Roy C. Minton v. Cheryl J. Minton (Lemoine)

ca03-498

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ROY C. MINTON

APPELLANT

V.

CHERYL J. MINTON (LEMOINE)

APPELLEE

CA 03-498

February 11, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTEENTH DIVISION

[DV 01-6402]

HONORABLE MACKIE M. PIERCE,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

This case involves the custody of the parties' minor female child, Mabry. Appellee, Cheryl Minton, has a son, Dylan, from another marriage. His custody is not at issue here. Mabry was born in October 1995 and is approximately eight years old. The trial court awarded custody of Mabry to appellee, with scheduled visitation for appellant, Roy Minton. We affirm.

The parties were married on March 11, 1995. On June 10, 1998, appellee was awarded a divorce from bed and board, and the parties agreed to a joint-custody arrangement for Mabry. On July 9, 1999, appellee filed her complaint for absolute divorce and sought full custody of Mabry. On October 5, 1999, a temporary order was filed in which the trial court found that "the parties have reached an agreement for a Temporary Order for visitation and custody of the minor child," which the trial judge found to be fair and reasonable. He therefore ordered that custody of the minor child was to be with appellee and set forth visitation for appellant. There followed various problems, accompanied by motions, including ones to set aside the temporary order, to modify visitation, and for contempt. As a result, psychological

examinations and counseling were ordered, and an attorney ad litem was appointed for the child. On August 30, 2000, a hearing was held on the complaint for divorce and on the assorted motions. On September 22, 2000, an "Order and Decree of Divorce" was entered, leaving temporary custody of Mabry with appellee and reserving a final determination of custody and other matters for "further hearing and order of the Court."

There followed additional motions, including ones to modify custody, for contempt, and to transfer to Pulaski County. One of the motions filed by appellant on April 17, 2002, alleged in part: "That since the entry of the temporary order in September 2000, there have been material changes in circumstances in which it now makes it in the best interest of the child that final custody be vested with the Defendant [appellant]." A hearing was held in September 2002 on the issues of child custody and visitation and other matters involving the minor child of the parties. On November 25, 2002, an order was entered from the September hearing, providing in pertinent part:

5. Plaintiff [appellee] has been the primary caretaker for the child since being awarded temporary custody by Temporary Order entered on October 5, 1999, and the Court finds it is in the best interests of the child for Plaintiff to be awarded custody of the child subject to Defendant's rights to reasonable and liberal visitation.

It is from this November 2002 order that this appeal arises, and for his sole point of appeal appellant contends that the trial court erred by denying his "request for full custody of his minor child when material changes in circumstances warranted a modification of the decree to protect the best interest of the child."

In Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), this court dealt with a similar situation in that the initial custody arrangement was joint, the joint arrangement began to fall apart, and the court awarded sole custody to one of the parents. This court explained:

The principles governing the modification of custodial orders are well-settled and require no citation. The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Although the chancery court retains continuing power over the matter of child custody after the initial award, theoriginal decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification.

The role of the appellate court in appeals from modification of custody orders is also well settled. We review chancery cases de novo on the record, but the chancellor's findings will not be disturbed unless clearly against the preponderance of the evidence. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of the chancellor. Because a chancellor charged with deciding a question of child custody must utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest, there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as in those involving child custody. Our deference to the chancellor is correspondingly greater in such cases.

Id. at 393, 58 S.W.3d at 424 (citations omitted).

In support of his point on appeal to this court, appellant relies upon three basic contentions:

1) Appellee flagrantly denied him visitation, and interference with visitation rights may be regarded as a change in circumstance that justifies modification of custody and is relevant in deciding which parent would be best suited to have custody and foster a relationship with the non-custodial parent;

2) The welfare of the child is the polestar of child-custody cases, and appellee allowed the child to be in the presence of appellee's father, who molested appellee, placing the child in grave danger;

3) Appellee neglected to provide medical attention for the child's injured foot, again showing a complete disregard for the child's welfare.

Rather than reciting all of the testimony from the September 2002 hearing dates, much of which was redundant, we will simply highlight testimony regarding these three basic areas of contention.

1) Interference with visitation

Appellant testified that from 1999 until November 2001, he only received "about half" of the visits that he was supposed to have had. He said that since then, "she's made every one." He said that since November 2001, he has no issue about visitation. He said that during the time that the visitations were being missed, appellee only contacted him, through various other people, about two to three times. He explained that he pursued "the chain of command" through the military and beyond in an effort to get appellee to comply. He then recounted several particular incidents of missed visitation during the period from 1999 to November 2001. He acknowledged that since the regular visitations have occurred, that Mabry "drop[s] the attitude" with him and starts "warming up" within an hour of arriving for visitation with him.

He stated that he married his current wife, Melissa, on February 19, 2001, and that they have a child. He described his house and his job. He then described appellee's guard duty and how it takes her out of state. He said that when she is on guard duty, she does not contact him to let him know that she will be out of state, and that other people keep Mabry and drop her off for visitation. Appellant acknowledged that he, too, has sent others to pick up Mabry. He explained that he videotapes the visitation exchanges, in part to protect himself from false allegations by appellee. He explained his own guard-duty drills and stated that he has provided his phone number to appellee many times.

Appellant testified about an incident in December 2000 when he did not get his visitation. He described an ice storm and recounted that appellee did not let him have his visitation and instead drove with Mabry in the storm and had a wreck around Mammoth Springs. He also recounted that on Father's Day weekend one year he was told that there would be no visitation for some reason; that his sister then called him and told him she had Mabry; that he got the visitation, but Mabry had a three-day-old cut on her foot. He said that his mother took her to the doctor.

