*1 v. SHARP KEELER Cyndall M.J.
CA 06-714
Court of of Arkansas Appeals 9, 2007 delivered May Opinion *2 Austin, Ltd., Austin, for Brenda Brenda Horn by: appellant. Matthews, Rhoads, McClure, & Fryauf, Campbell, Thompson P.A., Rhoads and Sarah L. for R. by: George Waddoups, appellee. David M. Judge. Cyndall Sharp appeals Glover, Circuit Court’s of Keel-
Washington County grant M.J. son, er’s of of the minor custody petition change parties’ Keeler, 30, Michael who bom 2004. On August Jonas that the trial court erred in that she argues (1) appeal, finding “acted in to the detriment the child of ways parental alienation on the of was a material of circum- part appellant change stances modification of its decree and warranting original custody Keeler,” that she thereby granting custody (2) appellee, M.J. entitled to visitation when there were no facts to only supervised a visitation was in Corbin’s best support finding supervised stated, interest. we affirm the trial court’s decision Briefly regarding of and reverse and remand with change custody regard However, visitation. is not the watchword in this matter “brevity” there was a detailed initial order of a detailed custody, petition seeking of detailed at the and a detailed change custody, testimony hearing, bench, from the all in detail in the of this mling captured opinion court. 71, 74-75, In v. 90 Ark. 204 S.W.3d Alphin Alphin, App.
103, 105-06 (2005) (internal citations our court omitted), set forth the standards for modifications of reviewing custody: the trial court retains
Although over the matter continuing power award, of child custody after the initial decree is a final original of the adjudication to have care and of the proper person child. Before that order can be there changed, must proof time, material facts which were unknown to the court at that or that the conditions have proof so as to warrant materiallychanged modificationand that the best interest of the child it. The requires burden of such is on the proving change party seeking is the best primary modification. consideration interest child, and all secondary.
welfare of the other considerations are are awards not made or or reward or Custody punish the desires either gratify parent. cases, novo, evidence child-custody
In we review the de dowe not reverse the of the trial unless it is findings court shown that erroneous, when, are erroneous. A al- clearly is clearly finding it, is evidence there court left though reviewing is support with a definite firm conviction that a mistake has been made. Because the of whether the trial court’s are question findings clearly witnesses, turns on the largely credibility erroneous we give to the deference of the trial special superior position judge *3 witnesses, evaluate the their and the child’s best interest. testimony, There are no cases in which the superior position, ability, of the trial a opportunity judge parties observe as carry great as those minor weight involving children. Facts
Background in this case were never married. In a parties very precise 4, 2005, order on filed of record ordered to be effective April 25, 2005, as to the trial court awarded February initially Corbin to to visitation Keeler. The subject order Sharp, contained numerous terms and conditions including that neither would make comments about party derogatory child; other in the of the that would text presence Sharp Corbin; Keeler while was visitation message exercising that Keeler; would cease notes for that Sharp leaving “tacky” Keeler; was not to do to alienate Corbin from Sharp that anything was to have Corbin at the for visitation time Sharp ready visitation was to and that when needed a begin; babysitter, Sharp Keeler first and she was to opportunity babysit notify Keeler as soon as she aware she a needed The order babysitter. old, further enumerated that until Corbin was three visitation years would be from 9:00 a.m. until 5:00 every Saturday every p.m.; from 5:30 until 7:30 unless Wednesday p.m. Keeler’s college p.m., conflicted, or and then the visitation was employment to be time; at the same Thursday additional visitation upon which the agreed visitation was parties Holiday appropriate. forth, set as as well visitation for Corbin’s on which birthday, Keeler was entitled visitation from 11:00 a.m. until 2:00 p.m. The order also that the were to each other provided parties keep address, number, and all his or her informed of telephone fully health, known information Corbin’s educa- regarding pertinent tion, addition, the that birth and welfare. In order stated Corbin’s certificate was to be to reflect that his name was Corbin Michael Keeler. Sharp Jonas later, 2005,
Five months Keeler filed September thirty- five document entitled “Petition for Citation page Contempt Petition for in which Keeler that Change Custody,” alleged had continued to use the name instead of Sharp Sharp- Corbin; Keeler for that she would not “Corbin acknowledge Keeler,” name; that that was not their son’s and that stating Corbin’s medical records indicated instead of Keeler. Keeler further that had made remarks about him alleged derogatory Corbin; in front of had continued to text message visitation; call him had made him miss his during visitation; Father’s had continued to leave him Day notes; that done to alienate Keeler tacky actively things Corbin; from had failed to have Corbin ready visitation; visitation; had denied Keeler had failed to on Corbin’s medical conditions. keep updated
Hearing Testimony Keeler testified at He length during two-day hearing. stated that he was when the trial happy set rules for judge initially visitation because he it would be less stressful and that he *4 would be able to Corbin when could be babysit not Sharp However, him. Keeler testified that difficulties for Sharp presented Corbin, him to see that continued getting to use as Sharp “Sharp” Keeler, Corbin’s last name instead of and that she told him that she does not know who Corbin Keeler is. For example, response an instant Keeler testified he sent message to tell Corbin Sharp him, Keeler that he loved that Keeler could Sharp replied only to his son because Keeler was speak not Corbin’s name. imaginary Keeler stated that Corbin’s account with AR. Kids First was under the name Corbin Keeler said also that mother Sharp. continued to call him names like and “asshole” in front “sissy” Corbin. Keeler testified that tried him a book Sharp father, which offended him because
babysitting, he was Corbin’s not his Keeler just recounted that on a babysitter. check Sharp fees, wrote him for she wrote “sexual favors” on the stop-payment
memo line. Keeler also said that had on one occasion left Sharp him a note to Corbin’s which he taped diaper, “disturbing.”
