Rector v. Rector

Mary Ann RECTOR v. Joseph Michael RECTOR

CA 96-634                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & IV
                 Opinion delivered June 25, 1997


1.   Divorce -- chancery cases reviewed de novo -- best interest of
     child standard used in custody hearings. -- The appellate
     court reviews chancery decisions de novo and reverses only if
     it determines that the chancellor's findings are clearly
     against the preponderance of the evidence; in a custody
     hearing, the court considers what is in the best interest of
     the child; factors a court may consider in determining what is
     in the best interest of the child include the psychological
     relationship between the parents and the child, the need for
     stability and continuity in the child's relationship with
     parents and siblings, the past conduct of the parents toward
     the child, and the reasonable preference of a child; in child
     custody cases, the chancellor has a heavy burden of evaluating
     the witnesses, their testimony, and determining what is in the
     child's best interest. 

2.   Witnesses -- credibility of -- chancellor must resolve
     conflicts in testimony. -- Where testimony conflicts, the
     issue of credibility is a matter in which the appellate court
     defers to the chancellor.  

3.   Evidence -- chancellor found allegation of long-past sexual
     abuse never properly linked to case at hand -- no abuse of
     discretion found in chancellor's ruling that testimony was
     irrelevant. -- The trial court's ruling that the testimony by
     the witness that the appellee had sexually abused her was
     irrelevant, was not an abuse of discretion where the
     chancellor found that neither had a proper link been made to
     connect the allegation to the case at hand nor had a proper
     investigation been made into the allegation; the alleged
     incidents had gone unreported for ten years, and the custody
     hearing concerned a twelve-year-old boy and not a high-school
     girl; no evidence was presented that appellee had ever
     sexually abused his son and he steadfastly denied that he had
     ever touched the witness inappropriately. 

4.   Evidence -- chancellor's ruling on relevance reversed only
     upon finding abuse of discretion. -- The appellate court will
     not reverse a chancellor's ruling on relevancy unless it finds
     an abuse of the trial court's discretion; in child-custody
     cases, the chancellor's personal observation of the mother and
     father and their respective personalities is vital and of
     inestimable value. 

5.   Evidence -- chancellor's consideration of appellant's
     prescription drug use as factor in determining child's best
     interest not an abuse of discretion. -- Based on the number of
     drugs recently taken by appellant and the number of refills
     she received, the chancellor did not abuse his discretion in
     considering appellant's prescription drug use as a factor in
     determining what was in the best interest of the child; the
     chancellor did not specifically find that appellant was
     abusing drugs, but he did express his concern about the number
     of prescription drugs that were passing through the hands of
     the appellant and stated that the child needed stability. 

6.   Evidence -- chancellor did not rely on drug tests --
     chancellor's decision to place child in father's custody not
     clearly against preponderance of evidence. -- Where the judge
     commented that he was impressed with the drug tests, obviously
     meaning that he was impressed by the fact that appellee was
     serious enough about the custody matter to undergo drug tests,
     even though these tests were never admitted into evidence, it
     was permissible for the court to consider such evidence in
     judging the credibility of appellee's testimony that he had
     stopped using marijuana; the court did not rely on the drug
     tests in determining custody and what would be in the best
     interest of the child.

7.   Evidence -- appellee's illegal drug use not discounted by
     chancellor -- decision to place child in appellee's custody
     not clearly against preponderance of evidence. -- The trial
     court did not discount appellee's illegal drug usage where he
     found that he could monitor and had options to deal with any
     allegations of illegal drug use by appellee, but it would be
     more difficult to monitor or take action on the allegation of
     abuse of prescription drugs taken by appellant; the
     chancellor's decision to place the child in the custody of his
     father was not clearly against the preponderance of the
     evidence.


     Appeal from Benton Chancery Court; Oliver L. Adams,
Chancellor; affirmed.
     Pawlik & Associates, by:  Ella Maxwell Long, for appellant.

     Davis & Watson, P.A., by:  Jeff H. Watson, for appellee.

