JIM HANNAH, Chief Justice.
Appellant James R. Baber appeals from the Pulaski County Circuit Court's order granting appellee Pamela P. Baber's motion for modification of visitation to the parties' children, denying appellant's motion to reduce child support, and awarding appellee attorney's fees. On appeal, appellant contends that the circuit court erred in modifying visitation because it failed to consider the best interests of the children and modified visitation for the sole purpose of "punishing" him for violating the divorce decree. He also contends that the circuit court erred in denying his motion to reduce child support because it failed to consider his tax returns when determining
The parties were divorced by a decree of the circuit court entered on September 19, 2008. Their property settlement agreement was incorporated, but not merged, into the decree. Appellant was ordered to pay child support in the amount of $2700 per month. Appellee was granted custody of the parties' two children, and appellant was granted visitation. The decree provided that appellant would not consume drugs or alcohol at any time during visitation periods and that appellee was entitled to deny appellant visitation with either child if she suspected that he was under the influence of drugs or alcohol. Subsequent to the entry of the decree, the parties filed various motions, two of which are relevant to the instant appeal — appellee's motion to modify visitation and appellant's motion to modify spousal and child support.
On April 27, 2009, appellee filed a motion to modify visitation, contending that material changes in circumstances had occurred since the parties last appeared before the circuit court and that these changes warranted the court's placing restrictions on appellant's visitation. In her motion, appellee made the following allegations: (1) appellant tested positive for THC on August 19, 2008; (2) appellee had reason to believe that appellant submitted himself to drug and alcohol tests in conjunction with the medical review board's suspension of his medical license and, although appellee requested copies of the tests from appellant, appellant refused to furnish the results to her; (3) appellee was contacted by a female friend of appellant's who informed her that appellant was not sober; (4) appellant admitted to drinking alcohol during his visitation with the parties' son, despite a provision in the parties' settlement agreement that prohibited appellant from drinking alcohol at any time during his visitation periods; (5) appellant has stated that his consumption of alcohol is not a problem and has expressed his intent to continue drinking alcohol; (6) appellant has exercised his visitation rights sporadically; and (7) appellant sent the parties' minor son home with third parties, who were strangers to their son and to appellee, rather than meet appellee at a public location to exchange him for visitation, and appellee was concerned that appellant avoided the visitation exchange to prevent her from observing that he was under the influence of drugs or alcohol. Appellee added that, based upon appellant's history of drug and alcohol abuse and the foregoing events, she suspected that appellant was under the influence of drugs or alcohol and therefore suspended his visitation pursuant to the parties' settlement agreement.
Appellant responded and denied that material changes in circumstances existed to warrant a modification of visitation. Specifically, he denied that his medical license was suspended or that it was suspended due to drug and alcohol use, denied that he consumed alcohol while the minor children were present, and denied that he was attempting to avoid a visitation exchange with appellee when he allowed his son to ride with friends. Pleading affirmatively, appellant asserted that appellee had unreasonably suspended visitation in violation of the divorce decree for the sole purpose to harass, embarrass, and punish him and asserted that she should be held in contempt of court. He further asserted that he should be given unqualified visitation to the children.
Appellee testified that, immediately after the divorce, per the parties' agreement, appellant presented her with an evaluation from the Palmetto Treatment Center and the results of a drug screen. Appellee stated that the drug screen was positive for marijuana and that the evaluation indicated that appellant needed intensive, inpatient treatment. Appellee stated that, after seeing the positive drug screen and the evaluation, she was unwilling to send the children to appellant for unsupervised visitation, so some of appellant's family members supervised visitation.
Later, appellant informed appellee that he was entering inpatient treatment at Talbott Recovery Center. Appellee stated that, while there, appellant received periodic leaves from treatment and saw the children in Little Rock and in Fayetteville. She also stated that, as soon as appellant was discharged from treatment, he immediately exercised alternate weekend visitation.
