Brandy Kopp v. Danny Kopp
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION
DIVISION II
CA07175
BRANDY KOPP
OCTOBER 31, 2007
APPELLANT
V.
DANNY KOPP
APPEAL FROM THE LAWRENCE
COUNTY CIRCUIT COURT
[NO. DR 2003200]
HON. KEVIN NEIL KING,
CIRCUIT JUDGE
APPELLEE
AFFIRMED
Brandy Kopp appeals from an order of the Lawrence County Circuit Court changing
custody of the parties’ minor child, CK, to appellee Danny Kopp and ordering that Brandy’s
other child from a previous marriage, ZM, not be present when she exercised her visitation
with CK. On appeal, Brandy argues that the trial court’s findings that there had been a
material change of circumstances and that it was in the best interest of CK to change custody
was clearly against the preponderance of the evidence. She also argues that the restriction
on visitation should be lifted because there was insufficient evidence to “warrant indefinitely
isolating the two siblings.” We affirm.
Brandy and Danny were divorced on July 21, 2004. Pursuant to an agreement by the
parties, Brandy was awarded custody of CK, whose date of birth is January 28, 2002. On
June 5, 2006, Danny filed an ex parte petition to change custody, alleging that CK had been
repeatedly injured by his halfbrother, ZM. ZM is approximately five years older than CK.
The petition also alleged that Brandy had been inattentive to CK’s medical needs, refused
to provide Danny with her current residential address and phone number so that he could
contact the minor child, and was residing with a man to whom she was not married. The trial
court granted the petition.
Hearings on a petition for a permanent change of custody were conducted on August
7, 2006, and September 11, 2006. Danny testified that ZM had displayed aggressive
behavior that dated back to a time when he was still married to Brandy. He recalled one
incident when ZM was “sitting out in a swarm of bees, cutting stingers off them.” He noted
that at that time, ZM had behavioral problems at school. However, rather than have ZM
submit to psychological testing, Brandy withdrew the child from school and went to live with
her mother. The marriage ended shortly thereafter.
Danny stated that although he had agreed to give Brandy custody of CK in their
divorce, he recently had concluded that custody had to be changed. The watershed event was
his discovery on May 26, 2006, that CK had sustained an injury to his penis that he believed
was caused by ZM. The injury was first discovered by Danny’s mother, Susan Kopp, when
she took the child to the bathroom just before Danny, who was employed as a pilot, flew to
Illinois with CK and his parents. Susan informed Danny about the injury, and he asked the
child what had happened. According to Danny, CK told him that ZM hit his penis with a
“blue board.” Danny noted that CK also claimed that his penis injury was a “mosquito bite,”
but he rejected that explanation. Danny took pictures of the injury, and the pictures were
admitted into evidence. Danny attempted to contact CK’s regular physician, but when he
2
CA07175
was unable to do so, he had the child examined by Dr. Mark Brown, who prescribed
antibiotics. Danny stated that CK was a small child, so he expected him to have “cuts and
bruises,” but he opined that they seemed to be getting worse in the six months prior to his
discovery of the penis injury. A series of pictures that depicted bruises and abrasions to the
child’s extremities, face, and torso were also admitted into evidence. Danny further alleged
that Brandy was negligent in attending to CK’s vision problems, and he had encountered
repeated problems with making sure that CK had functional glasses.
After the Memorial Day visit, Danny returned CK to his mother’s custody at the usual
exchange location, the Randolph County Sheriff’s Office. Danny attempted to give Brandy’s
mother, Ann Hedge, a letter for Brandy asking her for information about what happened to
CK. He also attempted to give her the medication that Dr. Brown had prescribed. Hedge
refused to accept the letter and the medication. Danny then called the child maltreatment
hotline. According to Danny, since he was given custody pursuant to the ex parte order, CK
has not had any further injuries.
Dr. Brown confirmed that CK told him that his penis injury was caused by ZM when
he hit him with a blue board. Dr. Brown opined that the injury he observed was consistent
with being struck with an object. Susan Kopp also corroborated Danny’s testimony
regarding the discovery of CK’s penis injury. Stan Rogers of the Arkansas State Police
Crimes Against Children Division investigated the penisinjury incident, and CK also told
him that ZM hit his penis with a board. Rogers noted that CK also stated that another
3
CA07175
individual named Kendall “pinched his penis.” Additionally, Rogers testified that CK told
him that ZM “hits him.”
Danny also presented the testimony of several witnesses who testified about ZM’s
aggressive behavior. Tina Hoggard, ZM’s kindergarten teacher, testified that ZM had been
a discipline problem when he was in her class, and she recalled a specific incident where he
stabbed a bug with a stick and placed the bug in his pocket. Brenda Ray, a counselor in
Imboden, testified that she treated ZM in 2002 pursuant to a referral from his school due to
his “aggression towards other children.” Ray stated that ZM’s behavior initially improved,
but then he regressed. According to Ray, Brandy rejected her recommendation that ZM
undergo psychological testing and discontinued Ray’s treatment of the child. Phyllis Cook,
ZM’s school counselor, confirmed the story of ZM “hurting” other children before Brandy
took the child out of school. She expressed concern with ZM living in the same household
with CK “if [ZM] continues to exhibit the behaviors that he was exhibiting at the time that
[she] knew him.”