     Sam Bird, Judge.
     Mary Rector brings this appeal from the Chancery Court of
Benton County, which granted permanent custody of her son, Kevin,
to Kevinþs father, Joseph Michael "Mike"  Rector.  On November 16,
1995, Mr. Rector, appellee, filed a complaint in chancery court,
alleging he was entitled to a divorce and requesting custody of
Kevin.  Ms. Rector answered and also petitioned the court for full
custody of Kevin.
     A temporary hearing was held November 27 to determine who
should be awarded temporary custody of Kevin while the divorce was
pending.  The chancellor noted that, as with many cases, the
parents in this case were not perfect.  The chancellor was
disturbed that Ms. Rector had allegedly threatened to burn down the
house, that Ms. Rector was not able to control her anger in front
of Kevin, and that she did not communicate well with Kevin or her
other children.  In addition, the court noted that Ms. Rector has
taken a lot of anti-depressants for her inability to control her
stress.
     The chancellor was concerned about Mr. Rectorþs admitted use
of marijuana, that he had taken Kevin out of school during the time
Kevin was in the middle of a chess tournament, that Mr. Rector does
not seem to think that education is important, that Mr. Rector did
not yet have a stable location he could call home, and that Mr.
Rectorþs work takes him out of town often.
     Ms. Rector was awarded temporary custody because the
chancellor found that she could meet the needs of the child and
because her work schedule would allow Kevin to have a more stable
environment.
     A hearing was held on February 5, 1996, to determine whether
a divorce should be granted, and if so, who should be awarded full
custody of Kevin.  Again, Mr. Rector admitted to using illegal
drugs and Ms. Rector admitted to using a large amount of
prescription drugs.  Joseph Michael Rector, the partiesþ eldest
son, testified that Ms. Rector had a number of mood swings.  Both
parents admitted to disciplining Kevin with a belt, and testimony
was presented that Ms. Rector also used a wire fly swatter.  Kevin
testified that he wanted to live with his father because his dad
þtakes me out camping and everything, and Mom just watches TV and
tells me to go to school and stuff.þ  
     Nicki McDonald, Ms. Rectorþs adult daughter from another
marriage, also testified.  Ms. McDonald stated that Mr. Rector had
sexually abused her when she was a child.  Appellee objected,
stating that the evidence was irrelevant.  After questioning Ms.
McDonald, the court sustained the objection, stating that a
complete investigation into these allegations had not been made and
that a link between the incident that happened ten years ago and
what was being decided in the hearing was missing.
     The chancellor granted Mr. Rector a divorce and permanent
custody of Kevin, subject to visitation rights of Ms. Rector.  In
his oral findings, the chancellor stated that he was concerned
about the use and storage of illegal drugs and prescription
drugs.  However, the chancellor felt that an illegal drug problem
could be handled by ordering Mr. Rector to take drug tests,
ordering examinations of the home and ordering that the child be
removed from an environment where illegal drugs are used.  However,
these options were not available in monitoring Ms. Rectorþs use of
prescription drugs.  He found that Ms. Rector was taking a large
amount of anxiety drugs because of her mood swings, and found that
