Angela L. Williams v. L. Chad Williams

ca02-776

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA02-776

OCTOBER 1, 2003

ANGELA L. WILLIAMS AN APPEAL FROM THE MILLER

APPELLANT COUNTY CIRCUIT COURT [E-95-86-2]

v.

L. CHAD WILLIAMS HONORABLE JAMES SCOTT HUDSON, JUDGE

APPELLEE

AFFIRMED 

Olly Neal, Judge

This is an appeal from an order of the Miller County Circuit Court, granting a change of custody to the appellee, L. Chad Williams. Appellant Angela Williams asserts that the trial court erred (1) in finding a material change of circumstances to modify custody and child support, (2) in finding that it was in the best interests of the children that custody be changed to the appellee, and (3) by allowing hearsay testimony to be introduced at trial. Appellee cross-appeals, arguing that the trial court (1) did not have subject matter jurisdiction to enter an enforcement and modification of the Missouri child support order after the Missouri court had already adjudicated the same issue, and in the alternative, that (2) the trial court erred in not granting appellee some credit for cash payments made on child support in determining the amount of arrearage due. We affirm.

The parties were married on September 13, 1991, in Pineville, McDonald County, Missouri. Appellee had two sons, J.W. and C.W., from two previous relationships. Thereafter, the parties had two children of their own, S.W., and D.W.1 Appellant and appellee divorced on March 14, 1995, in Pineville, Missouri. The court ordered joint legal and physical custody of the children, with appellant as the primary custodian.

In December of 1995, appellant filed a Motion to Transfer in McDonald County, Missouri, stating that she and the children resided in Texarkana, Arkansas, and requesting that the case be transferred from McDonald County, Missouri to Miller County, Arkansas. In a special appearance, appellee objected to the jurisdiction of the Miller County court, arguing that McDonald County, Missouri had continuing jurisdiction over the parties and that a suit was pending there, having been filed and served on appellant prior to the filing of appellant's motion to transfer. Nevertheless in an agreed order filed November 14, 1996, in Miller County, Arkansas, the parties transferred the case.

The custody appeal at issue began with the filing of a Motion for Emergency Ex Parte Order for Temporary Custody on August 20, 2001, which alleged that the children had been exposed to a dangerous environment in which appellant's then-husband, Stephen Cutchall, severely beat appellant. In an affidavit attached to the motion, appellant's mother, Dawna Butcher, stated that she saw her daughter on August 10, 2001, at the Wadley Medical Care Center, where appellant was being treated for injuries sustained the previous night. While at the hospital, Butcher observed that one of appellant's eyes was blackened, there were small bruises on her face, and there were severe bruises under her right arm and burn marks on her stomach. Butcher stated that appellant told her that, while the children were present in the residence, Cutchall physically attacked her, beating her with a stick, hitting her with his fist, kicking her, and burning her with cigarettes. Butcher further stated that "[appellant] told me that Cutchall held a gun to her head, and that Cutchall tried to smother her with a pillow."2 Hospital administrators attempted to get a urine sample from appellant, but she refused and left the hospital untreated.

After a hearing on August 23, 2001, the court temporarily placed the children with the Arkansas Department of Human Services; however, appellant later regained custody. On August 28, 2001, appellee filed a Motion for Modification of Custody. Appellant answered and filed a Petition for Citation for Contempt for appellee's failure to pay child support. A hearing was held on February 27, 2002, on the child support motion, and the court found appellee to be in arrears in the amount of $34,227.47. A final hearing on the custody modification was held on April 11, 2002. The court found a material change in circumstances had occurred and that it was in the best interests of the children that custody be changed to appellee. An order to that effect was entered on April 23, 2002. From that order comes this appeal.

In reviewing child custody cases, we consider the evidence de novo, but will not reverse the trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. See Taylor v. Taylor, ___ Ark. ___, 110 S.W.3d 731 (May 1, 2003). A finding isclearly 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 has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Carver v. May, ___ Ark. App. ___, 101 S.W.3d 256 (March 19, 2003). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Id.

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. See Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001). The court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the child. Id. The party seeking the modification has the burden of showing a material change of circumstances sufficient to warrant a change in custody. Hollinger v. Hollinger, supra.

