Opinion
CV-23-34
03-13-2024
AMBER BARTER (WEIGANG) APPELLANT v. DONNIE BARTER APPELLEE
Putman Law Office, by: William B. Putman, for appellant. Mostyn Prettyman, PLLC, by: William M. Prettyman III, for appellee.
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-20-1504] HONORABLE XOLLIE DUNCAN, JUDGE AFFIRMED IN PART; DISMISSED WITHOUT PREJUDICE IN PART
Putman Law Office, by: William B. Putman, for appellant.
Mostyn Prettyman, PLLC, by: William M. Prettyman III, for appellee.
BART F. VIRDEN, JUDGE.
Amber Barter appeals the Benton County Circuit Court order changing primary custody of MC1 (born 07/18/06), MC2 (born 11/08/07), MC3 (born 02/27/09), and MC4 (born 09/27/10) to her ex-husband and father of the children, Donnie Barter. She also appeals the circuit court's determination that she was in contempt of court and the award of attorney's fees to Donnie. We affirm in part and dismiss without prejudice in part.
I. Relevant Facts
Amber and Donnie were married on November 17, 2001. After about ten years of marriage, Amber filed for divorce, and on October 8, 2012, the Sebastian County Circuit Court entered the divorce decree that, in pertinent part, awarded Amber primary custody of their four children with standard visitation to Donnie. The circuit court also ordered that
[i]f designated visitation is to be skipped for any reason the reason for missing the visitation must be communicated to the other party. If any of the children must be taken to the doctor or to a hospital the other parent must be notified. Plaintiff must make the other parent aware of the children's location at all time and provide both phone numbers and addresses.
On February 7, 2019, the Sebastian County Circuit Court modified visitation, allowing Donnie to pick up the children on his weekends at 3:00 p.m. on Friday and keep them until Monday morning when he took them to school. His midweek visitation was ordered to occur from 3:00 to 9:00 p.m. on Wednesdays. Both parents and their spouses were ordered to participate in the Accountability Starts Here (ASH) program. The court ordered that
6. The parents only shall handle issues regarding discipline of the children, and communication regarding the children's schedules. The children are not to be used as messengers and the parent may communicate by text, email or conversation so long as appropriate and at reasonable hours.
7. Neither parent shall enroll the minor children in activities outside school that affect the other parent's visitation, without their prior written consent.
8. There shall be no derogatory remarks made in either household about either parent in the presence of the minor children.
On October 30, 2019, Amber filed a motion for contempt alleging that Donnie had harassed her by threatening her with frivolous legal action. She asserted that Donnie contacted her parents, despite her instruction to keep the children away from them, and he had contacted the police as well as the Arkansas Department of Human Services (Department) requesting that someone check on her home. Amber asserted that he "continually demands . . . to modify his visitation through threats of legal actions. He has also affected his visitation by not providing proper notification of where the exchange of the parties' minor children will take place." Amber accused Donnie of cutting off cell service during her phone conversations with the children and failing to pay his child support obligation.
In December, Donnie filed a counterclaim for contempt and modification of custody. Donnie stated that he called the Department to request a welfare check after he was unable able to contact the children for "many days." He admitted he had requested more visitation but denied harassing Amber. The phone call he ended was during the children's bedtime, and during the conversation, Amber had told the children that they did not have to listen to their father and discussed the court order with the children. In his counterclaim for contempt, he asserted that Amber had violated the court order in several ways. Amber made derogatory remarks about him to the children. Donnie explained that in February, Amber told the children that he "had been attempting to take them away and had been putting her through a bad situation and stress. The Plaintiff read portions of interrogatories to the children and had the children vote regarding changes to the visitation time with their dad." Amber's husband, Ken Weigang, also made derogatory comments about Donnie to the children. Donnie asserted that Amber used the children as messengers between them, and she had refused to allow the children to call him. When she did allow phone calls, she made the children use speakerphone. In March, Amber refused to provide Donnie with information about one of their children's school trips that was scheduled during Donnie's visitation. Amber did not tell him the child's phone number or address, though, eventually, she informed Donnie where the child would be. Donnie was not allowed to have visitation with MC1 on her birthday as ordered, and Donnie recounted several instances when Amber repeatedly scheduled activities during Donnie's visitation without telling him. Additionally, Amber did not inform him that MC3 had injured her wrist at school. During the following weekend visit, Donnie noticed that MC3's wrist was swollen and painful, and he took her to the ER where it was ascertained that her wrist was broken. Amber scheduled MC3 for an appointment with a specialist but did not tell Donnie about it until less than a day before the appointment. When MC3 was scheduled for surgery, Amber stated that her insurance was through ARKids First and not Donnie's insurance as stated in the decree. Amber did not list Donnie as an emergency contact and had refused to allow Donnie to be in the hospital room with MC3. In general, Amber ignored text messages and refused to communicate with him. Donnie requested more visitation to offset the negative impact of Amber's influence and requested that an attorney ad litem be appointed.
