Kevin Smith v. Sherri George Benton

Annotate this Case
ca03-820

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KEVIN SMITH

APPELLANT

V.

SHERRI GEORGE BENTON

APPELLEE

CA 03-820

MAY 12, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

EIGHTH DIVISION, [NO. PT-97-1762]

HONORABLE WILEY AUSTIN

BRANTON, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Kevin J.W. Smith appeals the denial of his petition to change custody of his child, L.S., from appellee Sherri Benton to him. Appellant argues two points on appeal from the December 16, 2002 order of the Pulaski County Circuit Court: (1) that the trial judge clearly erred in finding no material change in circumstances warranting a change of custody; and (2) that the trial judge violated Ark. Code Ann. § 12-12-507 (Repl. 2003) by not making a child-abuse hotline report where he had reasonable cause to believe that L.S. was abused in her mother's care. After our de novo review, we find no reversible error and affirm.

L.S. was born to her unmarried parents on December 5, 1996. The parents have been in almost constant litigation since that time. Sherri sought to establish paternity and commensurate child support in March 1997; Kevin responded that he held himself out as the putative father and counterclaimed for custody of L.S. By December 1997, the parties had agreed to Sherri retaining custody, Kevin paying $200 per month in child support, and Kevin having weekend visitation. This arrangement was reduced to an order signed by Judge Mary McGowan in the Pulaski County Chancery Court1. This order was ultimately set aside, and another order was filed that established Kevin's holiday visitation rights for the winter of 1998, and every-other-weekend visitation beginning in January 1999.

In July 2000, Judge McGowan granted Kevin extended summer visitation, and Sherri could exercise alternating weekend and Wednesday visitation with the child during the summer. Due to allegations that L.S.'s new stepfather, Ray Benton, might have struck her with a belt buckle, Judge McGowan ordered that L.S. not be left alone with him. Litigation was heating up at this point, with cross-motions for contempt pending. Due to allegations of abuse made by Kevin, DHS sought to intervene in the case on the basis that it had relevant information bearing on the best interest of the child. Sherri agreed that DHS should be permitted to intervene. Kevin initially resisted DHS's motion because he believed that DHS was adverse to him. Kevin explained that he had recently contacted the governor's office complaining that DHS was not following through with his reports that L.S. was being abused in her mother's home.

In the summer of 2001, an attorney ad litem was appointed for L.S. Judge McGowan returned L.S. to her mother's custody at the end of summer so that she could attend kindergarten in Cabot. In September 2001, the attorney ad litem filed a pleading with the court, asserting to the court that L.S. should remain in her mother's custody. The attorney ad litem raised concern that Kevin "has continued to assert and re-assert allegations [of abuse] which have been repeatedly dismissed and unsubstantiated by the Arkansas Department of Human Services, the Arkansas State Police, and this Court." The attorney ad litem pleaded for the trial court to enter a final order on custody.

Judge McGowan permitted DHS to intervene on October 16, 2001. Also in October 2001, Sherri filed a motion asking for a hearing on the basis that Kevin would not return the child to her and stated his intent to enroll her in kindergarten in Redfield, Arkansas, where he resided. Kevin continued to assert that Sherri or her husband was abusing L.S., based upon excessive bruising, cuts, rashes, medically significant constipation, and L.S.'s reports of inappropriate touching. The judge ordered L.S. be immediately returned to her mother.

DHS filed a motion in which it asserted that, though it was mindful of its duty to protect children, the child abuse hot line should not be used as a tool to gain custody. Furthermore, DHS stated that "[t]here comes a point in which the reinterviewing of a child is abusive."

