                                Cite as 2015 Ark. App. 114

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-14-337


                                                 OPINION DELIVERED FEBRUARY 25, 2015

OKSANA HACKNEY                                   APPEAL FROM THE PULASKI
                              APPELLANT          COUNTY CIRCUIT COURT,
                                                 FOURTEENTH DIVISION
                                                 [NO. 60DR2010-1912]
V.
                                                 HONORABLE VANN SMITH, JUDGE

JOSH HACKNEY                                     AFFIRMED; MOTION TO STRIKE
                                 APPELLEE        DENIED



                        ROBERT J. GLADWIN, Chief Judge

       Oksana Hackney appeals the Pulaski County Circuit Court’s order of February 7,

2014, clarifying appellee Josh Hackney’s visitation with the parties’ minor son. On appeal,

she argues that the trial court erred by: (1) modifying previous orders without a motion; (2)

modifying previous orders without finding a material change in circumstances; and (3)

requiring the child to travel from Houston, Texas, to Lonoke, Arkansas, twice a month. We

affirm.1

                                    I. Procedural History

       The parties were divorced on December 9, 2010, and appellant was awarded sole

physical custody of the parties’ minor son, J.H., born November 2, 2006. Appellee was



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        Appellant’s pending motion to strike appellee’s supplemental abstract and addendum
or alternatively allow appellant to file a substitute brief is hereby denied.
                                  Cite as 2015 Ark. App. 114

awarded visitation that included alternating weekends, alternating Christmas holidays,

alternating Thanksgiving holidays, and two weeks in the summer. Appellant later remarried

and moved with the child to Houston, Texas.

          By order dated August 21, 2013, the circuit court ruled on appellee’s motion for

modification and contempt and appellant’s motion for contempt. Paragraph 31 of that order

states:

          The Court orders that the [appellant] be responsible for the transportation expenses
          for the minor child one time per month in the months of September, October,
          January, February, March or April, depending when spring break falls, and May of
          each year. The parties shall split all transportation expenses related to the summer
          visitation, Thanksgiving, Christmas and spring break holiday transportation.

          Appellant filed a motion for clarification and for other relief on September 3, 2013,

and asked for, among other things, clarification of paragraph 31 of the August 21, 2013 order,

requesting whether the court modified appellee’s visitation to one weekend per month, as

the decree allowed for alternating weekends. On October 3, 2013, an order was filed stating

in paragraph 12 as follows:

          The [appellant] asks the Court to clarify paragraph 31 of the Order. The Court finds
          that paragraph 31 accurately states the Court’s order regarding the payment of the
          transportation expenses. Paragraph 31 does not limit the [appellee] from traveling to
          Houston, Texas at his sole expense to visit the minor child at any other time
          consistent with the parties’ Divorce Decree and Property Settlement Agreement.

          On October 31, 2013, appellant filed a motion for modification and other relief

requesting that the child be scheduled only on non-stop flights; that the flights be scheduled

by 5:00 p.m. on Friday or later; and that the circuit court state explicitly how many weekend

flight visitations appellee should receive per month.


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       On November 4, 2013, appellant filed a notice of appeal, citing both the August 21,

2013, and October 3, 2013 orders. Appellee filed a notice of cross-appeal on November 12,

2013. That appeal was dismissed.2

       On November 18, 2013, appellee filed a motion for contempt against appellant,

claiming that appellant was withholding his alternating-weekend visitation, allowing only one

weekend of visitation per month. Appellant responded, asking that the contempt motion

be dismissed because, she claimed, the amendment and clarification of the divorce decree

clearly limited appellee to one weekend visit per month in Arkansas. Appellee responded

to the dismissal motion by claiming that, even though appellant had filed a motion to modify

the visitation, she chose to grant appellee only the visitation that suited her without the

benefit of a ruling on her request. He also argued that appellant waived her request to

modify visitation in her notice of appeal filed November 4, 2013, by abandoning any

pending but unresolved claims.

