Cite as 2023 Ark. App. 19

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-22-55

JESSICA HAYES

APPELLANT

V.

WILLIAM HAYES

APPELLEE

Opinion Delivered January 25, 2023

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, FORT 

SMITH DISTRICT

[NO. 66FDR-18-468]

HONORABLE ANNIE POWELL 

HENDRICKS, JUDGE

REVERSED

RITA W. GRUBER, Judge

Appellant Jessica Hayes appeals from an order of the Sebastian County Circuit Court 

finding her in contempt of court orders incorporated into the parties’ divorce decree that 

required the parties to keep the children in a proper and wholesome environment, to enjoin 

and restrain them from making derogatory comments about the other parent in the presence 

of the children, and to, in good faith, endeavor to maintain in all the children respect and 

affection for the other party. On appeal, Jessica argues that the finding of contempt is not 

supported by the evidence and that the circuit court erred by not dismissing the contempt

on the affirmative defenses of unclean hands and estoppel. We reverse. 

Jessica and appellee William Hayes married in 2002 and have two children—Minor 

Child 1 (MC1), born in 2005; and Minor Child 2 (MC2), born in in 2010. The parties 
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divorced on December 31, 2018. Jessica was awarded sole legal and physical custody of the 

children, and William was awarded visitation according to the court’s standard visitation 

order. The divorce decree incorporated the parties’ property-settlement and separation 

agreement as well as the court’s standard order regarding visitation and related matters. The 

property-settlement agreement contained the following provision: “The Wife and Husband 

shall at all times in good faith endeavor to maintain in all the children respect and affection 

for the other party.” The standard order contained the following provision: “Welfare of 

Children: The children are to be kept in a proper and wholesome environment at all times. 

Both parties are enjoined and restrained from making derogatory remarks about the other

parent in the presence of the child or children, and from allowing others to do so.”

On June 21, 2021, William filed a motion for contempt alleging he married his 

girlfriend on June 4, and MC1 was invited to attend but declined. MC1 arrived at the “scene” 

of the wedding with Jessica. MC1 posted a “Snap” on Snapchat from the car that stated,

“[T]his may be really unhealthy but my dads getting married [right now] and instead of going 

to the wedding me, my mom and I are sitting outside the church waiting for them to leave 

so we can see how trashy her dress Is.” William alleged that this was an example of an 

“ongoing and systematic effort” on Jessica’s part to alienate the affections of the children 

from him and, further, that Jessica “has improperly endorsed and approved, in concert, bad 

and hurtful conduct on the part of [MC1] towards her father.” In addition to asking that a 

civil fine be imposed, William asked the court to fashion a punishment to remedy this 

particular situation. He also sought costs and fees associated with the contempt action. 
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In her answer, Jessica admitted that MC1 had arrived at the wedding with her but 

denied the remaining allegations. She affirmatively pleaded that she has not tried to alienate 

the children from their father but that William’s relationship with the children is strained 

because of his own actions and asked the court to order William to attend joint counseling 

sessions with the children to help mend their relationships. Jessica also raised the defenses 

of estoppel and unclean hands. 

A hearing took place on September 16, at which time MC1 was sixteen and MC2 was 

ten. William testified that the divorce decree required that he not expose the children to his 

girlfriend—now wife—and their child for 180 days. He continues to maintain a separate home 

across the street from his home that he shares with his new wife and child so that MC1 and 

MC2 have no contact with his new wife and their child, who was three at the time of the 

hearing. He acknowledged that he allows the children to choose not to spend time in the 

presence of his wife and child. He is required to pay for counseling for the children, which 

he thought would help the children adjust to the changes in their lives and accept their new 

sibling and anticipated marriage to his girlfriend. Despite participation in counseling 

individually and with the children since the 2018 divorce, he did not think counseling had 

helped the children adjust to his marriage and new child. William believes there is a conflict 

of interest because MC1 uses the same counselor as Jessica and asked that MC1 have an 

independent therapist. 

William learned of MC1’s Snapchat post the day after his wedding. He felt extreme 

hurt, sadness, and frustration that his daughter would behave that way, and he was angry 
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with Jessica for “being a part of it, allowing it, [and] facilitating it.” He reached out to Jessica 

by text. Jessica responded that she does not communicate with him by text and wrote, “If 

you ever took the time to have authentic conversations with, and actually listen to your 

daughter, you would know there was a strain on this entire time. You can blame me all you 

want, but everyone recognizes the truth, and it’s that none of this is my fault.” William said 

that he is limited to communicating with Jessica by email or phone call.