At the hearing on the motion to modify, several witnesses testified. Vera Nichols, Assistant Director of Nurses at Arkansas Nursing Rehab, testified that appellant worked for their facility. She testified that she found appellant's behavior very erratic, in that appellant had a short attention span and was not able to focus on tasks. She stated that appellant came to work in the middle of July with long sleeves on and that one day appellant would be dressed appropriatelybut the next day would be very wrinkled. Nichols testified that appellant told her she was living out of her car. Nichols stated that appellant had marks on both arms and that the facility felt that appellant was abusing drugs.

Appellee testified that he wanted permanent custody of his children. He stated that he had been involved with eighteen-year-old Rebecca Elam, who lived with him and his sixteen-year-old son, C.W. Appellee terminated the relationship, however, upon seeking custody of his children. Appellee testified that "I told her in December that we were going to have to quit seeing each other because there was nothing that comes before my kids." He stated that he was forty-one years old and that he and Rebecca began living together when she was only seventeen-years-old, following her divorce and the death of her child. Appellee acknowledged that he had been convicted of a felony, but stated that it had been expunged.

Barbara Gore, a licensed social worker appointed by the court, conducted a social study of the parties. Prior to her testimony, counsel for appellant objected, arguing that the information contained in the report was replete with hearsay. The court overruled the objection and stated that it would disregard the hearsay in the report and allow counsel to cross-examine Gore as to the conclusions and recommendations of the report. Gore testified that she conducted the home study on the parties. Gore testified that she met with D.W. and that he was upset because he felt like his mother, the appellant, was being treated unfairly, and that although Gore would check on his mother, she would not do the same with his father. Gore, therefore, determined that she would travel to Missouri to conduct a study of appellee's home as well.

Gore found her contact with appellant to be the "most bizarre that I have had." Gore stated that appellant was very erratic, two hours late for the session, and very upset when she came. Gore stated that appellant verbally attacked Gore's relationship with the appellee and the judge. She said that appellant went to the door, came back, and then stated that she found the whole idea stupid and that she was not going to participate. Appellant then asked Gore what Gore would do if she refused to participate. Gore testified that she explained to appellant that she was free to leave, but that she would inform the court of appellant's unwillingness to cooperate. Gore further testified that she subsequently allowed appellant to go outside for approximately fifteen to twenty minutes to smoke a cigarette. Gore said that when appellant returned, she "was a totally different person."

Gore testified that appellant denied any domestic abuse or drug use. Appellant also denied that her ex-husband held a gun to her head and that anyone had hurt her. Gore said that appellant did not want to talk about specific details of any relationship other than the one with appellee. Gore stated that "I was able to obtain the medical record where [appellant] had received treatment at Wadley Hospital for domestic abuse. Everyone that I talked to supported that information."

Gore testified further that she traveled to Missouri and interviewed appellee. She stated that in the initial interview, appellee was more than candid with her about his criminal background. While in Missouri, Gore also interviewed Rebecca Elam. Gore stated that she found no evidence of Elam being in the residence, and when she interviewed Elam, she found her to be "very quiet, somewhat passive."

Gore testified that she interviewed four-year-old D.Z., appellant's son from her subsequent marriage. D.Z., Gore noted, was able to testify about incidents about which she did not question him. D.Z. informed Gore that he was worried about his mother and that he had found a "shot thing" that he had given himself a shot with in the leg and put in the case with the other "shot thing." D.Z. told Gore that he had seen appellant give herself a shot "in the titties and in her leg." When asked if he had ever seen anyone get hurt at his mother's house, D.Z. described to Gore an incident in which two men were fighting and one of them had blood all over his face.

Gore also interviewed S.W. and D.W., both of whom indicated their desire to stay with their mother. Gore recalled an incident in which S.W. told her that one of her mother's boyfriends had come into her room while she and her friend were undressing. S.W. also recalled an incident in which her father, the appellee, shot out the windows of her older brother's car.

Gore recommended that the children be removed from appellant's custody and placed with appellee. She stated that she believed that appellant abused drugs and that appellant had not been able to make safe decisions for her children while they were in her custody.

Eddie Formby testified that he had resided with appellant for ten or eleven months and that a man named Scotty Hayward also lived in the home and rented a room there. Formby testified that Hayward babysat the children when they came home from school. Formby stated that appellant told him that she was bi-polar, but that she did not take her medication because it made her sick. He stated that "[o]ne day she would be this way, and sometimes in a matter or so, she would change. Sometimes she would go for days one way or the other. She would either be up or down." Formby testified that he witnessed appellant using methamphetamine "a couple of times."

