Jamey in his June 19, 2018 and November 6, 2018, motions for
contempt, wherein Jamey had alleged that Angela sent him harassing text messages and had
made derogatory remarks about him in front on the children. For each of these contempt
findings, the trial court ordered Angela committed to the county detention center for thirty
days, suspended on the condition that Angela never again disregard the court’s order not to
malign, harass, or in any way communicate negatively toward Jamey.
Lastly, the final order addressed Jamey’s motion for attorney’s fees. The trial court
stated that the parties would pay their own attorney’s fees incurred after the four-day trial
held between July 30 and August 7, 2019, and it would base the attorney’s fees on the time
period between when the case was initiated in February 2018 through the completion of the
four-day trial. The trial court ordered Jamey’s counsel to provide an itemized list of his time
and expenses corresponding to that time period.
On July 28, 2021, Jamey’s counsel submitted an affidavit along with an itemized
billing of the attorney’s fees and costs incurred between February 2, 2018 and August 6,
20
2019. In the affidavit, Jamey’s counsel stated that during this time period, he billed a total
of $49,937.50 in attorney’s fees and $4802.02 in costs, for a total of $54,737.52.6
On August 24, 2021, the trial court entered an order awarding Jamey $54,737.52 in
attorney’s fees and costs. In the order awarding attorney’s fees, the trial court found:
The attorney’s fees and costs award is authorized by statute and case law, and
the court makes an additional finding that the attorney’s fees and costs are
appropriate because the attorney’s fees incurred by Jamey throughout the course of
litigation and ordered to be paid herein were not available to support the parties’
minor children who have been in Jamey’s custody the entirety of the case.
Angela now appeals from both the final order and the order awarding attorney’s fees.
IV. Arguments on Appeal
In this appeal, Angela raises eight arguments for reversal. We review each argument
in turn.
A. Child Custody
Angela’s first argument on appeal is that the trial court erred in awarding primary
custody of the children to Jamey. Our standards in deciding the issue of child custody are
well settled.
Arkansas Code Annotated section 9-13-101(a)(1)(A)(i) (Repl. 2020) provides that, in
an action for divorce, the award of custody of a child born of the marriage shall be made
without regard to the sex of a parent but solely in accordance with the welfare and best
interest of the child. The best interest of the children is the polestar in every child-custody
6
These attorney’s fees and costs actually total $54,739.52, but this discrepancy is not
at issue on appeal.
21
case; all other considerations are secondary. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18.
On appeal, in custody matters, we consider the evidence de novo and do not reverse unless
the trial court’s findings of fact are clearly erroneous. Id. Due deference is given to the trial
court’s superior position to judge the credibility of the witnesses. Chaffin v. Chaffin, 2011
Ark. App. 293. The supreme court has held that there is no other case in which the superior
position, ability, and opportunity of the trial court to observe the parties carries a greater
weight than one involving the custody of minor children. Taylor v. Taylor, 345 Ark. 300, 47
S.W.3d 222 (2001).
Angela argues that based on the evidence presented, it was in the children’s best
interest to be placed in her custody. She asserts that when Jamey moved out of the marital
home in February 2017, he abandoned her and the children for a period of a year. She states
that Jamey further upended the children’s lives when he filed for divorce, gained temporary
custody, and removed the children from home schooling, which they had been doing their
entire lives.
Angela also contends that Jamey has shown an unjustifiable pattern of attacking what
he deems are her unconventional religious beliefs. She notes that in Dr. Adams’
psychological evaluation of her, he found that she was very committed to her religious beliefs
and that her belief in demons is consistent with those beliefs. Angela notes further that, in
Dr. Adams’ evaluation of Jamey, he found that Jamey has the possibility of being
manipulative and it is likely that Jamey’s anger could escalate quickly when challenged.
22
Angela asserts that she was the children’s primary caregiver before Jamey’s initiation
of these divorce proceedings and that Jamey has poor parenting skills, both of which militate
in favor of her having custody. She contends that Jamey’s inability to parent is evidenced by
the fact that he filed a FINS petition against two of his own children. Angela further asserts
that Jamey has demonstrated a propensity for violence against both her and the children,
some of which resulted in DHS involvement. She states that Jamey does not get along with
the children, he cannot control them, and that while the children are with him, there is a
lack of respect and constant arguing. Finally, Angela asserts that all the children would prefer
to live with her. Angela argues that she provides a more stable environment for the children
and that it is in the children’s best interest to be placed in her custody.
