I ,This is an appeal from the circuit court’s denial of appellant Harold Stacks’s motion to modify custody and motion for contempt. Appellant raises challenges to several evidentiary rulings and to the court’s findings that his daughter had not expressed a preference as to custody and that she was not mature enough to express a custody preference. We affirm.
The parties were divorced in November 2000. Appellee Angela Stacks was awarded custody of the parties’ two minor children, born in 1996 and 1998, with appellant having visitation rights and support obligations. After several years of litigation
On June 4, 2008, appellant filed in a single document a motion to modify custody and motion for contempt. In the motion, appellant alleged that there had been a material change in circumstances since the divorce — the fact that the children were expressing a preference that they live with him — and that it was in the best interest of the children for appellant to have custody. Citing Arkansas Code Annotated section 9 — 13—101(a)(l)(A)(ii), he contended that the older child, Elizabeth, was “of a sufficient age and capacity to reason” such that the court should consider her stated preference. Appellant alleged that appellee was in contempt for refusing to follow the agreed order by failing to contact the children’s schools and medical providers and not allowing him telephone visitation on “numerous occasions.”
A hearing was held in this matter on December 23, 2008, with appellee appearing pro se. Both parties, their daughter, and a therapist testified. The daughter’s testimony included statements that she was “not real sure” about whether she was happy living where she was, that she was happy at her father’s and at her mother’s, that seeing her father more “would mean a lot,” and that what she did not like about living at her mother’s was there were “too many rules.” The judge issued a bench ruling in favor of appellee. In its subsequent written order, the court found that appellant failed to sustain his burden of proving the contempt allegations. It further found that he failed to sustain Rhis burden of proof regarding his request for a change of custody based on the preference of the minor children.
On January 22, 2009, appellant filed a timely motion for reconsideration and/or motion for a new trial. Appellant requested a new trial based on newly discovered evidence of appellee “improperly influence[ing]” the parties’ daughter regarding her testimony. He also requested that the court reconsider its finding that appellee was not in contempt. The trial court did not rule on appellant’s motion, so it was deemed denied thirty days after it was filed. See Whitmer v. Sullivent,
Appellant’s first point on appeal is that the circuit court erred in excluding the parents’ testimony of prior statements of their daughter regarding her preference as to custody under Arkansas Rule of Evidence 802 (hearsay) and in refusing to consider testimony of the therapist regarding the daughter’s statements, which appellant contends were statements of her then-existing state of mind and thus admissible under Arkansas Rule of Evidence 803(3) (then-existing mental, emotional, or physical condition). First, we note that appellant’s objection to the court’s sua sponte ruling excluding inadmissible hearsay is misplaced; a trial judge has the authority to exclude improper evidence even in the absence of an objection. Epps v. State,
We do not find appellant’s preservation argument to be persuasive. It is elementary that this court will not consider arguments that are not preserved for appellate review. Advance America Servicing of Arkansas, Inc. v. McGinnis,
The trial court has broad discretion when it comes to the admissibility of evidence. Meins v. Meins,
We address appellant’s final point next because our decision on this point affects the outcome of other arguments appellant makes. Appellant argues that the trial court’s finding that the daughter was not mature enough to express a preference as to custody was clearly erroneous. Appellant points to the fact that she was within one month of turning twelve years old at the time of the hearing and to the testimony of the therapist and parents regarding her maturity, and he asserts that she “conversed intelligently with the judge regarding her prior expressions of custody preference and the reasons for her reluctance to express that preference on the record.” Arkansas Code Annotated section 9 — 13—101 (a)(l)(A)(ii) provides that, in determining the best interest of the child, the court may consider the preferences of the child if the child is of sufficient age and capacity to reason, regardless of chronological age. The trial judge was in a better position than this court to judge the credibility of the witnesses, including the minor daughter. Consequently, we find no reversible error in the trial court’s finding that the parties’ |f,daughter was not of a sufficient age and capacity to reason that the court might consider her preference as to custody.
Appellant’s second point on appeal is that the circuit court erred in holding that the expert witness’s testimony as to custody preference expressed by the daughter could not be considered as evidence of preference where such statements of preference formed part of the basis of the expert’s professional opinion. In his ruling from the bench, the judge stated that “[t]he only evidence of that the court could consider with regard to that allegation [that the children were expressing a preference
Arkansas Rule of Evidence 703 provides that if the facts upon which an expert bases his or her opinion are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject, those facts need not be admissible in evidence. As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility. See, e.g., Ford Motor Co. v. Massey,
Appellant’s third point is that the trial court erred in holding that the daughter’s statements of preference as to custody contained in business records of the therapist,
Appellant’s fourth point is that the trial court’s finding that the daughter had not expressed a preference as to custody was clearly erroneous. Appellant points to “evidence of preference including but not limited to preference expressed to therapist, preference expressed to parents, and evidence of intimidation of witness by mother to prevent expression of preference by daughter on direct examination.” 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 devaluate the witnesses, their testimony, and the child’s best interest. Hodge v. Hodge,
Furthermore, the daughter’s preference alone is not determinative of which parent should have custody. Even if the circuit court had found that the daughter expressed a desire to live with her father and that constituted a material change in circumstances, the decision
Affirmed.
Notes
. The therapist, Virginia Krauft, is a clinical psychologist.