Keeler stated that he felt alienated from ex- Corbin. As he said that would not let him amples, have visitation sick, because Corbin was too but then when he checked with the doctors, sick; told him that Corbin was not too they still Corbin; did not use last name Keeler for acted like Corbin; care of capable taking would visits; not let him to Corbin’s doctor if go that Corbin was napping visitation, when he came to him for he pick up required wait until Corbin woke but that rule did not if up, apply Sharp came to Corbin at Keeler’s and get he was napping; would accuse him of Corbin to be causing constipated.
Keeler said that on one occasion when he was picking Corbin for told him that up Corbin had an ear infection and needed see the doctor. Keeler did not take him to the doctor because Corbin was not a fever and seemed to running however, Keeler testified that he okay; called a doctor and found out the correct for a child under dosage Tylenol two and a smaller dose gave to Corbin to be safe. just When Keeler returned Corbin to he told her that he had Sharp, him given Thereafter, he testified Tylenol. him, text began messaging how much asking Tylenol Corbin. She given finally him that she and text-messaged Corbin were at the emergency room and that the doctors needed to know if needed to pump Keeler, Corbin’s stomach. he went According to the emergency room but there; did not find Corbin or it turned out that had never taken Corbin to the room and she was emergency at home all the time. Keeler testified that failed to him informed about keep Corbin’s medical issues. He said that he found out about Corbin’s tubes in his ears put by reading Sharp’s “away” message to friends said, “EVERYONE, on Yahoo Messenger thanks for all the Please continue to prayers! pray during leave a It surgery, discovered was Keeler’s message.” that his wife testimony Ear, that Corbin was at having surgery Nose and *5 and, Throat Clinic when he arrived to see what type surgery Corbin was the doctor told him that having, had said that she Sharp did not want him back there and that the doctor did not want him to make a scene. Keeler said that he remained outside until the and then he went back. He said that surgery completed Sharp him at first but then let him hold while she ignored got car. occasion,
Keeler said that on another his Sharp began calling sister, mother, and wife and about asking family-disease began sent Keeler an instant that she needed to history. Sharp message arm, talk to him about Corbin’s that it was Keeler did not urgent; answer the he because was not at a Keeler said message computer. her, that when he reached would not tell him finally she Sharp why needed his disease but “never mind” because family she history 22, 2005, had found it Keeler said that on he anyway. September from that he would not be able to have got message his visitation because she and Corbin were at the but that she hospital, did not tell him in which were. He found hospital they finally they were in Arkansas Children’s he When Hospital. spoke next, she told him that Corbin had a rare blood histiocytosis, disease, and that he had had to have a tumor removed from his arm. Keeler said that he did not want him to come to Little Rock for the and that was she did not tell him why first, about it. He further stated that at Children’s would Hospital not tell him then said that he needed a code anything, they word from before could tell him He said that he anything. had to for the him, code word before beg Sharp it to gave then that would not let the nurse him more information than what had told him. Keeler stated that Corbin had to have treat- chemotherapy Rock, ments in Little offered, but even he though would not let him take Keeler, Corbin to Little wife, Rock himself. and Corbin all made the Sharp, and Keeler said that trip together, fine. He stated they got along everyone getting along when Corbin his treatments in began receiving Northwest Arkan- sas, treatment, but then at one that Keeler’s wife Sharp got upset was also at the treatment. Keeler present said that the treatments were scheduled in Bentonville so initially that he could go them, but that switched them to so that he Fayetteville could When he arrived at a go anymore. treatment in Fayetteville, told him in front of in the room that he everyone waiting could not back with her when Corbin go his treatment because got Corbin; it was stressful to Keeler said that he then left because his were hurt and he was feelings embarrassed. He later asked if she would let him back if he came to the next go chemotherapy no, she said so did not bother appointment; back. Keeler
said that he would like to be able to to but he go appointments, welcome, did not feel like he was he did not why go Keeler stated that he had tried to medical anymore. Corbin’s get records, but that not still a medical authorization. Sharp signed Keeler said that he was denied visitation after the tubes were in Corbin’s ears. He said he was also denied visitation put of time after the at longer Children’s period surgery Hospital because said that Corbin was too and could not be Sharp clingy from her. He testified that insisted on away Sharp supervised visitations, which Keeler to a of times. Keeler agreed said couple that he believed that there were times when Corbin was left with other after his at Children’s even people Hospital though he was denied his visitation. Keeler recounted a time where would not allow Sharp Corbin,
Keeler’s mother to even she was pick autho- up though rized to him emailed Keeler and said that she did pick up. Sharp not think it would be best for his mother to Corbin pick up because in the Corbin had been stressed after past Keeler’s visiting mom. also told Keeler that she did not think that his mother Sharp care of a child capable taking undergoing chemotherapy. 18, 2006,
