Brothers v. Stouffer
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Cite as 2010 Ark. App. 722
ARKANSAS COURT OF APPEALS
DIVISION I
CA10-289
No.
Opinion Delivered
MEGAN ANN STOUFFER
BROTHERS
APPELLANT
November 3, 2010
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[No. DR-94-1254]
V.
ROBERT BRIAN STOUFFER, CINDY
BLASINGAME, and MINOR CHILD
APPELLEES
HONORABLE HARRY FOLTZ,
JUDGE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Megan Ann Brothers appeals from an order of modification awarding
appellee Robert Stouffer custody of the parties’ minor child. On appeal, Megan argues that
the trial court erred in denying her motion for a continuance and that the trial court clearly
erred in its custody determination. We see no error and affirm the decision of the trial court.
Megan and Robert were divorced in 1995. At the time of the divorce, the parties had
one child—a daughter, C.S. Although custody of the child was originally placed with Megan,
in 1996 the child began residing with her maternal grandmother, Cindy Blasingame.1 When
C.S. began the fourth grade, she once again began living with her mother.
1
Blasingame is an Intervenor in this case.
Cite as 2010 Ark. App. 722
From 1998 until 2005, C.S.’s father, Robert, received five felony convictions and was
incarcerated on four occasions. During this time period, Robert conceded that he had no
involvement with C.S. and had accumulated a substantial child-support arrearage.
In 2005, following his release from prison, Robert sought to renew his relationship
with C.S. An agreed order was entered by the trial court on August 28, 2006, providing
Robert with a “gradually increasing schedule of visitation.” On August 7, 2008, Robert filed
a motion alleging that Megan refused to comply with his court-ordered visitation. Shortly
thereafter, in early November 2008, Megan abandoned C.S. According to the record, C.S.
was left to live with Blasingame without even the most basic of necessities—including
clothing, prescription glasses, and personal belongings.
Following this event, on December 5, 2008, Robert filed a motion for emergency ex
parte custody. In the motion, Robert also alleged that C.S. had been physically abused by
both Megan and Megan’s current husband. Robert asked the trial court to transfer custody
of C.S. from Megan to him. He further requested, for the child’s stability, that she be
permitted to continue residing with Blasingame.
An agreed temporary order was entered on December 29, 2008, in which temporary
custody of C.S. was placed with Blasingame. The order stated:
It is agreed that temporary custody of [C.S.], age 14, born December 28, 1993, is
hereby placed with the Intervenor until further order of this court. As this is a
temporary placement by agreement of all parties, neither the Plaintiff nor Defendant
will need to establish a change of circumstances in order to set this temporary custody
aside at a final hearing. Further, all parties may petition the court at any time for a final
custody determination in this case . . . .
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Cite as 2010 Ark. App. 722
On March 24, 2009, Megan filed a motion to set aside the temporary order and to restore her
custody of C.S.
A hearing on the matter was conducted on November 17, 2009; however, Megan was
not in attendance. At the commencement of the hearing, Megan’s attorney asked for a
continuance arguing “surprise” as to the nature of the hearing. Specifically, Megan’s counsel
claimed that they did not realize that custody of C.S. would be considered at the hearing until
November 5, 2009. Megan’s counsel argued that more time was needed to prepare and that
Megan’s presence and participation was an important component of the child-custody
determination.
After a thorough discussion of the issue, the trial court denied the continuance. The
court noted that, according to Megan’s counsel’s own admission, at a minimum Megan had
two weeks’ notice that Robert planned to pursue custody of C.S. at the hearing. The court
ultimately found that the last-minute continuance request, coupled with the fact that so many
witnesses were present for trial, supported its decision to deny the continuance.
At the close of evidence, the trial court found that Megan was “clearly unfit to have
custody of the parties’ child, C.S.” The court specifically found that Megan had “abused the
child, both physically and mentally and ha[d] allowed the child’s step-father to abuse the child
both physically and emotionally.” The court noted that its decision was influenced by the
testimony of both C.S. and her counselor and that it would be “extremely damaging
emotionally and against the child’s best interest” for Megan to receive custody. Based on the
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Cite as 2010 Ark. App. 722
fact that C.S. was only two years shy of the age of majority, the trial court also considered as
relevant her preference to live with her father in its final-custody determination.
