476 S.W.3d 832
Ark. Ct. App.2015Background
- Julissa and Richard Tanner divorced; the trial court awarded custody of their three minor daughters to Richard and limited Julissa to supervised, non-overnight visitation one weekend per month, with 30 days’ notice.
- Julissa relocated to Florida in August 2013; the move reduced her contact with the children and disrupted her mental-health treatment.
- The court found Julissa had a history of mental illness with inconsistent treatment, unstable housing plans in Florida, and infrequent, troubled visits with the children; the oldest child stated she did not want a relationship with her mother.
- Expert reports (clinical psychologist and attorney ad litem) noted both parents engaged in negative gate-keeping and that the children preferred to live with the father; they recommended family therapy and more frequent rebuilding visits.
- At the final hearing Julissa offered excluded testimony from a daughter (proffered as non-hearsay to show the child’s beliefs) and later submitted Social Security payment amounts via a posttrial motion; the court declined to credit those amounts because they were not introduced at trial.
Issues
| Issue | Plaintiff's Argument (Julissa) | Defendant's Argument (Richard) | Held |
|---|---|---|---|
| Visitation terms (supervised, non-overnight, in-state only while nonresident) | Court previously allowed unsupervised overnight visits; nothing materially changed to justify limiting to supervised, day visits | Move to Florida, infrequent visits, disrupted treatment, children’s stated preferences, credibility concerns justify supervised, limited visitation | No abuse of discretion; findings supported by record and credibility determinations reserved to trial court |
| Exclusion of child’s out-of-court statements (hearsay) | Statements offered not for their truth but to show the child’s belief (proof of alienation), so admissible | Statements were hearsay and properly excluded | Court erred in ruling hearsay, but error was harmless because other evidence of parental alienation existed |
| Child-support calculation (credit for Social Security payments to children) | Court had previously noted approximate SSD payments in a temporary order; trial court should have credited those payments in final calculation | No SSD payment amounts were introduced at final hearing; plaintiff had burden to present amount; posttrial submission too late | No error: trial court properly declined to factor SSD payments absent admissible evidence at trial; posttrial motion cannot substitute for trial evidence |
Key Cases Cited
- Williams v. Geren, 458 S.W.3d 759 (Ark. Ct. App. 2015) (appellate standard: de novo review of evidence but will not reverse factual findings unless clearly erroneous)
- Contreras v. Arkansas Dep’t of Human Servs., 431 S.W.3d 297 (Ark. 2014) (definition of clearly erroneous and deference to trial-court credibility findings)
- Kuelbs v. Hill, 379 S.W.3d 47 (Ark. Ct. App. 2010) (evidentiary rulings reviewed for abuse of discretion)
- Webb v. Thomas, 837 S.W.2d 875 (Ark. 1992) (prejudice required to justify reversal for evidentiary error)