Keeler said that on he and his wife February went to Corbin for visitation. heard Keeler’s pick up wife Sharp cough cold, while outside in the standing denied visitation Sharp because she Keeler’s wife thought was sick. He also said that on occasions, numerous has not had Corbin for visitation ready when he arrived and that he has had to wait for to him get Keeler said that he does not ready. to make visitation get up any time he misses when he has wait Corbin get ready. Keeler stated that refused to allow his wife to pick Corbin even she was authorized up, to do so. though According Keeler, he told that his wife was authorized to pick told him that she did not care what up the order said. would not him the first complained He said that right babysit. told him that her mother was not considered a because she was babysitter Keeler said that family. him that her saying the first family got Corbin instead of him. Keeler option babysit said that he asked work, several times to while was at babysit that she told him that she needed at least hours’ notice if he forty-eight wanted Corbin. He said she told him that a was a babysitter paid person, While Keeler admitted family. allowed Sharp occasionally did him to have extra he said that he not know if she ever allowed him to while she was babysit working.
Keeler testified that he received call from DHS because he Corbin; however, had been accused of that accusation mistreating was determined to be unfounded.
Keeler stated that he alsohad his mid-week problems getting visitation. He said that his was that if he could not understanding have visitation on that he he said that Wednesday, got Thursdays; now said that visitation should be on even Sharp only Thursdays, if there awas conflict. Keeler said that he had not been Corbin’s freely given information,
medical and that sent him a threaten- Sharp message to withhold all ing information about Corbin’s life if Keeler continued to “loathe Corbin’s Keeler said that he had Mommy.” to work on Corbin’s time, his scheduled visitation birthday during told him that she was not Sharp obligated change schedule to accommodate him. Keeler said that he did not believe that he had been treated well over the last with Sharp year Corbin, and that he had regard learned how a non-custodial should be treated. He said parent that he knew it was important Corbin to be with was; and how visitation he said important that if he received he would not treat her the custody, she way treated him. Keeler, wife, Keeler’s testified about the times she Jennifer Corbin, had tried to would pick up not allow her to do so. said that Corbin, after she tried twice to pick up Jennifer so, without allowed to do she did being him for try pick up visitation more. said that she and were getting Jennifer until she came to one of along Corbin’s chemotherapy appoint- ments, at which time became said very upset. Jennifer she was never sure with which really she was to talk. also testified at She testified that length. there were different times that she did not follow the court order because she did not believe that it was what the trial court had ordered and she did not think it was a valid order. She said that other times she did order, not follow the she was concerned about Corbin’s She safety. stated that there was a of time after Corbin’s period that she biopsy did not allow difficult time at the visitation because Corbin unsupervised had had a said that Keeler hospital. had not made her feel him, safe about Corbin and that she had being tried him information about Corbin’s health and food problems but that Keeler treated her like she was overre- allergies, always said that she was at nervous first because she was a acting. Sharp mom, new and then Keeler had refused to tell her what and how much medication he had Corbin. also said given took Corbin into when Corbin was sick and that he did not public addition, feed him In that Keeler had properly. Sharp complained failed to clean after he had bowel movements. properly stated that she had a lot of trouble Keeler to getting medication, administer Corbin’s and that was her basis for not visitation. She admitted that she had told allowing unsupervised Keeler that taken Corbin to the room she emergency said that she that if Keeler believed it was an emergency, he would tell her how much he had Corbin. Tylenol given said that she had tried to tell Keeler about Corbin’s ear but that Keeler on her. She also said that kept hanging up *8 she tried to tell him about the at Children’s Hospital, that he and she hung again, up quit trying. testified that felt she threatened
Sharp physically by Jennifer Keeler because she followed her after would not let her take Sharp Corbin. that said she was Corbin to Keeler’s house driving so that he could have his followed her Jennifer and that it did not extremely closely seem to her that was Jennifer of Corbin’s at all. thinking safety said that she the treatments to chemotherapy because Fayetteville Corbin’s nurse transferred to She Fayetteville. convenience, said that it anwas issue of and that it was not to Keeler from deliberately the treatments. keep attending stated that it her of order that if understanding she had dates or that she was special to call appointments supposed Keeler to watch Corbin. She said that it seemed disruptive Corbin to from a so that Keeler require get up could watch nap him. She also said that she did not feel like Corbin was being when he had babysat dates with her mother or special play brother. She further that she did not contact Keeler if explained she went into work after Corbin was because her sisters asleep were at home. testified that when she wrote “sexual favors” line,
check memo she She denied just joking. knowing why Corbin’s medication was labeled instead of In Sharp-Keeler. to her to Keeler response about message Corbin’s “loathing she said she was that Keeler’s hatred that just saying Mommy,” Corbin. in the of his way would get relationship that Keeler had free access to of Corbin’s medical also claimed any she records. testified the times denied She unsupervised health, visitation, she did Corbin’s so out concern for safety, mental health.