On December 23, Amber filed a response to Donnie's counterclaim for contempt and modification of visitation, denying his allegations and adding detail to his account of the events surrounding MC3's broken wrist, explaining that her wrist was much less swollen and that it was not unreasonable to wait and see if MC3's wrist began to hurt or become more swollen. She denied failing to inform Donnie of the appointments, and she explained that she arranged with the hospital staff to stagger her and Donnie's time in the room with MC3. Amber agreed that an attorney ad litem was needed, and the court appointed Whitney Matney to represent the children. After several continuances, the show-cause hearing was scheduled for August 27, 2020.
Donnie filed a new motion for contempt on August 21 because Amber had refused to tell him about MC1's initial therapy appointment, which he had been ordered to attend. Amber had insisted that she was not required to tell him about doctor's appointments. Additionally, Donnie requested that the venue be changed to Benton County because both parents had moved from Sebastian County to northwest Arkansas (Amber) and southern Missouri (Donnie).
In an agreed order entered on August 27, the parties agreed to the following terms:
a. The minor child, [MC1], shall attend weekly counseling, in person, with Megan Williams and the parties shall follow the counselor's recommendations.
b. The parties shall attend alternating weekly co-parenting counseling with Dr. Jeppsen and follow her recommendations; and c. The parties shall sign releases authorizing both counselors to speak with one another.
3. The parties agree that Dr. Jeppsen will address the communication between the parties as well as any other issues that the parties or Dr. Jeppsen deems necessary.
On July 16, 2021, Donnie filed a motion for contempt and requested modification of custody. In the motion, Donnie alleged that Amber and Ken made disparaging remarks about him in front of the children, Amber refused to include Donnie in emergency and regular medical visits, did not identify him as the emergency contact on school forms, interfered with and limited his visitation time, discussed court matters with the children, and refused to allow telephone calls with the children. Donnie requested that the court change primary custody to him due to Amber's alienating behavior.
Amber responded to Donnie's motion, denying all allegations.
Donnie filed an amended motion for contempt and modification of custody alleging that Amber had not attended the coparenting counseling they had agreed to in the order, she refused to "turn on her Zoom camera or show her face during sessions," and he could hear the children in the background. Eventually, the therapist convinced Amber to turn on her camera, but she would not aim it toward her face, and when Donnie tried to make up some of the missed sessions, Amber rejected all the proposed times and dates and did not provide any times or dates when she would be available. Amber and Ken continued to disparage Donnie to the children, fail to inform him of medical appointments, and refuse to list him as an emergency contact on medical and school-related documents. Additionally, Donnie contended that Amber failed to abide by the visitation schedule and consistently signed the children up for activities during his visitation time. When the children's activities fell through, she blamed Donnie. Amber used "the oldest child to control and manipulate the other children, specifically to deter the children from speaking about plaintiff's continued violations of court orders." Amber refused to allow him to speak with the children on the phone, and continually contacted the children during his visitation such that it significantly cut into his time. Again, Donnie requested primary custody.