Katrina Casteel, a therapist in Northeast Arkansas, stated that she began treating CK
and ZM in March 2006. ZM was referred to her from his school for “anger issues.” She
recalled from her intake session that Brandy acknowledged that ZM “had some anger, anger
outbursts, distractibility, and some oppositional behavior” and that she first noted these
behaviors “at a very young age.” ZM related that interaction in his mother’s household was
“mostly yelling at each other.” Casteel also noted that ZM lied during the sessions and that
she had noted “some concerns about physical mistreatment” in her records. Regarding the
4
CA07175
penis issue, Casteel stated that Brandy told her that CK attributed the injury to a bee sting
or that “maybe his cousin did it.” She stated that CK related the same story to her. Casteel
stated that she did not “see any threat of [ZM] hurting [CK].”
Bobby Main, ZM’s father, testified that he was previously married to Brandy, and
they remarried after Brandy was served with Danny’s petition to change custody. Main
admitted that he cohabitated with Brandy in the presence of CK prior to their current
marriage. He stated that he was a selfemployed carpenter who was building a house for his
father “when the pain allows [him] to work.” He explained that he was injured in an
automobile accident some years before. Main admitted that he was convicted of felony
methamphetamine possession and currently had a DUI conviction on appeal.
Main claimed that he was in a position to observe ZM and CK together, and he had
never seen ZM injure CK. He doubted that ZM would hurt CK and stated that it was usually
CK “picking” at ZM. He claimed that Brandy was a “wonderful mother” and that she is able
to “control” ZM and CK “very well.” He acknowledged that ZM was four years older than
CK and that CK had a “big weight disadvantage.”
Paula Hedge, Brandy’s sisterinlaw, testified that she heard CK tell Brandy that a
cousin on Danny’s side of the family, not ZM, hit his penis with a board. She claimed that
CK also stated that he was stung on his penis by a bee. She opined that ZM was “a complete
and total boy,” and the only time she had ever seen ZM “be aggressive is when he is
aggressed [sic] upon and needed to protect himself.”
5
CA07175
Ann Hedge testified that she did not observe the penis injury when she made CK
change his underwear just prior to the Memorial Day weekend visit. Furthermore, she did
not believe that ZM was a “danger or threat” to CK. She conceded that CK and ZM “rough
house and argue and wrestle,” but denied that they get into “anything volatile.” She further
stated that, “if anything, ZM would be more likely to be injured by CK.” She admitted that
she had filed harassment charges against Danny and was aware that he was ordered not to
have contact with her. Nonetheless, she was the primary person who conducted the
exchange of CK for visitation.
Brandy testified that CK told her that his penis injury came from a bee sting. She
claimed that the injury was not as bad as the pictures showed. She also claimed that had her
son had the injury to his penis prior to the Memorial Day visit with his father, either she or
her mother would have noticed when she dressed him. She asserted that CK and ZM have
“good relationship” although she admitted that “they fuss and feud sometimes.” She
accused Danny of trying to frame her by putting drugs and money in her van. Brandy did,
however, admit that she cohabitated with Main before she remarried him, and she conceded
that it violated the court order when she did.
The trial court permanently changed custody of CK to Danny and restricted Brandy’s
visitation to times when ZM was not present in the home. The order contained extensive
findings of fact, including a determinations that ZM’s behavior had become “severe,”
“[ZM’s] conduct with [CK] places [CK] in danger unless closely supervised by [Brandy]”
and that “[Brandy] has failed to closely supervise the conduct of [ZM] with [CK].”
6
CA07175
Before we consider Brandy’s three points on appeal we note our standard of review.
In childcustody cases, the primary consideration is the welfare and best interests of the child
involved; all other considerations are secondary. Walker v. Torres, 83 Ark. App. 135, 118
S.W.3d 148 (2003). We review the case de novo, but we will not reverse a trial judge’s
findings in this regard unless they are clearly erroneous. Id. A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court is left with the definite
and firm conviction that a mistake has been made. Id. Because the question of whether the
trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses,
we give special deference to the superior position of the trial judge to evaluate the witnesses,
their testimony, and the child’s best interests. Id.
Brandy first argues that the trial court’s finding that there has been a material change
of circumstances since the entry of the divorce decree is clearly against the preponderance
of the evidence. Specifically, she asserts that the trial court’s finding that ZM’s behavior had
deteriorated to the point that it alone constituted a material change of circumstance was
erroneous “because the court should not have relied on the evidence of ZM’s past behavioral
problems because such evidence predates the original divorce decree.” Brandy further
argues that the trial court erred when it found that ZM injured CK because CK gave
conflicting explanations as to the etiology of his penis injury, and therefore the trial court
“arbitrarily chose one explanation over the other.” We disagree.