Kevin needed a stable environment and needed to be able to know
what to expect from each parent.  The chancellor also noted that
Mr. Rector tended to spend more time in activities with Kevin.
     This court reviews chancery decisions de novo and reverses
only if it finds that the chancellorþs findings are clearly against
the preponderance of the evidence.  Fitzpatrick v. Fitzpatrick, 29
Ark. App. 38, 776 S.W.2d 836 (1989).  In a custody hearing, the
court considers what is in the best interest of the child.  Ark.
Code Ann.  9-13-101 (Repl. 1993).  Factors a court may consider in
determining what is in the best interest of the child include the
psychological relationship between the parents and the child, the
need for stability and continuity in the childþs relationship with
parents and siblings, the past conduct of the parents toward the
child, and the reasonable preference of a child.  Anderson v.
Anderson, 43 Ark. App. 194, 863 S.W.2d 325 (1993).  In child
custody cases, the chancellor has a heavy burden of evaluating the
witnesses, their testimony, and determining what is in the childþs
best interest.  Fitzpatrick, 29 Ark. App. at 40, 776 S.W.2d  at 837.
In Fitzpatrick, this court held, þWe have often stated that we know
of no cases in which the superior position, ability, and
opportunity of the chancellor to observe the parties carry as great
a weight as those involving child custody.þ  Id. (citing Calhoun v.
Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981)).
     Appellant argues on appeal that the chancellor abused his
discretion in determining that it was in the best interest of the
minor child to be placed in the permanent custody of appellee
because the chancellorþs decision was clearly against the
preponderance of the evidence.  For this claim, the appellant
relies on three arguments.  We affirm.
     First, appellant argues the court erred when it ruled that the
testimony by Nicki McDonald that Mr. Rector had sexually abused her
was irrelevant.  She argues that the testimony is a reflection on
Mr. Rectorþs morality and that morality must be considered in
determining what is in the best interest of the child.  We agree
that morality is a factor to be considered in determining a child
custody case; however, we also agree with the chancellor that
neither a proper link had been made to connect the allegation to
the case at hand nor had a proper investigation been made into the
allegation.
      Nicki McDonald testified that Mr. Rector sexually abused her
when she was in the ninth or tenth grade.  She testified that he
would come into her bedroom and þhe touched me and that was it.þ
However, she never talked to anyone about the incident.  She stated
that she confronted Mr. Rector and he did not touch her again. 
Appellee objected to the testimony based on relevance.  The court
then questioned Ms. McDonald and ruled,
     I think this is an issue that needs to be resolved.  Itþs
     not totally collateral to this, but I think there needs
     to be some tie-in to something that happened over ten
     years ago and what is happening today.  If he has
     exhibited these propensities of abuse toward other
     children or something, the male children, I need to know
     about that.  We are dealing with a male child here.  I am
     not putting down the allegations Mrs. McDonald is making
     here today, but I just donþt think that this is the
     platform for doing it.