The hearing was held on June 1 and September 22, 2022. At the time of the hearings, the children's ages ranged from fifteen to eleven. Donnie testified that Amber did not notify him of the children's medical appointments until after they had taken place or not at all, and he finds out there was an appointment only when the doctor's office calls him for insurance information. Donnie stated that he always emails Amber after these incidents, and he had sent at least thirty emails asking to be notified as per the divorce decree and modified order. Donnie explained that because he was not present at the appointments when the orthodontist gave aftercare instructions, he had to watch instructional videos on YouTube to help maintain his children's braces. During MC4's echocardiogram, Amber refused to allow Donnie to go back to the procedure room with MC4 and, in front of MC4, insisted that she and Ken go, too, or no one would go. She told Donnie to "learn his place .... And your place is not alone with me." Donnie took videos of the incident, and they were played for the court. Donnie explained that he wanted to be a part of MC4's medical care and that he needed to know the details about his heart condition. Donnie described the incident when MC3 broke her arm, although initially the school nurse, Ken, and Ken's brother (who is in the medical field) thought it was a sprain. During weekend visitation, MC3's arm became very swollen and hurt, he took her to the ER, and it was determined that her wrist was broken. MC3 needed surgery to heal properly. At the hospital on the day of surgery and in front of MC3, Amber stated that she was not allowed to be in the same room with Donnie, and she had safety concerns for herself. The hospital staff escorted Donnie to the lobby, and Donnie complied. Donnie had to provide the hospital staff with court orders showing that he could be present. Donnie stated he had "zero clue" where the "safety concerns" came from, there were no pleadings that described any such concerns, and no police had ever talked to him about safety concerns. He stated that he wanted to be with MC3 before her surgery: "I wanted to be there for their appointments. It was all for her." Donnie described Amber's practice of not listing him as the father on HIPAA forms, which he discovered when he requested his children's medical records. In some instances, Ken was listed as the primary caregiver, and Amber's sisters and Ken were identified as the emergency contacts. Donnie was listed as the father for the children's pediatrician's office; however, Amber had handwritten a note next to Donnie's name that the staff must call her before any medical records were released. Donnie testified that he sent emails to Amber regarding this matter, but it was still a problem. Donnie explained that his relationship with his two daughters began to deteriorate in 2019. MC1 had become standoffish and angry, and MC3 sat with her back to him, would not look at him or respond to him very often and stays at a distance from him when they are together. MC3 had changed from being affectionate to being angry, frustrated, and disrespectful. He described continuing difficulties speaking with his children by phone when they were in Amber's custody. Sometimes nine or ten days would go by without communication, despite his attempts to contact both her and the children. In March 2020, Donnie found pages removed from MC1's journal in the bathroom trash in which she had written about suicidal thoughts and threats toward others, specifically Donnie. He copied the pages and sent them to the ad litem, and MC1 began counseling shortly thereafter. Later, MC1 made a video explaining to a friend that Donnie found the journal pages and described how angry she was with her father, how her mother told her everything about the custody issues, and her father refused to talk about it with her or her siblings. In the video, MC1 stated that her mother had found the journal before Donnie, and they had talked about its contents, and her mom had not said anything to anyone about it. MC1 went on to say that Donnie "acts like nothing's wrong. Like whenever this whole custody thing was going on, he didn't talk about it.... [W]hereas my mom was really open; she told as much as she could because it involved us." MC1 also stated that Amber told her that she had a restraining order against Donnie, and "she would be in jail right now" if she told MC1 about recently having been in court. She stated that she felt betrayed when the journal pages were given to the ad litem: "I was told by my mom that the judge appointed [the ad litem] which is true, but the person that wanted us to have an attorney was my dad." Donnie also testified about the visitation issues. Donnie contended that Amber denied many midweek visits since the 2019 modification of the custody order. When he arrived to pick the children up for Thanksgiving break, Amber had told the children that they would be with their dad for only a day and that they were coming back to her house for Thanksgiving. In fact, the children were scheduled to be with Donnie for the break. The children were not packed for a long weekend, and Donnie told them to go back inside and pack a bag. The children were furious. Donnie did not show them the court order, and he stated that the children were upset because their plans with their mom had been upended. At Christmas, he came to pick up the children at the time set forth in the order, and Amber threatened to call the police. Donnie came back later and ended up having a shortened Christmas break with the children. Donnie testified that he supports the children's involvement in extracurricular activities, but he would appreciate more communication from Amber because she scheduled the children without talking to him or working out a plan to ensure he can exercise visitation. Donnie recalled a time when Amber and Ken signed up MC2 for a school trip to Disneyland with his choir during the first week of Donnie's summer visitation without informing him until the last day to reserve a spot. Amber and Donnie emailed about the trip, and Donnie proposed detailed modifications of the visitation agreement to allow MC2 to attend the trip. In conclusion, he explained that they needed to "come to an agreement to allow [MC2] to attend the Disney trip during the children's time with me, then we will need to completely adjust our summer plans. As such, I am requesting a quick follow up on this matter and resolution." Amber responded by email: "I have given this matter much consideration and since we cannot come to an agreement, then [MC2] will not be attending the UACC trip in June." Another time, MC1 tried out for the school musical, and Amber did not tell Donnie or send the practice schedule to him. When church camp fell during his summer visitation, initially, Donnie and Amber worked out a plan that the children would attend the camp during his visitation and then have the Fourth of July holiday with him. After the agreement was made, Amber requested that the children attend her family's Fourth of July get-together. When Donnie refused, Amber canceled church camp. Amber and Ken helped run the church camp, and during that week, Amber was in "constant contact" with the children, sending photos and texts to let them know everything they were missing. Donnie said his relationship with his children was so bad that "it's like watching them die." Donnie explained that the children had been privy to too many legal matters and they
cringe, turn their back to me. Um, if we're ever at a school function, uh with their mom and Ken, and we're sitting close, my girls, especially . . . made sure to avoid me and they just turned their backs away from me; there's no acknowledgment that I'm their father, there's no acknowledgment that I'm even present.... If I even look their way, they give me a look of, um, disgust, hate.