Brandy’s argument that the trial court erred in its finding the deterioration of ZM’s
behavior a change in circumstances mischaracterizes the proof in this case. We interpret the
7
CA07175
testimony of Tina Hoggard, Brenda Ray, and Phyllis Cook as merely establishing that ZM
had longstanding and welldocumented proclivity for aggressive behavior against other
children. This proof provided a baseline for the trial court’s finding that ZM’s aggressive
behavior had worsened. Moreover, there was also a changed circumstance in that Brandy
was failing to protect CK from a known threat to CK’s health and wellbeing. Additionally,
we note that Danny presented proof in the form of photographs that established that CK had
been injured in the six months prior to the filing of his ex parte motion to change custody,
which was well after the entry of the divorce decree.
We also find no merit in Brandy’s contention that the trial court’s finding that ZM
injured CK was “clear error.” As noted previously, CK’s statements as well as Danny’s
photographic evidence proved that CK was being injured during the six months prior to the
entry of the ex parte order. There was also proof that established ZM’s proclivity for hurting
other children and this problem had not been adequately addressed by psychological
counseling or other treatment, save for Brandy’s claim that ZM was now taking medication
for attention deficit disorder. Finally, testimony by Main and others established that ZM
had the size and age advantage to overpower CK. Under these circumstances, we cannot say
that the trial court clearly erred in finding that ZM had injured CK.
Finally, we acknowledge that Brandy is correct when she asserts that CK gave
alternative explanations for how his penis was injured. However, the bee sting and mosquito
bite explanations were rejected by Dr. Brown, and indeed all of the witnesses who gave
opinions in this case. This left the trial court with the choice between whether to believe that
8
CA07175
CK’s penis was injured by ZM or by some other individual. The testimony revealed that CK
had implicated ZM in statements made to Danny, Dr. Brown, and Steve Rogers. While CK’s
statements may also have implicated a child named KP, who is CK’s and ZM’s third cousin,
the trial court heard testimony from KP’s mother, Scarlet Prince, who vehemently denied that
KP had any contact with CK prior to Memorial Day. Conversely, CK’s attribution of his
injury to contact with a member of Danny’s side of the family was purportedly made to Ann
Hedge, Paula Hedge, and Brandy, and to Katrina Casteel, but only after Brandy told her that
CK told her that his cousin was the perpetrator. In situations like this, it is wellsettled law
that we defer to the trial court to resolve inconsistencies in the testimony. Id.
Brandy next argues that the trial court’s finding that the best interest of the child
warrants a change in custody is against the preponderance of the evidence. She again asserts
that “no real evidence ties [ZM] to [CK’s] injury.” Furthermore, citing Freshour v. West,
334 Ark. 100, 971 S.W.2d 263 (1998), Brandy asserts that Arkansas law favors keeping
siblings together “unless exceptional circumstances are involved.” She also asserts that the
trial court made a best interest determination based on the relative financial condition of the
parties, which she claims violates the holding in Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d
731 (2003). We find no merit in these arguments.
We have previously addressed Brandy’s contention that there was “no real evidence”
that ZM was harming CK. Although much of the proof was circumstantial, we cannot hold
that the trial court’s findings were clearly against the preponderance of the evidence. Given
the finding that one sibling was injuring another, we hold that it is precisely the exceptional
9
CA07175
circumstances that warrant separating siblings. Best interest of the child is always the
paramount concern in making custody determinations. Walker v. Torres, supra. As to
Brandy’s argument that the change in custody was made because Danny had superior
financial means, we can find no support in the record that the trial court changed custody for
this reason.
Lastly, Brandy argues that the nocontact provision between ZM and CK should be
lifted because the evidence presented is insufficient to warrant “indefinitely isolating the two
siblings.” She asserts that Danny never requested this “extreme relief” in his pleadings, and
while Danny did make such a request on the witness stand, he failed to give her proper notice
to pursue this remedy. We also find this argument unpersuasive.
Setting visitation rights is a matter that lies within the sound discretion of the trial
court. Crosby v. Crosby, 97 Ark. App. 316, ___ S.W.3d ___ (2007). The main
consideration is the best interest of the child. Id. In Crosby, we affirmed a trial court’s
decision to exclude stepsiblings from the place where visitation was being exercised after
allegations of sexual abuse that had not been thoroughly investigated were lodged against
them. We held that the best interest of the child dictated that the child not be subjected to
sexual abuse by other children in the noncustodial parent’s home. Likewise, in the instant
case, we hold that best interest of the child dictates that CK not be subjected to physical
abuse by ZM when Brandy exercised visitation. As in Crosby, we believe that the restriction
on visitation was sound exercise of the trial judge’s discretion.
10
CA07175
Finally, regarding Brandy’s inadequate notice argument, we are unable to find in the
abstract where Brandy has raised that argument to the trial court. On appellate review, issues
of even constitutional dimension are waived if not first presented to the trial court and a
ruling is obtained. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999).
Accordingly, we decline to consider this argument.
Affirmed.
GLOVER and MILLER, JJ., agree.
11
CA07175
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.