Teresa Lynn McConnell v. Fred McConnell, and Faye McConnell

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CA 03-930

MARCH 3, 2004



[NO. DR 01-170]




John B. Robbins, Judge

Appellant Teresa Lynn McConnell is the mother of Levi Anthony McConnell, who was born on March 27, 1999. The appellees, Fred and Faye McConnell, are Levi's paternal grandparents. Teresa Lynn McConnell appeals from a provision in a divorce decree entered May 21, 2003, which granted the appellees custody of the child.

Teresa raises three points for reversal. First, she argues that the trial court erred in requiring her to show a material change of circumstances to regain custody of her child, because the December 13, 2001, temporary order granting custody to the appellees was not a final custody order. Next, Teresa contends that the trial court erred in excluding testimony that was proffered to show she is not an unfit parent, and that the award of custody to the appellees was improper because there was no finding by the trial court that the natural parents are unfit. Finally, appellant argues that, even if it was her burden to prove a material change of circumstances since entry of the December 13, 2001, order, she met that burden. We agree

with appellant's first and second arguments, and we remand for a new hearing on the issue of custody.

This case began when appellant's ex-husband, Jason Anthony McConnell, filed for divorce on September 28, 2001. On October 15, 2001, Teresa filed an answer and counterclaim for divorce, and asserted that she was the proper person to have custody of Levi. On December 4, 2001, the trial court sent a letter to the parties to the divorce action, stating that at the request of Teresa McConnell, the case was set for hearing on the contested docket for the morning of December 13, 2001, regarding custody of the minor child.

The appellees entered their first appearance in this case on the morning of December 13, 2001, when they filed a "motion for change of custody," asserting that Levi was currently in their care and had been for the overwhelming majority of his life. The custody hearing scheduled for that day was not held. However, the trial court entered an order styled "temporary order," that permitted the appellees to intervene in the case. The December 13, 2001, temporary order further stated:

That said minor child is currently in the physical care, custody and control of the Intervenors. The parties agree and the Court hereby orders that the Intervenors are to continue having physical care, custody and control of the minor child until further orders of the Court.

On December 18, 2001, appellant filed a response to the appellees' motion, denying that Levi had been in appellees' care for the overwhelming majority of his life, and moving to dismiss the appellees' motion for change of custody.

The first and final hearing in this case was held on January 9, 2003. At the beginning of the hearing, appellant argued that she never agreed to a final custody order in favor of the appellees, that the custody order entered was temporary and, thus, that the hearing was for the purpose of deciding permanent custody for the first time. However, the trial court disagreed, announcing that the December 13, 2001, order constituted a final custody determination. The trial court explained:

I don't think anybody disputes an agreement was reached where custody would be as of December 2001. So, since we can't agree whether that was a temporary or a final, but everybody agreed, I'm presuming since it was set for a contested hearing on custody that day, that I'm going to limit the testimony today to a change of circumstances since December of 2001. I am not going to litigate this case from the date of separation. I'm going to litigate it from December 2001, because the agreement clearly was that temporary custody would be with the Intervenors and it was set for a contested hearing on that issue alone that day. So, that's going to be my ruling on what happened before.

Teresa McConnell testified at the hearing. She indicated that there have been problems since December 13, 2001, that have caused her concern about Levi's welfare. She stated that since being in the custody of the appellees, Levi will hit you if he does not get what he wants. Theresa further asserted that she had Levi off of the bottle and his pacifier, but that since living with the appellees he has reverted to using them. Teresa stated that the appellees give Levi what he wants when he wants it, and fail to properly discipline him.

Teresa testified that during visitation Levi will wake up crying for no apparent reason. She also testified that when she returns him to the custody of the appellees he does not want to go back, and "cries and throws a fit." Teresa also expressed concern because the appellees do not put Levi in a car seat when he rides with them. She further stated she was concerned because the appellees took Levi off of prescribed medication for asthma.

On cross-examination, Teresa testified that she lives with her mother and father in a three-bedroom house, and has lived there since she separated from Jason about a year-and-a-half earlier. Prior to that, she lived in an apartment with Jason, where they got behind on their bills and were evicted. Teresa acknowledged that she is dating a man named Gary Justice, and that he is the father of her seven-month-old daughter, Ashlin. Ashlin lives with Teresa and sleeps in her room. Teresa admitted that she received a citation for not carrying Levi in a car seat while driving on the highway.