MC3 refuses to speak with Donnie and cringes if he hugs her. At a school performance, MC3 lay down on the floor rather than hug him. He stated that the children antagonized him and "smirk if I get a little bit upset." Donnie stated that when the kids are with him a little longer in the summer, "things get to some sort of normality . . . but one phone call can change all that." During evening video phone calls with Amber, Donnie has tried to end the call around the children's bedtime and has seen Amber roll her eyes and heard her tell the children that he has no right to end the phone call. Amber has told the children that it is a violation of the court order for Donnie to tell them to end their phone calls with her. Donnie stated that he has hung up the phone after explaining to Amber that they will not do this in front of the kids. When Donnie planned the children's first beach vacation, Amber cried when the children told her. The children went from excited to upset and crying because of how Amber handled the news. Donnie testified that when, on one Wednesday visitation, MC4 and MC3 had enjoyed playing the video game Fortnite at his home, and they were very excited and happy about playing. The next visitation, "they were no longer wanting to play that game. The game was bad.... [MC3] refused to have any part of that and turned into a recluse." Donnie explained that playing Fortnite with MC3 "meant more than even I can explain, just to have a little inch of some sort of reality of a relationship with my daughter. Um, so, there was a six-month period, almost where, um, I lost that even." After about six months, Amber allowed the children to play the game, and Donnie and MC3 could play together at his house again. In conclusion, Donnie stated that if he was given primary custody, he would facilitate the children's staying in their current schools and did not want to "uproot" the children.
Amy, Donnie's wife, described her husband as a "goofy, silly, funny, very caring father" who wants to be involved in his children's lives. Amy confirmed that drastic changes had occurred in Donnie's relationship with the children since 2019. She described how the children went from monopolizing the phone when they talked with their father to being "livid" with him for "some things that they had learned." Amy stated that Donnie told the kids that the issues were between him and Amber, but MC1 was furious with Donnie, would not speak to him on the phone, and had many hostile outbursts toward him. MC1 limited and controlled the other kids' discussion of Amber's household when they were with their father. When MC3's arm began to show signs of injury more serious than a sprain, MC1 yelled and screamed at Donnie to keep him from taking her sister to the ER, which further upset MC3. Amy explained that MC3 "wants to disconnect from everything that is associated with our home." Amy stated that with longer time together, you start to see a little bit of them coming out of their shell and they will start to open up a little bit. But when you look at a weekend, that he has them for two days, there's no opportunity. I mean, he's in there, he's trying, he's trying to connect, he's understanding what they like, what they want to do. Um, but there's not enough time. And in that limited time of two days, generally, there is multiple phone calls, multiple text messages, interruptions [from Amber] so that it makes it very difficult in a small period of time.
