Robert Joseph Buchanan v. Dorene Buchanan

ca03-388

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-388

April 21, 2004

ROBERT JOSEPH BUCHANAN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[No. 93-7672]

V. HON. ALICE S. GRAY, JUDGE

DORENE BUCHANAN

APPELLEE REVERSED

Wendell L. Griffen, Judge

This appeal involves a challenge to a custody order. Appellant Robert Buchanan filed a motion to change custody of the parties' daughter, Charity, from appellee Dorene Buchanan to him. The trial court held a hearing and initially ordered that custody change. Appellee then filed a motion for reconsideration. The trial court reversed itself and ordered that custody should remain with appellee. Appellant now raises two arguments: 1) that the trial court erred in refusing to treat appellee's motion for reconsideration as a motion for a new trial; and 2) that the decision to retain custody in appellee was clearly against the preponderance of the evidence. We reverse and hold that the trial court erred in granting appellee's motion for reconsideration and that appellant demonstrated a material change in circumstances warranting a change in custody.

I. Factual History

The parties were divorced in January 1994. Pursuant to an agreed order, appellee received custody of Charity, and appellant was granted visitation. This order was amended on November 28, 2000. Appellee, a cosmetologist, owned a beauty shop and lived in North Little Rock. She testified that she moved to Mesquite, Texas in the summer of 2001 to obtain further cosmetology training, but maintained that she intermittently traveled to Arkansas and stayed at her prior residence, in a home belonging to Don Morrow, the bookkeeper for her business. On August 1, 2001, appellee was arrested at her shop in North Little Rock on a forgery charge. On September 10, 2001, appellant filed a motion for an ex parte change of custody or alternatively, for an expedited hearing. The court did not grant ex parte relief, but did grant an expedited hearing on September 28, 2001.

Appellee's advanced cosmetology training in Texas took place from September 24, 2001 until October 5, 2001. Appellee did not attend the September 28 hearing, but was represented by her attorney. Trial was scheduled for February 4, 2002. The court ordered the parties to meet for visitation exchanges in Texarkana pending trial. On November 1, 2001, appellant filed a motion for contempt, alleging that appellee had only appeared for a visitation exchange one time since September 28. Appellee was unable to transport Charity to North Little Rock for appellant's Thanksgiving visitation and appellant refused to go to Texas to retrieve her. On December 19, 2001, the court ordered appellee to arrange to transport Charity to Little Rock by the day that school dismissed for Christmas break. Appellant accordingly exercised his Christmas visitation with Charity.

Appellee was arrested again on January 28, 2002. She remained incarcerated until February 14, 2002. After the February 4, 2002 hearing, appellant was granted temporary custody of Charity, and appellee was awarded supervised visitation upon her release from jail. A final hearing was scheduled for June 3, 2002. On April 9, 2002, the court appointed Patricia James to serve as attorney ad litem for Charity.

The custody hearing was held on June 3 and 4, 2002. The court entered its order on July 9, 2002, via a telephone hearing. The court orally found that appellee had interfered with appellant's visitation, but specifically stated that it was awarding custody to appellant on the ground that appellee had subjected Charity to an unstable lifestyle. After the court's ruling, appellee's counsel made an oral motion for reconsideration. The court denied the motion, but indicated that it would consider a written motion for reconsideration. The court also denied appellant's motion for contempt. The court entered written findings to this effect on November 14, 2002.

Appellee filed a written motion for reconsideration on November 25, 2002. The circuit court conducted a telephone hearing on that motion on December 9, 2002. Appellant argued that the court should treat appellee's motion as a motion for new trial, and as such, that her remedy would either be a new trial or an appeal, but not a change in the November 14 order. In a telephone hearing on December 12, 2002, the court reversed itself and granted appellee's motion for reconsideration, noting there was insufficient evidence of any detrimental effect on Charity, other than a temporary negative effect on her interim grades. Appellant again argued that appellee's motion should be treated as a motion for a new trial, but the court treated the motion as a motion for reconsideration, specifying that it did not consider any new evidence. The court entered a written order granting appellee's motion for reconsideration and entered a supplemental order on December 23, 2002, indicating that it would conduct a subsequent review hearing.1 From the December 12 and December 23 orders comes this appeal.2

II. Finality

The first issue we must consider is whether this appeal comes from a final, appealable order. Appellee argues that the December 23 order is temporary; we disagree.