We initially observe that although Angela discussed the possibility of joint custody in
her testimony below, she makes no argument for joint custody on appeal. The trial court
found that joint custody was not appropriate in this case, and we would affirm that ruling
even were it being challenged on appeal. Arkansas Code Annotated section 9-13-
101(a)(1)(A)(iii) (Repl. 2020) provides that, in an action for divorce, an award of joint custody
is favored in Arkansas.7 However, we have held that, regardless of whether joint custody is
7
Arkansas Code Annotated section 9-13-101 was amended during the 2021 Arkansas
legislative session to create a rebuttable presumption that joint custody is in the best interest
of the child concerning an original custody determination in a divorce or paternity matter.
See Ark. Code Ann. § 9-13-101(a)(1)(A)(iv) (Supp. 2023). However, this subsection became
effective on July 28, 2021, which was one day after the final order was entered in this case
awarding primary custody to Jamey. Therefore, the rebuttable presumption of joint custody
has no application here.
23
favored, our law remains that the mutual ability of the parties to cooperate in reaching shared
decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety
of an award of joint custody, and such an award is reversible error when cooperation between
the parties is lacking. Hoover v. Hoover, 2016 Ark. App. 322, 498 S.W.3d 297. Our law
remains consistent that custody awards are to be made solely in accordance with the welfare
and best interest of the children. Fox, supra. Due to the hostility between Jamey and Angela
and their inability to cooperate in coparenting the children, it is evident that joint custody
would not have been in the children’s best interest.
With regard to which parent should be awarded primary custody, we conclude that
the trial court did not clearly err in determining that it was in the children’s best interest to
be placed in the custody of their father. Angela correctly asserts that she was the primary
caregiver during the parties’ marriage and that the children have stated a preference to live
with her. However, although the issue of which parent has been the primary caretaker is
relevant and worthy of consideration, it is not in and of itself determinative of custody.
Cunninham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38. Moreover, a child’s
reasonable preference is but one factor in deciding custody and is not binding on the trial
court. Williams v. Williams, 2019 Ark. App. 186, 575 S.W.3d 156.
While the children stated a preference to live with Angela and consistently showed
disrespect and disdain while in Jamey’s care, the trial court found that Angela was
influencing and encouraging the children’s behavior to create a hatred toward Jamey that
jeopardized the children’s psychological and emotional well-being. This finding was
24
supported by the record. Evidence of the children’s instructed animosity toward their father
includes them ransacking his house and routinely referring to him as an idiot, a jerk, and
Hitler. There was testimony that on two separate occasions, the parties’ youngest child stated
that the children were supposed to be misbehaving and treating their father as poorly as
possible. Angela’s manipulation of the children in this regard weighed significantly on the
trial court’s custody determination.
Although the children expressed the desire to be home schooled instead of attending
the private school where Jamey had enrolled them, the children were doing very well in
private school while in Jamey’s temporary custody. The children’s attorney ad litem, who
was well acquainted with the case, recommended that the children be placed in Jamey’s
custody, and the trial court agreed with that recommendation. Having reviewed the entire
record, we are not left with a definite and firm conviction that the trial court made a mistake
in awarding primary custody of the children to Jamey. Therefore, we affirm the trial court’s
custody decision.
B. Visitation
The main consideration in determining visitation is the best interest of the children,
and we will not reverse the trial court’s findings pertaining to visitation unless they are clearly
erroneous. Favano v. Elliott, 2012 Ark. App. 484, 422 S.W.3d 162. Here, after the trial court
awarded Jamey primary custody of the children, it awarded Angela standard visitation.
Angela’s only argument regarding visitation is that because the custody decision was
erroneous, the visitation order was erroneous as well. Having affirmed the trial court’s
25
custody decision for the reasons explained supra, we also affirm the trial court’s visitation
award.