With to Corbin’s at Children’s respect stay Hospital, denied that she instructed the not to release information nurse any to Keeler. She said that as soon as knew she Corbin’s she diagnosis, called Keeler and told him. She that she not tell said did about Keeler’s because she it would family diagnosis be best to to Keeler. calmly explain things
Trial Court’s Findings At the close trial of the court hearing, changed custody bench, to Keeler. In a from the the court first took lengthy ruling issue with did not she believe that the initial Sharp’s testimony order, court was a court order valid that it a valid order stating until the trial court vacated it. The trial court also noted that Sharp cake, too,” it, to eat your want you stating “want[ed] order, while did not want to follow the wanted certainly be bound it. trial court read the initial order out court, loud in then reminded court had open everyone admonished the bond and specifically relation- promote but that the Keeler, between Corbin and ship court heard that were worse than day were an things As previously. the trial court cited the instances where example, many continued send Keeler little e-mails.” The trial court “tacky *9 the fact addressed sent Keeler notes about Sharp Corbin’s food to Corbin’s which notes in taped stated that diaper, Sharp with a little Keeler be a “guidance,” could better father. The court how Keeler could questioned information from get any Corbin’s doctors when refused to a medical release and contin- Sharp sign ued to instruct nurses not to Keeler medical information. give The court noted that all that behavior was to the detriment of the child. incident,” trial
The court addressed the “Tylenol noting that Keeler and called his wife a medical to find out professional Corbin, the correct dose of and then Tylenol him only gave side, one-half of amount to be on safe that Corbin was fever, fine and not but that threw a doing running “hissy Sharp fit” because Keeler did not take to the Corbin doctor. The court was incident with the one where Corbin then contrasted that but did not take while in a fever Sharp running him to the doctor because she Sharp’s at home and could maintain his fever he was not worse. getting incident, after the the trial the visitation biopsy
Addressing after the it understood concern for Corbin court stated that to show that but it found that there was no testimony biopsy, care Keeler was unfit and could not take of Corbin during for The further noted that Keeler’s visitation only time. court to have him for an that it was not like Keeler day, extended of time. period trial addressed the issue of to let court Sharp failing mother, brother, her or sisters
Keeler Corbin and babysit allowing did do so instead. The court reaffirmed that its order say Keeler when it was or when let only okay babysit awake, would not miss a or when Corbin was but Corbin only nap to take his child when that Keeler was to have the first care of right it could not do so. The court found “ludicrous” did not consider her to be but considered Keeler family babysitters to be a and that she him with a babysitter provided babysitter’s which undercut the and evidenced father-son guide, relationship to undermine Keeler’s with Corbin relationship Sharp’s attempts not to so. The trial court even after ordered the court do being by held in to allow Keeler to babysit contempt failing sentenced to two it on the days jail suspended condition that follow court orders.