In regard to Robert and his less-than-stellar past, the court acknowledged that Robert
had failed in many respects. However, after considering the specifics of Robert’s past, the
court still found that it was in C.S.’s best interest to be placed in her father’s custody. The
court explained that it was “well aware” of Robert’s felony convictions, prison time, extended
lack of participation in C.S.’s life, and “large” child-support arrearage. The court further
found that Robert had been drug-free for the last several years, was steadily employed, had
a suitable home for the child, had “been in no trouble with the law,” and had been remarried
for several years.
The court also noted that Blasingame, who raised the child for a significant portion of
her life, supported the decision to place C.S. in her father’s custody. Also, the court relied on
the recommendation of C.S.’s counselor, who acknowledged Robert’s background (and
subsequent reformation) in her recommendation that Robert be awarded permanent custody
of C.S.
The court ordered Megan to pay $102 in weekly child support to Robert. However,
the court ordered an offset that allowed Megan’s obligation to be met by incrementally
reducing Robert’s approximately $15,000 child-support arrearage. Finally, the court denied
Megan visitation with C.S., but left the question open for future consideration if Megan
completed recommended rehabilitative counseling. It is from this order that Megan appeals.
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Cite as 2010 Ark. App. 722
For her first point on appeal, Megan contends that the circuit court erred by denying
her motion for a continuance. The granting or denial of a motion for a continuance is within
the sound discretion of the circuit court, and that decision will not be reversed absent an abuse
of discretion amounting to a denial of justice. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark.
App. 244, ___ S.W.3d ___. Here, the trial court heard extensive argument for and against
Megan’s request for a continuance. The court was aware that Megan was unable to attend the
would-be final hearing due to an alleged work-related hardship and her counsel’s claim of
“surprise” as to the primary topic of the hearing—whether Robert should be granted custody
of C.S. However, the court placed much emphasis on Megan’s counsel’s admission that (at
least) two weeks prior to the hearing, the parties were aware that custody of C.S. would be
considered. The court found that at that time—November 5—Megan should have requested
a continuance in order to prepare for the hearing. Instead, she waited until the day of trial to
request a continuance (after witnesses had traveled and the case was docketed). Based on these
facts, we hold that the trial court did not abuse its discretion in its denial of Megan’s motion
for a continuance.
As to Megan’s second point, whether the trial court erred in its finding that it was in
C.S.’s best interest to be placed with her father, we review the decision de novo but will not
reverse unless the decision is clearly contrary to the preponderance of the evidence. Hollinger
v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Because the question of
preponderance of the evidence turns largely on the credibility of the witnesses, we defer to
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Cite as 2010 Ark. App. 722
the superior position of the trial court to make such determinations. Id. at 112, 986 S.W.2d
at 106. In fact, we know of no cases in which the superior position, ability, and opportunity
of the trial court to observe the parties carries as great a weight as those cases involving
children. Id., 986 S.W.2d at 106. A finding is clearly against the preponderance of the
evidence when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake had been made. Id., 986 S.W.2d at 106.
Here, we are left with no such conviction because there is ample evidence to support
the trial court’s decision. After weighing the testimony and credibility of the witnesses, the
trial court made an affirmative finding that Megan and Megan’s new husband had abused C.S.
The court specifically noted that it found C.S.’s testimony to be credible and believed that she
had suffered physical abuse at the hands of her mother and stepfather. The record also contains
photographic evidence that bolsters C.S.’s claim of abuse. The court further found that Megan
had established that she was unable to adequately parent C.S. as evidenced by Megan’s past
decisions to abandon C.S. to Blasingame’s care. The record also shows that C.S. specifically
requested that she have no relationship with her mother based on fear and instability. C.S.
testified that she preferred the environment of the inpatient mental institution (where she
briefly resided) to her mother’s home because she felt more secure at the institution.
The record demonstrates that the trial court considered Megan’s primary
complaint—that Robert engaged in felonious behavior and had no meaningful emotional or
financial involvement with C.S. for the greater portion of the child’s life. Despite this
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Cite as 2010 Ark. App. 722
undisputed reality, the court believed that Robert had rehabilitated himself and sufficiently
repaired his relationship with C.S. The court considered all relevant factors in assessing
Robert’s fitness, including the opinions of C.S., her ad litem, her counselor, and
Blasingame—all of whom agreed that Robert was a fit parent. As such, because a
preponderance of the evidence supports the trial court’s decision to award Robert custody of
his teenage daughter, C.S., we affirm.
Affirmed.
G LOVER and B AKER, JJ., agree.
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