Christine M. Jones v. Jerry A. Jones

Christine M. JONES v. Jerry A. JONES

97-212                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 7, 1997


1.   Prohibition, writ of -- petitioner's remedies must be sought
     below -- writ of prohibition denied. -- Petitioner's petition
     for writ of prohibition, stating that the chancery court is
     wholly without jurisdiction to rehear the custody issue
     already decided by the supreme court, was denied; res judicata
     is an affirmative defense to be raised in the trial court and
     presents no question of jurisdiction; absent a showing that
     the trial court is acting without or in excess of its
     jurisdiction, a writ of prohibition may not be granted.  

2.   Civil procedure -- ARCP Rule 11 sanctions may be requested at
     trial or on appeal -- frivolous proceedings will be
     sanctioned. -- ARCP Rule 11 sanctions may be requested at
     trial and on appeal if the attorney or party initiates a
     frivolous proceeding or appeal in violation of the dictates of
     those rules.  

3.   Appeal & error -- cases remanded to chancery court with
     directions -- chancery court must act as directed. -- When the
     supreme court remands a case to chancery court with
     directions, the chancery court has no power to enter any
     decree except that directed, and it has no power to change or
     extend the court's mandate.  
4.   Parent & child -- de novo review of custody matter already
     made by supreme court -- only facts arising since last custody
     order may be considered by chancellor in reviewing
     respondent's petition for modification. -- In the appeal
     decided November 4, 1996, the supreme court conducted a de
     novo review of the chancellor's custody decision, and in doing
     so, the court specifically stated that child custody was
     determined by what was in the "best interests" of the child,
     and absent a material change in circumstances, the court
     concluded that the chancellor's decision to change custody to
     respondent was clearly erroneous; in deciding the respondent's
     petition for modification, the chancellor should only consider
     facts arising since the last custody order, or evidence that
     has not been previously presented to the chancellor. 


     Petition for Writ of Prohibition denied.
     McNutt Law Firm, by:  Mona J. McNutt, for petitioner.
     Lueken Law Firm, by:  Patty J. Lueken, and Helen Rice Grinder,
for respondent.