       Appellant filed a motion for sanctions pursuant to Arkansas Rule of Civil Procedure

11 (2013), arguing that appellee’s criminal contempt motion was in violation of the Rule

because the circuit court’s orders regarding visitation were subject to reasonable

interpretation, and violation of those orders was not criminal, but civil.

       A hearing was held on appellee’s motion for criminal contempt, appellant’s Rule 11

petition, and the issue of visitation on January 6, 2014, and continued on February 3, 2014.


       2
         Appellee filed a motion with this court to dismiss the appeal based on lack of finality
related to issues not subject to this appeal. We granted the motion to dismiss the appeal on
August 20, 2014.

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Both parties testified, as did appellee’s wife, Stephanie Hackney. Based upon the testimony

and on appellant’s motion to reconsider and motion for clarification, by order filed February

7, 2014, the circuit court found the following:

       3.     It has now become necessary to specifically set forth visitation for the
              [appellee]. The [appellee] is entitled to the following visitation:

              a.     The [appellee] shall have visitation two (2) times per month in the
                     months of September, October, January, February, March or April
                     depending when spring break falls, and May of each year. That
                     visitation will occur on the first weekend of those specific months.
                     Two weeks later, the [appellee] is entitled to another visitation with the
                     minor child either at his home in Lonoke, Arkansas or any other
                     location that the [appellee] desires. In November and December,
                     [appellee] will have one (1) weekend visitation plus a Thanksgiving and
                     Christmas visit as discussed below. The weekend visit will be at
                     [appellant’s] expense.

              b.     The [appellant] will be responsible for the transportation on the first
                     weekend visitation of each month and the [appellee] shall be
                     responsible for the transportation on the second weekend visitation of
                     each month.

              c.     On these visitations, the airplane ticket, if that is the mode of
                     transportation to be used, shall be a nonstop, direct flight from Houston
                     to Little Rock and return at a time leaving Houston so that the child
                     will not have to miss any school on Friday. From the testimony of the
                     parties, there is currently a Southwest Airline flight that leaves at
                     Houston Hobby at approximately 5:00 p.m. This allows the child to
                     complete his school on Friday and arrive at the airport to complete the
                     necessary paperwork for boarding.

              d.     The return flight from Little Rock to Houston can be made as late as
                     is reasonable.

              e.     The cost of the second visit of each month shall be at the expense of
                     the [appellee].




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The order continues to specifically set forth the visitation on three-day weekends, spring

break, Mother’s Day and Father’s Day, summer visitation, Thanksgiving, and Christmas.

The order denied appellant’s motion for Rule 11 sanctions and denied appellee’s motion for

criminal contempt. Appellant filed her notice of appeal on February 18, 2014, and no notice

of cross-appeal was filed. This appeal followed.

                                     II. Standard of Review

       The Arkansas Supreme Court stated in Moix v. Moix, 2013 Ark. 478, at 9, 430 S.W.3d

680, 685:

               In domestic relations cases, we review the evidence de novo and will not
       reverse the circuit court’s findings unless they are clearly erroneous. Brown v. Brown,
       2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court’s
       superior position in evaluating the witnesses, their testimony, and the child’s best
       interest. Id. Because a circuit court maintains continuing jurisdiction over visitation,
       it may modify or vacate a prior visitation order when it becomes aware of a material
       change in circumstances since the previous order. Id. The party seeking modification
       has the burden of demonstrating such a material change in circumstances. Id. With
       regard to visitation, the primary consideration is the best interest of the child. Id.
       Important factors for the court to consider in determining reasonable visitation are the
       wishes of the child, the capacity of the party desiring visitation to supervise and care
       for the child, problems of transportation and prior conduct in abusing visitation, the
       work schedule or stability of the parties, and relationship with siblings and other
       relatives. Id. We have held that fixing visitation rights is a matter that lies within the
       sound discretion of the circuit court. Id.

                                 III. Modification of Visitation

       Citing Arkansas Rule of Civil Procedure 7 (2014), appellant contends that the circuit

court erred by modifying visitation without a written motion. She argues that she was not

placed on notice that the circuit court was to consider a modification and had no opportunity

to prepare a defense or accomplish any discovery.