On cross-examination, he acknowledged that Jessica has an issue with texting because 

she believes his wife reads them and that he can call Jessica anytime. William testified that 

since the parties separated, MC1 and MC2 had been in counseling because of his affair and 

the marital breakdown. He explained he had not had many joint sessions because he could 

not dictate that his daughters speak to him but said he would be there when requested. He 

never asked Jessica for help in facilitating counseling because he could do it himself. 

William testified that he wants MC1 to accept his new wife and child but admitted 

that he maintains separate houses and separate times with MC1 and MC2, explaining that 

he kept the marital home in the divorce and purchased the house across the street where he 

resides with his new family. The children have been invited to the new home but do not 

want to go, and he cannot force MC1 to be around his wife. William attends MC1’s games

only when they occur during his visitation because MC1 does not want his wife and their

child to attend. He acknowledged that his wife expects him to be home outside his set 

visitation because there can be no “crossing” of the two families. He can communicate with

the children anytime as they both have cell phones, and Jessica had never withheld visitation. 
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William claimed that Jessica was alienating him from MC1 and MC2 “by not fostering an 

environment that allows inclusivity with his current wife and child” but admitted that he 

had the same responsibility and a had better ability to do so than Jessica. 

MC1 testified outside the presence of her parents. In regard to the Snapchat post at 

issue, she was outside the church where her father was getting married when she posted it. 

Although she was invited, she chose not to attend the wedding. She explained she had been 

at dinner beforehand with her mother, her mother’s friend, and MC2, and it was a “spur 

of the moment” decision for her to go.1She had driven herself to dinner and could have 

driven home, but she wanted to see who was there. Although MC1 regretted the post, she 

did not regret going with her mom. She did not feel it was a “safe” place for her to be at the

wedding, clarifying for the court that it would not be good for her mental health to see her 

father get married. MC1 said that there was a discussion in the car about wanting to see how 

“trashy” the wedding dress was, but that was not the entire reason for going. MC1 said her 

mom was not invited to the wedding but wanted to see who was there “to know . . . who she 

could trust.” MC1 said that her mom does not bring up her dad and his new wife unless 

 

1Upon questioning by the court, MC1 indicated that she was a passenger in the car 

with her mother, MC2, and her mom’s friend, Gabby Devero, who was driving. The court 

asked whether Gabby is Ed Devero’s daughter and whether Ed and his wife knew that their 

daughter was with them on this “adventure.” MC1 replied that Gabby is their daughter but 

did not know if they knew she was with them that day. The court stated, “I bet they didn’t. 

Can’t imagine it.” During Jessica’s testimony, the court asked about Gabby’s age. Jessica 

stated that she is twenty-eight and considered her part of her family in a lot of ways. 
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MC1 brings it up. MC1 has no desire to have a relationship with her half sister but said that 

her mother does not mind if she does. 

On cross-examination, MC1 said that she has told her dad she does not want a 

relationship with her half sister because “seeing her reminds me of everything that happened 

. . . his affair and when everything fell apart.” She blames her dad for the divorce, but he has 

been “understanding throughout it and willing to accept that.” MC1 testified that she likes 

her therapist whom she has seen since her parents divorced. Although her mom also sees 

the same therapist, MC1 said the therapist never talks to her about what her mom says in 

therapy. She had only gone to counseling with her dad a couple of times, and although he 

mentioned going, he never pushed it. She explained that they discussed how much time he 

spends with them and that he only spends time if it during his visitation, indicating that the 

sessions end with him saying that “nothing could change.” MC1 indicated that her father 

won’t come to her games outside of his set visitation because his new wife will not give up 

that time because MC1 will not spend time with her. MC1 said her dad rarely misses 

visitation but said that there are times when she or her sister had to go with a friend or a 

grandparent because an event would exceed his visitation time. 

The court questioned MC1 about her refusal to be around her dad’s new wife and 

child, stated that MC1 is basically making him choose between his two families, and 

suggested that it would be easier and healthier if they could all get along and be in the same 

place. The court stated that it had been three years since MC1’s parents divorced, and things 

should be getting smoother at this point. The court went on to tell MC1 that “[m]y parents
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did the same thing when I was about thirteen and so I know exactly how that feels. But at 

some point you’ve got to let things go and try to work towards everyone getting along and be 

in the same place.” After MC1’s testimony, William rested. Jessica moved for directed 

verdict, stating that she did not feel William had met his burden of proving that she had 

been in willful violation, and the court denied the motion.

