Mathis v. Hickman

1

2024 Ark.App. 172

JESSICA MATHIS APPELLANT v. GLEN ALAN HICKMAN, JR. APPELLEE

No. CV-22-432

Court of Appeals of Arkansas, Division I

March 6, 2024

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60DR-08-2009] HONORABLE MACKIE M. PIERCE, JUDGE.

Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

LaCerra, Dickson, Hoover &Rogers, PLLC, by: Lauren White Hoover, for appellee.

KENNETH S. HIXSON, JUDGE.

Appellant Jessica Mathis (Jessica) appeals after the Pulaski County Circuit Court entered several orders in favor of appellee Glen^[1] Alan Hickman, Jr. (Alan). On appeal, Jessica contends that (1) the circuit court erred in denying her motions to transfer this case to Rhode Island; (2) the circuit court erred in finding her in contempt regarding Alan's visitation with their minor child (MC) and regarding Alan's telephone communication with MC; (3) the circuit court erred in awarding Alan attorney's fees incurred in Rhode Island; (4) the circuit court erred in calculating support owed and in imputing full-time income to her; and (5) the circuit court erred in its division of attorney ad litem fees. We affirm in part and reverse in part.

I. Previous Litigation

Alan and Jessica were married and have one child together, MC. They were divorced in the Circuit Court of Pulaski County, and on July 28, 2009, an amended order granted Jessica custody of one-year-old MC, subject to Alan's visitation. In addition to visitation, the amended order provided that both parties were to allow reasonable telephone contact with MC while he was in the other's care, which was to "be no less than every night between 7 p.m. and 8:00 p.m." Further, Alan was ordered to pay child support biweekly in the amount of $182.

Subsequent to the divorce, Jessica married Joshua Mathis (Joshua), who was on active duty with the United States Navy. Over the next few years, Joshua was transferred several times. Joshua, Jessica, and MC moved to Hawaii,^[2] then to Washington State, and then to Rhode Island. Joshua, Jessica, and MC have resided in Rhode Island continuously since September 2014.^[3]

Between 2009 and 2018, despite Jessica's no longer residing in Pulaski County, the parties were frequent participants in a variety of contested custody-related issues in the Pulaski County Circuit Court, to-wit: On December 23, 2009, the circuit court reduced Alan's child-support obligation to $109 biweekly. On April 28, 2010, the circuit court permitted Jessica to move with MC to Hawaii. On September 18, 2012, Alan was awarded additional visitation, including Christmas, spring break, Thanksgiving, and the summer on certain years; the amount of child support was also modified for Alan to pay $400 biweekly. On December 8, 2014 (by this time, Jessica resided in Rhode Island), child support was again modified, the holiday visitation schedule was again adjusted, and Alan was permitted to call or Skype MC "from 7:00-8:00 p.m. nightly as currently set out to 6:00-7:30 p.m. in the time zone in which the child resides." In this order, Jessica was directed to "take those steps necessary to facilitate such contact without interruption or distraction, and to facilitate the child's calling or videoconferencing [Alan] back as soon as possible following any unavoidably missed call or Skype session." Regarding visitation, the circuit court ordered the following:

3. [Jessica] may, following holiday visitation with the minor child for Christmas 2014, obtain the child at 6:00 p.m. on that Friday evening three days before the resumption of school. Thereafter, at [Jessica's] election made at least four weeks before the commencement of any holiday visitation during the school year, to facilitate the return of the child to his home on that day, [Jessica] shall have the child ready for pickup up to three hours earlier than the 6:00 P.M. exchange time two days before the resumption of school recited in the parties' most recent Order, in which event [Jessica] may within two weeks of notification thereof, at his election notify [Alan] that he will be obtaining the child up to three hours earlier to commence visitation, which if not made in that time will result in his obtaining the child at 6:00 p.m. as set out in the most recent Order. [Alan] will deliver the child to the Little Rock Airport for exchange unless [Jessica] agrees to pick him up at the Bryant Lowe's. [Alan] will pick the child up at his school if he elects to get him at 3:00 p.m. otherwise [Jessica] will deliver the child to the Providence Airport by 6:00 p.m. or hotel near the Providence airport if requested by Plaintiff.