     The court obviously gave little weight to the testimony of Ms.
McDonald about her sexual-abuse allegations against Mr. Rector
because no investigation had been made into the allegation, because
the alleged incidents had gone unreported to anyone by Ms. McDonald
for ten years, and because the custody hearing concerned a twelve-
year-old boy and not a high-school girl.  No evidence was presented
that Mr. Rector had ever sexually abused his son and he steadfastly
denied that he had ever touched Ms. McDonald inappropriately. 
Where testimony conflicts, the issue of credibility is a matter in
which this court defers to the chancellor.  Fitzpatrick, supra.  
     Ark. R. Evid. 401 defines relevant evidence as evidence that
has a tendency to make the existence of any fact more probable or
less probable than it would be without the evidence.  This court
will not reverse a chancellorþs ruling on relevancy unless it finds
an abuse of the trial courtþs discretion.  James v. James, 29 Ark.
App. 226, 780 S.W.2d 346 (1989).  In child-custody cases, the
chancellorþs personal observation of the mother and father and
their respective personalities is vital and of inestimable value.
Fitzpatrick, supra.
     For her second argument, appellant contends that the
chancellorþs findings that the appellantþs use of prescription
drugs was abusive is arbitrary and groundless.  The appellant cites
no authority for this argument but argues that this finding was not
supported by substantial evidence. 
      The chancellor did not specifically find that appellant was
abusing drugs, but he did express that he was þconcerned about the
number of prescription drugs that are passing through the hands of
the defendant.þ  Evidence was introduced that showed appellant was
getting prescriptions filled about every month.  She testified that
she was taking, or has taken in about a year, Valium, which she
characterized as an antianxiety drug taken to help her sleep;
Phentermine and Pondimine to help her lose weight; Darvocet, for
chronic headaches; Polyhistine-D for sinus; Cephalexin, which is an
antibiotic; and Paxil, as an antidepressant.  She also testified
that she had taken Fiorinal during the past year for pneumonia. 
Further, she stated that although she gets refills of Valium of
about 100 every other month, she does not take all of them.  Also,
she testified that she receives refills of Darvocet in quantities
of about forty every other month but does not take all of them
either.
     The chancellor found that she was taking some of these drugs
for mood swings, and the chancellor held that Kevin needed
stability.  The chancellor stated, þI believe the child needs to
know what to expect from his parents and I believe it needs to be
stable and needs to be consistent in that response.þ  Based on the
number of drugs appellant takes or has taken recently and the
number or refills she receives, the chancellor did not abuse his
discretion in considering appellant's prescription drug use as a
factor in determining what was in the best interest for Kevin.
     For her third argument, the appellant contends that the
chancellor should not have considered drug-test results of the
appellee because the tests were not admitted into evidence.  The
appellant states that the chancellor further erred by discounting
appelleeþs illegal drug use. 
     During the hearing, Mr. Rector testified that he had submitted
to drug tests monthly since the temporary hearing so that he þcould
convince the judge that I am serious when I say I am not going to
be using it.þ  However, when appelleeþs counsel sought to have the
documents containing the results of the drug tests marked as
exhibits, appellantþs counsel objected to their introduction on
grounds that they were þinadmissible.þ  The court did not rule on
the objection but the documents containing the results of the drug
tests were not introduced into evidence.  The judge later commented
that he was impressed by the drug tests. 
      The dissenting opinion suggests that the drug-test results
were not introduced because of  failure on the part of appellee to
produce them, and that such failure gives rise to a presumption
that the evidence, if produced, would be unfavorable to appellant. 
Exactly the opposite is true.  Appellee had the test results
present in court and was preparing to have them marked as exhibits
as a prerequisite to their introduction when appellant objected
because the person who conducted the tests was not present to
authenticate them.  Appellant obviously knew what the test results
would show and did not want the court to consider them.  It would
be unreasonable to infer that the drug-test results were
unfavorable to appellee where it was appellee who revealed that he
had taken the tests, where he took the tests to try to persuade the
judge that he was no longer using marijuana, and where appellee was
attempting to offer the test results into evidence until they were
objected to by the appellant. 
     The judge did not comment that he was impressed with the
results of the drug tests.  Instead, he said that he was impressed
with the tests, obviously meaning that he was impressed that
appellee had gone to the trouble and expense of having the tests
performed.  It was not impermissible for the court to consider such
evidence.  Clearly it bears upon the credibility of appelleeþs
testimony that he had stopped using marijuana. 
     The court did not rely on the drug tests in determining
custody and what would be in the best interest of the child.  In
the courtþs order, the chancellor stated that he might take Mr.
Rector þup on these drug tests. If, in fact, it comes to ... my
attention that there is a -þ I guess if Iþm convinced that there
may be a violation of this trust that I have in you on the
consumption of drugs, I reserve the right to order you to take a
drug test.þ
     Further, the trial court did not discount appelleeþs illegal
drug usage.  To the contrary, the judge found that he could monitor
and had options to deal with any allegations of illegal drug use by
Mr. Rector, but it would be more difficult to monitor or take
action on the allegation of abuse of prescription drugs.  The court
held,     
     I certainly do not encourage the use of illegal drugs. 
     I donþt encourage the abuse of prescription drugs.  I am
     concerned about the number of prescription drugs that are
     passing through the hands of the Defendant.  I am
     concerned about the security of those drugs just as    
     much as I am concerned about the security of illegal
     drugs.  There is a way the illegal drugs can be modified
     [sic] by this Court, because I can order drug tests, I
     can order protective services, I can order examination of
     the home, and with illegal drugs, I can remove the child
     from that environment.  Where it is [an] abuse of legal
     drugs, I donþt have those options.