C. Contempt
During the divorce proceedings, the trial court made three findings of contempt
against Angela for violations of the trial court’s orders. The first finding of contempt came
on May 10, 2019, when the trial court entered an order finding that Angela was in contempt
for arguing extensively with Jamey in an overbearing manner in front of one or more of the
children. The other findings of contempt were in the final order entered on July 27, 2021,
when the trial court found Angela in contempt for sending Jamey harassing text messages
and making derogatory remarks about him in front of the children. Angela argues that each
of these contempt orders is invalid and should be reversed.
As an initial matter, we conclude that we are without jurisdiction to review the trial
court’s initial finding of contempt in the May 10, 2019 order because that order was not
timely appealed. An appeal may be taken from a civil or criminal contempt order, which
imposes a sanction and constitutes the final disposition of the contempt matter. Ark. R.
App. P.–Civ. 2(a)(13). In the May 10, 2019 order of contempt, the trial court sentenced
Angela to thirty days in the county detention center, suspended on the condition there be
no further violations of the court’s orders, and the trial court also ordered her to pay
attorney’s fees incurred in the contempt matter. 8 The supreme court has held that
8
Angela was ordered to pay $2250 in attorney’s fees in a separate order entered six
days later.
26
interlocutory orders that are reviewable under Rule 2(a) must be appealed within thirty days
of entry, and if the appellant fails to timely appeal from the order, the interlocutory order is
not later reviewable under Rule 2(b) (providing the general rule that an appeal from any final
order also brings up for review any intermediate order involving the merits and necessarily
affecting the judgment). In Re Est. of Stinnet, 2011 Ark. 278, 383 S.W.3d 357. Because the
May 10, 2019 order was an appealable order from which Angela did not appeal, we cannot
review that order, and her appeal from that order is dismissed.
With respect to the two findings of contempt in the July 27, 2021 final order from
which Angela timely appealed, she first argues that these contempt findings were invalid
because for each of them she received indefinite suspended sentences. Angela argues, in the
alternative, that each of these findings of contempt was against the preponderance of the
evidence. We agree with Angela’s first argument.
It is well settled that suspension of a sentence for contempt is, in effect, a complete
remission of the contempt. Henry v. Eberhard, 309 Ark. 336, 832 S.W.3d 467 (1992). In
Higgins v. Merritt, 269 Ark. 79, 598 S.W.2d 418 (1980), the appellant was found to be in
contempt and was sentenced to two days in jail, with the sentence suspended, and the
supreme court declined to reach the contempt issue on appeal. The supreme court wrote:
It is first argued that on the proof the chancellor erred in finding the appellant
to be in contempt. We do not reach the merits of this argument, because an attempt
to suspend the execution of a sentence for contempt of court, other than a mere
postponement, is invalid and amounts to a complete remission of the punishment.
The point being moot, the decree is accordingly modified to set aside the sentence
for contempt.
27
Higgins, 269 Ark. at 80, 598 S.W.2d at 419 (citations omitted). In Henry, supra, the supreme
court held that if the suspended sentence is suspended conditionally for a specific period of
time, the suspension amounts to a mere postponement rather than a remission. 9 The effect
of these supreme court holdings is that a trial court cannot indefinitely suspend a contempt
sentence but can conditionally postpone a sentence for a specified period of time. See Kilman
v. Kennard, 2011 Ark. App. 454, 384 S.W.3d 647.
In the final order, for each of its findings of contempt against Angela, the trial court
sentenced her to thirty days in the county detention center, suspended on the condition she
never again disregard the court’s orders not to malign, harass, or in any way communicate
negatively toward Jamey. These suspensions were for an indefinite time period, and the
indefinite suspensions of Angela’s sentences were invalid and amounted to a complete
remission of the contempt and punishment. See Higgins, supra; Henry, supra. That being so,
the two findings of contempt in the trial court’s final order are moot and, accordingly, are
set aside.
D. Child Support Going Forward
Angela next argues that the trial court’s award of child support going forward was
erroneous. In setting Angela’s current child support going forward, the trial court adopted
9
In Henry, the appellant was found in contempt and fined $250 and sentenced to
thirty days in jail, both of which were suspended for one year conditioned upon full
compliance with the court’s orders.
28
Angela’s child-support worksheet that was submitted using the Income Shares Model and set
child support at $2745 a month.
