ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION III

PAMELA HOPPER McKIDDY

APPELLANT

V.

ALLEN McKIDDY

APPELLEE

WILLIAM RANDALL McKIDDY and

SUSAN LYNN McKIDDY

INTERVENORS/ APPELLEES

CA 02-1064

June 18, 2003

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[DR-98-1571-111]

HONORABLE DAVID B. SWITZER, CIRCUIT JUDGE

AFFIRMED

Appellant, Pamela McKiddy, appeals from an order entered on May 24, 2002, in which she was found to be in contempt; her visitation with her child was terminated subject to reinstatement; an order for her arrest was issued, setting a cash bond in the amount of her unpaid and past-due child support, and requiring that it be posted by appellant before being released from jail; and the intervenors, appellee Allen McKiddy's father and step-mother, were awarded judgment in the amount of $1,000 for attorney's fees and $602 for costs. The order arose from a May 9, 2002 hearing for which appellant did not appear. We affirm.

Appellant, Pam McKiddy, and appellee Allen McKiddy were divorced on February 19, 1999. They have one child, Heather Shyanne, who was born on August 9, 1996. As partof their divorce action, appellee Allen McKiddy's father and step-mother, William and Susan McKiddy, were allowed to intervene, and joint custody of the child was awarded to

Allen and to his parents. In addition, appellant was denied visitation "at this time, due to her lack of appearance, and refusal and failure to testify, and based upon evidence presented to the Court."

In an order entered February 17, 2000, the court, in pertinent part, held appellant in contempt for appearing at a hearing intoxicated and also for her failure to pay child support; ordered that custody remain with the intervenors, allowing the parents to have supervised visitation only and ordering that the child not be exposed to Kevin Kronsagen unless he consistently demonstrated by drug screens that he was clean and sober; and devised a plan for the payment of back child support by appellant.

On August 10, 2001, appellee Allen McKiddy filed a "motion respecting visitation," in which he reported that he had completed an anger-management program, lasting one year, and requested that he now be allowed unsupervised visitation with his child.

On November 8, 2001, appellant filed a petition to modify custody, reporting that she had "completed a long term drug and alcohol rehabilitation facility" and that she "regularly attends AA meetings." She also alleged that Allen McKiddy had failed to seek anger-management treatment, that he was being allowed to visit the child unsupervised, that Allen and the intervenors were drinking in front of the child, that they were attempting to alienatethe child from appellant, that they denied her telephone visitations, and that they were using corporal punishment on the child.

On November 13, 2001, the intervenors filed a petition for emergency ex parte relief, alleging in part that appellant was violating the court's supervised-visitation order in that appellant's mother, Loretta Gills, was not supervising the visitation as ordered by the court and that appellant was "speaking ill" of the intervenors to the child. They attached affidavits to support these allegations. Paragraph 6 of the petition states: "On the hearing on this matter, the Defendant and her mother, Loretta Gills, should be ordered to show cause why they should not be held in contempt for their refusal to follow this Court's orders."

On November 13, 2001, the court entered an emergency ex parte order, which suspended visitation between appellant and the child and set a hearing on the matter for December 3, 2001. On November 16, 2001, appellant filed a motion for contempt, alleging that the intervenors were denying her visitation with the child and that they were making derogatory remarks about her to the child, all in violation of the court's February 17, 2001 order.

On December 3, 2001, all parties were present with counsel for the hearing on the ex parte petition/order. Kathy Gladden, a licensed counselor and an affiant to the petition, testified about the child's mental health. The court reported that they had run out of time and that the hearing would have to be continued, but that if appellant would have at least twosessions with Gladden, for which the court received a satisfactory report, then he would reinstate supervised visitation pending the next hearing, which was set for February 21 and 22. The court expressed strong sentiments about any of the parties failing to abide by the court's order regarding supervised visitation and derogatory comments.

On December 11, 2001, the intervenors filed a motion for contempt against appellant and her mother, alleging that they had violated the court's February 17, 2000 order by not maintaining supervised visitation, by not paying child support, and by making derogatory statements. No affidavits were attached to this motion.

On December 21, 2001, the court entered its "order after hearing," following the December 3, 2001 hearing, in which it found that the November 13, 2001 ex parte order should continue pendente lite, maintaining the suspension of appellant's visitation until designated conditions were satisfied and stating that the final hearing in the matter was to be held on February 21 and 22, 2002.

