                               Cite as 2014 Ark. App. 297

                ARKANSAS COURT OF APPEALS
                                     DIVISION III
                                    No. CV-13-1008


                                                OPINION DELIVERED MAY 14, 2014
LEVI JOHNSON
                              APPELLANT         APPEAL FROM THE FAULKNER
                                                COUNTY CIRCUIT COURT
                                                [NO. 23DR-2011-953]
V.
                                                HONORABLE HARRY G. FOSTER,
                                                JUDGE
HEATHER JOHNSON CHEATHAM
                    APPELLEE                    REVERSED



                        ROBERT J. GLADWIN, Chief Judge

       Levi Johnson appeals the July 16, 2013 order of the Faulkner County Circuit Court

denying his contempt motion and request for attorney’s fees and forbidding contact between

the parties’ child, MGJ, and the paternal step-grandfather. Johnson contends that the trial

court erred by forbidding contact with the paternal step-grandfather because there was no

pleading making such a request and no evidence presented. We reverse.

       The parties were divorced by decree filed November 15, 2012, and by agreed order

of the same date, appellee Heather Johnson Cheatham was granted custody of MGJ, born

April 26, 2010, and Johnson was granted visitation. No restrictions regarding the step-

grandfather were included in either order.

       Johnson filed a contempt petition on January 23, 2013, alleging, among other claims,

that Cheatham had refused to allow visitation since she had filed a petition for order of

protection against MGJ’s step-grandfather, Raul Salas. In her response, Cheatham admitted
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to filing an order of protection against Salas and refusing visitation. She asserted that she was

also forced to file an order of protection against the paternal grandmother due to a sexual

allegation made by the child against Salas. She claimed that it was Johnson’s “lack of care and

concern about the sexual allegations” that concerned her about the child’s well being in

Johnson’s care.

       At the March 7, 2013 hearing on the contempt petition, Cheatham testified that

Johnson had missed three weeks of visitation because she would not allow it, although she

had not filed anything to amend visitation. She said that she kept MGJ away from Johnson

because she felt that the child was not safe with him, as she did not trust him to keep MGJ

from his mother and Salas. She claimed that when she received the letter in which Johnson

reassured her that he would not have MGJ around his mother or Salas, she allowed visitation

to resume.

       She explained that she obtained an order of protection against Johnson’s mother and

Salas, but was not able to obtain an order against Johnson “because there was no allegation

that Mr. Johnson did anything sexually toward her. The allegation was against his step-

father.” She testified that during their marriage, the parties did not allow their daughter to

be around Salas because they felt he was abusive to Johnson’s mother.1 She admitted that

since Johnson’s letter of assurance that he would protect the child, visitation had resumed and



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         Johnson’s attorney objected to testimony regarding what took place before the
divorce based on res judicata and irrelevancy, as there was “no order in place denying him
visitation.” The trial court ruled that the testimony was admitted for the purpose of
determining what Cheatham believed or was thinking when she violated the court order, not
for the truth of the matter asserted.

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she did not have any other concerns about her daughter when she was with Johnson. A final

hearing on the petition for order of protection had not yet been held.

       Johnson testified that he missed three weekends of visitation and asked that he be

allowed to make up the lost visitation time. He said that since he filed the contempt motion,

he had been allowed to resume visitation, and he asked for his attorney’s fees. On cross-

examination, he testified that if his daughter had been molested by Salas, it was while she was

in his own care. He claimed that he did not remember if he had prevented their daughter

from visiting his mother and Salas while he and Cheatham were married.2 He said that his

mother was not abused, that he never heard that she had been abused, and that he never

made the statement that he would “whoop [Salas’s] ass if [he] got the chance.” He admitted

that during their marriage, Cheatham would never allow their daughter to be around his

mother and Salas.