2

 

Jessica testified in her defense. In regard to why she went to the wedding although 

she had not been invited, she explained:

So, over this last year I’ve had to cut several people out of my life because I learned 

that they were still having various relationships with my ex-husband. And after 

everything that the girls and I have been through over the last few years, it -- I try to 

keep everything separate. And so, to be completely frank, I was curious about who 

was there so that I would know who else I needed to cut out of my life. 

She said that the children chose to go with her, indicating that they know nothing about 

their father’s other life and were curious, especially MC2. Jessica thought it would be helpful 

for everyone if William would go to therapy with the children more often. She encourages 

them to see their dad as often as they can, expressing that it is important to her for them to 

have a healthy relationship with him. Jessica stated that there are times when William will 

not keep the children past his visitation time, even for an hour. Jessica did not have any 

issues seeing the same therapist as MC1 and thought it worked well for everyone because 

 

2The court responded, “Oh, I absolutely do,” and denied the motion, noting that 

Jessica had taken her kids because she wanted to know whom she could trust. The court then 

commented, “Are you kidding me? I’m not going to say this on the record in front of this 

mom, but are you kidding me?”
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MC2’s therapist is in the same building, and it gives the therapist a “full picture” of what has 

and is happening in their family. 

On cross-examination, Jessica said that taking her children with her on the day of the 

wedding was a “bad parenting moment.” She explained that she did so because there was a 

“curiosity on everyone’s part. There was also some closure that happened just by seeing that 

after three and a half years it was over.” She agreed that it probably sent a message to the 

children “on some level” about her attitude towards their father but indicated that was not 

what was wrong with their relationships. Jessica acknowledged that she does not want to 

communicate with William by text because, at one point, his then girlfriend (now wife) had 

responded on his phone and made rude comments.

At the conclusion of the hearing, the circuit court found Jessica in contempt, orally 

ruling in part as follows:

The Court is making a finding that the plaintiff is in contempt of this Court. Her 

candid testimony today is a clear picture of that. It was her idea to take her minor 

daughters to the wedding of their father, and the reason she went to the wedding was

to cut off who else she needed to cut out of her life, people that continued to have a 

relationship with the defendant need to be cut from her life. That is a clear 

contemptuous behavior. It’s appalling. If my jail wasn’t so full I might even put her 

in there. And so full of COVID. Just appalling behavior. Bad parenting. 

The court further spoke to Jessica, stating that the next time she decides to involve her 

children, she needed to “go talk to [her] counselor first and see if she thinks it’s a good idea.

. . . Because this was . . . the worst thing I’ve heard in a couple of years, honestly, to do to 

your kids, your poor daughters. And I can’t believe - - if Ed Devero and his wife knew that 

Gabby did this, I cannot believe they would approve of that behavior either.”
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The court entered an order on July 22, 2021, finding in part the following: 

IV

That, furthermore, the Court incorporated the Standard Order Regarding Child 

Visitation and Related Matters which was attached to the aforesaid Decree and which 

provides: “The children are to be kept in a proper and wholesome environment at all 

times. Both parties are enjoined and restrained from making derogatory remarks 

about the other parent in the presence of the child or children and from allowing 

others to do so.” That, moreover, the parties entered into a Property Settlement and 

Separation Agreement which was filed herein on December 31, 2018. That, in the 

aforesaid Agreement, the parties agreed to the following: “The Wife and Husband 

shall at all times in good faith endeavor to maintain in all the children respect and 

affection for the other party.”

V

That, since the entry of the aforesaid Divorce Decree which incorporated the terms 

of the parties’ Property Settlement Agreement, the plaintiff has conducted herself in 

a manner in which this Court finds to be in violation of the Orders and directives of 

the Court and which are contemptuous of the aforesaid Orders and directives of this 

Court.

The court ordered that the parties communicate by text and that MC1 continue counseling 

with a new counselor who is not shared with, or connected to, Jessica. In addition, Jessica 

was ordered to pay William $1000 for reimbursement of his attorney’s fees incurred in 

pursuit of the contempt action. Jessica timely appealed. 

Contempt is a matter between the judge and the litigant and not between the two 

opposing litigants. Holifield v. Mullenax Fin. & Tax Advisory Grp., Inc., 2009 Ark. App. 280, at

3, 307 S.W.3d 608, 610. Willful disobedience of a valid order of a court is contemptuous 

behavior. Rye v. Rye, 2021 Ark. App. 286, 625 S.W.3d 761. Before one can be held in 

contempt for violating the court’s order, the order must be definite in its terms and clear as 
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to what duties it imposes. Id. Contempt can be civil or criminal. Id. The purpose of criminal 

contempt is to preserve power, vindicate the dignity of the court, and punish for 

disobedience of the court’s order. Id. Civil-contempt proceedings are instituted to preserve 

and enforce the rights of private parties to suits and to compel obedience to orders made for 

the benefit of those parties. Id. If contempt is civil in nature, as it is here, the standard of

review is whether the circuit court’s finding is clearly against the preponderance of the 

evidence. Id. A finding is clearly against the preponderance of the evidence if, although there 

is evidence to support it, the reviewing court on the entire evidence is left with a firm 

conviction that a mistake has been committed. Potter v. Holmes, 2020 Ark. App. 391, 609 

S.W.3d 422.