The trial court also addressed the issue of Sharp failing and the that Keeler was have Corbin for visitation fact ready to wait for to wake if he was when Corbin asleep required up Keeler arrived to him for but that did not pick up wait if she was Corbin from Keeler and Corbin was picking up it if The court stated that was as Keeler asleep. played by Sharp’s rules did not at all. or get play Keeler
The trial court also addressed issue of learning a text sent out that his son was from message having surgery on her but that did not inform Keeler that messenger, The court told e-mail having surgery. know ahead did not take care of about letting “evil”; time; that an e-mail that for Corbin was says pray just and that it was no wonder that Keeler was irritated when finally *10 was and was then tracked down where taking place the doctor not to make a scene because he did not know told by was was on with his son. The court found that what information; not Keeler of medical and clearly advising procedures information; she did not let medical and that she then that him get him that he not a father because he did not told could good know the medical information. The court also found that Sharp Corbin, she at e-mailed Keeler that was room with emergency not, in she when fact so that could “teach [Keeler] lesson,” that continued to refuse to Keeler keep updated arm, on medical information with to Corbin’s on his regard biopsy a “little that there but was i.e., leaving only message” something wrong Keeler the whole that an giving Corbin had picture, words, in Little Rock the next In the trial court’s appointment it found day. Keeler; that “evil that playing games” against child; her actions were detrimental to her she that was terrorizing Corbin; Keeler to the of harassing detriment in Sharp, the whole of rated “zero.” spirit The court found co-parenting, that Corbin have should had both his at the parents hospital actions, due to his mother’s his father was not there. The court also found that Corbin should have had both at his parents treatments, but because decided she chemotherapy treatment, Corbin, would not let Keeler come back for detriment, was denied his father’s again presence. The trial court also found that was in of contempt court for to allow Keeler to failing exercise his court-ordered stated reason of finding Sharp’s concerns having
about Keeler’s care Corbin after the medical procedures and “an “bogus” extension this problem [Sharp has] undermining with his son.” in relationship Accordingly, [Keeler’s] addition to two in that the trial days court ordered for jail to allow Keeler the first failing the trial court right babysit, ordered an additional two days failure to allow jail visitation, but it condition that again suspended follow court orders. The trial court held that had continued to damage Keeler’s with Corbin and had tried to them relationship prevent bond, from having healthy what of the picking choosing part follow, court orders would to the detriment of son. It held reason; denied visitation for no “mind played games” with Keeler Corbin’s medical regarding failed procedures; advise medical information and procedures. court further found a lot of to be “incredulous” Sharp’stestimony *11 that found the court the testimony, Based
and untruthful. upon the last since in circumstances been a material change there had be to interest for custody in best that it was Corbin’s and hearing that court noted removing to Keeler. The from Sharp not since birth was had known home that he from the Corbin been but that Sharp the court did that lightly, something unfit to be the was and that miserably Corbin failing in that the change custody The court stated custodial parent. interest it was for best but rather not a anyone, way punish decision, that if it the trial court said its child. of the Explaining and think that for a days send mom jail couple could “just where attention to that and mom’s after get would okay and and the father between the son she relationship promotes Orders, choose what she Court . . . didn’t pick disregard mom’s would wanted, five in get I four or days jail and thought issue, but it’s attention, be a strictly contempt then it would just in I’m not custody any way punish more than that. changing Corbin, man, little who this I’m it to young mom. doing protect The trial court who love him.” to have two deserves parents mental-health examination undergo further ordered have visitation. ordered that supervised and also I. Custody Change of the trial erred in court chang- On Sharp argues appeal, from her to Keeler. She of Corbin complains ing on her than original custody stricter court requirements placed her the court failed to consider diligent order required that the court health. She contends care for Corbin’s consistent not alienation that she had by erred in engaged parental finding medical to all informed prior proce- keeping completely she was not some visitation because disallowing dures or Keeler of medical procedures ordered to notify appointments it was when she denied visitation occurred and because before they received after he had health concerns for Corbin based upon chemotherapy. review, from the court’s extensive our the trial ruling
From that it stricter does not indicate requirements bench placed she order argument than the original required. medical Keeler informed Corbin’s not keep required them is occurring simply prior procedures appointments Rather, for her to to be another her actions way appear persuasive. same of Keeler. The to the exclusion control over Corbin have to interfere with was not rationale visitation applies took it herself it was an yet upon visitation unless emergency, to have visitation based to determine when Keeler was upon out, Keeler is own beliefs. As trial court subjective pointed unfit to father and there was no testimony Corbin’s *12 care for his child. the
We find no error in
trial court’s decision to change
from
to Keeler. The record is
custody
replete
to
his
alienate Keeler from son
for
her refusal
attempts
example,
information,
to
Keeler
of medical
in
keep
especially
apprised
light
conditions;
of Corbin’s serious medical
her refusal to have Corbin
visitation;
for
the fact
she
ready
that
refused Keeler visitation when
so;
she decided it
inwas Corbin’s best interest to do
and the fact
she
that
did not allow Keeler the first
to
Corbin when
right
babysit
she could not be with
The
Corbin.
trial
is the
in the
judge
person
witnesses,
best
to observe the
and
the
position
evaluate
parties
their
and the child’s best interest. See
v.
