The road to equality for same-sex couples remains bumpy in Arkansas.
The Arkanas Court of Appeals
today for the second time remanded a case to Sebastian Circuit Court and directed a contempt finding against a woman who lives with a same-sex partner
while teen children are present. But it broadly hinted that there need not be punishment for the civil contempt.
Circuit Judge Jim Spears
had declined to hold the woman, Katherine Uselton, in contempt of a divorce decree order that she not have overnight guests with whom she was romantically involved while minor children were present.
Uselton has a same-sex partner. Her ex-husband, Stephen Davenport, from whom she was divorced in 2008, wanted her held in contempt because her children visited while her partner was present. The three children include one who lives with Uselton. The court had sent the case back to circuit court once for clarification and Spears again declined to hold Uselton in contempt.
The Court of Appeals reversed Spears and held Uselton in contempt because it said the facts were indisputable. It sent the case back to Spears for punishment. The court noted Spears had cited several reasons for his conclusion, but commented,
" ... While those reasons may certainly be considered by the trial court in fashioning an appropriate sanction, if any, to be imposed for the contemptuous behavior, those reasons do not change the underlying determination that Uselton’s conduct,"
In a footnote, the Court of Appeals acknowledged that Uselton had argued that enforcement of the non-cohabitation provision violated her constitutional rights to due process and equal protection of the law. Uselton couldn't marry her partner if she wanted to do so. Furthermore, the Arkansas Supreme Court recently invalidated blanket bans on cohabitation
and said each case should be decided on particular circumstances and the interests of the children, which Spears had set out to do.
In this case, however, the Court of Appeals said Uselton had failed to obtain a ruling on the constitutionality of the provision and the failure to do so precluded the court from considering that on appeal. The court added:
As noted in our previous opinion, the trial court may, in its wide discretion, choose to assign much, little, or no punishment at all for a contempt citation