Our standard of review for an appeal from a child-support order is de novo on the
record, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous.
Smith v. Smith, 2022 Ark. App. 514, 656 S.W.3d 198. In reviewing a trial court’s findings,
we give due deference to that court’s superior position to determine the credibility of the
witnesses and the weight to be given to their testimony. Id. In a child-support determination,
the amount of child support lies within the sound discretion of the trial court, and that
court’s findings will not be reversed absent an abuse of discretion. Taylor v. Taylor, 369 Ark.
31, 250 S.W.3d 232 (2007). However, a trial court’s conclusions of law are given no
deference on appeal. Id.Under this point, Angela does not quarrel with the amount of current monthly child
support that was ordered by the trial court in the event the trial court’s child-custody decision
is affirmed on appeal. Instead, Angela’s only argument here is that because the trial court
erred in awarding custody to Jamey, it also erred in ordering her to pay prospective child
support. See Ellington v. Ellington, 2019 Ark. App. 395, 587 S.W.3d 237 (stating that when
custody is reversed, the award of child support is likewise reversed). However, because we
are affirming the trial court’s custody decision, we also affirm its award of current child
support going forward.
E. Back Child Support
29
Angela also argues that the trial court’s award of back child support in its final order
was erroneous. Our standard of review for back child support is the same here as in our
discussion of the previous point on appeal.
Angela contends that the trial court’s award of $99,363.71 in back child support,
which correlates to the period between February 2018 when Jamey was awarded temporary
custody of the children and November 2019 when Angela was first ordered to pay temporary
child support, was an abuse of discretion.10 In awarding the back child support, the trial
court made these findings:
The Court agrees with Jamey’s calculations of child support as set out in
Jamey’s post-trial brief and specifically finds that the use of capital gains from the
2017 sale of real property to determine the income subject to child support is
appropriate. This Court orders back child support in the amount of $99,363.71 to
be paid by Angela to Jamey forthwith.
This Court finds there is no justifiable basis to offset Angela’s child support
obligation based on Angela’s expenses paid on behalf of the children. In determining
this denial, this Court has taken into consideration that Angela’s occupation of the
marital home for 29 months at no cost to her personally.
As a preamble to this section of the opinion and to preface the complexity of this
issue, we acknowledge that during the pendency of this case, Administrative Order No. 10,
which sets forth child-support calculations, has evolved and existed in three distinct forms.
Early in the litigation, what we refer to as the “prior Administrative Order No. 10” was still
10
Angela does not challenge the trial court’s interim order to pay $4850 in temporary
monthly child support beginning on November 22, 2019. Angela evidently abided by that
order and paid $4850 in monthly child support from then until entry of the final order being
appealed.
30
in effect. Then, on April 2, 2020, the supreme court issued its per curiam, In re
Implementation of Revised Administrative Order No. 10, 2020 Ark. 131 (per curiam), which
introduced what is now known as “the Shared Incomes Approach” to Administrative Order
No. 10 for “all support orders entered after June 30, 2020.” 2020 Ark. 131, at 1. Then,
Administrative Order No. 10 was amended again effective October 6, 2022, which provided
additional clarification. With that said, we turn to Angela’s arguments.
The period for the back child-support calculation that is under review in this case
commenced in February 2018 and ended in November 2019. This is the period during
which Jamey was awarded temporary custody of the children, but Angela was not ordered to
pay contemporaneous child support. Angela does not argue that she does not owe back
support for this period; rather, she argues that the court erred in its calculations.
Angela’s initial argument is that the Income Shares Model, as implemented in the
revised version of Administrative Order No. 10 that became effective on June 30, 2020,
should be used. However, we disagree. In In re Implementation of Revised Administrative Order
No. 10, supra, the supreme court stated that the new guidelines shall be used for all support
orders entered after June 30, 2020. The back child support at issue herein accrued between
February 2018 and November 2019, which was before the 2020 revision became effective.