On February 7, 2002, the intervenors filed a motion for continuance, asking that the February 21 - 22 hearing dates be continued because they had been unable to secure necessary discovery depositions from appellant.

On February 12, 2002, the court entered an order of continuance, providing that "the hearing set for the 21^st and 22^nd days of February, 2002 beginning at 9:00 a.m. with the exception of Plaintiff's [appellee Allen McKiddy's] motion respecting visitation should beand is hereby continued until Thursday, May 9, 2002, beginning at 9:00 a.m." On February 20, 2002, appellee Allen McKiddy moved to nonsuit his petition for unsupervised visitation, and an order to that effect was entered on the same date.

On May 8, 2002, appellant filed a voluntary dismissal of her petition to modify custody. On May 9, 2002, the court entered its order dismissing, without prejudice, appellant's motion to modify custody.

Also on May 9, 2002, the court conducted the hearing referenced in its February 12, 2002 order. Neither appellant nor her attorney were present. The intervenors were present with counsel. At the outset of the hearing, the court commented:

First, the nonsuit was made yesterday and [it] is always my practice - and I wanted to make a record of this - that when I received the nonsuit, I tried to contact the movant, the counsel for the movant, and mentioned that there was a counterclaim, or in this instance, a motion for contempt, and was unable to reach Mr. Ducote [appellant's attorney]. But I just do that as a courtesy to attorneys. You know, they may not remember that there's a counterclaim.

Second, it is always my practice that when someone is late for court, that I make a call to their office to determine - you know, people have automobile accidents, they get sick, you know, any number of things can happen. So what I'm going to do right this moment is take a short recess, contact Mr. Ducote's office and find out where the defendant-petitioner and counsel are at. So we'll be in recess.

Recess was taken at 9:07 a.m. and reconvened at 9:10 a.m., and the court reported that efforts to contact appellant's counsel were not successful.

The court then conducted the hearing without appellant or her attorney being present. Testimony and exhibits were received that purported to establish that appellant was continuing to have unsupervised visitation with the child; that she had several DWI convictions; that the child was being exposed to appellant's boyfriend, Kevin Kronsagen, without him undergoing drug screens; that appellant was continuing to make derogatory remarks about the intervenors; and that she was still behind in her child-support payments. At the conclusion of the hearing, the court stated in pertinent part that based upon the testimony, he found appellant to be in willful contempt, and that it was in the best interest of the child for visitation to be terminated, pending proper petition to the court.

On May 24, 2002, the trial judge entered the order from which appellant has appealed. In it, he recited essentially what was said in court, although the "best interest" language was omitted from the order.

Appellant raises three points of appeal: (1) Did the appellant receive sufficient and adequate notice of contempt proceedings against her, such as to fulfill her due-process rights; (2) Did the appellant receive sufficient and adequate notice of the custody/visitation modification hearing, such as to fulfill her due-process rights; (3) Is it appropriate to terminate visitation as a punishment or sanction for contempt of court. The first two points can best be discussed together since they both involve the same facts regarding appellant's sufficiency of notice and due-process arguments.

Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980). Unless the court initiates the proceedings on its own motion, however, any proceeding to punish for contempt committed outside the presence of the court must be initiated by an affidavit of a person who witnessed the contempt or otherwise has knowledge of it. Id. The affidavit must set forth all facts essential to the court's jurisdiction, including facts which constitute contempt and clearly apprise the person charged of the nature and cause of the accusation. Id. If the person accused of the contempt is not otherwise before the court he must be brought before the court by the issuance and service of proper legal process. Id. Although a court may initiate contempt proceedings on its own motion when presented with unverified allegations of constructive contempt, the court may summarily disregard such allegations if they are not made under oath. Id.

Moreover, as this court explained in Nelson v. Nelson, 20 Ark. App. 85, 88-89, 723 S.W.2d 849, 851 (1987):

Another case cited in Riviere, supra, is Henderson v. Dudley . . . . Henderson pointed out that Ark. Stat. Ann. § 34-903 (Repl. 1962) merely requires, where the contempt is not committed in the court's presence, that the party charged be notified and have reasonable time to make his defense. After discussing prior cases, the court concluded:

Thus, it can be seen that this court has taken the position that an order of court setting out the charge, or statement thereof, containing the wholematter constituting the offense with which the alleged contemnor is charged, is the equivalent of a supporting affidavit.