On October 31, 2001, Judge McGowan entered a final order on custody, in which she recounted the numerous pleadings since the inception of this case as one for paternity, the various hearings, and her final conclusions. Judge McGowan noted that Sherri works a forty-hour week and that Kevin is disabled and is thus available to be home with L.S. for extended periods of time. Judge McGowan noted the significant distrust between Sherri and Kevin and that L.S. loved both her parents. Judge McGowan referred back to the report by the social worker at Arkansas Children's Hospital of suspected physical abuse, finding that there was proof that abuse occurred. The judge, citing to Sherri being the primary caretaker for most of L.S.'s life and the need to end the interference by so many outsiders, ordered that Sherri be the custodian and that Kevin be granted visitation rights. Kevin filed a motion for reconsideration shortly after the October 2001 order was entered. In December 2001, Judge McGowan recused; Judge Wiley Branton was assigned the case from that point forward.

In August 2002, Kevin filed a motion to move the venue of the action to his home county, Jefferson County. Sherri and the ad litem resisted, arguing that if there were a change, it should be to Lonoke County, where Sherri and L.S. currently resided. Judge Branton declined to move the case, though "tempted to transfer this litigious case" to Lonoke County. Kevin filed a new petition to change custody, citing a change in circumstances since the last order of custody on October 31, 2001. In November 2002, Kevin filed a motion requesting that Judge Branton comply with Ark. Code Ann. § 12-12-507(b) by reporting abuse to DHS.

After reviewing the testimony taken in hearings conducted in November 2001, August 2002, and November 2002, Judge Branton entered a thirty-eight page order on December 16, 2002, denying a change of custody and denying Kevin's motion to have the judge report abuse to DHS. This is the order from which an appeal has been taken.

In the order, Judge Branton examined the testimony given by each side as follows. First, Kevin testified that since October 2001, L.S. seemed withdrawn, unhappy, upset, tearful, and reluctant to return to her mother's home. Kevin introduced several digital photographs depicting bruises, rashes, and one incident where L.S. hurt her mouth after falling from playground equipment at school. With regard to one photo, Kevin explained that he observed marks or bruising on March 23, 2002, on L.S.'s leg as she used the bathroom, he asked her what happened, and she ran and hid under a bed for 1 ½ hours. L.S. had just returned to his house from her mother's, and Kevin believed the bruises were indicative of someone pulling her legs apart. Kevin denied coaching L.S. to allege abuse. Kevin said he had more time, love, and ability to parent L.S. than Sherri had, and furthermore, L.S. wanted to live with him. Kevin expressed concern that Sherri should not take L.S. to work with her because her work is around docks and moving equipment that are dangerous to L.S. Kevin's father, Joseph Smith, testified for Kevin, offering supportive testimony to Kevin's concerns about L.S.'s behavior.

Judge Branton found that Kevin's accusations were largely based upon speculation, conjecture, and his personal opinion unsupported by credible facts. Judge Branton emphasized that Kevin was "seething with hostility" that he observed in the courtroom and that he "comes across as combative, articulate, self righteous, zealous, and a person who would be intimidating and attempt to intimidate other persons. It also appears that there is no room for anyone to disagree with his views."

Judge Branton reviewed the testimony of Freda Phillips, a DHS employee who holds a Ph.D. degree in psychology. Phillips had been fired from DHS but was reinstated through an appeal process. Phillips acknowledged that she knew of Kevin's reputation with DHS based upon the numerous complaints of abuse that were ultimately determined to be unfounded. Kevin met Phillips at a legislative meeting concerning problems with DHS. Phillips testified that one of the digital photos proved some kind of abuse in that the bruises on L.S.'s leg did not appear to be minor, temporary bruising but were more indicative of the pressure of a hand or fingers. Judge Branton disagreed with Phillips's assessment and questioned her credibility, noting that she was not a medical doctor and had no training to be able to date bruises and noting that Phillips was not concerned that Kevin was photographing his daughter naked to capture bruises on her leg. "This court has not exhausted the full list of the aspects of Dr. Phillips' testimony which the court finds questionable, troubling, and/or not very credible.... This court accords Dr. Phillips' testimony no weight."