In the context of legislation, our supreme court has observed a strict rule of construction
against retroactive operation and indulges in the presumption that the legislature intends
statutes, or amendments thereof, to operate prospectively only and not retroactively unless
it expressly states otherwise. Bean v. Off. of Child Support Enf’t, 340 Ark. 286, 9 S.W.3d 52031
(2000). While we acknowledge that the Shared Incomes Approach in the revised
Administrative Order No. 10 is not legislative in nature, we believe that the prospective
rationale in Bean is appropriate. That is to say, we believe that the statement in In re
Implementation of Revised Administrative Order No. 10 that the new guidelines shall be used for
all support orders entered after June 30, 2020, is prospective in nature and not retroactive to
back support orders. We observe that there is nothing in the 2020 revised version of
Administrative Order No. 10 implemented by the supreme court to indicate retroactive
application. Moreover, in Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003), in a
previous review of changes to Administrative Order No. 10, the supreme court held that, in
awarding back child support, the prior Administrative Order No. 10 and its predecessor child-
support guidelines set out the presumptively correct amount of support for those years in which
the guidelines were in place. Taking all of this into consideration, in reviewing the issue of back
child support in this case, we are guided by the prior Administrative Order No. 10 that was
applicable when the back child support accrued.
Angela next argues that, even assuming that prior Administrative Order No. 10
applies during this period (which we so hold) the trial court made insufficient findings to
support its award of back child support and, in particular, failed to set forth her income,
reference the family support chart, or state whether it was deviating from the chart amount.
Angela argues further that the trial court should have reduced the back child support because
she had the children half the time from February 2018 to June 2019. Prior Administrative
32
Order No. 10, section V(b)(6) (2019)11 provides that the deviation considerations include
the extraordinary time spent with the noncustodial parent or shared-custody arrangements.
Angela also argues that the trial court erred in not reducing the back child support by failing
to consider expenses she made on behalf of the children as reflected on an expense report
she introduced at trial. Prior Administrative Order No. 10, section (V)(a) provides that
deviation considerations include various expenses made for the children. Finally, Angela
contends that the trial court erred in using a one-time capital gain from the 2017 sale of the
parties’ real property to increase her back child support. 12
We agree that the trial court failed to make key findings necessary for its award of
back child support under prior Administrative Order No. 10. Section (III)(c) provides that,
for self-employed payors, support shall be calculated based on the last two years’ federal and
state income tax returns and quarterly estimates for the current year. Prior Administrative
Order No. 10, section (I) provides that it is a rebuttable presumption that the amount of
child support calculated pursuant to the family support chart is the amount of child support
to be awarded and that the court may grant less or more support if the evidence shows that
the needs of the dependents require a different level of support. Section (I) further provides
11
In the remainder of our discussion of this point on appeal involving back child
support, we refer to this applicable version of Administrative Order No. 10, which was
effective from 2016 through 2019.
12
There was testimony and documentation showing that, in 2017, the parties sold real
property for $1 million. This transaction resulted in a capital gain of $154,872 for each
party, which was reflected on their individual income tax returns.
33
that all orders granting child support shall contain the court’s determination of the payor’s
income, recite the amount of child support required under the guidelines, and recite whether
the court deviated from the family support chart.
Instead of making the necessary findings required by prior Administrative Order No.
10, the trial court stated that it agreed with Jamey’s calculations as set in his post-trial brief,
it adopted his post-trial brief to the extent it was not inconsistent with the trial court’s
findings, and it awarded $99,363.71 in back child support. On the issue of back child
support, Jamey’s post-trial brief stated in pertinent part:
Once the court has reached a conclusion regarding the child support figures
for 2019 and 2018, the court may consider back child support if so inclined. Jamey’s
exhibit 20 set out that back child support as of the end of June 2019 was $86,974.97.
The court authorized an update and through the date that Angela started paying
support in November 2019; the back child support figure grew to $99,363.71. Jamey
had to support the children without any assistance from Angela. Angela should be
ordered to pay this amount forthwith.
Jamey’s exhibit 20, which was incorporated by reference by the court, referenced above in Jamey’s
post-trial brief, is a back child-support worksheet positing that Angela owes $5707.45 for ten
months in 2018 and $4850 for six months in 2019, for a total of $86,974.97. This exhibit
does not contain Angela’s income nor does it contain any explanation for the increase from
$86,974,97 to $99,363.71. Exhibit 20 also notes, “Each year receives 100% reduction for
one month” and “50% reduction for 8 weeks,” indicating that Jamey’s calculation of Angela’s
back child support may have included a downward deviation. However, neither Jamey’s
post-trial brief (which was adopted by the trial court) nor his exhibit 20 referenced therein
34
contain the necessary findings to support the award of back child support, and the trial court
did not make sufficient findings of its own in the final order being appealed.