Arkansas Rule of Appellate Procedure - Civil 2(d) provides that "All final orders awarding custody are final appealable orders." A final judgment is one that dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Fisher v. Chavers, 351 Ark. 318, 92 S.W.3d 30 (2002). A mere temporary award of custody pending trial on the merits is not appealable, but an award of custody, even if expressly stated to be temporary, is final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof. Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993); Chancellor v. Chancellor, 282 Ark. S.W.2d, 667 S.W.2d 950 (1984).

In the instant case, we hold that the relevant order on appeal, though stated to be temporary, is final because the parties had completed their proof on the custody issue, as evidenced by the trial judge's finding that appellant failed to carry his burden of proof regarding a change of custody. Further, even though the judge indicated in the order that a review hearing was to be conducted, the judge dismissed the attorney ad litem, finding that the attorney's additional services would be unnecessary. On these facts, we hold that the custody issue had been decided on the merits and therefore, that the order was final for purposes of appeal. Accordingly, we next address the merits of appellant's arguments on appeal.

III. Motion for Reconsideration

We next consider whether appellant appeals from the grant of a motion for new trial or the grant of motion for reconsideration. Appellant maintains that appellee's request was, in essence, a motion for a new trial.

Arkansas Rule of Civil Procedure 59 governs new trials. Pursuant to Rule 59 (a)(6), a party may request a new trial on the ground that the decision is clearly contrary to a preponderance of the evidence, which was what appellee alleged in her motion for reconsideration. It seems clear that the court considered Rule 59, but rejected application of the rule and ultimately treated the appellee's motion as a motion for reconsideration.3 In response to argument by appellant that appellee's motion was in fact a motion for new trial, the Court stated: "The court considered this to be a motion for reconsideration, that's what the Court ruled on." Despite appellant's assertion, neither the relief requested nor granted was pursuant to a motion for new trial. Rather, it appears that the trial judge treated appellee's motion as a motion to vacate or set aside the order under Arkansas Rule of Civil Procedure Rule 60. Whether to grant a Rule 60-based motion to set aside a judgment is a matter left to the sound discretion of the trial court. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). Accordingly, we examine the trial court's grant of a motion for reconsideration under the abuse of discretion standard.

Rule 60(a) allows a trial court to modify or vacate a judgment, order, or decree within ninety days of the date the order is filed to correct errors or mistakes or to prevent a miscarriage of justice. The trial judge stated in her December 16, 2002 order that she was granting the motion to reconsider and setting aside the November 14, 2002 order because appellant did not carry his burden of proving that there had been a substantial change in circumstances to show that it would be in the best interests of the child to change custody. The same reasons noted below that lead us to conclude that the circuit court erred in changing custody also support that the trial court erred in granting appellee's motion for reconsideration. Accordingly, we reverse.

IV. Sufficiency of the Evidence

On de novo review, we hold that appellant demonstrated a material change in circumstances supporting that a change in custody is in the child's best interest. Appeals pertaining to custody modifications are tried de novo on appeal. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d. 105 (1999). We will not disturb findings in this regard unless they are clearly against the preponderance of the evidence. Id. A finding is clearly erroneous or clearly 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. Because the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the circuit judge. Id. We know of no case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving child custody. 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. Id.

The testimony adduced at the June 3 and 4, 2002 hearing was often conflicting. Appellant maintained that appellee took Charity out of state without giving him notice, in violation of their divorce order, and that he often had no way to contact her, which appellee denied. Appellant further attempted to portray appellee as having extramarital relations in Charity's presence, which appellee also denied. Appellee admitted to living in several households belonging to men, but denied having extramarital relations in Charity's presence.