testimony,
Sheppard Speir,
481,
85 Ark.
material of circumstances. failed to change keep updated Corbin’s medical In regarding conditions. addition to Keeler, had telephoning other him about ways contacting Corbin’s For biopsy surgery. knew how to example, Sharp text as adduced message, the she did not send the testimony, yet information; rather important just mes- kept leaving cryptic She refused to allow the sages. nurses at Arkansas Children’s to to Keeler Hospital more than divulge information she decreed even after Keeler had to for the necessary, to beg Sharp password be able be to told information about son. Corbin’s and refused to let chemotherapy appointments Keeler be times, the treatments. She present during denied visitation at she said that she allowed it although some of to be made up, she would not have Corbin when visitation was to ready supposed would not allow Keeler’s wife or begin. Sharp mother to pick whole, Corbin were although On the up, approved persons. the evidence demonstrates a material of circumstances change since the order; of the initial the trial entry court found custody have best interest to custody changed it in Corbin’s
that Keeler; erroneous. that this decision was clearly cannot we say that was modified also punish argues bench, from the the trial In We its lengthy ruling her. disagree. in of the court orders court found contempt sus to four in County jail, days Washington sentenced orders. In condition that follow court on the pended that the fact it was trial court stated changing custody, birth from home that he had known since his removing the court did court something lightly, had miser been admonished “failing [Corbin] decision, court found that there its trial Explaining ably.” circumstances; it was in the child’s best material been changes and that if a was not following interest change custody; person orders, was not a way court changing custody punish for court if it could send Sharp jail explained anyone. it “a and it that would couple days” get contempt *13 the to the that she would father- attention promote Sharp’s point orders, it and then would be would court obey son relationship issue, a but that this case was about more than just strictly contempt not court reiterated that it was contempt. changing Corbin, have but rather to who deserved to protect Sharp, punish of this who loved him. Based our review ruling, two upon parents the court cannot trial custody simply we say punish Sharp. case was of On this the dissent this one point, argues either/or; It not it is both. We not of is change custody.
contempt, in the fact that the trial court did hold cannot ignore two bases. The record reflects the court separate contempt in noted that if it several thought placing Sharp jail specifically the would be a would cure then it indeed days problem, simply issue, but this was in fact more. contempt
II. Visitation next that the trial court erred in argues awarding the visitation only visitation supervised supervised 408, 410-11, Hass, v. Ark. 97 her. In Hass 80 S.W.3d App. punish 424, 426 citations this court held: (2003) (internal omitted), cases, this court considers the In domestic-relations reviewing novo, will reversethe trial court’sfindings evidence de or the clearly unless are erroneous clearly against preponder- of It well that the trial court maintains ance the evidence. is settled or over visitation vacate continuing jurisdiction may modify orders at time on a of or upon such circumstances change of the time the initial order. It is facts not known at of knowledge alsowell settled under Arkansaslaw that reversal is warranted where a trial court modifies visitation where no material in cir- change cumstances such a is warrants While visitation change. always modifiable, our courts a more standard for modifica- require rigid tion than for initial in determinations order to promote stability children, for the continuity of discourage repeated litigation the same issues. The in party seeking visitation has the change burden below to show a in material circumstances warrant- change the in ing change visitation. The main consideration in making judicial determinations visitation is best concerning the interest of the child. factors to be in Important considered rea- determining child, sonable visitation are the wishes the capacity child, visitation to party desiring supervise and care for the problems conduct in transportation prior abusing work schedule or of the stability and the parties, relationship siblings and other relatives. The of visitation is matter fixing that lies rights within the sound discretion of the trial court.
The trial court found that in of the “horrific that it light testimony” heard, which rose to the level of harassment and torment and which interest, was not child’s best that it had serious concerns about health, mental and the court ordered that visitation be super- vised. now there no evidence to argues support visitation, and that supervised the trial court ordered that only her. punish Following February submit- hearing, Sharp promptly
ted a 9, evaluation on the psychological March before the day order was entered on March The changing custody 10. psycho- 3, was filed of record on logical the report before April day filed her Faitak, notice of In that Dr. Martin a appeal. report, clinical minimize summarized that psychologist, tended to manner; and herself in a problems that she wanted present positive but she have with positive regard might and difficulty empathy However, he also flexibility. noted that to have Sharp appeared esteem; self that she was good able to maintain employment, soon to be a second in including that she was adding job; good health and had that she a had stable appropriate expectations; mood; and that she had a sense of personal Dr. responsibility. seemed to have many respon-
Faitak also commented it difficult for He that was for a old. reported sibilities twenty year mental-health issues because for sure about him know them, and that it was that she minimized there was a possibility not have similar to hers unusual for someone with history emotional He con- and more pervasive problems.” “significant true, was was need if had there no cluded that what reported and recommended that she he for individual counseling, in order for them and work counseling together Keeler obtain Corbin needed. able the long-term support in to indi There is the nothing psychologist’s report rendered her inca had mental-health issues that cate that Sharp Furthermore, none of of visitation. during for Corbin caring pable at the revealed that the evidence hearing presented the in his needs time was mistreated Corbin or neglected during short, evidence to her care. In we find that there no support should receive four hours the trial court’s decision that only week, we hold that that decision of visitation per supervised We direct the the evidence. clearly against preponderance the the same visitation trial court award Sharp unsupervised is to the all of which custody, that Keeler prior change enjoyed 4, detail the 2005 filed order. set out in in initial April remanded in with in- Affirmed in reversed and part; part structions.