Our case law establishes that utilizing the family support chart contained in prior
Administrative Order No. 10 is mandatory when setting child support. Maxwell v. Maxwell,
2020 Ark. App. 23, 593 S.W.3d 499. There is a rebuttable presumption that support
awarded pursuant to the chart is the appropriate amount of support and can be modified
only upon written findings stating why the application of the chart amount would be unjust
or inappropriate. Id.Here, in awarding the back child support, the trial court did not, inter alia, recite
Angela’s income, recite the amount of support required under the guidelines, state whether
the court was applying the chart amount, state whether it was deviating from the chart
amount, or state reasons why the application of the chart amount would be unjust or
inappropriate. Because the trial court failed to make the requisite findings to support its
award of back child support, we must reverse and remand the issue of back child support for
the trial court to decide in accordance with our opinion. In arriving at the amount of back
child support, because this was an issue below, we hold that the trial court may consider
Angela’s capital gain from 2017 in conformance with our supreme court’s holding that
“income” is intentionally broad and designed to encompass the widest range of sources
consistent with the State’s policy to interpret “income” broadly for the benefit of the child.
See Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005) (discussing prior Administrative
Order No. 10, section (II)(a)’s provision that “[i]ncome means any form of payment, periodic
35
or otherwise, due an individual, regardless of source”). The trial court should also consider
the deviation factors outlined in prior Administrative Order No. 10, and if the court deviates
from the chart amount, it must include specific written findings stating why the amount is
unjust or inappropriate. See Deline v. Deline, 2019 Ark. App. 562, 591 S.W.3d 365.
F. Private School Expenses
Angela next argues that the trial court erred in ordering her to pay half of the
children’s private school expenses incurred by Jamey. In Jamey’s post-trial brief (which was
incorporated by reference by the court), he asserted that he had paid a total of $46,854.80
for the costs of the children’s private schooling, and he attached documentation showing
itemized payments allegedly made between March 2018 and July 2020. In the final order
entered by the trial court, Angela was ordered to pay half this amount, or $23,427.40.
Angela argues that she opposed placing the children in private school and that she
should not be responsible for the costs incurred by Jamey in deciding to place them there.
Angela argued this in her response to Jamey’s post-trial brief, where she stated that she
adamantly opposed private school and that it was solely Jamey’s decision to place the children
in private school. Angela also noted in her post-trial brief that the children began attending
public schools in Clarksville beginning in the 2020–2021 school year.
In support of her argument, Angela cites Hyden v. Hyden, 85 Ark. App. 132, 148
S.W.3d 748 (2004). While Hyden may be instructive, it is not dispositive on this issue. In
Hyden, the trial court was faced with setting child support based on the speculative future
event of where the minor child would complete his junior and senior years in high school.
36
Apparently, the parties and the court were attempting to foresee into the future and
determine whether the minor child would attend Hargrave Military Academy or Catholic
High. The tuition at the two schools was vastly different. The evidence was clear in the
record that the noncustodial parent could not afford to pay child support and the higher
tuition to Hargrave Academy. The trial court, by its own words, attempted to “do some
equity” and fashioned a child-support obligation that required the noncustodial parent to
pay a considerable portion of the Hargrave Academy tuition. On appeal, we reversed and
held:
It is a matter within the custodial parent’s right to send or to continue to send his
child to any particular school. However, if he chooses to continue sending the child
to a $24,000 per year school, he should not expect and we should not countenance
requiring the noncustodial parent to pay any more than the chart requires. Any
school expenses in excess of the child support paid by appellant to appellee will be
the appellee's responsibility, as it was his or his son’s decision to incur the substantially
increased expenses to attend Hargrave Academy.
Hyden, 85 Ark. App. at 142–43, 148 S.W.3d at 754.
