Stephanie Doolan v. Lance Burton

ca02-801

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-801

April 2, 2003

STEPHANIE DOOLAN AN APPEAL FROM UNION

APPELLANT COUNTY CIRCUIT COURT

[DR00-495-2]

V. HON. EDWARD P. JONES, JUDGE

LANCE BURTON

APPELLEE AFFIRMED

This appeal arose from a change-of-custody hearing in the circuit court of Union County. Appellant, Stephanie Doolan, argues that the trial court erred in denying her petition for change of custody over her minor son, Ethan. She also asserts error in the trial court's denial of her motion to allow additional testimony after what she claims was surprise testimony by a case worker of the Arkansas Department of Human Services (ADHS). Based on our standard of review, we affirm.

Appellant and appellee, Lance Burton, married in 1997 and had one child, Ethan, born in February 1998. They separated in May 2000 and obtained a decree of divorce on December 21, 2000. Appellant then relocated to Dallas, Texas, and remarried on January20, 2001. After a brief period of temporary, weekly-alternating joint custody, a contested custody hearing occurred on March 8, 2001, when appellee testified that he was not "seeing" anyone. The trial court awarded full custody of Ethan to appellee while acknowledging that each party could have provided a suitable home for the child, but based its decision on appellant's relocation to Dallas and its finding that Ethan would receive more familiarity and stability if he stayed with his father in Union County, Arkansas. The trial court also considered that appellee's family was helping with Ethan and that appellant's family lived in Louisiana.

In April 2001, a month after the trial court's decision, appellant began exercising her visitation rights with Ethan. Soon, she noticed bruises on the boy. Shortly afterwards, she also learned that appellee had a relationship with Rhonda Williams even at the time of the contested March 8 hearing when appellee testified that he was not "seeing" anyone. Appellant hired a private investigator to check on appellee and Rhonda Williams.

Concerning the suspicious bruises, appellant testified that on three different occasions (April 2001, September 2001, and January 2002) Ethan presented for visitations with long, thin bruises on his buttocks and thighs. Appellant insinuated that the bruises demonstrated that someone was beating the boy with a belt. Subsequently, appellant filed a petition for change of custody on July 25, 2001. When Ethan arrived for visitation in January 2002 with a broken arm, appellant reported the suspected abuse to the Arkansas Department of Human Services (ADHS), but ADHS never reported back to her. However, appellant never tried to contact ADHS to follow up on her report.

Appellee answered the petition by referring to Rhonda as his fiancée, and admitted placing the child in her care at least occasionally. He denied any physical abuse of Ethan or any overnight company of the opposite sex in the presence of the child. Appellee and Rhonda Williams married, apparently shortly before the hearing on the petition to change custody (February 20-21, 2002).

During the hearing, Gary Chance, an employee of ADHS, testified that Ethan was not subjected to abuse. It appears that Chance once had been a colleague of appellee's sister, Renee Landrenau. Appellant's counsel never objected to his statements at trial even though she later claimed surprise. Chance never talked to appellant or any of the witnesses who may have observed the bruises. He did not see photographs of the bruises or conduct a physical examination of Ethan even though a psychologist, Dr. Bobby L. Stevenson, told him about the bruises. However, Chance talked to Ethan and the other children who were in the room when Ethan either jumped or was pushed from a bunk bed. Chance testified that Ethan seemed comfortable in appellee's home and with appellee. Ethan told Chance that appellant's husband had spanked him.

Rhonda Williams, now Burton, testified that she and appellee began seeing each other in 2000, months before the divorce had been finalized and before the first custody hearing. After the first custody hearing, Rhonda Williams began cashing the child support checks appellant sent to appellee, taking care of Ethan, bringing him to day care and picking him up, and staying at appellee's home for extended periods. One of Ethan's teachers testified that Rhonda, not appellee, brought the boy to school, came to teacher conferences and otheractivities. Rhonda admitted staying overnight at appellee's home on one occasion when Ethan spent the night at his grandmother's home nearby. She and appellee admitted spending the night in appellee's home the night before their wedding, but they denied sleeping in the same room even then.

