Mary Mendenhall v. Eric Smith

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

MARY MENDENHALL

APPELLANT

V.

ERIC SMITH

APPELLEE

CA01-552

DECEMBER 12, 2001

APPEAL FROM THE HOT SPRING COUNTY CHANCERY COURT

[NO. E99-180-1]

HONORABLE JOHN W. COLE, CHANCELLOR

AFFIRMED

Appellant, Mary Mendenhall, appeals from an order of the Hot Spring County Chancery Court changing custody of Y.S., her grandchild, to appellee, Eric Smith, the child's natural father. Appellant has three points on appeal. First, appellant argues that the trial court erred in entering an ex parte supplemental order without first giving her notice and an opportunity to present evidence. Second, appellant argues that the trial court erred in refusing to grant a new trial. Third, appellant argues that the judge failed to consider the best interest of the child in the supplemental order, in the order refusing reconsideration of the supplemental order, and in the order denying a motion for a new trial. We affirm.

In 1997, Y.S. was born to Anesha Mitchell and appellee. Following the birth, the two married, and approximately two years later Anesha Mitchell filed for divorce. The divorce was granted on August 20, 1999, and Anesha received custody of the child. Appellee received liberal visitation with the child. Following the divorce, Anesha lived with her mother, the appellant, Mary

Mendenhall.

In May 2000, Anesha was killed in an automobile accident. On June 2, 2000, appellant was appointed as administratrix of Anesha's estate. Three days later, appellant filed a petition for guardianship of the child. On June 15, 2000, appellee reopened the divorce. An order consolidating the cases was filed on June 20, 2000. On July 11, 2000, an order was entered giving appellant temporary guardianship of the child and requesting a home study of appellee. On August 9, 2000, the trial court received and reviewed the home study and forwarded copies of the home study to the parties' counsel. The trial judge advised them to contact the court on or before August 21, 2000, if further hearings were necessary and gave notice to the parties that an order would be entered concluding the case if he did not hear from them. When the trial judge did not hear from either party, he met with both attorneys of record in chambers on September 16, 2000; appellant's attorney of record on that date was Chris Williams. Although Mr. Williams told the judge that he believed he was no longer representing appellant, he proceeded to participate in the discussion in chambers. The judge entered a supplemental order, which was filed on October 4, 2000, giving custody of the child to appellee. On September 20, 2000, an order was entered relieving Mr. Williams as appellant's attorney of record.

Appellant filed a motion to set aside the supplemental order. The chancellor denied the motion. Appellant also filed a motion for a new trial, and that motion was also denied. This appeal followed.

Chancery cases are tried de novo on appeal. Buckley v. Buckley, 73 Ark. App. 410, 43 S.W.3d 212 (2001) (citing Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999)). The findings by a chancellor will not be disturbed unless they are clearly against the preponderance of the evidence. Id. (citing Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996)). A finding isclearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id.

First, appellant argues that the trial court erred in entering an ex parte supplemental order without first giving her notice and an opportunity to present evidence. A judicial proceeding, including the entry of an order, is ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contest by, any person adversely interested. Fitzhugh v. Committee on Prof. Conduct, 308 Ark. 313, 823 S.W.2d 897 (1992) (citing Black's Law Dictionary, (5th Ed. 1979)). At the meeting in the judge's chambers on September 16, 2000, appellant's attorney of record, Mr. Williams, was present and participated in the discussion. He informed the judge that he believed he was no longer representing appellant. A motion to be relieved as counsel was not filed until September 19, 2000, and the order was not entered until September 20, 2000. Although appellant claimed that she had relieved Mr. Williams and sought new counsel with the Cortinez Law Firm, it is clear from the facts that Mr. Williams was not disqualified as appellant's attorney on September 16, 2000. Moreover, the Cortinez Law Firm had not entered an appearance in the case. Therefore, the meeting on September 16, 2000, was not an ex parte proceeding.

Arkansas Rule of Civil Procedure 64(b) (2001) provides that a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. (Emphasis added). Rule 64(b) further provides as follows:

Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefore to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded anyunearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.

(Emphasis added.) As of September 16, 2000, no motion to withdraw had been filed by Mr. Williams. Clearly, Mr. Williams remained appellant's attorney of record, and both parties were represented by counsel at the meeting on September 16, 2000. We hold that the trial judge did not err by entering the supplemental order.

Second, appellant argues that the trial court erred in refusing to grant a new trial. A motion for a new trial is left to the sound discretion of the chancellor, and a refusal to grant a motion for a new trial should not be reversed unless the chancellor has clearly abused his discretion. Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984). Appellant's basis for the chancellor's alleged error in denying a motion for a new trial is essentially the same as appellant's first argument. It is clear that the trial court advised the parties to contact the court on or before August 21, 2000, if further hearings were necessary and gave notice to the parties that a final order would be entered if he did not hear from them by that date. When the court did not hear from either party, the court ruled on the case with both attorneys of record present. A supplemental order was then entered giving custody of the child to appellee. Under the circumstances of this case, we hold that the chancellor did not abuse his discretion in denying the motion for a new trial.

Third, appellant argues that the judge failed to consider the best interest of the child in the supplemental order, in the order refusing reconsideration of the supplemental order, and in the order denying a motion for a new trial. A natural parent's right to custody of a child is paramount to all others unless the parent is proved to be incompetent or unfit. Needham v. Needham, 249 Ark. 411, 459 S.W.2d 417 (1970) (citing Rayburn v. Rayburn, 231 Ark. 745, 332 S.W.2d 230 (1960)). Our supreme court has recently stated that the rights of parents are not proprietary and are subject to theirrelated duty to care for and protect the child; the law secures their preferential rights only as long as they discharge their obligations. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).

Although testimony was presented that appellee was unable to hold a job for an extended period of time and engaged in periodic drug use, we defer to the superior position of the chancellor to determine the weight and credibility to be given the testimony of witnesses. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). In cases involving child custody, a heavier burden is cast upon the court to utilize to the fullest extent all its powers of perception in evaluating the witnesses, their testimony, and the child's best interests. Arkansas Dep't of Human Serv. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992). The appellate court has no such opportunity, and it has often been said that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as when the interests of minor children are involved. Id. Here, the chancellor concluded that absent any evidence to the contrary, as the child's natural father, appellee was the proper person to have custody. Upon our review of the record, we cannot say that his finding was clearly erroneous.

Affirmed.

Bird and Crabtree, JJ., agree.