     We do not find that the chancellorþs decision to place Kevin
in the custody of his father was clearly against the preponderance
of the evidence, and we affirm.
     Affirmed.
     Jennings, Stroud, Neal, and Crabtree, JJ., agree.
     Rogers, J., dissents.



                Judith Rogers, Judge, dissenting.
     
     This is an appeal from a decree awarding custody of the
parties' ten-year-old son to his father.  I register this dissent
mainly because the majority has committed a most grievous error in
judgment by affirming the chancellor's ruling that evidence that
the father sexually abused his stepdaughter is not relevant to a
determination of whether he is a fit and proper person to have
custody of the child.
     The testimony deemed irrelevant by the chancellor and this
court is that of Nicki McDonald.  Ms. McDonald is appellant's
twenty-six-year-old daughter from a former marriage, who had lived
in the household with appellee since she was a small child, as the
parties married when she was a year old.  She said that, when she
was in the ninth or tenth grade, appellee came into her bedroom
several times a week and touched her inappropriately.  The abuse
stopped after a confrontation, and she said that appellee
admonished her not to tell anyone and convinced her that no one
would believe her.  Therefore, she kept the abuse a secret.
     "Relevant evidence" means evidence having any tendency to make
the existence of a fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.  Ark. R. Evid. 401.  A fact that is of
consequence in this case was whether appellee was a fit and proper
person to have custody of the child.  We have recognized that
evidence bearing on a parent's moral character is relevant in
deciding the issue of custody.  Stone v. Steed, 54 Ark. App. 11,
923 S.W.2d 282 (1996); James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989).  It requires no stretch of the imagination to realize
that evidence of sexual abuse of a child speaks volumes about that
person's moral character.
     In James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989), we
reversed a chancellor's ruling excluding evidence on grounds of
relevancy that a prospective custodial parent had fraudulently
embezzled funds from his deceased father's estate.  We held that
this behavior was indicative of the parent's moral character and
was thus relevant to the issue of parental custody and the issue of
the best interest of the child.
     More recently, in Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996), we affirmed a chancellor's ruling permitting evidence
of crimes committed by third persons who were brought into the
presence of the child by a prospective custodial parent.  The
offenses included possession of a controlled substance, harassment,
and possession of a controlled substance with intent to deliver. 
We harkened back to our decision in James v. James, supra, and held
that, since evidence of a parent's moral character is relevant in
a custody proceeding, the evidence in question was relevant as a
reflection on the parent's "morality in allowing persons of
questionable reputation and character to be around the child."
     I submit that the behavior evidenced in this case is far more
serious than that of fraud or embezzlement.  And, if evidence that
a parent's acquaintances have committed crimes is considered a poor
reflection on that parent's moral character, then there is no sound
reason to conclude that the evidence in this case is irrelevant. 
Aside from the moral implications of the evidence discussed in
James v. James and Stone v. Steed, evidence of a parent's conduct
and activities is routinely admitted in custody cases as a means
for chancellors to acquaint themselves with the parties in order to
decide the placement of custody.  Church activities, or the lack
thereof, criminal records, drinking habits, drug usage, adulterous
affairs, the use of foul language, etc., are all considered
relevant topics in a custody case, as having a tendency to show the
kind of person a parent is.  No reasonable person, even one
unschooled in the law, would argue that evidence of sexual abuse is
not relevant.  Nevertheless, the majority stubbornly refuses to
count this evidence among that which is generally considered
relevant in determining the best interest of the child.
     To affirm, the majority accepts the chancellor's reasoning
that the evidence was not relevant because the abuse involved a
young girl, whereas the child in question is a young boy.  That
distinction misses the point entirely.  The evidence was not
offered to show that the child was necessarily in danger of being
abused.  It was offered as evidence bearing on the issue of
appellee's moral character and his fitness to have custody of the
child.  It cannot be said that this evidence was not probative of
appellee's basic moral fiber and character.  It would be ludicrous
to conclude otherwise.
     The majority further holds that the evidence was not relevant
because there had been no "proper investigation" of the allegation. 
I suppose this means that evidence of this kind is not considered