Under the circumstances of this case, in our de novo review, we hold that the trial
court clearly erred in dividing the costs of the children’s private schooling and requiring
Angela to pay half that amount. We note that under prior Administrative Order No. 10,
section (V)(a)(5), educational expenses may be used as a relevant factor to consider in deciding
whether to deviate from the chart amount of child support. Here, the trial court effectively
increased Angela’s child support by ordering her to pay half the private school expenses
without making the findings required for a deviation. Although we reverse the trial court’s
37
decision on this point, on remand of the back-child-support issue, the trial court may, in its
discretion, consider these educational expenses as a factor in arriving at the support.
G. The Restrictions on the Children’s Relationship with Angela’s Twin Sister
In the final order, the trial court ordered that Angela’s twin sister, Andrea, not be left
alone with the children or communicate with them in any way except as authorized in the
order. The trial court found that Andrea “poses a clear threat to the emotional well-being
of the children based on earlier findings resulting from her testimony in open court.” The
trial court ordered that, if Andrea wished to see the children, the visitation would be
supervised by a person of Jamey’s choosing.
Angela argues that the trial court’s restrictions on the children’s relationship with
their aunt was erroneous. As an initial matter, Angela takes issue with the trial court’s
statement that it had made “earlier findings” and asserts that no such earlier findings were
made. Angela further asserts that Andrea poses no threat to the children and that she often
saw them at church, at their home, and when they were on vacations together. Angela asserts
that Andrea does not drink alcohol or do drugs and that she is not a felon or sex offender.
Finally, Angela suggests that the trial court’s restrictions on the children’s contact with
Andrea was motivated by Andrea’s religious beliefs and resulted in religious discrimination.
Angela cites Lewis v. Lewis, 260 Ark. 691, 543 S.W.2d 222 (1976), where the supreme court
stated that visitation rights cannot be denied a parent for espousing his or her religious
beliefs.
38
Having reviewed the record, we see no error in the trial court’s restrictions regarding
the children’s contact with Andrea. Although the trial court may not have made “earlier
findings” on the issue as stated in the final order, we do not view this discrepancy as reversible
error. The testimony at trial showed that Andrea had exhibited concerning behavior,
including praying in the presence of the children for a spirit of confusion to come upon one
of Jamey’s sisters and her family. Andrea also thought Jamey’s sister was a witch and
controlled Andrea’s mind, and Andrea shared this with the children. There was also
testimony that, while working at Angela’s clinic, Andrea put a Walmart bag on her head and
stated that she had to wear it to keep the sex witches away. As a result of Andrea’s behavior
at the clinic, she was banned from the clinic by the Arkansas State Medical Board. Finally,
the children’s attorney ad litem, who was very familiar with the case, recommended that the
children have no contact with Andrea unless it was supervised by someone other than a
relative. While we agree with the principle that a parent’s visitation rights cannot be denied
for their religious beliefs, we observe that Andrea is not these children’s parent, and we
further conclude that the trial court’s decision to limit the children’s contact was motivated
not by religious considerations but rather by the well-being of the children. We hold that,
on this record, the trial court did not clearly err in finding that it was in the children’s best
interest to have only restricted contact with Andrea.
H. Attorney’s Fees
Angela’s last argument is that the trial court erred in ordering her to pay Jamey’s
attorney’s fees. The trial court awarded Jamey $54,737.52 in attorney’s fees and costs, which
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represented all of Jamey’s fees incurred between when the case began in February 2018 and
the end of the four-day trial concluding in August 2019.13 In its August 24, 2021, order
awarding attorney’s fees, the trial court found:
The attorney’s fees and costs award is authorized by statute and case law, and
the court makes an additional finding that the attorney’s fees and costs are
appropriate because the attorney’s fees incurred by Jamey throughout the course of
litigation and ordered to be paid herein were not available to support the parties’
minor children who have been in Jamey’s custody the entirety of the case.