. . .

The Henderson case was expressly reaffirmed in Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). The opinion in Clark also contains the following quotation from CarlLee v. State, 102 Ark. 122, 127, 143 S.W. 909 (1912), a case which was cited in the Riviere case:

There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause.

Appellant summarizes her arguments in the following manner:

[T]he two issues originally set for hearing on the docket for February 21-22, 2002, were Plaintiff Allen McKiddy's petition for unsupervised visitation and defendant Pamela Hopper-McKiddy's petition to modify custody and contempt motion. The February 21-22 hearing was continued to May 9, 2002. Both appellant and plaintiff ... voluntarily non-suited those respective petitions/motions. On May 9, 2002, appellant did not appear, nor did her counsel, due to a lack of notice that a hearing regarding intervenors' motion for contempt would be heard that day. No show cause order had been issued.

The facts of this case, however, do not support the basis for her argument, i.e., that the only two issues set for hearing on February 21-22 and then May 9, 2002, were Allen McKiddy's petition for unsupervised visitation and her own motion to modify custody and to find intervenors in contempt.

As set forth previously, on November 13, 2001, the intervenors filed a petition for emergency ex parte relief. In it they alleged that appellant was not following the court'sorder. They attached affidavits to that effect, and in paragraph six, they specifically requested that on the hearing of this matter, the defendant and her mother should be ordered to show cause why they should not be held in contempt for their refusal to follow the court's order. An ex parte order was entered on November 13, 2001, and it suspended visitation between appellant and her child and set a hearing on the matter for December 3, 2001. All parties and their counsel were present at the December 3, 2001 hearing. At that hearing, the court ran out of time, but the contempt allegations were discussed at length, and it was clear that the court intended to address the matters again at the February 21 and 22 hearing. The court's December 21, 2001 order following the hearing reiterated that the ex parte order suspending visitation would continue and that the final hearing would be held on February 21 and 22. Upon intervenors' motion for continuance, the court entered its February 12 order granting the continuance to May 9, 2002. We are simply not persuaded by appellant's contention that the only issues set for the February 21 and 22 hearing were her motion to change custody/contempt and Allen McKiddy's petition for unsupervised visitation, which were both subsequently nonsuited. The contempt issues regarding supervised visitation clearly remained before the court and were set for resolution on February 21 and 22, and continued to May 9.

With respect to her second point of appeal, involving "notice of custody/visitation modification hearing," we merely refer to the same series of events set out previously withrespect to appellant's notice, and, in addition, point out that custody and visitation were not really modified at the May 9 hearing. That is, appellant did not have custody before the May 9 hearing, and she did not have custody after the hearing. Her visitation had been suspended before the May 9 hearing, and, even though the court used the word "terminated," the more reasonable reading of the court's order is that appellant's visitation remained suspended following the May 9 hearing, pending proper petition to reinstate it.

In short, all parties and their counsel were present before the court on December 3 when matters regarding appellant's disobedience of the court's order regarding visitation and derogatory remarks were discussed, her visitation was suspended, and the matters were bound over to February 21 and 22 because the court ran out of time. Appellant's and Allen McKiddy's nonsuiting of their motion/petitions did not change the fact that the court still had other matters before it, e.g., appellant's visitation with her daughter and the allegations that she was in contempt of court regarding the manner in which she had been handling visitation.

For her third point of appeal, appellant contends that it was inappropriate for the trial court to terminate her visitation with the child as a punishment or sanction for contempt. In support of her position, she states that "there was no mention that Pamela McKiddy's visitation with her daughter was terminated in the best interests of the child." Again, there is a problem with the underlying factual basis for appellant's argument. In its commentsfrom the bench at the May 9, 2002 hearing, the court stated, "The Court finds it is in the best interest of this minor child [that] the visitation be terminated, and same is, pending proper petition to the court." (Emphasis added.) Even though the court's "best interest" language did not make it to the written order, we conclude that the trial court's findings on visitation were not used to punish appellant for contempt, but rather that the trial court determined it was in the child's best interests not to be with appellant until appellant demonstrated improvement in her conduct. The trial court made this determination in light of testimony and evidence presented at the May 9 hearing concerning appellant's continued problems with alcohol.

Affirmed.

Neal and Crabtree, JJ., agree.