The order discussed the testimony of William Viser regarding his opinion as to the inadequacy of DHS's investigations. Viser holds a Ph.D. in divinity, is a licensed counselor and family therapist, and is a professor at Ouachita Baptist University. Viser is Kevin's therapist, and he opined that Kevin should be granted custody. Judge Branton deemed Viser's opinion unpersuasive and unhelpful, in part because Viser rendered his opinion on custody without ever interviewing L.S. or Sherri. However, Judge Branton did find useful Viser's opinion as to Kevin's mental state-that is, Kevin has an adult personality disorder, depression, and anxiety.

Next, the order discussed Dr. Melissa Roberts' testimony. Dr. Roberts, at that time a pediatric resident at Arkansas Children's Hospital, gave testimony about her treatment of L.S. for constipation in October 2001. During her consultation, Kevin remained in the room. L.S. told Dr. Roberts that her stepfather "touched her sister's tee-tee." When asked if she saw it herself, L.S. said she did not, but she heard her sister screaming. L.S. also stated that her stepfather "touched her tee-tee" and that her mother said not to tell anyone. Dr. Roberts did not find any physical evidence of such abuse, but the hospital reported this to DHS. DHS and the Arkansas State Police deemed the allegation unsubstantiated.

Kevin called a licensed social worker, Kathy Williams, to the stand. Williams provided four counseling sessions to L.S. in the fall of 2000, but the sessions were terminated because L.S., age four at that time, did not want to continue. Williams gave L.S. a diagnosis of an adjustment disorder, and she believed there to be physical abuse but no indications of sexual abuse. Williams said Kevin brought L.S. to one session wearing a princess costume, which Williams thought was inappropriate but indicative of how he felt about his daughter. Williams did not interview or consult with Sherri or Ray. Williams characterized Kevin as a strong advocate for his daughter, but he was also very loving and supportive of her.

L.S.'s girl scout leader from Redfield testified that Kevin was a wonderful father, very involved, and very close to L.S. She said that after August 2001, she noticed that L.S. seemed withdrawn. Kevin's wife, whom he married in May 2001, testified in support of him.

Sherri testified that she did not know how the bruises in the picture came to be on her daughter's leg, but she said that L.S. had a skin condition that caused occasional rashes. Sherri said she was concerned that Kevin came to their daughter's school too often and checked her out of school early. Kevin had not paid child support.

Sherri's husband Ray testified that Sherri is a good mother, that he and L.S. get along very well, and that L.S. gets along with her two big sisters. Ray's mother testified that she believed Sherri to be a good mother. Sherri's oldest daughter Christine testified that she was eighteen and that Ray had never made any sexual advances toward her (Christine) and had no knowledge of Ray acting inappropriately with L.S. Sherri's middle daughter Nikki testified that she was thirteen and that Ray had never made any sexual advances toward her (Nikki) nor did she know of any inappropriate touching toward L.S. The girls explained that in their mother's three-bedroom house, Ray and Sherri had one bedroom, Christine had one, and Nikki and L.S. shared the third. The judge found both sisters' testimonies to be completely credible.

The judge reviewed a report by psychologist Dr. DeYoub on the parents and the child, in which DeYoub assessed Kevin as angry, hostile, bitter, demanding, and a perfectionist, which was affecting L.S. negatively. DeYoub found Sherri to be a fit mother and declined to suggest that custody be changed to Kevin.