Teresa stated that she does not pay rent to her parents, but that she works as a moss picker earning about $300 per week. She testified that if she is awarded custody of Levi, she would probably get a regular job. She stated that Levi could occupy the third bedroom, and would either go to daycare or be taken care of by her sister-in-law while she worked.

Debbie Cheesman, appellant's mother, testified that Levi stays in a clean room during his visitation periods from Thursday to Saturday. She corroborated Teresa's testimony that Levi tries to hit people and that he cries and wants to stay with them when he is delivered back to the appellees. Mrs. Cheesman maintained that Teresa is able to care for Levi.

Appellant's sister-in-law, Christina Cheesman, also testified. She stated that Teresa has taken care of her two children, as well as Levi and Ashlin, and that she has no reservations about Teresa's ability to care for small children.

The appellant proffered the testimony of numerous witnesses that related to events preceding December 13, 2001, and which pertained to her fitness as a parent. In Teresa's proffered testimony, she asserted that when she had custody of Levi she kept a clean house, fed him properly, and took him to the doctor when necessary. Teresa testified that she was a good and fit parent. Teresa's mother and sister-in-law, as well as other witnesses, gave proffered testimony that Teresa was a fit mother and could properly care for Levi.

Teresa McConnell's first argument on appeal is that the trial court erroneously gave her the burden of proving a material change in circumstances in this custody dispute. She contends that the December 13, 2001, temporary order placing custody with the appellees was not a final order. She asserts that she was unaware of the appellees' motion to change custody until the date of the scheduled hearing, and because she was unprepared for the motion she agreed to give them only temporary custody until a final hearing was scheduled. As such, appellant contends that it was the appellees' burden to prove she was an unfit parent, and not her burden to prove a material change in circumstances.

We agree that the trial court erred in requiring Teresa McConnell to prove a material change in circumstances. The party seeking modification of a previous child support order has the burden to show a material change of circumstances sufficient to warrant a change of custody. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). However, this is only so when the previous order is final, and it is error for the trial court to require a material change in circumstances where there has been no prior final decree or final adjudication of custody. See Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998). In the present case, the December 13, 2001, temporary order gave temporary custody to the appellees, and was not a final custody adjudication.

The appellees concede that the temporary order filed December 13, 2001, granted only temporary custody. However, they contend that another order styled "temporary order," dated December 13, 2001, and filed April 18, 2002, constituted the final adjudication of custody in their favor. That order provided, in pertinent part:

The parties have agreed, and the court hereby orders that it is in the best interest of the aforesaid minor child to be placed in the full care, custody and control of the Intervenors, Fred and Faye McConnell, subject to visitation by both the Plaintiff and Defendant.

However, we disagree. There had been no custody hearing prior to entry of the April 18, 2002, order, and the trial court was presumably referring to the same agreement between the parties that was referenced in the order filed on December 13, 2001. At any rate, the April 18, 2002, order was styled "temporary order," and while it awarded full custody to the appellees, it did not purport to award permanent custody. We hold that there was no final custody adjudication entered prior to the January 9, 2003, custody hearing.

Generally, the prime and controlling factor in child custody cases is the best interest of the child. Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). However, when a third person seeks to deprive a parent of custody, she cannot do so without first proving that the parent is not a suitable person to have the child. Id. The law establishes a preference for the natural parent and that preference must prevail unless it is established that the natural parent is unfit. Id. Where a third party intervenes in a child custody matter, that party has the burden of proving the parents are incompetent or unfit to have custody. Id. On remand, we direct the trial court to apply the above principles in making its custody determination.

Appellant next argues that the trial court erred in excluding proffered testimony that related to her fitness as a parent, and that the award of custody to the appellees was improper because the trial court never found her to be unfit.1 Based on our disposition of the first issue, we agree that testimony bearing on appellant's fitness as a parent, as well as testimony about events preceding the temporary custody order, is relevant and admissible.

Appellant's remaining argument is that, in the alternative, even if the proper standard was correctly applied by the trial court, she proved a material change in circumstances. However, pursuant to our holding that this was not the proper standard, we decline to address this issue.

Reversed and remanded.

Griffen and Neal, JJ., agree.

1 The appellees contend that the appellant failed to apprise the trial court of the standard that she now asserts on appeal. However, our review of the record indicates otherwise. During the parties' arguments regarding the proper standard at the outset of the hearing, appellant argued, "the standard is not a material change of circumstances," and "there's never been a finding of unfitness on the part of the mother."