Kimberly Ignatiuk v. Michael Ignatiuk
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DIVISION IV
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
R OBERT J. G LADWIN, Judge
CA04-607
April 12, 2006
KIMBERLY IGNATIUK
APPELLANT
APPEAL FROM THE PULA SK I
COUNTY CIRCUIT COURT
[NO. DV99-1790]
HON. ELLEN B. BRANTLEY,
JUDGE
V.
MICHAEL IGNATIUK
AFFIRMED
APPELLEE
This is an appeal from an order in which the Pulaski County Circuit Court changed
custody of the parties’ two minor daughters from appellant to appellee.1 On appeal, appellant
argues that the trial court divested her of custody of her children to punish her for violating
previous orders of the court, and accordingly, the decision should be reversed. We affirm.
The parties were divorced on December 15, 1999, at which time the parties agreed
that they would have joint legal custody of their two daughters, H.N.I. (DOB: 5-19-93) and
H.D.I. (DOB: 1-5-98), with appellant having primary physical custody. Over the next four
years, various motions were filed related to visitation, contempt, and other issues, as the
parties’ relationship grew increasingly more acrimonious. Ms. Shondra Aldridge, a clinical
therapist for Centers for Youth and Families, began treating the children in March 2001,
dealing with a range of issues that included allegations of sexual abuse by appellee.2 Dr.
1
This court originally ordered rebriefing in this case because of an insufficient
abstract. See Ignatiuk v. Ignatiuk, CA04-607 (Jan. 26, 2005) (not designated for
publication.)
2
Appellee was acquitted of criminal charges on October 26, 2001, related to
allegations of abuse against H.D.I.
Karen Young, a pediatric physician, examined the girls related to the allegations of abuse.
On March 7, 2002, the trial court appointed Ms. Treeca Dyer to serve as attorney ad litem for
the children. Following additional allegations and motions between the parties, on March
19, 2002, the trial court ordered the parties to submit to psychological evaluations to be
conducted by Dr. Paul DeYoub. On August 29, 2002, the trial court entered an order
liberalizing appellee’s visitation provided that he and the children attend therapy sessions
with Dr. Glen Lowitz, a clinical psychologist.
At some point, appellant remarried and moved with her new husband and the children
to Florida, which prompted another round of motions, including allegations of frustration of
visitation. At a hearing held on February 4, 2003, the parties read an agreement into the
record that dismissed appellee’s motion to change custody and to prohibit appellant’s move
to Florida, established a new visitation schedule for appellee, and provided that any violation
of the agreement by appellant would be considered a material change of circumstances for
the purpose of changing custody to appellee. That agreement was made part of an order
entered by the trial court on April 11, 2003.
On July 9, 2003, Ms. Dyer, in her capacity as attorney ad litem, filed a motion for
contempt against appellant, and on July 15, 2003, she filed a motion for a change of custody.
On July 28, 2003, appellee filed his own motion for contempt against appellant and for a
change of custody. On October 21, 2003, the trial court conducted a hearing on the motions.
At the beginning of the hearing, appellant’s attorney requested a continuance because
appellant was allegedly unable to attend due to an ear infection that prevented her from flying
or driving from Starke, Florida, to Little Rock, Arkansas. The trial court denied the motion
and proceeded despite the absence of appellant and the children.
There was testimony from Dr. Lowitz, which in part dealt with a report prepared by
Dr. Sharon L. Schulman that was entered into the record. Dr. Schulman is a licensed
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psychologist who had been treating the children since their relocation to Florida. Not
surprisingly, Dr. Lowitz’s testimony heavily favored appellee, and Dr. Schulman’s report
heavily favored appellant. Appellee and his current wife also testified at the hearing.
Appellant’s counsel failed to present any expert witnesses to contradict their testimony, and
he relied solely on previously entered medical reports. Following the testimony, Ms. Dyer
spoke in her role as attorney ad litem for the children and expressed her frustration with
appellant’s lack of cooperation in providing vital information necessary for her to represent
the girls’ best interest. Ms. Dyer also commented that she was concerned that appellant
might flee with the children. Appellee’s attorney also reminded the trial court of the
provision from the April 11, 2003 order incorporating the agreement between the parties and
signed off on by the attorney ad litem, wherein the parties had agreed that any violation of
the agreement by appellant, i.e., contempt, would be considered a material change of
circumstances for the purpose of changing custody to appellee.
In changing custody to appellee, the trial judge explained that she found Dr. Lowitz’s
testimony particularly persuasive and found Ms. Dyer’s opinion to be reliable based on her
experience as an attorney ad litem. The trial court’s order was entered on December 28,
2003, and appellant filed her timely notice of appeal on January 2, 2004.
