Abby Wallace v. Robert Pyle

2024 Ark. App. 496

• Court: Court of Appeals of Arkansas
• Decided: October 9, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 496 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-463

ABBY WALLACE Opinion Delivered October 9, 2024 APPELLANT APPEAL FROM THE CRAIGHEAD V. COUNTY CIRCUIT COURT, WESTERN DISTRICT ROBERT PYLE [NO. 16JDR-22-976] APPELLEE HONORABLE CHRIS THYER, JUDGE

AFFIRMED

MIKE MURPHY, Judge The parties in this case, appellant Abby Wallace and appellee Robert Pyle, were

divorced by decree entered by the Craighead County Circuit Court on March 16, 2023.

Wallace appeals from the decree, arguing that the circuit court clearly erred by awarding joint

custody. We affirm.

Wallace and Pyle met in January 2021 and had a child together (M.C.) in December

that same year. The parties were married on April 27, 2022, and separated August 27, 2022,

when Wallace pursued criminal charges against Pyle for domestic battery and false

imprisonment. Pyle filed for divorce on November 4, and Wallace counterclaimed. Both

parties sought primary custody of M.C. A temporary order placed custody of M.C. with

Wallace with Pyle having visitation. A final hearing was held March 8, 2023, wherein Pyle consented to the divorce and

orally amended his complaint to seek joint custody rather than sole custody. At the time of

trial, Pyle had pending criminal charges for domestic battery, false imprisonment, and

interference with emergency communications.

The entirety of the testimony and proof at the divorce hearing related to the custody

of and visitation with M.C. Wallace’s position below was that she should have sole custody

due to Pyle’s drinking problem and repeated pattern of domestic abuse. She testified that

shortly before M.C. was born, Pyle got a DWI. Pyle voluntarily went to a seven-month rehab

in January 2022 but left the program after about two months. Shortly after leaving the

program, Wallace and Pyle married. Pyle then received a second DWI in July 2022 that

required him to have an interlock device in his car.

In accusing Pyle of a pattern of domestic abuse, Wallace recalled several instances.

Some instances occurred before the parties were married and included allegations that Pyle

had at different times locked her in a closet (“until she settled down”), pinned her on the

bed and yelled at her, and disclosed suicidal ideations to her via text message. Pyle did not

dispute the text message, said he thought they were “play fighting” regarding the yelling, and

disputed the closet allegation entirely.

Wallace testified to another instance of abuse that occurred the weekend of August

26, 2022. Wallace said Pyle was drunk, became aggressive toward her, held her down, and

called her a “cry baby.” Wallace left that night and stayed with a friend. When she came

home Sunday, she told Pyle she wanted a divorce. She thought Pyle was drunk or high. He

2 would not let her leave, so she used her phone to record him. She said he took her phone,

pinned her down, hit her, and pocketed her phone. Wallace pressed charges over this

incident, and due to the pending charges, Pyle opted not to testify about the matter.

Pyle testified that he no longer has a drinking problem but that he still occasionally

drinks. He explained that he was sober for ten months until the last month of his

relationship with Wallace because he and Wallace thought they could “hold it together” and

drink socially. Pyle testified that he recently started dating someone but had not yet

introduced her to M.C.

In addition to the parties, Wallace’s grandmother testified. She said that M.C. was

not present during the August 28 incident because he was at her house getting a bath.

Bobby Johnson, a private investigator, testified that he was hired by Pyle after the

temporary hearing to prove that Wallace was living with her boyfriend instead of her mother

as reported. Wallace testified that she stayed at her boyfriend’s house with M.C. four to five

nights a week.

Pyle’s sister testified that Pyle had come to live with her and her family after the no-

contact order was entered. She testified that Pyle would exercise his visitation at her house,

and she said he is nurturing and hands on with M.C. She did not have any concerns with

Pyle caring for M.C.

Following testimony, the court took the case under advisement and issued a

thoroughly written decree on March 16, 2023. In granting the parties joint custody of M.C.,

it found that Wallace had failed to prove a pattern of domestic abuse by a preponderance of

3 the evidence and had failed to overcome the joint-custody presumption by clear and

convincing evidence. Wallace timely appealed.

I. Joint Custody

This court reviews matters of child custody de novo on appeal, but the circuit court’s

findings are not reversed unless they are clearly erroneous. Janjam v. Rajeshwari, 2020 Ark.

App. 448, 611 S.W.3d 202. A finding is clearly erroneous when, although there is evidence

to support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been committed. Id. Whether a circuit court’s findings are

clearly erroneous turns in large part on the credibility of the witnesses, and special deference

is given to the circuit court’s superior position to evaluate the witnesses, their testimony, and

the child’s best interest. Id.

The primary consideration in child-custody cases is the welfare and best interest of

the child, with all other considerations being secondary. Id. In an original child-custody

determination, there is a rebuttable presumption that joint custody is in the best interest of

a child. Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(a) (Supp. 2023). The presumption may be

rebutted in four instances. Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(b)(1)–(4). Here, there are

two relevant rebuttable presumptions: (1) if the court finds by clear and convincing evidence

that joint custody is not in the best interest of the child and (2) if there is a finding by the

preponderance of the evidence that a parent has “engaged in a pattern of domestic abuse.”

