Jonni Mari Miller v. Thomas Morgan Miller

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November 3, 2004







Wendell L. Griffen, Judge

This is an appeal from a divorce decree granting appellee Thomas Miller visitation with his daughters, C.M., D.O.B. 3/8/99, and M.M., D.O.B. 3/17/00. Appellant Jonni Miller argues that in determining appellee was entitled to unrestricted visitation, the trial court gave improper weight to appellee's testimony that he passed a lie detector test regarding whether he had abused C.M. We affirm because appellant failed to object to the admission of the polygraph results.

Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Appellant and appellee were married for less than two years. They separated in August 2000, and appellee moved to Louisiana to attend school, but exercised visitation with the girls. Appellee filed a complaint for divorce on June 20, 2003. In her answer, appellant asserted that appellee's visitation rights should be supervised "due to ongoing investigation regarding sexual abuse of the children," a reference to events that allegedly took place in August 2002. Appellant also counterclaimed and subsequently amended her counterclaim on July 21, 2003, to request that appellee have no visitation with his daughters; however, appellant later withdrew her counterclaim and amended counterclaim. After a temporary hearing, the trial court granted temporary custody to appellant, and ordered supervised visitation with appellee for three hours each Saturday.

At the final hearing on September 23, 2003, the only contested issue was whether appellee would have unrestricted visitation with the children. The trial court heard testimony from several witnesses stating that the girls had shared information supporting that appellee had sexually molested the children on a visitation that occurred between August 10 and 12, 2002, when appellee came in from Louisiana to visit them.1

Appellee denied that he had sexually molested his daughters. He testified, without objection, that the State did not intend to prosecute him on criminal charges. Appellee also testified that he had taken and passed a lie detector test with regard to questions concerning the molestation of C.M. Appellant did not object to any of the appellee's testimony regarding the lie detector test.

In making its ruling from the bench, the trial court noted that the issue of sexual abuse was determined in the same manner as any other issue in a bench trial, by a preponderance of the evidence. The court further noted that "a preponderance of the evidence does not mean the greater number of witnesses." The court recounted the testimony of the various witnesses and noted that it was his job to determine which testimony was believable. The court made the following ruling from the bench:

Mr. Miller flat out denies that any of this happened and he took a polygraph test and passed it. There have been some indications that something may have been said by the polygraph examiner, something to Mr. Miller, that he did fine and no problems. And then there have (sic) been some talk . . . . that he [the polygraph examiner] might have asked some additional questions had he known that both girls had made statements, but he didn't testify. The fact of the matter is, he [appellee] passed apolygraph exam. There was no prosecution by any public official, any prosecutor, misdemeanor or felony or otherwise.

I find it very telling that the Department of Human Services, from the testimony I've heard, never did anything from contacting Mr. Miller, to starting some kind of case in juvenile court.2 And I put a great deal of weight on Charla Jamerson's testimony. . . . she's testified in this court before, I've heard her qualifications - she's imminently qualified and is very believable.3 She is truly an expert in this area. And there is no doubt in my mind that, if Ms. Jamerson thought anything of this nature had occurred, she would come out and say so; she is not one to mince words. Ms. Jamerson found, when she examined [M.M's] genital area, that there was absolutely nothing out of the ordinary.

Now I certainly have not - in fact, even Mr. Miller has not come out and made the accusation that he believes Mrs. Miller has some axe to grind with him, other than their marriage is breaking up. No one has been flat-out accused of coaxing these girls, in particular. But I do not find that Mrs. Miller has met her burden of proof in proving - the evidence does not show that these girls have been sexually abused.

Mrs. Miller, in other words, to put it in more layman-like terms, you have failed to tip the scales of justice in your favor on that issue. The girls' statements are differing from one day to the other. Sometimes accusations were made; sometimes accusations weren't made. But again, I have no idea - there's no testimony that these girls don't like their daddy. They may have been coaxed by someone; I cannot say who it is. But the physical evidence and the testimony of the experts, taken with the passing of Mr. Miller and the polygraph test and all the other credible evidence that I have heard today, I do not find that Mrs. Miller has met that burden of proof.

(emphasis added.) Thereafter, in its written order, the court awarded appellee unrestricted visitation with his children. This appeal followed.

We review cases involving domestic issues de novo on the record. Frigon v. Frigon, 81 Ark. App. 314, 101 S.W.3d 879 (2003). We do not reverse the trial court's decision unless it is clearly erroneous, meaning that we are left with a definite and firm conviction that a mistake has been made. Id.

Appellant asserts three points on appeal, but they are essentially the same argument- that the trial court erred in admitting and giving substantial weight to appellee's hearsay references to a polygraph examination.4 Appellant concedes that she did not object to the admission of the testimony regarding the polygraph examination. However, she maintains that it was incumbent upon the trial court not to rely on incompetent evidence, even if it is admitted with no objection. American Workmen v. Ledden, 196 Ark. 902, 120 S.W.2d 346 (1938) (noting that a court is not deprived of the power to instruct a jury not to consider inadmissable evidence merely because incompetent or inadmissible evidence has been admitted without objection).

We affirm because appellant failed to object to the admission of the polygraph results. It is well-settled that our appellate courts will not rule upon an issue that the trial court did not have the opportunity to decide. Ark. R. Evid. 103(a)(1); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). Further, while American Workman v. Ledden, supra, may support a trial court's decision to prevent a fact-finder from considering incompetent evidence where no objection has been raised, it does not compel a trial court to exclude, sua sponte, evidence for which no objection has been raised. Accordingly, we must affirm.

We note that this is a troublesome case, both procedurally and factually. However, the issue of the sufficiency of the evidence is not before us because appellant did not raise that issue on appeal.


Neal and Roaf, JJ., agree.

1 The children's statements were admitted as an exception to hearsay pursuant to Arkansas Rule of Evidence 804(6), which allows admission of a statement concerning sexual abuse made by a child who is younger than ten years old.

2 Appellee testified that the Department of Human Services put his name on a "list of perverts" without any notice or hearing and that he has been trying to have his name cleared.

3 Ms. Jamerson was a forensic nurse who talked with both children and physically examined M.M.

4 Appellee also raises two technical arguments related to the record on appeal. First, he asserts that because appellant failed to designate the full record or an abbreviated record and failed to include a concise statement of the points on appeal, he was not able to designate that the pretrial hearing be added to the record and was not afforded the opportunity to review the points upon which appellant relied. Second, he argues that we must affirm because appellant failed to abstract the pretrial hearing, and her argument includes evidence initially presented at the pretrial hearing. Thus, appellee argues that appellant has failed to produce a record sufficient to demonstrate error and accordingly, we must affirm. Because we affirm on alternate grounds, we do not reach the merits of these arguments.