     Per Curiam.
     On November 4, 1996, this court held that the chancellor erred
in finding material changes in circumstances existed that warranted
the modification of the parties initial custody order.  We reversed
the chancellor's order changing custody of the parties' child to
Dr. Jones and remanded with instructions to reinstate the original
custody order which awarded Christine Jones custody of the child. 
See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).  The
court's mandate in Jones was issued on November 22, 1996, but for
some reason, the chancery court delayed reinstating the original
custody order, prompting Ms. Jones's filing a petition on December
12, 1996, requesting enforcement of this court's mandate.  On
December 13, 1996, we issued a per curiam directing the chancery
court to reinstate the original custody order forthwith.  Jones v.
Jones, 326 Ark. 828, 933 S.W.2d 810 (1996).  The chancery judge
reinstated the order.
     Subsequently, the parties entered a consent order establishing
certain, but not all, visitation rights sought by Dr. Jones.  A
hearing on the disputed visitation matters was held on February 11,
1997.  However, before the February 11 hearing commenced, Dr. Jones
filed a petition for change of custody and served it on Ms. Jones. 
The petition largely rehashed the custody-dispute history between
the parties beginning in the early 1990's to this court's decisions
on November 4, 1996, and December 13, 1996.  Dr. Jones's petition
added the following:
          That since custody has been reinstated to the [Ms.
     Jones] as per the original custody order, [Dr. Jones] has
     attempted to contact the minor child by telephone, to no
     avail on many occasions.  When Dr. Jones does reach the
     child, the child acts totally out of character in the
     conversation either by being reluctant to talk with Dr.
     Jones or simply putting the telephone down.
     Dr. Jones's petition concluded, asking for his petition to be
heard by a judge who will apply the proper standard of proof so the
minor child's best interest will be addressed and Dr. Jones would
be afforded due process.  He further asked that a neutral expert
and attorney ad litem be appointed and that Ms. Jones's mental
health and stability be addressed.
     During the February 11, 1997 visitation hearing, Ms. Jones
asserted the chancellor revealed that he had already set a hearing
to consider Dr. Jones's custody petition.  Ms. Jones also
complained that, during the visitation hearing, Dr. Jones's expert
witness, Dr. Becky Porter, was permitted to testify at the
visitation hearing to opinions she had formed and related at the
parties' earlier custody proceeding.  While the chancellor
indicated he did not want to go through and rehash everything right
now ("We'll have to do that at some point in the future"), the
chancellor permitted Porter to opine her views on the parties'
child and Ms. Jones's instability.
     Ms. Jones brings this petition for writ of prohibition,
stating that the chancery court is wholly without jurisdiction to
rehear the custody issue already decided by this court.  She
further argues that the chancery court has no power to redetermine
the "emotional needs" issue previously decided.  Basically, she
suggests that Dr. Jones intends to retry and appeal the same
custody issue a third time.
     Dr. Jones responds, asserting that whatever errors this court
found occurred at the parties' last (and second) custody hearing
resulted from the chancellor's actions, not Dr. Jones's.  He says
he should not be punished because the chancellor erred in
improperly imposing the burden of proof on Ms. Jones and that he
should now be allowed to have a chancellor correctly address the
"emotional needs" and "best interests" of the child issues not
correctly tried by the prior chancellor.  Finally, Dr. Jones cites
Earney v. Brantley, 309 Ark. 190, 828 S.W.2d 832 (1992), for the
proposition that res judicata is an affirmative defense to be
raised in the trial court and presents no question of jurisdiction. 
Further, absent a showing that the trial court is acting without or
in excess of its jurisdiction, Dr. Jones claims a writ of
prohibition may not be granted.  
     We agree with Dr. Jones that Earney controls here and that Ms.
Jones's remedies must be sought below.  We add that Rule 11
sanctions may also be requested at trial and now on appeal if the
attorney or party initiates a frivolous proceeding or appeal in
violation of the dictates of those rules.  See ARCP Rule 11 and
Ark. R. App. P.--Civil 11 (326 Ark. Appx.).
     While we deny Ms. Jones's petition, we are obliged to
underscore certain matters contained in this court's previous
decision handed down on November 6, 1996, especially since this
court had to take the extraordinary step to enforce its mandate by
a subsequent per curiam.  That per curiam was necessary because,
for whatever reason, the chancery court failed to reinstate the
parties' original custody order.  Because we believed that this
court's opinion and instructions were perfectly clear, we issued a
simple "forthwith" order directing the chancery court's compliance. 
The chancery court then complied.  
     Because of the continuing controversies involving this matter,
we reiterate the well-established rule that when this court remands
a case to chancery court with directions, the chancery court has no
power to enter any decree except that directed, and it has no power
to change or extend this court's mandate.  See Ferguson v. Green,
266 Ark. 556, 587 S.W.2d 18 (1979).  In this same vein, we remind
the parties that, in the appeal decided November 4, 1996, this
court conducted a de novo review of the chancellor's custody
decision, and in doing so, the court specifically stated that child
custody is determined by what is in the "best interests" of the
child, and it is not altered absent a material change in
circumstances.  In deciding the child custody issue, this court
reviewed in lengthy detail the evidence offered at trial, including
Ms. Jones's move to Little Rock, Dr. Jones's remarriage, and the
child's emotional needs.  In considering the child's emotional
needs, the opinion related the competing views and opinions of four
expert witnesses, concerning Ms. Jones's mental and emotional
stability.  After a full discussion of the parties' respective
evidence, this court concluded as follows:
     In sum, when viewing together the repeated entry of ex
     parte orders, the erroneous shift of the burden to
     Christine Jones to prove her emotional stability, and the
     chancellor's faulty reliance on her move to Little Rock
     and Dr. Jones's remarriage as material changes in
     circumstances, we must conclude that the chancellor's
     decision to change custody to Dr. Jones was clearly
     erroneous.
Simply put, this court held the chancellor was clearly wrong in
ruling Dr. Jones had proven that a material change of circumstances
existed, and a transfer in custody was warranted.      
     Our reasons for requiring more stringent standards for
modifications than for initial determinations of custody are to
promote stability and continuity in the life of the child, and to
discourage the repeated litigation of the same issues.  As one
commentator has recognized, the improper use of custody proceedings
is more likely if parents are allowed to relitigate their relative
fitness without the addition of significant new facts.  Jeff
Atkinson, Modern Child Custody Practice,  9.02 at 452 (1986).
     Having given the foregoing salutary statements, we remain of
the opinion that evidence regarding Dr. Jones's petition for
modification must first be appropriately addressed below.  In
deciding the modification question, we emphasize that the
chancellor should only consider facts arising since the last
custody order, or evidence that has not been previously presented
to the chancellor.  See Jones, 326 Ark. at 491; Stamps v. Rowlins,
297 Ark. 370, 761 S.W.2d 933 (1988).  We deny Ms. Jones's petition.
     Brown, J., concurs.