However, there was also uncontroverted testimony that Charity was often left in the care of others, and at least on one occasion, an adult male. While appellee attended school, appellee and Charity lived with Mr. and Mrs. Marks, the parents of Danny Marks, whom appellee described as her "first love." Mrs. Marks picked up Charity from school, cooked her dinner, and put her to bed because appellee, who was working, would get home between 6:00 p.m. and 9:00 p.m. Appellee also relied upon the Markses for transportation.

In addition, according to appellee, while she was incarcerated on the forgery charge, instead of informing appellant, she allowed Charity to "spend a lot of time" with Bob Morrow, appellee's bookkeeper. Appellee and Charity lived in one of Morrow's houses, and appellee served as a caretaker for the house. While appellee and Charity were in Texas, a foreclosure action was initiated against Morrow's home and some of appellee's and Charity's belongings were liquidated.

At the time of the hearing, appellee and Charity again lived in Little Rock, in their own apartment. However, appellee admitted that her living arrangements had negatively affected Charity. When asked how living in someone else's home had affected Charity, appellee stated that it was "horrible, horrible." She admitted that Charity had remarked that she was unhappy living at the Markses and wanted her and her mother to have their own place.

Moreover, appellee admitted to engaging in bizarre behavior that demonstrates that she does not act in Charity's best interests. She admitted that when she went on vacation to Cancun in August 2001 she did not leave appellant a telephone number where she could be reached in case of an emergency. Appellee further admitted that she dropped Charity off atappellant's house the first part of August, but did not return to pick up Charity until August 23, 2001, when she forcibly took Charity from the custody of Veronica Buchanan, appellant's wife, in a Wal-Mart parking lot. Appellee stated that she screamed at Veronica during the incident. Appellee also testified that on one occasion when Charity was visiting with appellant, she asked Charity to meet her outside and told her not to tell appellant.

Appellee also conceded that she reported appellant to the Department of Human Services for child abuse. During one of Charity's Christmas vacations with appellant, appellee admittedly left the following messages on appellant's answering machine: 1) accusing appellant of sodomizing Charity; 2) stating, "You've been sick all this time. Let me speak to my daughter. It was not my fault; it was premature ejaculation, you are sexually sick"; 3) stating, "You incompetent white trash, now pick up the phone"; and 4) stating, "You also told Ed Culpepper that I was following around on you. But guess what, I was fooling around on you. As a matter of fact, if I were you, I would have prepared a paternity test." Appellee further admitted that, while Charity was in appellant's custody, if appellee saw Charity go to the ladies' room at church, she followed Charity because she did not allow her daughter to go into public bathrooms alone.

In addition, there was testimony that when appellant gained custody of Charity, she had been excessively tardy at her former school, that she was working below grade level in math, that she was having problems with reading, and that her handwriting needed improvement. Appellant testified that Charity was tardy numerous times while attending school in Texas simply because appellee did not know what time school began. Charity was nine years old at the time of the hearing and had been living with appellant and his wife since February 2002. At the time of the hearing, her school performance had improved. Her teacher testified that Charity did not have any grades that were below a "B"; that she did not have any deficits that required immediate attention to bring her up to her grade level; that she did not display behavioral problems; and that she had not been excessively tardy or absent.

The circuit judge originally granted appellant's motion to change custody. In so doing, the judge concluded that appellee failed to allow visitation with appellant on a consistent basis, but expressly premised her finding on the "unstable lifestyle that has been visited upon by the child by" appellee. In her written order, the judge prohibited the parties from having overnight guests of the opposite sex, including those persons with whom the parties have had or were having an intimate or romantic relationship.

In reversing her order, the circuit judge orally reiterated that appellee's denial of visitation was not willful and the only evidence that there had been any detrimental effect on Charity was with respect to a temporary decline in some of her interim grades. The judge acknowledged that appellee "is a little different and that she might not do things and go about things in exactly the same way as others do" and that the judge "doesn't agree with everything that Dorene Buchanan did." Specifically, the court stated that appellee should not have asked her daughter to come outside to meet her without informing appellant. The circuit judge also indicated orally and in her written order that appellant failed to prove that there had been a substantial change in circumstances since the November 2000 order that would warrant a change of custody.