In reviewing cases that traditionally sound in equity, we consider the evidence de
novo, but will not reverse a trial court’s findings unless they are clearly erroneous or clearly
against the preponderance of the evidence. Alphin v. Alphin, __ Ark. __, __ S.W.3d __ (Dec.
8, 2005); Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We give due deference
to the superior position of the trial court to view and judge the credibility of the witnesses.
Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). This deference to the trial court is even
greater in cases involving child custody, as a heavier burden is placed on the trial judge to
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utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their
testimony, and the best interest of the children. Alphin, supra.
Arkansas law is well settled that the primary consideration in child-custody cases is
the welfare and best interest of the children; all other considerations are secondary. Alphin,
supra. A judicial award of custody should not be modified unless it is shown that there are
changed conditions that demonstrate that a modification of the decree is in the best interest
of the child, or when there is a showing of facts affecting the best interest of the child that
were either not presented to the trial court or were not known by the trial court at the time the
original custody order was entered. Id.; see also Campbell v. Campbell, 336 Ark. 379, 985
S.W.2d 724 (1999). Generally, courts impose more stringent standards for modifications in
custody than they do for initial determinations of custody. Alphin, supra. The reasons for
requiring these more stringent standards for modifications are to promote stability and
continuity in the life of the child, and to discourage the repeated litigation of the same issues.
Id. The party seeking modification has the burden of showing a material change in
circumstances. Id. In addition, we may consider other testimony and conclude that there was
sufficient evidence to support the trial court’s transfer of custody. See Campbell, supra.
Where the trial court fails to make findings of fact about a change in circumstances, this
court, under its de novo review, may nonetheless conclude that there was sufficient evidence
from which the trial court could have found a change in circumstances. See Hamilton v.
Barrett, supra.
Appellant argues that the trial court changed custody in order to punish her for
violating a prior order. She contends that significant friction developed between the attorney
ad litem and herself, which resulted in multiple allegations of contempt. Appellant concedes
that she has not been the model of cooperation in this matter, but she maintains that the fact
that she, as a party seeking to maintain custody of her children, has violated a court order, is
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only a factor to be taken into consideration by the trial court. It is not so conclusive as to
require the trial court to act contrary to the best interest of the children. Carver v. May, 81
Ark. App. 292, 101 S.W.3d 256 (2003). If such were not the case, the desire to punish a
parent would override the paramount consideration in all custody cases, which is the welfare
of the children. See id. She argues that the trial court went too far in changing custody and
that a more appropriate result would have been the trial court’s exercise of its contempt
powers. See id.
Next, appellant argues that the trial court erred in relying so heavily on the testimony
of Dr. Lowitz, and she claims that his testimony consisted mostly of conjecture. She points
out that the trial court appointed him specifically for the purpose of re-establishing appellee’s
visitation with the children, and not surprisingly, his testimony regarding his sessions with
the children were positive with respect to appellee’s position. Although Dr. Lowitz had
discussed the children’s current treatment with Dr. Schulman and was aware of her
recommendation that they remain in Florida, he disagreed with those findings and opined that
appellant had caused H.N.I.’s depression and that appellant could not promote a healthy
relationship between appellee and the children. She asserts that Dr. Lowitz’s role in this case
was limited, that he had very little involvement with her, and that he failed to contradict Dr.
DeYoub’s findings that appellant was not “embarking on a campaign to keep the children
from their father” and was not detrimental to them. All Dr. Lowitz would say was that, based
upon his discussion with Dr. DeYoub after the relocation, his impression was that Dr.
DeYoub’s opinion regarding the best interest of the children would have been different if he
had known that appellant planned to move the children to Florida. Appellant contends that,
without diagnosing the children’s condition, evaluating appellant, or adequately rebutting the
findings of Dr. DeYoub and Dr. Schulman, Dr. Lowitz merely offered speculation and
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guesswork that was not supported by a preponderance of the evidence, and she asserts that
his testimony should not have been relied upon by the trial court.
Appellant also argues that Ms. Dyer allowed her personal feelings to interfere with
her advocacy on behalf of the children. Appellant admits that Ms. Dyer’s frustration with
her is understandable in light of the “fractious relationship” between them. She contends,
however, that Ms. Dyer’s comments at the October 21, 2003 hearing revealed that she
allowed her frustration with appellant to compromise her objectivity. Specifically, appellant
alleges that Ms. Dyer was unqualified to pinpoint the “strain” H.N.I. feels at appellant’s
home as the source of her post traumatic stress syndrome, when neither Dr. DeYoub nor Dr.