       The trial court ordered that over the following sixty days, Johnson would be allowed

to make up the missed visitation with his daughter. The court took the issue of contempt



       2
        Johnson’s attorney objected, stating, “I understand the Court’s ruling on that. It is
completely irrelevant. What we are here for today are orders of the Court.” After hearing
argument, the trial court ruled that, because the issue before the court was contempt, what
the parties believed was relevant. The trial court stated,

       Again, the testimony that I am hearing goes to allegations of numerous bad acts. I am
       not taking that evidence as probative that any of those acts took place. I am taking the
       testimony of the witnesses for the purpose of showing what they reasonably believed
       and based on my opportunities to observe the witnesses, I’m making a determination
       as to their credibility with regard to what they believe. So for the purpose of giving
       the Court information that is relevant to the ultimate determination, I am going to
       overrule the objection and allow the question for the limited purposes that I have
       outlined.

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under advisement and stated, “I have not made a decision about the validity of the allegations

against Mr. Johnson’s mother and step-father, but I believe that Ms. Cheatham believes

them.” The court further reasoned:

       I realize the order of protection is not in this case, but until that issue is resolved, I am
       going to incorporate certain aspects of that order into my order in this case to this
       extent: I direct that Mr. Salas is not to be around the child. I am going to allow Ms.
       Salas to have visitation with her granddaughter. I am going to provide that that
       visitation be supervised, and I charge Mr. Johnson with the responsibility for seeing
       to it that when his mother is busy with the child, that Mr. Salas not be anywhere
       around, and that he supervises that visitation. While the allegations are being
       addressed in the proper forum, I am telling the two parents to do what both of them
       are smart enough to do . . . The problem with Mr. Johnson’s mother having visitation
       is based on the concern that she will not adequately protect her and keep Mr. Salas
       away from her.

These findings were memorialized in an order filed April 17, 2013.

       At the review hearing held on June 17, 2013, counsel for Johnson explained that they

were meeting to determine whether Cheatham was going to be found in contempt and

ordered to pay attorney’s fees. He said that the Arkansas State Police had found that the

allegations against Salas were unsubstantiated and that the order of protection had been

dismissed. He argued that his client’s contempt petition and the question of attorney’s fees

were the only things pending before the trial court, as Johnson had not filed any pleading

seeking modification of visitation as to Johnson’s mother or Salas.

       Counsel for Cheatham responded,

       The court heard other evidence of abuse at the last hearing and made the decision that
       the grandmother’s visitation would be supervised and that Mr. Salas could not be
       around the child. We are asking that that remain the same. Mr. Salas is a step-
       grandparent, and Ms. Johnson [Cheatham] has protected her child.




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Counsel for Johnson responded that there was no petition in front of the court and no

evidence of the allegation of abuse. He continued,

       We are here because Ms. Johnson [Cheatham], instead of filing a petition, just on her
       own didn’t allow Mr. Johnson to have visitation. There are ways to do that, and if
       she thought that there was an emergency, she should have filed a petition. If we
       hadn’t filed a petition for contempt, Mr. Johnson still probably wouldn’t be getting
       visitation. That is why we are here—a petition for contempt. There is nothing
       before the court that there was any sexual abuse by the step-grandfather, except
       argument.

       Counsel for Cheatham argued that the trial court’s authority to grant the relief she

requested was based on its plenary powers to protect the child, regardless of whether a

specific petition had been filed. She claimed that her client responded to the petition and

presented evidence of why the child was not allowed to go for visitation. She requested that

Salas have no contact with the child.

       The trial court explained that it would review its notes to make certain that it had not

presumed some facts that were not supported by evidence before issuing its final order. By

order filed July 16, 2013, the trial court found that Cheatham was not in contempt because

her denial of Johnson’s visitation was reasonable and justifiable. Johnson’s request for

attorney’s fees was denied. The order states:

       5.     The Court finds, after reviewing the testimony presented at the previous
              hearing, judging the credibility of the witnesses and weighing their testimony
              that it would be in the best interests of the minor child to forbid any contact
              between the minor child and the paternal step grandfather.

       6.     The Court finds that the paternal grandmother can have unsupervised
              visitation with the minor child; but, is prohibited from taking the child any
              where around or near the paternal step grandfather.

From this order, Johnson filed a timely notice of appeal.


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       Child-visitation cases are reviewed de novo on the record and will not be overturned

unless clearly erroneous. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

Johnson’s sole point on appeal is that the trial court erred by forbidding contact between

MGJ and Salas because Cheatham did not file a petition to modify visitation and there was

an absence of evidence presented on the issue.