Rhonda testified that she was thirty years old and had been married twice before. She became pregnant with her first child while still in high school, married, gave birth to a second child, and divorced four years later. Following her first divorce, she had a third child by someone with whom she lived for a while, but never married. Later, she married another man who subjected her to an abusive, off-and-on relationship. In the course of her rocky relationships, Rhonda lost custody of all three children. At some point, she also became pregnant again by someone else and obtained an abortion.

Appellant elicited further evidence tending to cast negative light on Rhonda Williams. She once slapped her six-year old son in the face. She smokes. She has failed to report income on her tax returns. She threatened to kill herself. Rhonda's mother called her a liar. She did not pay child support she owed for her three children. However, the trial court also heard testimony indicating that Rhonda is a different person now. Rhonda started going to church, became closer to her children again, had matured over the last two years to be a happy individual, and is happier now than ever because of her relationship with appellee.

Appellee testified that it was true he had been seeing Rhonda for a while, but he excused his nondisclosure of that relationship during the first custody hearing because the relationship had not been that serious. Appellee also testified that Rhonda had not spent thenight at his home when Ethan was present nor had they slept in the same room when Ethan was present. Appellee stated that he relied on Rhonda to take care of Ethan.

Appellant's private investigator, Mike Diffie, a former police officer, testified that he saw Rhonda's car at appellee's home until well after midnight with all lights off on several occasions in May 2001. In support of this statement, a videotape was offered into evidence. Diffie also stated that some nights Rhonda left late and did not return for the night-Rhonda worked as a sitter for elderly people. Diffie apparently never observed Rhonda's car for the duration of an entire night at appellee's residence. He stated that appellee left for work at 5 or 5:30 a.m., and that Rhonda by then had returned to appellee's home to take care of Ethan and later to bring him to school. Other witnesses also stated that Rhonda did not stay overnight at appellee's home, but went there until late evenings, to return in the early morning.

Concerning the allegations of physical abuse, appellee and Rhonda Williams denied using a belt to punish Ethan, but admitted to corporal punishment. Several witnesses had seen Ethan's bruises, such as appellant, her husband, her mother and stepfather, and a law enforcement officer in Chatham, Louisiana, where appellant's parents reside. Dr. Bobby L. Stevenson, a psychologist, also saw the bruises and testified that Ethan told him that appellee and Rhonda beat him with belts. However, Dr. Stevenson also stated that Ethan told him his broken arm happened when another child pushed him from a bunk bed. This incident, according to Dr. Stevenson, warranted closer supervision of the playing children. Dr. Stevenson further testified that Ethan displayed a significant and unusual amount ofemotional distress coming from his father and stepmother and that Ethan wanted to live with his mother and stepfather in Texas and would flourish there. In return, appellee testified that the bruises happened on playgrounds and because Ethan is a very active child.

Appellant testified at the hearing that she had to go into bankruptcy, partially due to the divorce debts, and that she and her new husband had a nicer home in Texas than appellee in Arkansas. She pointed out the desirability of her home, neighborhood, school system, marriage, and general living circumstances, as verified by one of her friends and neighbors. Even appellee admitted in his testimony that Ethan often cried and did not want to leave appellant after visitation. However, there was also testimony that appellant's husband became verbally abusive during the visitation exchanges, and at one point called Rhonda a "fat whore" in the presence of one of Rhonda's daughters. Furthermore, appellee testified that Ethan remained calm during the visitation exchanges when appellant's mother conducted the exchange, instead of appellant herself. Appellee also admitted that nothing in appellant's circumstances had changed since the last custody hearing.

Following the hearing, appellant filed a motion to allow additional opinion evidence from a medical professional that Ethan was subjected to physical abuse. Appellant claimed that the additional testimony was necessary to rebut the testimony by Gary Chance that Ethan was not subjected to physical abuse. The additional evidence stemmed from a letter-statement by a medical doctor who examined the photos of Ethan's bruises, but not Ethan himself, and who offered his professional opinion that the pattern of the bruises were consistent with marks left by beating the child with a belt.

