Myers v. McCall
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-19
TAMMY LYNN MYERS,
Opinion Delivered
JULY 1, 2009
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[NO. DR-97-422-G]
V.
STEVEN CARTER MCCALL,
APPELLEE
HONORABLE JIM D. SPEARS,
JUDGE,
AFFIRMED
KAREN R. BAKER, Judge
Appellant Tammy Lynn McCall (now Myers) appeals the trial court’s change of
custody from her to appellee Steven Carter McCall asserting four points of error: (1) The trial
court erred in requiring appellant and her daughters to testify by telephone; (2) The trial court
abused its discretion by re-framing their answers in a manner prejudicial to appellant; (3) The
trial court erred in finding a material change in circumstances had occurred since the entry
of the last order; (4) The trial court erred in deciding that it was in the best interest of the
children to be removed from appellant’s care. We affirm.
Appellant filed a complaint for divorce on November 25, 1997. On January 20, 1998,
the parties were granted a divorce. The decree incorporated the parties’ agreement regarding
custody and child support. This agreement included the provision that appellant could move
in the future with the children on the condition that she notified appellee of the move with
sixty days notice. On April 30, 2008, appellee asked the court to change custody and child
support alleging that there had been a material change of circumstances in that the children
had moved out of the State of Arkansas to Missouri, were scheduled to move to Wisconsin,
and that the children were unhappy with the move, which was not in their best interests. The
children had moved with their mother and new stepfather to Missouri while the step-father
completed a process in his clerical training, and the move to Wisconsin was necessitated by
his assignment as a clergyman. The trial court found that a change of circumstances existed
in that the move, remarriage, and religious preference of the children coupled with the desires
of the children constituted the change of circumstances necessary for the court to act.
Appellant’s first challenge to the trial court’s decision alleges that the trial court erred
in requiring appellant and her daughters to testify by telephone. We are unable to reach the
merits of appellant’s claim because the arguments presented to this court regarding the
unreliability of the testimony and lack of guidance for procedural safeguards in telephone
testimony were not made below. Our supreme court has repeatedly held that appellants are
precluded from raising arguments on appeal that were not first brought to the attention of the
trial court. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Issues raised for
the first time on appeal will not be considered because the trial court never had an
opportunity to rule on them. Id.
In this case, the record is unclear as to the process by which the telephone testimony
was arranged to be conducted. However, it is clear that appellant objected only to appellant
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having to testify via telephone and raised no objection to the minor children speaking with
the court by telephone. The trial court did not administer an oath to either child and
specifically stated that neither would be cross-examined. The judge treated its inquiry with
the children as an informal interview, and appellant did not object to this procedure.
Appellant’s objection below focused on the trial court’s denial of her motion to continue the
matter, thus requiring her to testify by telephone. The specific arguments presented to this
court regarding the unreliability of the testimony and lack of guidance for procedural
safeguards in telephone testimony were not made to the trial court. Nor did appellant argue
below that the judge’s difficulty in hearing the children and ascertaining their responses over
the telephone contributed to the unreliability of the testimony. A party cannot change the
grounds for an objection or motion on appeal but is bound by the scope and nature of the
arguments made at trial. Lewis v. Robertson, 96 Ark. App. 114, 239 S.W.3d 30 (2006).
Because this allegation of error was not raised and decided below, we are precluded from
reaching its merits now. Id; see also Norman v. Cooper, 101 Ark. App. 446, 278 S.W.3d
569 (2008).
Appellant’s second assertion of error is also not preserved. She alleges that the trial
court abused its discretion by re-framing the answers of the children as witnesses in a manner
prejudicial to appellant. However, appellant did not object to the trial court interviewing the
children by telephone. Counsel for both parties were present, although the parties were
excluded from the room while the children spoke with the judge, creating an in camera
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interview. A complete transcript of the record was made of the in camera interviews. See
Ark. Code Ann. § 16-13-510 (Repl. 1999); Mattocks v. Mattocks, 66 Ark. App. 77, 986
S.W.2d 890 (1999) (holding that failure to make complete record of in camera interview in
custody case required remand). No objection was raised by appellant to either the procedure
or to any specific questions asked by the judge. Because no allegation of error was raised
below, we cannot address the merits of the issue. Lewis, supra.
Appellant asserts for her third point of error that the trial court erred in finding a
material change in circumstances had occurred since the entry of the last order. Appellant
submits that at the time the August 1, 2007, order was entered the parties were aware that
appellant was getting married to someone of the Lutheran faith, that the new family would be
moving and that the minor children were teenagers whose preference was to remain in
Arkansas. Therefore, appellant argues no change of circumstance occurred subsequent to the
last order, which reflected the parties’ agreement for appellee to extend child support and to
have the children covered by his insurance leaving the previous orders undisturbed in all other
regards.