       Cheatham responds that the trial court had a duty to exercise its plenary power to

impose a restriction on Johnson’s visitation when the issue was raised by his motion for

contempt and the evidence showed a change of circumstances that it was in the child’s best

interest to restrict contact with Salas. Stinson v. Stinson, 203 Ark. 888, 159 S.W.2d 446

(1942).

       She contends that the trial court maintains continuing jurisdiction over visitation and

may modify or vacate those orders at any time when it becomes aware of a change in

circumstances or of facts not known to it at the time of the initial order. Meins v. Meins, 93

Ark. App. 292, 218 S.W.3d 366 (2005) (where issue of visitation was heard based on a

contempt motion seeking restricted visitation). She also cites Arkansas Rule of Civil

Procedure 15 (2013), arguing that when an issue is before the court, though not specifically

requested in a pleading, the trial court may deem the pleadings amended even after the trial

is concluded.

       Cheatham cites Brown v. Ashcraft, 101 Ark. App. 217, 272 S.W.3d 859 (2008), where

the father filed a contempt petition against the mother alleging that she had refused to allow

him visitation. The circuit court denied the petition, but removed a condition in a previous

visitation order requiring that the father be present during his visitation with the child and

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not be absent for extended periods of time or overnight. Brown, supra. On appeal, our

supreme court held that the trial court’s removal of a condition in a previous visitation order

was consistent with the court’s continuing responsibility in visitation matters. Id. We note

that in Brown, supra, the supreme court held that the issue of modification was tried by

consent because the mother never objected at trial or on appeal that the modification was

entered without petition nor that consideration of the modification was improper. Id. at

219–20, 272 S.W.3d at 861–62.

          Nevertheless, Cheatham urges that the instant case is similar to Brown, supra, in that

the only issue before the trial court here was the reasonableness of Cheatham’s restriction of

visitation because of Johnson’s delegation of his supervisory duties to the step-grandfather.

She contends that the trial court found that this delegation was a change of circumstances and

found that her request for continued restriction of the paternal step-grandfather’s contact

with the minor child was in the child’s best interest. She argues that evidence of a material

change of circumstances was before the trial court, as Johnson testified that, if the child had

been molested by his step-father, it was while she was in Johnson’s custody. Cheatham

testified that she and Johnson had not allowed the child to go to her grandmother’s home

during their marriage. She also said that the restrictions were based on their knowledge of

the step-grandfather’s abusiveness. On the other hand, Johnson testified that he did not recall

whether he had allowed their daughter to be around his mother and Salas. Cheatham points

to our deference to the superior position of the trial court to view and judge the credibility

of the witnesses, Nichols v. Teer, 2014 Ark. App. 132, ___ S.W.3d ___, and urges us to

affirm.

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       Johnson discusses James v. James, 52 Ark. App. 29, 914 S.W.2d 773 (1996), where

relief was granted to the appellant’s former wife, even though she had not filed a pleading

asking for relief. Johnson distinguishes the instant case, arguing that the trial court here went

beyond the parties’ divorce decree and addressed issues that were not raised by the pleadings

or tried by express or implied consent of the parties. He insists that no evidence as to any

restrictions on visitation was presented to the trial court for the purpose of restricting

visitation. He argues that the evidence presented was only considered by the trial court for

the purpose of considering what Cheatham believed when she refused to allow the court-

ordered visitation in its determination of whether to hold her in contempt. Thus, he

contends that he had no notice that restrictions would be placed on his visitation. He argues

that if he had been given notice, he would have called witnesses whose testimony would

address the allegations of abuse.

       We agree that there was a lack of evidence presented to the trial court for visitation

to be modified.     There was no testimony regarding the allegations against the step-

grandparent, no testimony regarding the alleged investigation by the Arkansas State Police,

and no opportunity for Johnson to submit evidence on the issue of visitation modification.

Accordingly, we reverse the trial court’s order modifying visitation as it was clearly against

the preponderance of the evidence.

       Reversed.

       GLOVER and HIXSON , JJ., agree.

       Osment & Winningham, PLLC, by: Joe Don Winningham, for appellant.

       Helen Rice Grinder, for appellee.

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