Denver Lane Rice v. Johnia Lea Rice

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

DENVER LANE RICE

APPELLANT

V.

JOHNIA LEA RICE

APPELLEE

CA00-633

November 7, 2001

APPEAL FROM CHANCERY COURT OF SALINE COUNTY

[E-94-549-1]

HON. RICHARD ALAN GARRETT,

CHANCERY JUDGE

AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL

Appellant sought a change of custody of the parties' child. The trial court modified the 1995 divorce decree, awarding the parties joint custody, but allowed the child to remain in the physical custody of appellee. Appellant asserts that the trial courts' decision to allow the minor child to remain in the physical custody of appellee amounts to reversible error. On cross-appeal, appellee argues that the court erred in its decision to modify the decree and award the parties joint custody of the child. We affirm on appeal and reverse on cross-appeal.

I. Facts

The parties divorced in January of 1995. Appellee was awarded custody of their son, Zachary Rice, born March 2, 1994, subject to reasonable visitation by the appellant. On December 15, 1995, appellant filed a petition for change in custody alleging that a material change of circumstances warranted modification of the decree. At the conclusion of the trial, on its own motion, the court ordered the parties to undergo a custody evaluation by a court-appointedpsychologist, Paul L. DeYoub, Ph.D. Dr. DeYoub submitted his findings to the court by way of an unsworn writ

ten report, dated September 23, 1999.

On November 2, 1999, the court issued a letter opinion informing the parties that the custody order would be modified to award joint custody to the parties, with appellee continuing to maintain physical custody. Specifically, the court held that:

[T]he physical custody of Zachary should not change and should remain with his mother, the [appellee]. Although the Court is sympathetic to the situation of the [appellant], with his son being a significant distance from him, the test for a change of custody is what is the best interest of the child, not what is the best interest of the parent. At this time, the Court feels that it is in Zachary's best interest to remain in the physical custody of his mother. However, the Court does grant joint custody to the parties. This is done by the Court to emphasize to both parents that the other parent has rights to participate in Zachary's life, while respecting the other parent's role. The Court feels that it is in every child's best interest that both parents play an active role in the child's life.

On February 14, 2000, the order setting out the above findings was filed of record. It is from this order that both parties appeal. II. Unsworn Report

First, appellant argues that the trial court violated Arkansas Code Annotated section 16-40-103 (Repl. 1997) by considering the report of Dr. DeYoub. Section 16-40-103 sets out the three modes of taking witness testimony: by affidavit, by deposition, and by oral examination. The report in question was submitted in letter form to the court and to both parties. However, the report was not sworn under oath. Appellant argues that the report amounts to ex parte communication and cites Jones v. Jones, 326 Ark. 787, 233 S.W.2d 767 (1996), for the proposition that ex parte communication between an expert and the judge is improper, particularly if communications from the witness are not under oath.

However, appellant's argument is not preserved for appeal. The trial court informed both parties of its intent to appoint an expert, allowed the parties to participate in the selection of theexpert, and allowed the parties' attorneys to present their clients' case to Dr. DeYoub in writing. Dr. DeYoub met with the parties, the child and appellee's new husband. Dr. DeYoub's report was submitted to the court and to both parties. Additionally, both parties were given an opportunity to respond to the report. Appellant did not object to the report being made a part of the record and failed to object to the chancellor's consideration of the report. Appellant made no motion for a new trial. It is well settled that issues raised for the first time on appeal are not preserved for appellate review. Ghegan & Ghegan, Inc., v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001).

III. Modification of Custody

Next, appellant argues that the chancellor's decision to continue physical custody of Zachary with appellee is against the preponderance of the evidence. On cross-appeal, appellee argues that the chancellor erred by modifying the custody order to allow for joint custody.

Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.3d 105 (1999). For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody, with the sole consideration being the best interest of the child. Id.

Appellant alleges two material changes in circumstances. First, appellant argues that appellee's marriage to Dr. T.J. Tillery resulted in an "unstable influence" in the life of Zachary. Appellant hired several private investigators to report on appellee and her new husband. The investigators testified that they had observed Dr. Tillery drinking in several bars and driving while intoxicated. Additional testimony regarding Dr. Tillery was provided by Tahnee Hasty, an exotic dancer that lived with Dr. Tillery in 1993. Ms. Hasty testified that while she and her son Cody wereliving with Dr. Tillery, he struck her son and ultimately kicked them out of the home, locking her and Cody (clothed only in an undershirt and underwear) outside in inclement weather. Additional testimony revealed that Dr. Tillery had his DEA license revoked for failure to properly store and inventory narcotics. As a result of the mishandling of narcotics, Dr. Tillery was also forced to surrender his dental license for a period of weeks and is still subject to random drug testing as a condition of his licensing. Finally, testimony was presented concerning a DWI arrest involving Dr. Tillery. He was charged with DWI as a result of a one-car accident; the charges were later dropped. Second, appellant argues that the because both appellee and her new husband smoke, and Zachary has allergy and nasal problems, the unhealthy environment constitutes a material change in circumstances that is sufficient to warrant a change in custody.