Amber testified next. She stated that the kids were excelling academically, socially, and in their extracurricular activities. Amber explained that MC1 speaks her mind, and she and Ken encourage her to be respectful. Amber denied encouraging MC1 to be disrespectful to Donnie, restricting the children's communication with him, or insisting on speakerphone or video during calls. Amber explained that they are a very busy family, and sometimes they are in the middle of an activity and cannot answer the phone. She stated that she does not "micromanage" the children's phone time with Donnie, though she always encourages them to talk to their father, even if they do not want to. Amber testified that the visitation order was subject to interpretation, and the Thanksgiving and Christmas visitation issues Donnie testified about were misunderstandings of the order. She stated that she validated the children's frustration at Thanksgiving by apologizing and telling them "this was my mess up." Amber denied showing the children the court order and discussing it with them. Amber explained that the incident regarding MC3's wrist injury started out as a misunderstanding about how serious the injury was. The school nurse told them to watch it and see if it got worse, so they did. The nurse's advice was reasonable because MC3 had been able to wash her hair, and there was no indication it was getting worse. Amber denied instructing her daughters to hide or lie about the injury. Amber recalled that when she, Ken, and Donnie were at the hospital for MC3's surgery, she
told the nursing staff that their dad and I did not get along and that I was uncomfortable being in the room with him. And, so, I said, "I have zero problem with him being back here, I just don't want to be back here when he is," and they said, "Not a problem, you know, we will just, kind of, do a flip flop, kind of thing." They said, "We will handle it. You know, after you've had some time with your daughter, you know, if he's wanting to come back, you know, or whatever, we will just let him come back and you can wait in the waiting room." I said that was fine and that's what happened.
Amber denied having a "screaming tirade" in front MC3, or even addressing the issue in MC3's presence. Amber denied that she limited Donnie's access to MC3 or that she had any problem with him being with her at the hospital. Regarding the medical and school forms, Amber denied having an agenda when she listed her sisters and Ken as emergency contacts for the children. She explained that it was just a matter of geography-Ken and her sisters were closer than Donnie, so it was logical to identify them as the emergency contacts. Amber denied refusing to allow the release of medical records to Donnie and explained that she wrote the notation to call her next to Donnie's name because she wanted to know who was accessing her children's medical records. Amber denied intentionally failing to tell Donnie about MC1's play tryout or the play schedule. Regarding the Disneyland trip during the first week of Donnie's summer visitation, she learned about it in September and told Donnie, but she never received a firm answer from him. Amber registered MC2 so he would not lose the spot. Amber denied telling MC2 that it was Donnie's fault he could not go to Disneyland. Regarding church camp, Amber denied telling the children that they were going to attend, and she explained that part of the problem was that Donnie never gave a firm answer. She stated that she withdrew their camp placements because "we were never able to get something worked out." Amber testified that she read MC1's journal passages regarding her anger toward her father before Donnie found them, but she decided not to tell Donnie because she thought their relationship was strained enough. Amber stated that MC1's video confirmed her concerns about their relationship. Regarding MC4's echocardiogram, Amber stated that when they were told only two parents could go to the procedure room, Donnie told Ken that he (Donnie) should be the second parent in the room, and it was "a little off putting." Amber stated that she was fine with all three of them going back to the room together, but she did not want to be alone with Donnie, even though a nurse would be in the room because the nurse would not come to her defense if needed. Amber explained that when she said Donnie needed to learn his place and it was not alone with her, she only meant that he was emotionally and psychologically draining, and she felt harassed. Amber confirmed that there was no restraining order against Donnie and there never had been one. She denied discouraging fun activities at Donnie's house and explained that, at first, she thought MC4 was a little young to be playing Fortnite. Amber denied calling at dinnertime and before bed and stated that when she hears Donnie tell the kids that it is time to get off the phone, she tells them, "Hey, kids, it's time to get off the phone." Amber denied disparaging Donnie around the children, and she explained that she is very open and encourages discussion. Amber expressed concern that if Donnie had primary custody, the kids would suffer from the hour-long commute to and from Bentonville, which would interfere with activities and homework. Amber pointed out that Monette, Missouri, where Donnie lives, does have an orchestra, choir, and other activities that Bentonville does. Amber stated that she fully participated in counseling with Donnie, and she was upset the children were going to Florida in 2020 because of her concerns about COVID-19.