In domestic-relations proceedings, the trial court has the inherent power to award
attorney’s fees, and the decision to award fees and the amount of those fees are matters
within the discretion of the trial court. Barter v. Barter, 2024 Ark. App. 182, 686 S.W.3d
872. In determining whether to award fees, the trial court is to consider the relative financial
abilities of the parties. Chambers v. Chambers, 2017 Ark. App. 429, 527 S.W.3d 1. Because
the trial court presides over the case and gains familiarity with it as well as the extent and
quality of the services rendered by the attorney, it has a superior opportunity to assess the
critical factors, and an award of attorney’s fees will therefore not be set aside absent an abuse
of discretion. Id.In challenging the attorney’s fees, Angela initially argues that because the trial court’s
custody order should be reversed, so should the attorney’s fees. However, because we are
13
After the four-day trial concluded in August 2019, two years passed before the final
order was entered. The trial court, in its discretion, awarded Jamey attorney’s fees from the
commencement of the litigation through the last day of the four-day trial. The trial court,
in this order, did not award Jamey attorney’s fees for the two-year period posthearing.
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affirming the custody award to Jamey, this argument provides no basis to reverse the
attorney’s fees.
Angela also raises various other arguments in support of reversing or reducing the
attorney’s fees. Angela argues that the fees incurred by Jamey that involved the proceedings
before the Arkansas State Medical Board should not have been allowed because (although
the trial court ruled all of this evidence admissible) the trial court ultimately decided not to
consider that evidence in reaching its custody decision. Angela argues further that no
attorney’s fees should have been awarded at all because Jamey fostered the children’s bad
behavior and also because the parties agreed to evenly divide their property. We, however,
do not agree that any of these considerations controlled the trial court’s discretionary
decision regarding attorney’s fees.
We do, however, find that two contentions raised by Angela on this issue are well
taken. First, Angela takes issue with the trial court’s finding that the attorney’s fees are
appropriate in part because the attorney’s fees incurred by Jamey throughout the course of
litigation were not available to support the parties’ minor children who have been in Jamey’s
custody the entirety of the case. Angela argues that, because the trial court had already
awarded Jamey back child support of $99,363.71, the trial court conflated child support and
attorney’s fees. We agree that, although the trial court has inherent power to award
attorney’s fees in such cases and may do based on the relative financial abilities of the parties,
the fees should not be used as a direct substitute for child support that has already been
awarded.
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Angela notes further that, after the trial court found her in contempt in its interim
order entered on May 10, 2019, it later ordered her to pay the associated attorney’s fees of
$2550. We agree that because Angela had already been ordered to pay these attorney’s fees
in an interim order, these fees of $2550 should not have been also included in the amount
of attorney’s fees she was ordered to pay in the August 24, 2021, order. However, in our
review of Jamey’s counsel’s itemized billing of the attorney’s fees and costs incurred between
February 2, 2018, and August 6, 2019, upon which the trial court relied in awarding
attorney’s fees, we are unable to determine whether the $2550 in attorney’s fees previously
awarded on the contempt issue were included. We admonish the trial court that the $2250
in attorney’s fees previously awarded should not be included in any additional award of
attorney’s fees since this would result in a double recovery for those fees.
Because we are reversing and remanding the back-child-support issue for further
findings by the trial court, we also reverse and remand the award of attorney’s fees because
these issues are intertwined. See Smith v. Smith, 2023 Ark. App. 521. On remand, we instruct
the trial court to reconsider the attorney’s-fees issue in light of the considerations expressed
above.
V. Conclusion
In conclusion, we affirm the trial court’s decision to award Jamey custody of the
children and we also affirm its award with respect to Angela’s visitation. We affirm the child-
support award of $2750 a month going forward, and we affirm the trial court’s restrictions
on the children’s contact with Angela’s twin sister, Andrea. We reverse the trial court’s
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decision that required Angela to pay half of the children’s private school expenses, but we
note that the trial court may consider these expenses as a deviating factor should it choose
to deviate from the chart amount in arriving at back child support as discussed above. On
the issue of back child support and attorney’s fees, we reverse and remand for further
consideration and findings consistent with this opinion. Finally, on the contempt issue, we
reverse the two findings of contempt in the trial court’s final order and we dismiss the appeal
with respect to the trial court’s finding of contempt in its interim order from which Angela
did not appeal.
Affirmed in part; reversed in part; reversed and remanded in part; dismissed in part.
BARRETT and WOOD, JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
McDaniel Wolff PLLC, by: Bart W. Calhoun, for appellee.
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