Appellant's ex-husband, Steven Cutchall, testified at the hearing that he and appellant had a fight on August 9, 2002, that he hit her, and that he "got hit back." He further testified that when he was with appellant, she used methamphetamine, cocaine, and marijuana on a daily basis for the first few months that they were together.

Richard Ward, appellant's former landlord, testified that appellant rented a five bedroom house from him for approximately twenty-two months. He stated that on one occasion, the Miller County police "raided" the home for drugs. He stated that following this incident, he confronted appellant and asked her if she used drugs. Ward stated that neither the police nor he found anything. He stated that he checked appellant's arms, armpits, legs, and between her toes because her ex-husband, Chuck Ziska, told him that she shot in those areas. Ward testified that he checked the house and appellant on numerous occasions, but never found anything.

S.W. testified that she was an honor student in Genoa, but after she transferred to North Heights, her grades dropped. She stated that if her mother received custody, they were going to move back to Genoa where she was happiest. S.W. testified that Steven Cutchall was only abusive on one occasion and that is when they left. S.W. stated that she had never seen her mother do drugs and that she wanted to stay with her mother. S.W. testified that Barbara Gore's report was inaccurate and that she did not tell Gore that one of her mother's boyfriends "meant" to open the door on her and her friend.

Gwen Furqueron testified that she was appellant's neighbor and that she and her daughter would babysit the children. She testified that she never saw appellant abuse drugs and that the children were always clean, fed, and happy.

Kayla Hyde, C.W.'s mother, testified that following her relationship with appellee, she was awarded custody; appellee was ordered to pay child support. She testified that he never paid support and that she and appellee did drugs together. She acknowledged that she had been to the penitentiary for drugs and that her son C.W. was with appellee and was happy there.

Appellant testified on her own behalf. She testified that when she went to meet Barbara Gore for the social study, she had worked all night and that she was late because she misunderstood the time. Appellant denied that she was bi-polar and that she suffered from mood swings. She also denied using drugs. Appellant explained that she went to work with long sleeves on because her truck, which housed all of her belongings, had caught fire and burned in the yard.

Appellant admitted that she was involved in an incident with her ex-husband, Steven Cutchall, in August of 2001. She stated that she went to the emergency room because she thought her arm was dislocated. She said that while at the hospital, the staff kept asking her to submit to a drug test. This caused appellant to become upset, and she left the hospital. She testified that Gwen Furqueron's brother helped "pop" her shoulder back into place.

Following all the testimony, the court made the following ruling from the bench:

It is not necessary to rely on the, anything that might be improper hearsay in the home study or the social study as Ms. Gore titled it, and I will state for the record that I do not rely in this ruling on that. If it's necessary to sustain this ruling to rely on the hearsay then it won't be sustained. I think there was proper hearsay on which an expert can rely under the rules, and with that exception, I am granting Mr. Potter's [appellant's attorney] Motion to disregard the hearsay in Barbara Gore's study.

. . .

There is plenty of fault to go around here. But y'all have heard that from me or from some other judges before, I suspect. It was unwise, and ultimately detrimental to your kids not to pay the child support through the Court as it was needed on a timely basis. I don't know what unholy deals y'all have made that kept Ms. Williams driving halfway across the state to exchange visitation, or to do visitation, or that kept her from locking you up a number of years ago, Mr. Williams, for not paying child support....

I'm also mindful of the time, with Mr. Potter's help, of the efforts you have made, Ms. Williams, to get in compliance with the drug test orders. I am also mindful of the testimony of the previous hearings of you fussing and fighting and dodging the hair sample from at least one lab that you are not privy to. It's not my place, and it's not proper for me to judge the morality of your living situation, either one of you, but I do judge the instability that affects the kids of having as much change in the household as you've had, Ms. Williams. And the Lolita-type exposure that you've exposed your kids to Mr. Williams.

Admittedly, most of the witnesses that gave damaging testimony against you, Ms. Williams, were prior relations, romantic relations that have an axe to grind, but there was direct palpable evidence of considerable drug use over an extended period of time, and I find it at least somewhat believable.

Mr. Hudspeth [the attorney ad litem] said the proof was in the school records. The school records, there's testimony, but there's no proof other than the kids are not doing acceptable work whether [they're] at Genoa or North Heights. North Heights hurt, but there were school records showing they were in trouble at Genoa.