Gladwin, Robbins, Griffen, Marshall, JJ., agree. Bailer, dissents. J., Baker, review of the
Karen R. Judge, dissenting. Upon case, I trial in this believe court’s decision record child his mother of this from custody eighteen-month-old changing I dissent due to conviction that father was erroneous. clearly my our regarding majority misinterprets misapplies precedent in and because alienation of child custody disputes changing interest of the child. in best misapplication concerning majority’s precedent alienation of a child is statement that majority’s apparent “the is trial decision was correct because record replete judge’s to alienate Keeler from his son.” There are with Sharp’s attempts First, has the this alienation never two problems position. rather, of a it been been understood to mean alienation has parent;
59 the See alienation of the child from understood mean parent. 108, Benson, 596 Turner v. 59 Ark. 953 S.W.2d App. generally one is alienat- courts do consider whether (1997) parent (Arkansas the decisions) a childfrom other when custody parent making ing 292, Ark. 101 added); Carver v. 81 S.W.3d May, (emphasis App. that, with both because a (2003) (holding caring relationship to a evidence that one is parents important healthy upbringing, a the is factor to be is childfrom other an alienating parent important considered in whether should changed) (em- deciding a we have vulnerable added). Although phasis recognized need child from the of a to alienate may protection attempts parent from the him other a should be to be able parent, parent expected to resist to alienate his affections for his own child. any attempt
Second,
standard,
even if our court were to
a new
adopt
trial court’s
Keeler from this child
finding
alienating
was not
the evidence.
actions
supported by
Although Sharp’s
have been
might
to Keeler
were not the
irritating
personally, they
of actions that have been
as
an
type
recognized
having
alienating
Carver,
299,
effect. See
81 Ark.
at
was alienated from his father statement that despite majority’s “the record is to alienate Keeler from replete Sharp’s attempts son.” Alienation occurs when transform a divorcing parents child into relationship weapon by engaging patterns behavior the child’s designed destroy connection psychological Schacht, with the other See Thomas E. parent. Prevention Psy.D., to Protect Strategies and Families In Involved High-Conflict Professionals Divorce, 565, 22 U. Ark. Little L. Rock Rev. This (2000). type of behavior was not in this case. The trial court and the present focus on Keeler’s at majority lengthy testimony two-day hearing how he felt alienated from describing his son.
60 interest, and in the child’s best decided it was when she visitation when Keeler first she did not allow the right babysit the fact that is also with the child. Great not be importance placed she could the use of the mother’s surname Keeler’s feelings concerning name.1 rather than the father’s last the were to stated that parents the trial court’s order While health, educa- the with each other about communicate generally child, tion, of the there were no and welfare specific requirements or medical Keeler of notify any specific appointments Moreover, the medical him notice to any procedures. prior to inform made by showed many attempts testimony his were met with Keeler and family Keeler of medical information Moreover, the showed on her.2 testimony members hanging up the visits with after child’s that there was just biopsy period testified that her decision Keeler were not allowed. Sharp child, the he had been in for the as just based on her concern he was still and had a surgical procedure, hospital with was diagnosed Once child hystiocytosis, recovering. immune his had to thereby weakening undergo chemotherapy, to the Testimony restricted access public. system requiring the child became following showed that “clingy” she left treatments and would become when upset chemotherapy Further, there were a of the room. admitted that couple However, she call Keeler to occasions when she did not babysit. occasions, and she those the child testified that on asleep, him to to wake the child and take it would be disruptive 1 justify reasoning, is majority, used to their The first cited by complaint or Keeler. the mother continued to use the name instead of Sharp-Keeler simply changed, but did the order in which the name was the order mother not specifically appeal — be not that ensure that that the child’s birth certificate the mother directed only changed. third all records maintained parties judge in doctor Regarding ruling stated,“The this the trial from bench testimony _tells tomorrow so got Rock, an at bone doctor in Little you you appointment you’ve calling calling message, him. Do him and oh start You start call leave a you my up [father]. we doctor, at the bone don’t know what’s goodness, we have an tomorrow appointment something message there in Litde Rock? No. You leave a litde that there’s on, be calling get man Then wrong enough arm. this worried .... start his with his you Just I’m get call his not stir it worried. And mother everybody you up. family really up just calling on, I’m to let mad, she’s rude to Do hold don’t be you you. you say, surprised thing know that litde Corbin has tomorrow.” of of time.3 Taken none house for a short together, Keeler’s period of this child from father. these actions amount to alienation Yet, concludes that because of alienation majority — the child a material circumstances change existed to warrant a change custody. is
I dissent from the
for a second reason: it
majority opinion
clear that the trial court’s
was intended to
the mother
punish
ruling
*17
cases,
for what
the trial court saw as her “evil” behavior.