We hold that the circuit judge erred in finding that appellant failed to demonstrate a material change of circumstances that would support a change in custody. While we defer to the circuit court's resolution of conflicting testimony, by appellee's own admission, her lifestyle was detrimental to Charity. A custodial parent's failure to establish a permanent residence and to demonstrate stability in her own life is a factor the courts may consider when determining a change of custody. In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

Since the November 2000 order, Charity has had little stability because appellee has moved from one home to the next, into houses usually provided by male acquaintances, and has, at times, seemingly abdicated her parental responsibilities to non-family members. She twice failed to inform appellant when she was incarcerated and has allowed Charity to stay unsupervised with non-family members, including at least one adult male. Appellee admitted that Charity did not enjoy living with other people and wanted a place of her own. Appellee also admitted that the effect on her daughter had been, "horrible, horrible."

Further, the messages that appellee left on appellant's answering machine are nothing short of disturbing, particularly the message advising appellant to seek a paternity test. These messages were left on appellant's machine during one of Charity's visits, indicating appellee's disregard for whether her daughter would hear such a potentially devastating message.

Finally, appellee's erratic lifestyle detrimentally affected Charity's school performance. The fact that Charity was tardy sixteen times in one quarter is telling, especially when the reason is that appellee simply failed to check with the school to determine what time school began in Texas.

The circuit court's finding that there was no permanent detrimental effect on Charity seems to ignore that the improvement that Charity demonstrated in her school performance came only after she began living with appellee and his wife. However, even if any detrimental effect on Charity was, fortunately, short-lived, this does not negate that it is in Charity's best interests to live with her father. The attorney ad litem agreed, stating: "I don't think the child's wishes differ from what is in her best interest as far as custody. I think that the child's wishes may differ from the child's best interest in what type of contact she will get to have with her mother . . . . The child is happy where she lives [with appellant]."

In short, appellee's own admissions and the other uncontroverted evidence leave us with a definite and firm conviction that the circuit judge made a mistake and that Charity's best interests are served by having custody changed to appellant. Accordingly, we reverse the circuit judge's order retaining custody in appellee.

Reversed.

Neal, J., agrees.

Robbins, J., concurs.

1 The trial court held subsequent custody hearings and entered another order on July 31, 2003, apparently refusing to grant appellant custody. Appellant appealed from that order, in case number CA03-1432. Appellant and the attorney ad litem filed a notice of appeal with this court for that case on November 2, 2003. At the time appellant's briefs were filed in the instant case, the transcript for CA03-1432 was not complete. Appellant lodged the record, and received an extension until April 9, 2004, to file briefs. On April 6, 2004, a motion was submitted to correct the record and to stay the time for filing briefs. As of the date of the instant decision, no briefs have been filed in CA03-1432.

2 Charity's attorney ad litem also filed notices of appeal from these two orders, but did not submit briefs to this court.

3 An order granting or denying a motion for new trial that is filed no later then ten days after entry is appealable. Ark. R. Civ. P. 59 (b); Ark. R. App. P. 2(a) (3); Mikkelson v. Willis, 38 Ark. App. 33, 826 S.W.2d 830 (1992). If the court neither grants or denies the motion within thirty days of the date on which it is filed, the motion is deemed denied as of the thirtieth day. In considering appellee's motion, the court stated:

I looked at the time problems in this case, and initially I thought that if there was going to be a new order, the order needed to be entered within 30 days after the November 14th order entered in this case. However, that might not be the case. The motion you filed, Ms. Campbell [appellee's attorney], was filed within ten days after the November 14th order, and I'm not going to try to interpret the rules. I tend to think that we have longer than this coming Monday to get an order entered. But just to be safe, I'd like to go ahead and get something entered this coming Monday.

Thus, the court considered, but rejected, application of Rule 59.