In chancery cases, we review the evidence de novo, but we do not reverse the findings of the chancellor unless it is shown that they are clearly against the preponderance of the evidence. Hobbs v. Hobbs, 75 Ark. App. 186, ___S.W.3d___ (2001). Special deference is given to a chancellor's findings in child-custody cases because of the chancellor's superior position to determine witness credibility, testimony, and the best interest of the child. Id.

Here, the chancellor's findings are supported by a preponderance of the evidence. The report of Dr. DeYoub concluded that appellee was the most appropriate person to be Zachary's primary care-giver. Additionally, the alleged wrongdoings by appellee's new husband are not sufficient to warrant a change of custody, as much of the analysis turns on credibility. Dr. Tillery testified that he had never hurt Zachary and was able and willing to offer proper parenting to Zachary; that he did not abuse alcohol or drugs; and that he did not smoke or drive while intoxicated while Zachary was with him. The chancellor was free to believe or disbelieve the witness's testimony. Id. Therefore,based on the evidence reviewed by this court, we cannot say that chancellor's determination that it was in the best interest of Zachary to remain in his mother's physical custody was in error.

Appellee (cross-appellant) argues that the trial court erred in its determination that joint custody was proper because no material change in circumstances existed to warrant a change of custody. This argument is persuasive and is singularly sufficient to warrant reversal. Simply put, if there was no material change in circumstances to warrant a change in custody (the gist of the chancellor's decision in refusing to award physical custody to appellant), then it is error for the trial court to modify the custody arrangement.

Additionally, custody awards are not made to punish or reward either parent. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). Instead, the primary focus is on the best interest and welfare of the child. Hobbs, supra. Our laws do not favor joint custody, unless it is clear that the parties have demonstrated a mutual ability to cooperate in reaching shared decisions concerning the child's welfare. Id.

Thompson, involved a joint-custody agreement concerning the parties' two-year-old child, which was approved by the court. By agreement, the parties alternated physical custody of the child on a week-to-week basis. After two months, Mrs. Thompson filed a petition to change custody, alleging that the agreement was unworkable. Upon finding that a material change in circumstances had occurred, the chancellor awarded Mrs. Thompson custody of the child with liberal visitation to Mr. Thompson. Following de novo review, this court affirmed the chancellor's finding, noting that the record demonstrated that the parties were unable to cooperate regarding their child's health care. This court stressed the importance of a record demonstrating that the parties were willing and able to cooperate in reaching shared decisions concerning the best interest of the child in order to justify an award of joint custody. Hobbs, supra.

In Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981), this court affirmed a chancellor's decision to grant joint custody. The evidence indicated that the parents shared equally in the child's care, that they lived in close proximity to each other, that each parent was stable, and this court agreed that the record supported the chancellor's finding that it was in the child's best interest to have equal contact and shared care by his parents.

Contrary to the harmonious atmosphere presented in Drewry, and in light of the standard prescribed in Thompson, the record clearly shows that the parties in the instant case did not demonstrate the mutual ability to cooperate in reaching shared decisions in matters affecting Zachary's welfare. Instead, the record indicates that communication between the parties was virtually nonexistent. The maternal grandparents handled the visitation drop-off/pick-up because the parties could not tolerate in-person communication. The parties communicated with each other through notes, their attorneys, and other intermediaries. Also, such severe discord existed between the parties that in one instance the police were called to the hospital to arrest appellant for refusing to leave his son's side after he and appellee's mother engaged in a furious exchange of words, using Zachary as the pawn.

We are convinced that the chancellor ordered the modification of the custody order with good intention. He was hopeful that the joint-custody arrangement would force the parents to be more cooperative and set a better example for their son. However, our law is well settled that the primary consideration in decisions relating to the custody of a child is the child's best interest at the time of the final hearing as demonstrated by the record. Hobbs, supra. It is neither the responsibility nor the role of the court to accommodate the parties' growing pains at the expense of a child. Given the parties' demonstrated inability to communicate or cooperate in reaching shareddecisions concerning Zachary's best interest at the time of the final hearing, the chancellor's finding that the circumstances warranted joint custody is clearly erroneous. Id.

Affirmed on appeal; reversed on cross-appeal.

Hart and Baker, JJ., agree.