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       Appellee points to appellant’s October 31, 2013 motion asking that the child be

booked only on nonstop flights; that the departure flights not leave before 5:00 p.m. from

Houston; and that the court specifically state the number of weekend-flight visitations

allowed per month. Appellee contends that the circuit court granted each of these requests.

Further, appellee asserts that the circuit court’s order denied his contempt motion, finding

that there were legitimate questions of interpretation.

       The circuit court addressed these issues on the basis of appellant’s request, as she asked

for clarification of the circuit court’s orders, and discussion at the January 2014 hearing

acknowledged that certain issues would be raised in February 2014. We hold that

modification of visitation was tried by consent of the parties, and the circuit court had the

authority to modify its visitation orders. See Brown v. Ashcraft, 101 Ark. App. 217, 272

S.W.3d 859 (2008) (where the father filed a petition for contempt alleging that the mother

refused him visitation, but did not file a petition to modify; the mother never objected on

this basis, either at trial or on appeal, and, thus, the issue was tried by consent).

                             IV. Material Change in Circumstances

       Appellant contends that there must be a material change in circumstances before

visitation might be modified. She notes that appellee argued throughout that there could be

no modification because no material change of circumstances had occurred. She argues that

the decree gave appellee alternating weekend visitation. The October 3, 2013 order granted

him access to the child in Houston, unless it was the once-a-month visitation when the child

traveled to Arkansas under the August 21, 2013 order. She claims that the circuit court


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decided to review the issue of visitation on its own when it became concerned with lack of

holiday visitation. She argues that there was never any testimony regarding a change of

circumstances.

       Appellee argues that appellant’s noncompliance with his alternating-weekend

visitation was a change in circumstances warranting resolution. He contends that the circuit

court had continuing jurisdiction to resolve visitation issues and could properly modify its

orders at any time that it became aware of this change in circumstances and these facts not

known to it at the time of the initial order. Brown, supra. We agree with appellee’s

argument. Further, we note that any modification of appellee’s visitation was due to the

child’s having moved to Houston, which was a material change from the circumstances of

the original visitation order found in the divorce decree. The continued request for

clarification of the circuit court’s order resulted in the circuit court’s legitimate expression

of its authority over visitation, which is based on the child’s best interest.

                                         V. Air Travel

       Appellant argues that the circuit court erred in requiring the child to travel from

Houston, Texas, to Lonoke, Arkansas, twice a month. She argues that the child is only seven

years old; has mild autism; attends a specialized school in Houston; had been held back

because of his poor reading skills; receives speech therapy three times per week; has a reading

tutor twice a week; and has swim team on Tuesday and Thursday. On visitation weekends,

the child must be driven an hour and a half to the airport, spend one hour boarding as an

unaccompanied minor, then fly to Little Rock. Once he arrives, he must be driven to


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Lonoke. On Sunday, he must repeat the process. Appellant argues that this traveling is not

in the child’s best interest.

           Appellee cites Rebsamen v. Rebsamen, 82 Ark. App. 329, 107 S.W.3d 871 (2003), as

squarely on point. In Rebsamen, the custodial parent moved out of state, and the circuit court

granted generous visitation, noting the public policy consideration of preserving and

maintaining a parent-child relationship between the child and the noncustodial parent. Id.

at 336, 107 S.W.3d at 875. Our court wrote, “Appellant is correct when she worries about

a young child frequently flying between Baltimore and Little Rock, but we are not

convinced that such concerns outweigh the importance of fostering a good and working

relationship between Dalton and appellee, his father.” Id. at 337, 107 S.W.3d at 876.

Acknowledging the special deference given to the circuit court’s superior position in

evaluating the witnesses, their testimony, and the child’s best interest, we hold that the circuit

court committed no error in establishing the specific visitation rights that appellee may

utilize.

           Affirmed; motion to strike denied.

           KINARD and BROWN, JJ., agree.

           Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.

           Tripcony, May & Associates, by: James L. Tripcony, for appellee.




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