After recounting this testimony and evidence, Judge Branton concluded that these parties were "warring factions," with the term more applicable to Kevin and his family. The judge found Kevin to be obsessed and consumed with trying to prove that some kind of abuse was being perpetrated by Sherri or Ray in an effort to obtain custody and perhaps to exclude Sherri from L.S.'s life. He found no credible evidence of sexual or physical abuse by anyone in Sherri's home. Given Kevin's over-zealous efforts on that front, he lost credibility with the trial court. The judge believed that Kevin was prone to personally attack anyone who does not agree with him, noting his very public complaints about DHS and his calling at least one of his former lawyer's, the ad litem's, and opposing counsel's ethics into question. The judge found that Kevin over-photographed L.S. to capture every possible bruise, bump, or scrape that she ever suffered; that he inappropriately followed her to the bathroom on a regular basis, which the judge called "creepy"; and that Kevin and his family constantly inspect, interrogate, and photograph the child sending a message that something is wrong at her mother's house. Judge Branton found that the evidence implied that the only time L.S. was withdrawn was when she was in her father's sphere of influence. In declining to change custody, the judge noted that it might be necessary to restrict Kevin's contact with L.S. but that he would only take limited measures at present in the hopes that Kevin would control his behavior.

The judge further declined to report the newer accusations of abuse to DHS for at least three reasons: (1) because it was Judge McGowan who made the earlier finding and not him, (2) given the multitude of reports2 of abuse by Kevin and also submitted by Children's Hospital, the judge deemed any further report to be redundant, and (3) the judge's view of the evidence was that L.S. needed protection from Kevin, not Sherri. The restrictions regarding Ray's contact with L.S. were lifted. The judge found that it would in fact be detrimental to L.S. to be placed in Kevin's custody because his behavior was "weird, strange, and possibly perverse." The judge granted Kevin time to become compliant in his child-support obligations, rather than hold him in contempt. DHS was permitted to withdraw from the case. From that order, comes this appeal.

In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). 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. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 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. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). A finding is 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. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

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 trial court retains continuing power over the matter of child custody after the initial award, the original 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 that 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. See, e.g., Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003); Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001).

In appellant Kevin's brief before us, he recounts testimony and opinions favorable to his position, and then concludes that the testimony he summarized meets the standard for us to reverse the trial judge's decision on custody. We disagree. Given the deference we must give to the trial court's observation of the witnesses and his assessment of the weight to accord the testimony and evidence presented, and given the extensive findings of fact in the order on appeal, we are not left with a definite and firm conviction that a mistake has been committed on the custody issue. Indeed, it is notable that the judge was concerned enough about Kevin's behavior to find that granting custody to Kevin would be detrimental to L.S. We affirm the trial court's denial of the motion to change custody.

Kevin's second point on appeal asserts that the trial court's refusal to call the child-abuse hotline was a violation of a statutory duty of the trial judge. Arkansas Code Annotated section 12-12-507(b) (Repl. 2003) provides in pertinent part:

(b) When any of the following has reasonable cause to suspect that a child has been subjected to child maltreatment or has died as a result of child maltreatment, or who observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment, he or she shall immediately notify the child abuse hotline:

. . . .

(11) A judge[.]

Kevin filed a pleading with the trial court on November 13, 2002, asserting that because Judge McGowan had found early on that L.S. had been subjected to physical abuse when it appeared that she had been struck with a belt buckle as reported by a social worker, then Judge Branton was obligated under this statute to call the hotline when he took over as presiding judge. The trial judge denied that request for the reasons set out above. We find no reversible error, mainly because this judge did not determine that there was any reasonable cause to suspect that L.S. was being physically or sexually abused. Furthermore, at the time Judge McGowan found in her October 31, 2001 order that abuse had occurred, the DHS, which is charged with administering the hotline, had intervened and was participating as a party to this proceeding. Lastly, it appears that the trial judge was very near finding abuse on the part of Kevin. Short of having reasonable cause to believe that abuse was perpetrated on L.S. in her mother's custody, there was no duty to report.

We affirm the trial court in all respects.

Neal and Crabtree, JJ., agree.

1 At that time, prior to the enactment of Amendment 80 to the Arkansas Constitution on July 1, 2001, there continued to be a distinction between chancery and circuit courts in Arkansas. The courts have now been merged and carry the designation of "circuit courts." The de novo standard of review has not been affected.

2 Kevin testified at the August 2002 hearing that he already called the hotline with regard to the leg bruises that he observed in March 2002.