relevant unless it has been reported to the proper authorities and
investigated by them.  In other words, acts that have remained
clothed in secrecy are not relevant.  To plainly state the
majority's holding is but to expose the fallacy of its reasoning.
     The issue here is one of simple relevancy.  The chancellor
unequivocally ruled that he did not consider this evidence relevant
to any issue before him; he thus did more than attach little weight
to the evidence as the majority obliquely suggests.  Significantly,
the chancellor did not find that the testimony was not worthy of
belief.  Yet to affirm this ruling, the majority has erected
artificial barriers for the admission of this evidence.  Such a
result represents a perversion of the definition of relevant
evidence and a blatant disregard of our case law holding that
evidence of a parent's moral character is relevant in a custody
case.  This decision is thus as offensive as it is wrong.  
     Issues that touch upon the welfare of children should merit
particular consideration on appellate review.  As I indicated in my
dissenting opinion in Jones v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995), rev'd on review, 326 Ark. 481, 931 S.W.2d 767 (1996),
we who sit on this court should not hesitate to reverse in the face
of manifest error.  When a chancellor refuses to consider evidence
that is relevant to the vital issue of a parent's character, his
values, and his sense of morality, it is our responsibility to take
corrective action to disabuse the chancellor of his mistake in
judgment.  The chancellor in this case clearly abused his discre-
tion in failing to consider this evidence as relevant.  His ruling
should not have the approbation of this court.
     While I would reverse and remand on this issue alone without
discussing the other arguments on appeal, this court's affirmance
compels me to comment on the remaining issues raised.  I also find
fault with the chancellor's comparison of appellant's use of
prescription medication to appellee's use of an illegal substance. 
Persons who take medications prescribed by their doctors do so for
reasons of health, while persons who use illegal, controlled
substances do so for recreational purposes.  Obviously, there is a
vast difference between the two.
     And in this case, the medications prescribed for appellant
were for the treatment of severe and frequent migraine headaches,
which appellee did not dispute, and anxiety associated with her
monthly menstrual cycle, as well as stress brought about by the
deterioration of the parties' relationship.  These medications were
prescribed under the direction and control of a physician in
quantities deemed necessary by him for the treatment of those
conditions.  And, the chancellor did not find that she abused any
of these medications.  Appellee, on the other hand, admitted that
he had smoked marijuana for twenty years.  Introduced into evidence
was a book of appellee's called The Marijuana Growers Guide, which
suggests that appellee did more than smoke this illegal substance. 
There was evidence that appellee's use of this substance influenced
the parties' elder son, who also smoked marijuana and who had even
stolen appellee's marijuana from the shed where appellee kept it
hidden.  The young boy in question also testified that he had been
around his father "every now and then when he acted kind of funny,
acted drunk."  Therefore, I question the chancellor's ruling
holding appellant blameworthy for the use of prescribed
medications, while downplaying appellee's daily use of marijuana. 
The court reasoned that he could not control appellant's behavior,
but that he could control appellee's usage of drugs.  In the end,
however, the chancellor did nothing to check appellee's use of
marijuana, since drug testing was not made part of the decree.  The
decree provided only that the court reserved the right to order
drug testing in the future.
     I also cannot disagree with appellant's argument that the
chancellor considered evidence that was not introduced.  It is
clear that the chancellor was impressed with appellee's testimony
that he had been tested for drugs, as if the results were negative.
However, the results of those tests were not admitted into
evidence.  It goes without saying that a court is not to consider
evidence outside of the record.  See Sanders v. Putman, 315 Ark.
251, 866 S.W.2d 827 (1993).  Moreover, if the results were
favorable to appellee, I wonder why no effort at all was made to
lay a foundation for their admission?  The failure to produce
evidence within the party's control raises the presumption that, if
produced, it would operate against him, and every intendment will
be in favor of the opposite party.  Arkansas Hwy. Comm'n. v.
Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972); Rutherford v. Casey,
190 Ark. 79, 77 S.W.2d 58 (1934). 
     Although we lend great deference to a chancellor's judgment in
custody cases, and for good reason, that does not mean that we must
affirm when the record is fraught with errors so fundamental as to
constitute an abuse of discretion.
     I respectfully dissent.