The ad litem recommended that Donnie be given primary custody. She noted that the relationship between Donnie and the kids had deteriorated, and "as the children get older, they become more and more distant from their dad, based on the actions or inactions of their mother." The ad litem stated that "she will destroy every one of their relationships with their dad and he will have none of the four children remaining having anything to do with him." The ad litem acknowledged that the change would be difficult, but "the absence of as much of their mom as they have right now and her influence, it will make them stronger people, it will help their relationship with their dad"; however, when the parties returned for the court's ruling, the ad litem stated that because of MC1's age, primary custody of MC1 should remain with Amber, and Donnie should have visitation.
From the bench, the court stated that about "the time that Amber Weigang started making decisions about following or not following court orders" the situation "began to go off the tracks," referring specifically to Amber's failure to notify Donnie about medical and school issues. The court noted that Amber interfered with Donnie's access to records by requiring a phone call to her first, and she interfered with access to the children during medical procedures by insisting that she cannot be alone with Donnie and by listing others as emergency contacts. The court found that Amber had caused scenes in front of the kids connected with these issues. The court stated that the church-camp incident was especially egregious because Amber was in direct violation of the court order by registering the children without his input, interfering with Donnie's summer visitation for a week, and then bombarding the children with texts. The court noted that Donnie had wanted the children to attend church camp, and the parties had agreed to add an extra week at the end of his summer visit; however, Amber canceled church camp and blamed Donnie because she wanted the Fourth of July holiday as well, which was during Donnie's extra week. The court stated that the Disneyland-trip issue was due to "very similar tactics by Mom." The court stated Amber's goal was to ruin everything good at Donnie's house, and to "intentionally [box] him in by discussing activities and events with the kids before even mentioning it to Dad. I mentioned the Disney trip, Thanksgiving, his Florida vacation." Finally, the court concluded that "no Court Order is going to make Amber Weigang foster a relationship between the kids and Donnie Barter. No Court Order is going to fix the issues created over the last few years. The Plaintiff will not comply with Court Orders."
The order awarding Donnie primary custody and finding Amber in contempt was entered on October 12, 2022. The court found that a material change in circumstances affecting the best interest of the children had occurred. The court found that "if [Amber] continues to exhibit any derogatory or contemptuous conduct, the court will consider further limitation of [Amber]'s contact with the children, including, but not limited to supervised visitation." The court ordered the children and Donnie to immediately begin family counseling and follow all recommendations. Amber was ordered to undergo individual counseling, and if she progressed, the terms of visitation would be revisited. Donnie was ordered to "make every reasonable effort to maintain the minor children in their current schools and activities[.]" Donnie was ordered to notify Amber of any medical appointments, extracurricular activities, and school-related activities. Amber was ordered to pay $621 monthly child support. The court awarded $7200 in Donnie's attorney's fees, and Amber was ordered to pay the ad litem fees amounting to $5,739.36. Regarding contempt, the court found the following:
19. That the Court shall consider [Amber]'s actions in facilitating a smooth transition for the children regarding [Donnie]'s award of custody, as well as whether [Amber] supports and encourages better behavior by the children toward [Donnie] in determining the severity of the sanctions imposed.
20. That counsel for the parties and the attorney ad litem shall be notified in writing of said sanctions, and they shall be rendered and enforced by the court through subsequent order.
Amber timely filed her notice of appeal, and this appeal follows.
II. Discussion
A. Standard of Review and Applicable Law
In reviewing child-custody cases, we consider the evidence de novo but will not reverse a circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. See Szwedo v. Cyrus, 2020 Ark.App. 319, 602 S.W.3d 759. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. See id. This deference to the circuit court is even greater in cases involving child custody because a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. See id.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the children or when there is a showing of facts affecting the best interest of the children that were either not presented to the circuit court or were not known by the court at the time the original custody order was entered. See id.
Generally, courts impose more stringent standards for modifications of custody than they do for initial determinations of custody. See id. The reasons for requiring these more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the lives of the children and to discourage the repeated litigation of the same issues. See id. To avoid the relitigation of factual issues already decided, the courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). The party seeking modification has the burden of showing a material change in circumstances. See id.
B. Issues on Appeal
On appeal, Amber contends that (1) the circuit court's award of custody to Donnie is not in the children's best interest; (2) MC1 is particularly harmed by the court's decision to change primary custody to Donnie; (3) the court engaged in a "flawed interpretation of the relevant evidence"; (4) there were less drastic alternatives to changing custody; (5) the court erroneously found her in contempt; and (6) the circuit court erred in awarding Donnie attorney's fees. We affirm.