In her first two points on appeal, Jessica contends that the circuit court’s contempt 

finding is not supported by sufficient evidence. First, she argues that there is a lack of a clear 

order: a wholesome environment or promoting affection at all times cannot require perfect 

parenting, and her actions were not a willful violation of the court orders. Second, she 

contends that the contempt finding is against the weight of the evidence in part because the 

circuit court disregarded or ignored the circumstances of Jessica and the children and relied 

on her opinion and personal relationships with others.

The orders at issue in this case require the children to be kept in a proper and 

wholesome environment at all times and require the parents to, in good faith, endeavor to 
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maintain in all the children respect and affection for the other party.

3 The parties do not 

cite any contempt cases in Arkansas, nor did our research reveal any contempt cases

addressing the general orders at issue in this case. These general types of directives have come 

up in cases involving modifications of custody or visitation, which this case does not. This 

case is clearly distinguishable from other domestic-relations cases in which contempt has 

been upheld for violations of specific orders related to visitation, payments, or maintenance 

of health insurance. See, e.g., Evans v. Carpenter, 2022 Ark. App. 83, 642 S.W.3d 235; Williams 

v. Lofton, 2018 Ark. App 606, 569 S.W.3d 872; Bass v. Bass, 2011 Ark. App. 753, 387 S.W.3d 

218.

The situation here involved an isolated incident—Jessica taking her daughters with 

her to watch from outside William’s wedding. Although William’s contempt petition alleged 

that the wedding incident was an example of an “ongoing and systematic effort” on Jessica’s 

part to alienate the affections of the children from their father, the circuit court’s ruling that 

found Jessica in contempt was based on the wedding incident. These orders on which the 

court found Jessica in contempt related only to the parties, not third parties, such as

William’s new wife. The Snap posted by MC1 was directed at the new wife, and neither 

Jessica nor William was aware of the Snap until the day after it was posted. Based on the 

 

3The divorce decree also enjoined and restrained the parties from making derogatory 

remarks about the other parent in the presence of the children. We note that there have 

been cases involving contempt based on a parent making a derogatory comment about the 

other parent in the presence of the children. See, e.g., Byrd v. Vanderpool, 104 Ark. App. 239, 

290 S.W.3d 610 (2009). This case, however, does not involve Jessica making a derogatory 

comment about William in front of the children.
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evidence presented, William appears to have a good relationship with his children. While 

the children refuse to be around William’s new wife and child, this is a choice that he has 

admittedly allowed and perpetuated by continuing to maintain separate houses and spending 

time with MC1 and MC2 only during his scheduled visitation.

As stated previously, contempt is not a matter between two opposing litigants but a 

matter between the judge and the litigant. Whatever may be taking place between the parties 

should not be the subject of a contempt proceeding unless the court has clearly and 

unequivocally ordered a party to do or not to do some specific thing. Holifield, supra. While

the orders at issue fail to support the alleged contemptuous behavior in this case, we are not 

holding that these type of orders, which are common in many domestic-relations cases, could 

not support a finding of contempt in an appropriate case. Rather, the specific facts in this

case do not support a violation of the orders relied on by the circuit court.

In conclusion, we are left with a definite and firm conviction that a mistake has been 

committed. The record in this case does not support a violation of the orders at issue.

Further, although we reverse the circuit court’s contempt finding, we in no way condone 

Jessica’s admittedly poor-parenting decision. Inasmuch as Jessica challenges the sufficiency 

of the evidence to support the contempt order on the basis that the circuit court relied on 

improper considerations and judgments, we do not reach this argument because we hold 
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that the record does not support a violation of the orders at issue.

4

For the same reason, we 

need not address Jessica’s arguments related to the defenses of unclean hands and estoppel. 

Reversed.

WOOD and HIXSON, JJ., agree.

Dusti Standridge, for appellant.

Gean, Gean & Gean, by: Roy Gean III, for appellee.

 

4While we do not reach the merits of appellant’s argument, we note that the circuit 

court made a number of concerning comments on the record.