Michelle Moore, appellant's sister, testified about her history with the child and the two parents. She expressed her fondness for the child and her efforts to keep peace between the parents. She said that with respect to Mabry's foot injury, as best she could recall she picked Mabry up one time, that Mabry had cut her foot by stepping on glass in a creek, and that it looked as if it had been cleaned up but had started to bleed again. She said that she took Mabry home and cleaned her foot, and it looked as if there were still some glass in it. She said that the bleeding subsided and that she put a couple of Band-aids on it. She stated that she did not take Mabry to the doctor nor instruct anyone to do so. She said that most of the time when she got Mabry from appellee, she did not tell appellant. She described an altercation during a visitation exchange. She stated that she heard appellant call appellee a whore in front of Mabry when appellee was about four hours late bringing Mabry from Missouri for appellant's visitation, but that Mabry was little at that time and probably did not understand. She said that appellee has called appellant names, but that she did not know if Mabry heard it because it was in phone conversations with appellee.

Maria Minton, appellant's mother, testified about some instances where appellee had not shown up for appellant's visitation with Mabry. Melissa Minton, appellant's wife, testified that she has gone on most of the visitation exchanges with appellant and has witnessed appellee lose her temper and yell at him a couple of times. Appellee acknowledged and explained some of the times where there had been visitation problems.

2) Potential exposure to sexual abuse

Appellant testified that appellee allows Mabry to be around a child molester constantly; and that the molester is Larry Wayne Harris, appellee's father. He said that by court orderappellee was not supposed to let Mabry within twenty-five feet of Harris, but that she had. He said that this was "the most powerful reason" that he was seeking custody. He said that he thinks Mabry is in grave danger and that he fears something bad is going to happen to her.

Betty June Harris, appellee's mother, testified that Mabry visited at her home several times. She said that Larry Harris, her husband, was also there. She said that appellee stayed each time that Mabry came to visit. She said that there might have been times when appellee left Mabry with her for short times "to go to the store or something." She said that if appellee had spent the night in the home with Mabry over the last three years, it was only a time or two - including the ice storm of Christmas 2000. She further testified, "Mabry has never been left with my husband for any length of time." She acknowledged knowing about appellee's allegation of sexual abuse concerning Larry Harris, but that she did not believe it occurred. She said that she would not be concerned to leave Mabry with Larry Harris, but that appellee has told her, "Don't leave Mabry with Dad by herself." She said that she understands that Mabry is not supposed to be left alone around her husband and that she is not.

Larry Harris, appellee's father, testified that he is generally there the entire time that appellee and Mabry come to visit, but that at no time has Mabry been left alone with him and his wife. He said that any time Mabry has been there, appellee has been there. He said that, normally, the times appellee and Mabry come to his house, it is to "swap" Dylan with his father for visitation.

Appellee testified that she never lets Mabry out of her sight when they go to the Harris house, that they usually just go there to pick up or drop off Dylan. She denied that she had ever left Mabry with Betty June to go to the store.

3) Medical neglect

Appellant expressed his concern that Tesker LeMoine, appellee's new husband, does not have medical power of attorney for Mabry. He described an incident in which Mabry had a "deep gash" on her foot that needed stitches and had not been properly cared for. He also testified that he was "fairly certain" that Mabry's immunizations were not up to date until she actually entered school and they were required. He also testified that Judge Whiteaker had ordered that Mabry was to see a counselor, Dawn Harris, every week, and that "it has not been done." Appellant described problems with exchanging Mabry's medication during visitation, and he described a fungus problem with her foot.

Melissa Minton, appellant's wife, testified that Mabry's bangs have been too long at times; that her finger and toe nails are too long; that her hair "sometimes doesn't seem clean"; and that a couple of times, "she smelled kind of bad."

Appellee testified that immunization records were available to appellant; that she was at Fort Chaffee when Mabry's foot injury occurred; and that she called Michelle to pick Mabry up, assess the situation, and take her to the doctor if necessary.

Dr. Paul Deyoub, a psychologist, testified about the court-ordered evaluations of the parties and Mabry that he performed. He stated that appellant was diagnosed with an antisocial personality disorder (extremely manipulative, impulsive, egocentric, narcissistic, intent on meeting his own needs at any cost, skilled and formidable in interpersonal relationships and manipulating them to his advantage.) He said that appellee was diagnosed with "personal disorder not otherwise specified" (histrionic and dependent). He acknowledged that he had not reinterviewed the parties since August 2000. He recommended that custody should remain with appellee.

Ron McCafferty is a therapist who has worked with appellant. He testified about positive advances appellant has made in behavioral adjustment.

Dawn Harris, a court-appointed psychologist, testified that she has seen Mabry approximately twenty-two times; that she was appointed to counsel Mabry in this case; that Mabry is often very unhappy; that she loves both parents; and that she now fears being torn from her mother. She explained that there was a time when Mabry was doing better and that she told appellee to just bring Mabry in when needed. She said that Mabry wants to continue living with her mother. Harris stated that she does not see any pressing need to change custody arrangements at this time, but that Mabry needs to continue to spend time with her father.

Here, there were sufficient factors for the trial court to award permanent custody of the child to appellee. The child had lived primarily with appellee. Both court-appointed psychologists, Deyoub and Harris, recommended that custody remain with appellee. Appellant himself acknowledged that visitation with Mabry had improved, and the trial court was in the best position to assess the testimony regarding Mabry's medical care and any potential danger arising from visits at the Harris household. Therefore, we find that the court's determination that custody should remain with appellee was not clearly erroneous.

Affirmed.

Hart and Gladwin, JJ., agree.