Amber's first four points on appeal can be addressed together. Amber contends that the circuit court erred by not finding that the long commute between Monette to Bentonville, the disparity between the opportunities and activities for the children in Bentonville as compared to Monette, and the reduced time for homework related to the long commute all weigh in favor of keeping primary custody with her. Amber explains that this is particularly true for MC1, a junior in high school at the time of the hearing, because her numerous, time-consuming activities take place in Bentonville. Moreover, Amber asserts that the ad litem amended her recommendation regarding custody because of MC1's age, deciding that MC1 should stay with Amber, and the other children should live with Donnie. Amber asserts that the video MC1 made in 2020 voicing strong, negative feelings toward Donnie at the time was proof that MC1 did not need the disruption that a change of custody would cause. In general, Amber argues that the court misinterpreted the testimony at the hearing regarding the contentious events leading up to the change of custody. She explains that the "circuit court's rationale for changing custody is based on a flawed interpretation of the relevant evidence." The church-camp issue, the Disneyland trip, and the Thanksgiving- and Christmas-visitation errors will not be repeated, she asserts, because they are using the Close App family calendar, and the visitation order has been clarified. Amber contends that there is no need to change custody in light of the improved compliance with the custody and visitation order through these means. Amber asserts that the circuit court changed custody to Donnie, at least in part, because the court was "clearly upset" with her and "did not try to hide [its] displeasure at some of Amber's conduct." In conclusion, Amber relies on the tenet that to promote stability and continuity in children's lives, Arkansas courts impose a more stringent standard for a change of custody than for initial custody determinations, and the facts elicited at the hearing did not warrant such a change. See Neal v. Neal, 2016 Ark.App. 223, 491 S.W.3d 457. We disagree.
Essentially, Amber's arguments regarding the first four points on appeal are requests to have our court to reweigh the evidence, which this court cannot do. See Wilhelm v. Wilhelm, 2018 Ark.App. 47, 539 S.W.3d 619. Moreover, our case law supports the circuit court's determination that a material change in circumstances occurred and that changing primary custody to Donnie was in the children's best interest. In Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007), this court held that a mother's continuing pattern of alienation constituted a material change in circumstances warranting a change of custody. Likewise, in Turner v. Benson, 59 Ark.App. 108, 953 S.W.2d 596 (1997), the court admonished the mother at the time of the divorce that she was alienating the parties' son from his father. The circuit court later changed custody to the father because of a pattern of alienating behaviors, including not using the father's surname as the child's surname, consistently interfering with the father's visitation schedule, and making derogatory statements about the father in the child's presence. Giving due deference to the superior position of the circuit court to view and judge the credibility of the witnesses, especially in cases involving child custody, we affirm.
For her fifth point on appeal, Amber argues that the court erroneously found her in contempt for violating the custody order. Generally, a finding of contempt is a final, appealable order; however, an order of contempt is not final and appealable when no sanctions have been imposed. See Fox v. Fox, 2021 Ark. App 416. Regarding contempt sanctions, the court found,
19. That the Court shall consider [Amber]'s actions in facilitating a smooth transition for the children regarding [Donnie]'s award of custody, as well as whether [Amber] supports and encourages better behavior by the children toward [Donnie] in determining the severity of the sanctions imposed.
20. That counsel for the parties and the attorney ad litem shall be notified in writing of said sanctions, and they shall be rendered and enforced by the court through subsequent order.
Because the court did not impose a sanction, the order is not final as to contempt, and we dismiss the matter of contempt without prejudice.
For her sixth point on appeal, Amber contends that the circuit court erred in awarding Donnie attorney's fees. In domestic-relations proceedings, the circuit court has the inherent power to award attorney fees, and the decision to award fees and the amount of those fees are matters within the discretion of the circuit court. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427. Absent an abuse of that discretion, an award of fees will not be disturbed on appeal. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007).
Amber asserts that the court did not state a specific reason for the award of attorney's fees, and it appears that it did so because Donnie was the prevailing party. She requests that in addition to reversing the circuit court on the merits of this case, the award of fees be reversed or vacated and the issue remanded to the circuit court. Because we have affirmed the decision of the court on the merits, we also affirm its award of attorney's fees.
Affirmed in part; dismissed without prejudice in part.
ABRAMSON and THYER, JJ., AGREE.