Schulman placed the blame on appellant. Appellant also questions Ms. Dyer’s changing
position on the theory of “parental alienation syndrome.” Apparently, Ms. Dyer questioned
the validity of such a theory but then repeatedly discussed and attempted to obtain an opinion
from Dr. Lowitz that supported the very position that appellant was alienating the children
from appellee. Appellant acknowledges that Arkansas courts do consider whether one parent
is alienating a child from the other parent when making custody decisions, see Turner v.
Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997); however, she claims that if she were
engaging in such behavior, the reports of Dr. DeYoub and Dr. Schulman would have
supported such a theory, which is not the case.
Finally, appellant vehemently rejects the notion, as posed by Ms. Dyer, that she ever
did anything that would raise a suspicion that she might kidnap the children and flee in order
to keep them from appellee. She argues that Ms. Dyer raised this issue with the sole purpose
of inflaming the trial court against her, and at that point she inappropriately ceased being an
advocate solely for the children and assumed the role as advocate for appellee.
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Appellant maintains that appellee failed to prove a material change of circumstances,
reaffirming only that there was a great deal of animosity that clearly had existed between the
parties for some time. She claims that he merely relied on the provision in the April 11, 2003
order that stated that a contempt finding alone would constitute a material change of
circumstances. Appellant asserts that the provision was void ab initio because a contempt
finding alone cannot be the basis of a change of custody. See Carver v. May, supra. She
contends that the trial court wrongly relieved appellee of his burden of proof regarding a
material change in circumstances by ratifying the void provision.
Although this is not a relocation case, the trial court could still weigh the impact that
distance would have on the visitation and communication schedule, and the effect of such
a move on the extended family relationships in the location in which the custodial parent and
children will relocate, as well as Arkansas. Specifically, the trial court clearly determined
that appellant was frustrating appellee’s visitation rights, but more than that, focused on her
complete lack of cooperation with both appellee and the attorney ad litem with regard to all
types of vital information regarding the children. Add to that the facts that appellant failed
to attend the hearing, failed to present evidence to counter appellee’s and the attorney ad
litem’s allegations, and the evidence of the children’s lack of progress, or even regression,
since the move to Florida, and we find that there was sufficient evidence to support a finding
that a material change in circumstances had occurred.
Appellee concedes that the mere violation of a court order is not sufficient to justify
a change of custody but contends that when the disregard of a previous order results in
damage to the welfare of the children, sufficient reason does exist. He circles us back to the
best interest of the children and points out the unrebutted testimony of Dr. Lowitz. Contrary
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to appellant’s contention that Dr. Lowitz’s role was very limited in this case, there was
testimony of fairly extensive involvement that included testimony that:
(1) He worked with appellee and the children on several occasions prior to the
children’s move to Florida;
(2) He met with appellant prior to her relocation;
(3) He observed behavior in both children prior to the move that indicated that
appellant might be alienating them against appellee;
(4) He met with the children on seven or eight occasions during spring-break
visitation and noticed positive interaction with appellee;
(5) He met with the children during Memorial Day visitation and noticed no adverse
effect with respect to their visiting appellee and his wife;
(6) Both children made statements to him about alleged abuse by appellee that were
inconsistent, and both stated to him that appellant hated appellee;
(7) He had studied Dr. DeYoub’s reports and spoke personally with Dr. Schulman
about the case and the effects that the move had had on the children.
There was significant unrebutted evidence provided by Dr. Lowitz, supported by evidence
from appellee and his wife, to support the trial court’s findings that there had been a material
change in circumstances and that it was in the best interest of the children to make a change
in custodial arrangements. This court recently stated that “a trial court is to exercise all its
powers of perception in viewing the witnesses and their testimony when determining the best
interest of the children.” Sill v. Sill, __ Ark. App. __, __, __ S.W.3d __, __ (Feb. 15, 2006).
The court further reiterated that a trial court can consider the custodial parent’s interference
with the noncustodial parent’s visitation when determining the best interests of the child. Id.
The trial judge in this case made it very clear that she had leaned in favor of appellant
when this matter originated and had been very concerned regarding the allegations of abuse.
However, she also indicated that she had come to have quite a different picture of appellant
and made a specific finding in her order that appellant moved the children to Florida in an
effort to get them away from their father (appellee) and to keep them from having further
contact with him through the court-implemented visitation. The trial judge specifically found
that there had been a material change in circumstances since the entry of the agreed order of
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April 11, 2003, based on the testimony of Dr. Lowitz, her own observation, and the
recommendation of the attorney ad litem, sufficient to warrant a change of custody, and
further, that it was in the best interest of the children to do so. Based upon our standard of
review and the level of deference toward trial judges in these situations, we affirm.
Affirmed.
V AUGHT and C RABTREE, JJ., agree.
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