Determining whether there has been a change of circumstances that materially affects
the child’s best interest requires a full consideration of the circumstances that existed when
the last order was entered in comparison to the circumstances at the time the change is
considered. See Blair, supra. A judicial award of custody will not be modified unless it is
shown that the circumstances have changed such that a modification of the decree would be
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in the best interest of the child. See, e.g., Campbell v. Campbell, 336 Ark. 379, 383, 985
S.W.2d 724, 727 (1999). In order to avoid the relitigation of factual issues already decided,
the courts will restrict evidence on a custodial change to facts arising since the issuance of the
prior order. Id. at 384, 985 S.W.2d at 727. The requirement that limits the trial court’s review
to the circumstances of the last order contemplates that the trial court was aware of those
circumstances at the time the order was entered. A change of circumstances can be found
where the facts existed at the time of the previous order, but were unknown to the trial court.
See Campbell, supra. While the parties may have been aware of additional factors bearing
on custody, there is no indication that the trial judge was aware of these factors. Accordingly,
the trial court was not limited in its consideration of factors establishing a change in
circumstances to matters that arose after the August 1, 2007, order.
The trial court stated that, when considered in isolation, any one factor of the
remarriage, relocation, or children’s preference could not support the finding of a material
change of circumstances. However, the trial judge determined that when considered together,
the factors established a change sufficient for the trial court to examine the best interests of
the children. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding
that the combined effect of the mother’s move, the desires of the children to stay in their
original location, and the long passage of time between the divorce decree and the
modification, amounted to a material change in circumstances.)
In this case, more than ten years had passed since the entry of the initial custody
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determination and the children expressed a strong, well-reasoned preference to return to
Arkansas and their father’s custody. The fact that the children did not oppose the short-term
move to Missouri, reasoning that the benefit to the stepfather’s career was a situation they
could agree with while anticipating a return to their home, also supports the trial court’s
observation of the maturity level of the children and the weight afforded their preference.
While the move was contemplated, the nature and the distance of the move were different.
The court’s interview with the children demonstrated their preference to move with appellant
to Missouri for the stepfather’s continued training, but this preference changed dramatically
when his assignment actually moved the family to Wisconsin indefinitely. We cannot say that
the trial court’s finding that a change of circumstances existed that materially affected the
children’s best interests was clearly erroneous.
Neither do we find clear error in the trial court’s determination that a change of custody
was warranted as claimed by appellant in her fourth point. In Hollandsworth v. Knyzewski,
353 Ark. 470, 109 S.W.3d 653 (2003), our supreme court held that relocation alone is not a
material change in circumstances and announced that there is a presumption in favor of
relocation for custodial parents having primary custody. Our supreme court made it clear in
Hollandsworth that the custodial parent no longer has the responsibility to prove a real
advantage to herself or himself and to the children in relocating. Rather, the noncustodial
parent has the burden to rebut the relocation presumption. The Hollandsworth court explained
that the polestar in making a relocation determination is the best interests of the child, and that
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the court should take into consideration the following factors: (1) the reason for the relocation;
(2) the educational, health, and leisure opportunities available in the location in which the
custodial parent and children will relocate; (3) visitation and communication schedule for the
noncustodial parent; (4) the effect of the move on the extended family relationships in the
location in which the custodial parent and children will relocate, as well as Arkansas; (5)
preference of the child, including the age, maturity, and the reasons given by the child as to
his or her preference.
The trial court in this case relied heavily upon the preferences of the children. The
preference of the children as to their custodial arrangement is an appropriate factor for a trial
judge to take into account. McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463
(1953); see also Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Other
factors the trial court may consider in determining the best interest, include the psychological
relationship between the parent and the child, the need for stability and continuity in the
child’s relationship with the parents and siblings, the past conduct of the parents toward the
child, and the reasonable preference of a child. Rector v. Rector, 58 Ark. App. 132, 947
S.W.2d 389 (1997). The best interest of the child trumps all other considerations. Durham
v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003).
In this case, the trial court noted the close relationship the children enjoyed with their
extended family residing in Arkansas and the strain in the relationship with their mother
arising from the move. The trial court further noted that the children stated that they were
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Catholic but were required by appellant to attend the Lutheran Church. Considering these
factors combined with the children’s well-reasoned preference to return to Arkansas and live
in their father’s custody, we cannot say that the trial clearly erred in determining the children’s
best interests.
Accordingly, we affirm.
H ART and R OBBINS, JJ., agree.
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