In these
consideration
is the best interest
welfare of the
and
primary
Carver,
296,
child.
Ark.
All
81
at
Below are from the trial oral that excerpts judge’s ruling demonstrate her intention to the mother punish by changing custody:
Now, the other about the thing is that babysitting thing you don’t consider to be your family babysitters, yet but when quote/unquote send child to you your off with hand go daddy him you babysitter’s So guide. you don’t consider your babysitting, family but this you consider man a is the babysitter which most ludicrous thing that just undercuts this relationship between father and son alienation, and is evidence of huge parental and more importantly, your undermining with father his to this relationship [the child’s] little detriment guy’s after I’ve told to. you not Then more evi- dence of and alienation is that if man contempt parental this shows and the son is he up has to wait to napping, him until he pick up time, wakes and I both told that he up, was to at the parties ready and then he says that he’s waited to 20 minutes while you’re him or him in changing his clothes or putting whatever. But then testified, he and this was not by refuted that if testimony, [the home, is at his house and it’s time sleeping to take him by child] he better golly, awakened and taken to get over mama’s. It’s like we play Ms. rales or don’t Cyndall’s we at all. So he play when mama’s, has to wait around if pick up he’s at sleeping [the child] that he doesn’t to make get up time most of the time. The worst 3 Keeler testified that he was gave “offended” when him book on babysit ting. He stated that he was offended h’e because was the child’s It father, not a is babysitter. that in trial right court’s it directs order, that Keeler first when she noteworthy needs a babysitter. —(cid:127) — well, one of the much bad testimony there’s so
testimony to you I heard Ms. in addition Sharp, things today, worst reason, this evil mind no is good this man visitation for denying him, and be text that would that you’re playing game thing for him this surgery, surgery saying, pray about and messaging — Let me counsel maybe out to different send it people. you — is but send it out you about which one that can me help in for is your going never tell him son you everybody, cross-examination about and when asked on you’re surgery, to have told him time had come child your you say you Well, me he’s ear infections. that tells ear because had eight surgery well, Cyndall speaks going two That’s when Ms. we’re things. And, two, he that tells me that knew you do number says. what Ali Baba and lined that he’s be the up, supposed had ear surgery day set up have know that just you appointment ESP ’em, tell for his tubes don’t birthday you after his ears to be him, when about what You don’t tell and then ask you him. little e-mail that sent out to say you did that this say, you try you have care of him know that was took everybody letting Well, It didn’t advise him ahead day. it didn’t. *18 find it.... thanks for “Everyone, What it said was let me time. all Please continue to for pray during the prayers. [the child] tell send this surgery. You never him about the You just surgery.” Now, That is so for him.” that is evil. says “pray e-mail out that, do and then when evil I can’t even understand why you’d well, I did it to let say, do do these little why you things, you asked him know. doesn’t on. Not is that bad going only know what’s [Mr. Keeler] clinic, and daddy to have come to the relationship child’s] [the state,
he’s a dad’s groggy upset out there come out of trying well he should mom’s out this little sending as be because agitated, That is so and she doesn’t even tell him what’s on. e-mail evil, and that is more evidence of alienation. parental ma’am, are are by The that are being you, they games played, evil, child, and understand are detrimental to I don’t your it, and a evaluation why ordering are I’m you doing psychological on you. it in I’m punish
I’mnot mom. changingcustody way doing man, who to havetwo this deserves protect young child], [the who lovehim. parents the that she
While
trial
said
judge
changing custody
mother,
it is unclear how the
change
punish
intended
child.
trial court’s
protect
Throughout
thirty-
five
oral
it
is clear
was concerned with
ruling,
page
judge
Keeler from
“evil” behavior. The trial court’s
protecting
Sharp’s
that the mother’s lack of
warranted a
in
finding
compliance
change
allowed the court’s desire to
the mother to over-
custody
ride the
punish
case,
in the
consideration
which was the welfare
primary
Marshall,
257,
of the child. SeePowellv.
88 Ark.
197 S.W.3d
App.
240,
24 (2004)
v.
61 Ark.
968 S.W.2d
(citing Hepp
Hepp,
App.
Ketron,
325,
Ketron v.
15 Ark.
(1998);