Appellee testified that Marable contacted her via text messages and a Facebook message and told her that appellant was not sober and that he was worse after treatment. Appellee stated that she contacted appellant about Marable's statement and that, while she had reason to believe that Marable might have had some mental-health issues, she had no reason to doubt what Marable was telling her. Appellee also related that she was upset that appellant had allowed their son to be transported for visitation by an individual that she did not know.
Paul James testified that he had known appellant for many years and that, in the past nine months, he had worked with appellant on cases and interacted with him on a daily basis. He stated that, in the past, he thought appellant might have been impaired by drugs or alcohol, but he did not believe appellant currently had any problems with "impairment." He also testified that, while he saw appellant in person on occasion, most of his communication with appellant was by telephone or e-mail.
Nancy Ogden, who met and began dating appellant in January 2009, testified that she had not observed appellant using any illegal or illicit drugs and had not observed appellant consume alcohol to the point of intoxication. She also testified that she had never observed appellant drinking alcohol when his son was visiting.
Appellant testified that he is a recovering alcoholic. He disputed Marable's account
In a letter opinion dated November 9, 2009, the circuit court made the following findings:
We now consider appellant's contention that the circuit court erred in modifying visitation. Appellant admits that he consumes alcohol, that he has received inpatient treatment for alcohol abuse, and that he drank alcohol at a time when his son was visiting. He states that he drank two beers at his birthday party after his son had gone to bed, and he concedes that this action was a mistake that he should not have made and will not make again. Appellant also admits that he violated the divorce decree when he consumed alcohol when his son was visiting. Still, appellant contends that the circuit court's order modifying visitation must be reversed because the circuit court altered visitation as a sanction for his violation of the decree with no consideration whatsoever of
In reviewing domestic-relations cases, appellate courts consider the evidence de novo. E.g., Hass v. Hass, 80 Ark.App. 408, 97 S.W.3d 424 (2003). We will not reverse the circuit court's findings unless they are clearly erroneous. Id. When the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. See, e.g., Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
A circuit 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 facts not known to it at the time of the initial order. E.g., Martin v. Scharbor, 95 Ark.App. 52, 233 S.W.3d 689 (2006). Although visitation is always modifiable, to promote stability and continuity for the children and to discourage repeated litigation of the same issues, courts require more rigid standards for modification than for initial determinations E.g., Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005). Thus, the party seeking a change in visitation has the burden to demonstrate a material change in circumstances that warrants such a change. E.g., Hass, supra.
The primary consideration regarding visitation is the best interest of the child. Id. Important factors the court considers 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 the relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.
Upon review of the circuit court's findings, we are not persuaded by appellant's assertion that the circuit court modified visitation for the sole purpose of "punishing" him. When the divorce decree was entered, appellant, who had a history of drug and alcohol abuse, agreed to abstain from using drugs and alcohol while his children were visiting. He completed treatment at Talbott Recovery and, based on the record of his stay there, demonstrated a desire to be drug and alcohol free. But evidence at the hearing showed that appellant was no longer committed to abstaining from drugs and alcohol. Marable testified that she and appellant drank alcohol together the day he arrived home from treatment and continued to drink alcohol together every day for the next three weeks. She also stated that appellant used marijuana when they were together. Finally, in violation of the divorce decree, appellant admitted that he consumed alcoholic beverages when his son was visiting. This evidence demonstrated a material change in circumstances.
After reviewing the numerous findings in the letter opinion, we are convinced that the circuit court considered the best interests of the children when it modified visitation. It appears that appellant would have us require the words "best interests of the children" in all orders modifying visitation. Where, as in this case, it is clear to us that the circuit court considered the best interests of the children, we will not require the use of those magic words. See, e.g., Guest v. San Pedro, 70 Ark.App. 389, 394, 19 S.W.3d 62, 65 (2000) (stating that the court would not require use of the words "best interest of the child" when it was obvious that the chancellor considered
In his motion to modify spousal
Appellee responded, denying that appellant's salary had decreased and that a material change in circumstances required the modification of the support order. Appellee asserted that appellant was a self-employed individual, and Administrative Order No. 10 requires that his income be calculated on the last two years' federal and state income tax returns and quarterly estimates for the current year. In addition, claiming that the requested relief was contrary to Administrative Order No. 10 and subject to manipulation by appellant, appellee also objected to appellant's requested relief of paying 21% of net recovery on future lawsuits in his law practice.