4. In view of the addition of a winter break in the child's new school system, the parties' existing holiday visitation shall be adjusted so that [Alan] continues to receive Christmas Break (as defined in earlier Orders) starting on even-numbered calendar years, and the spring break in odd-numbered years, and alternating winter break so that [Alan] receives it in even numbered years.

The parties were back in court, and on October 1, 2015, the circuit court modified Alan's child support and ordered that he pay $555 biweekly. The circuit court recognized that there would be additional moves likely because of Joshua's service in the military. The circuit court recognized that there had been problems regarding Alan's ability to communicate with MC while he was in Jessica's custody and noted the following:

9. With respect to phone calls, the Court does find there have been problems for Mr. Hickman in making contact via phone. The Court is concerned with that and wants any problems with phone calls stopped. If the phone call problems continue, the Court will deal with it in a drastic fashion. The Court would point out that the presences of the two other children in [Jessica's] home are not a concern of the Court because they are not before this Court. [Jessica] is to exercise her best effort to allow phone contact. For example, if the child is in a restaurant and a phone call is placed to him by Mr. Hickman it is reasonable to have the phone call returned after leaving the restaurant. If he is in a car returning from boy scouts or some other activity he should be allowed to return the phone call. Mr. Hickman needs to realize that a child that is approximately 7 years of age is not generally going to speak for a long period of time.

10. [Jessica] will allow [MC] to call [Alan] at any reasonable time he wants to. Further, [Jessica] is to foster communication between [MC] and [Alan]. The parties are to be reasonable about phone call times and length of calls. Further it is the Court's desire that the parties use FaceTime or Skype whenever possible. The Court reiterates that the continued problems with the calls may lead to further action by the Court that will be severe.

11. The Court finds that a majority of the time [Jessica] never answered the phone when [Alan] called. That has to stop. The Court will not have any patience with the problem in the future.

12. The Court is going to modify its previous Orders regarding the time for phone contact. In the Court's view it is not reasonable to call at 7:45 a.m. when the person is trying to get out of the door to school. It is not reasonable to call at 10:00 p.m. if you know he goes to bed at 8:00 p.m. The Court stresses that it is [Jessica's] obligation that if the call did not go through because the child was down the street playing or some other reason he was unavailable that she has the obligation to replace the call as soon as possible and generally that means that day.

And, finally, the parties returned to court, and on September 13, 2018, Alan's child support was set at $554 biweekly. That takes us up to the present litigation, which was initiated by Jessica in Rhode Island on or about March 13, 2019.

II. Current Litigation

There was a lull in the litigation between the parties for approximately six months. On March 13, 2019, Jessica filed an emergency ex parte motion to temporarily suspend visitation in the state family court of Rhode Island, allegedly pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Jessica alleged that MC did not desire to return to visit Alan in Arkansas. In support, Jessica submitted a signed thirty-seven-paragraph affidavit and therein alleged, inter alia, that MC had been "exposed to domestic violence in the home by [Alan] towards [Jessica] prior to their divorce," that MC had witnessed Alan "punch a hole in the wall while exhibiting his anger towards his step-sister," and that Alan does not take enough time off work and spend enough time with MC during his visitations." (Emphasis added.) Of particular note, despite the history of at least six modifications as outlined above, Jessica also stated in an affidavit to family court in Rhode Island, "That to the best of my knowledge, said Amended Order of Divorce has not been amended or modified since July 27, 2009."

Alan obtained counsel in Rhode Island and moved to dismiss. Nine days after Jessica filed her ex parte motion in Rhode Island, Alan filed a motion for contempt in the Pulaski County Circuit Court on March 22, 2019. Alan alleged that Jessica was interfering with his communication with MC in direct contravention of the circuit court's 2015 order. Jessica responded and asked that the motion be denied and dismissed.

Jessica subsequently filed a motion in the Pulaski County Circuit Court to change venue and jurisdiction from Pulaski County to Rhode Island pursuant to the UCCJEA. She alleged that Rhode Island is MC's home state and the proper state to determine any custody and visitation issues. Jessica went on to explain that her husband is in the military, that she intended to remain in Rhode Island, and that any...