Custody is going to change. I will require, if you'll leave a blank in the Decree as to the child support from Ms. Williams to Mr. Williams, and have her complete an affidavit as to her current earnings, ....

Viewing the evidence de novo and giving special deference to the trial court's superior position to evaluate the credibility of the witnesses, we are not left with a definite and firm conviction that a mistake has been made. Further, we cannot say that the trial court's findings were clearly erroneous or clearly against the preponderance of the evidence. Hence, we affirm as to appellant's first two points on appeal and hold that there had been a material change of circumstances and that the change of custody was in the children's best interest.

We also affirm with regard to appellant's third argument that the trial court erred by allowing hearsay testimony to be introduced at trial. As the trial court stated in its ruling from the bench, it granted appellant's attorney's motion to disregard the hearsay in Barbara Gore's study. Thus, appellant cannot complain on appeal when she got the relief sought at the trial level. See Wilson v. Fullerton, 332 Ark. 111, 964 S.W.2d 2080 (1998).

Cross-Appeal

We now turn to appellee's cross-appeal. Appellee contends that the trial court did not have subject matter jurisdiction to enter an enforcement and modification of the Missouri child support order. Appellee relies on Ark. Code Ann. § 9-17-205(d) (Repl. 2002), which provides in part that:

A tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to a law substantially similar to this chapter[,]

and Mo. Ann. Stat. § 454.867 (West 2003), which provides in part that:

(a) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:

(1) as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) until each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Appellee argues that because Missouri has adopted the Uniform Interstate Family Support Act (UIFSA) and because he remained a resident of the state, Missouri retained continuing, exclusive jurisdiction over its support order in the judgment of dissolution of marriage. Moreover, appellee argues that because none of the parties filed a written consent in Missouri for Arkansas to modify the order and assume continuing, exclusive jurisdiction, Arkansas lacked jurisdiction, although the parties submitted to the jurisdiction of the Arkansas courts in an agreed order.

UIFSA was adopted by the Missouri General Assembly in 1996, effective January 1, 1997, and is presently codified at §§ 454.850 - 454.997. Pursuant to § 454.360, UIFSA applies to all child support cases filed or received in Missouri on or after January 1, 1997.3 See Kerr v. Kerr, 100 S.W.3d 912, 914 (Mo. App. 2003). Prior to UIFSA's enactment, the Uniformed Reciprocal Enforcement of Support Act (URESA) was applicable, and under URESA, a responding court has the ability to require an obligor to pay an amount different than the one specified in the underlying support order without modifying the order. See Phillips v. Fallen, 6 S.W.3d 862, 865 (Mo. 1999)(citing V.A.M.S. §§ 454.010-454.360).

The parties stipulated that appellee owed $34,227.47 in child support arrearage. Appellee informed the court that he could pay a lump sum of $25,000 to appellant, followed by monthly payments of $300.00. Thus, the trial court ordered appellant to do just that - pay a lump sum of $25,000 to the Miller County Circuit Clerk, followed by $300.00 each month for the remaining balance of $9,227.47. Because the Miller County court simply enforced the underlying child support obligation and did not modify or, in any other manner, alter the existing McDonald County order, its actions were proper; therefore, we affirm on this point.

Appellee argues in the alternative that, if jurisdiction was proper in Arkansas, he should have been given some credit for the cash payments he allegedly made to appellant. As previously stated, the appellee stipulated to the arrearage amount he owed; accordingly, we hold that the trial court did not err. See Chick-a-Dilly Prop. v. Hilyard, 42 Ark. App. 120, 856 S.W.2d 15 (1993) (quoting Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 401, 664 S.W.2d 886, 890 (1984)) (a party who consents to the provisions in a trial court decree cannot complain on appeal of the court's action which the party induced, consented to, or acquiesced in).

Motions for Attorney's Fees

Counsel for both parties have submitted motions for attorney's fees. We deny both requests.

Affirmed.

Robbins and Griffen, JJ., agree.

1 Appellant also has another child from a subsequent marriage, D.Z. who is not the subject of this appeal and who at the time of the appeal was in the custody of his father.

2 Appellant and Cutchall were married for one month and divorced following this incident.

3 It should be noted that while Arkansas adopted Uniform Interstate Family Support Act (UIFSA) in March of 1993, Missouri did not adopt UIFSA until 1997. Therefore, the case remained a URESA action. The analysis of the case, however, would have been different if UIFSA had applied. See Office of Child Support Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999).