On March 12, 2002, the trial court issued a ruling denying appellant's request for change of custody. A subsequent ruling on March 21, 2002, denied her request for admission of additional expert medical testimony. The trial court incorporated both rulings in its order entered on April 1, 2002. From that order comes this appeal.

Denial of Petition for Change of Custody

Appellant first argues that the trial court erred in denying her petition for change of custody. We review such denials de novo, but reverse the findings of the trial court only if clearly erroneous or clearly against the preponderance of the evidence. Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001); Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). The question of the preponderance of the evidence turns largely upon the credibility of the witnesses, and therefore, we defer to the superior position of the fact finder below. Word v. Remick, supra. In matters of child custody, the trial court must utilize to the fullest extent all of its powers of perception in evaluating the witnesses, their testimony, and the child's best interest. Id. When compared to all other cases, the trial court's superior position to evaluate witnesses carries the greatest weight in child custody cases. Id. Accordingly, we defer even more to the trial court's assessment of witness credibility in such custody cases. Child custody will not become subject to modification unless the proponent of such a change can show that there are changed circumstances demonstrating that a change is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001). Alternatively, the party seeking the change may demonstrate that material facts existed at the time of the decree governing the original custody arrangement, facts that were then unknownto the court, if those material facts impinge on the welfare of the child. Gerot v. Gerot, supra.

We hold that the trial court's denial of change of custody was not clearly erroneous. The testimony was certainly conflicting. Appellant offered proof tending to discredit Rhonda Burton's ability as a caretaker. Appellant also challenged whether appellee had a more serious relationship with Rhonda at the time of the first custody hearing when appellee testified that he was not currently seeing anyone and that his family would help him to take care of Ethan. Appellant also presented evidence concerning Ethan's bruises aimed at proving the claim that those bruises stemmed from a belt. However, appellee presented evidence that tended to counter appellant's portrayal of Rhonda as an unfit caretaker. Witnesses described how Rhonda had changed, how well she treated appellee's mother as well as Ethan, and how she had allegedly taken care not to sleep over at appellee's home prior to the night before their wedding. Other witnesses described how Ethan may have come to the bruises appellant had observed. We cannot assess witness credibility upon appeal, but rely on the trial court's assessment. Thus, we cannot reverse as clearly erroneous the trial court's decision that appellant failed to prove material changes in circumstances that warrant a change in custody.

Denial of Motion to Allow Additional Testimony

Appellant finally argues that the trial court erred in not allowing additional testimony. Evidentiary rulings are a matter of discretion, subject to our reversal only where the trial court abused that discretion. Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997). However, the reopening of a case to receive additional evidence is a matter within the discretion of the trial court and will not be reversed unless we find an abuse of discretion. Thorne v. Magness, 34 Ark. App. 39, 805 S.W.2d 95 (1991). Our supreme court has held that it will not disturb a lower court's discretion in such a question so long as all parties are given the opportunity to be heard on the request to reopen the record. Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995).

We hold that the trial court did not abuse its discretion when it denied appellant's motion to allow additional testimony. Appellant had the opportunity to have all witnesses present who could present testimony concerning Ethan's bruises. Appellant had the burden of proof that Ethan was abused. Only several days after the hearing did counsel for appellant try to introduce into evidence testimony by a Texas medical doctor who had examined photographs of Ethan's bruises.

Appellant now claims that the testimony of Gary Chance, from ADHS, took her by surprise because ADHS never contacted her after she made her suspected abuse report. However, appellant's counsel never objected to Chance's testimony during the hearing.

Furthermore, appellant never followed up on her ADHS report. Specifically, Arkansas Code Annotated section 12-12-512(a)(1)(C)(iii) (Supp. 2001) provides for disclosure to a court of unsubstantiated reports to the ADHS if the information in the record is necessary for a determination of an issue before the court. Therefore, appellant could have petitioned the trial court to apply for disclosure of the report because the ADHS record was necessary for a determination of the issue at hand. Instead, though, appellant apparentlynever checked but merely assumed there was no investigation underway.

Affirmed.

Stroud, C.J., and Roaf, J., agree.