At a hearing on the motion, appellant's 2007 and 2008 federal and state tax returns and his bank account statements were admitted into evidence. Appellee testified that she had reviewed the tax returns and bank statements and that she believed appellant's gross income was more than he reported on his tax returns. She stated that the parties had used "the
Based on her review of appellant's bank statements, appellee prepared a summary and compilation comparing appellant's 2008 income with his 2007 income, and the summary was admitted as evidence, over appellant's objection. Appellee asserted that appellant's net take-home pay for 2008 was $218,462 and that his monthly take-home pay was $18,212. She asserted that his net take-home pay for 2007 was $119,350 and that his monthly take-home pay was $9,945.
Appellant testified that he prepared his own tax returns and that he did not under-report his income on the returns. He stated that his income and deductions on his 2007 and 2008 state and federal tax returns were accurate. Appellant testified that his taxable income for 2007 was $99,587 and his taxable income for 2008 was $102,854. He stated that he added those two figures together and divided the sum by twenty-four to determine an average monthly income of $6,353 subject to child support. Appellant stated that he then multiplied $6,353 by .21 to determine that he should pay child support in the amount of $1334 per month. Appellant also submitted an affidavit of financial means where he represented that, as of August 31, 2009, his present net monthly income was $13,933.
Paul James, who worked with appellant on medical malpractice cases, testified about fees due to appellant. He stated that, for his work on one of their cases, appellant was due $90,000 in fees and $19,598.15 in expenses, but he was unable to say when appellant would be paid.
The circuit court denied appellant's motion to decrease child support, finding that
Appellant asserts that the circuit court erred in denying his motion to reduce child support because it failed to consider his tax returns when determining his income, in violation of Administrative Order No. 10, section (III)(c). Appellee responds that the circuit court indicated that it considered appellant's income capabilities, as well as other financial information, and that appellant's own affidavit of financial means and all of the other financial records support the circuit court's decision to deny appellant's request to decrease his child-support obligation.
A party seeking modification of a child-support obligation has the burden of showing a material change of circumstances sufficient to warrant the modification. E.g., Morehouse v. Lawson, 94 Ark.App. 374, 231 S.W.3d 86 (2006). In determining whether there has been a change in circumstances warranting an adjustment of support, the circuit court should consider remarriage of the parties, a minor's reaching majority, change in the income and financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. E.g., McGee v. McGee, 100 Ark.App. 1,
In the instant case, after hearing testimony and considering the evidence submitted by the parties, the circuit court determined that appellant had failed to meet his burden of showing a material change in circumstances sufficient to warrant the modification. The circuit court found that the only evidence of a reduction in income came from the testimony of appellant himself. Moreover, the circuit court found this testimony unreliable. We have examined the evidence in the record, and we conclude that the circuit court did not clearly err in determining that circumstances were not sufficiently changed to warrant a modification of appellant's child-support obligation.
Appellant asserts that the circuit court's award of attorney's fees should be reversed. The circuit court awarded appellee attorney's fees in the amount of $6000,
In domestic-relations proceedings, the circuit court has the inherent power to award attorney's fees, and the decision to award fees and the amount thereof are matters within the discretion of the circuit court. E.g., Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). See also Ark.Code Ann. § 9-12-309 (Repl. 2009) (attorney's fees in domestic-relations matters). Absent an abuse of that discretion, an award of attorney's fees will not be disturbed on appeal. E.g., McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). We find no abuse of discretion and affirm the award of attorney's fees.
Affirmed.
Special Justice MIKE WILSON joins.
CORBIN, J., not participating.