               Robert L. Brown, Justice, concurs.

     While I certainly agree that the writ of prohibition should be
denied, I disagree with that part of the per curiam opinion that
holds that Jerry Jones is limited in arguing his son's emotional
needs as a reason to change custody.  This court did not reach the
merits of that issue in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (Jones I).  Rather, we decided the emotional-needs issue
based on faulty and improper procedure, that is, the chancellor
wrongfully shifted the burden of proof in the custody matter to
Christine Jones and engaged in ex parte communications with mental
health experts for Jerry Jones.  We held in Jones I:
     In sum, when viewing together the repeated entry of ex
     parte orders, the erroneous shift of the burden to
     Christine Jones to prove her emotional stability, and the
     chancellor's faulty reliance on her move to Little Rock
     and Dr. Jones's remarriage as material changes in
     circumstances, we must conclude that the chancellor's
     decision to change custody to Dr. Jones was clearly
     erroneous.
Jones, 326 Ark. at 494, 931 S.W.2d    at 774.  Thus, on de novo
review, this court took a clear position on the merits with respect
to Christine Jones's move to Little Rock and Jerry Jones's
remarriage.  We did not do so with respect to the issue of the
boy's emotional needs but pointed to the procedural deficiencies.
      The per curiam opinion is correct in asserting that repeated
litigation of the same issues between former spouses does not
promote stability and continuity in the life of the minor child. 
This policy is adeptly promoted by this court's rule that custody
should be modified only when there are changed circumstances since
the last award of custody or when there is proof affecting the best
interests of the child that was not previously known by the
chancellor.  See Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933
(1988).  However, in holding that this court's reinstatement of
custody in Christine Jones forecloses evidence pertinent to the
child's emotional needs that occurred prior to Jones I, the
majority hamstrings Jerry Jones and prevents him from presenting
any history on this matter.  He should not be penalized by wrongful
procedures employed by the trial court.
     On de novo review, this court has been clear that we decide
matters on the merits.  Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752
(1966).  In Fye, which was a child custody dispute, Justice George
Rose Smith wrote:
          At the hearing in the court below both parties
     developed their testimony fully.  More than a dozen
     witnesses testified.  There is no reason to think that a
     second hearing is needed.  It is appropriate for us to
     try the matter de novo, as is our practice in equity, and
     reach a decision upon the merits.
Fye, 240 Ark. at 635-36, 401 S.W.2d    at 753 (emphasis added).
     Because there has been no final decision since the original
decree vesting custody in Christine Jones on whether Cameron's
emotional needs mandate a change in custody, Jerry Jones should be
allowed to fully develop the issue.  The per curiam opinion
truncates his ability to do so.