Ark. Code Ann. § 9-13-101(a)(1)(A)(iv)(b)(1) and (c)(2). A presumption is a “legal inference

or assumption that a fact exists, based on the known or proven existence of some other fact

4 or group of facts. . . . A presumption shifts the burden of production or persuasion to the

opposing party, who can them attempt to overcome the presumption.” Stills v. Stills, 2010

Ark. 132, at 9, 361 S.W.3d 823, 828 (citing Black’s Law Dictionary 1223 (8th ed. 2004)).

A. Pattern of Domestic Abuse

In her first point on appeal, Wallace argues that the circuit court erred in finding that

Pyle did not engage in a pattern of domestic abuse under § 9-13-101(c)(2) such that she did

not overcome the presumption of joint custody. She contends all the incidents the court

addressed in the decree fell within the scope of domestic abuse as defined in Ark. Code Ann.

§ 9-15-103(4) (Repl. 2020).

“Domestic abuse” is defined as “physical harm, bodily injury, assault, or the infliction

of fear of imminent physical harm, bodily injury, or assault between family or household

members.” Ark. Code Ann. § 9-15-103(4).1 It is important to note that our statutes do not

define “pattern of domestic abuse,” so we treat what constitutes a “pattern of domestic

abuse” as a question of fact. Oates v. Oates, 2010 Ark. App. 346, at 3.

In Oates, the wife sought sole custody of the children due to a pattern of domestic

abuse by her husband. The court found that the husband had engaged in two incidents of

domestic abuse approximately seven years a part with an intervening act of domestic abuse

by the wife upon the husband. Even though the court found two incidents of domestic abuse,

1 The decree erroneously cites Ark. Code Ann. § 9-15-101(4) twice to define “domestic abuse,” but it is clear the court intended to rely on Ark. Code Ann. § 9-15-103(4) because the court’s first reference in the decree to the statutory definition of domestic abuse was to § 9-15-103(4), which is accurate.

5 it did not find that a pattern of domestic abuse had been established, which we held was not

clearly erroneous. We reasoned that without a statutory definition, we declined to address

the issue as a matter of law but rather one of whether sufficient evidence supported the

court’s decision.

Here, in the twenty-seven-page decree, the court addressed “four instances of alleged

domestic abuse prior to the marriage and one continuous incident that led to the parties’

separation.” In giving little weight to the instances that occurred before the marriage, the

court considered all the evidence presented and weighed the evidence accordingly. It is clear

the court considered the effect of all the incidents together and that it did not find Wallace

fully credible. For example, in addressing the incidents raised by Wallace the court used

language such as “alleged abuse”; Pyle was “allegedly intoxicated”; and “both parties are

young” and “immature.” Notably, the decree states, “Even assuming the Court were to give

full credence to the facts of these events as described by [Wallace], the Court gives very little

weight to either.” The court was within its province to do this. As our longstanding caselaw

states, we know of no cases in which the superior position, ability, and opportunity of the

circuit court to observe the parties carry as great a weight as in those involving children.

Heileman v. Cahoon, 2024 Ark. App. 72, at 14, 685 S.W.3d 256, 264.

Wallace’s argument goes to the sufficiency of the evidence, despite her couching it as

a question of law. Therefore, her contention that the court improperly ignored or discounted

the premarital incidents lacks merit. Wallace argues that because the custody statute, Ark.

Code Ann. § 9-13-101, does not make any distinction between marital and premarital abuse,

6 and the statute defining domestic abuse, Ark. Code Ann. § 9-15-103, specifically includes

individuals in dating relationships, the court erred. However, as explained in Oates, we treat

what constitutes a “pattern of domestic abuse” as a question of fact, and the court was within

its authority to weigh the evidence as it saw fit. See McCandlis v. McCandlis, 2024 Ark. App.

339, at 5 (trial court considered that both parties had engaged in domestic abuse but noted

that wife’s behavior occurred before the marriage). Wallace’s argument is merely a request

to reweigh the evidence.

Accordingly, we affirm the court’s decision that Wallace did not establish by a

preponderance of the evidence that Pyle had engaged in a pattern of domestic abuse such

that joint custody was inappropriate.

B. Best Interest

Next, Wallace argues the record contains clear and convincing evidence that joint

custody was not in M.C.’s best interest. She first contends that even if the court found only

one incident of domestic abuse, it failed to adequately consider the abuse under Arkansas

Code Annotated § 9-13-101(c)(1), which provides, in relevant part:

If a party to an action concerning custody . . . has committed an act of domestic violence against the party making the allegation . . . and such allegations are proven by a preponderance of the evidence, the circuit court must consider the effect of such domestic violence upon the best interests of the child, whether or not the child was physically injured or personally witnessed the abuse, together with such facts and circumstances as the circuit court deems relevant in making a direction pursuant to this section.

Here, the court found that the incident of domestic violence had no discernable effect

on M.C. It reasoned that M.C. was only nine months old at the time of the August incident,

7 he was safely secured in his car seat on the ground for part of the incident, and he was not

present for the remaining part. The court further found that “[this] proof should be added

to the mix of other proof in the case and then weighed in order to make a best interest

determination.” All section 9-13-101(c)(1) requires is that the circuit court consider the effect

of the domestic violence on the best interest of the child, which is what the court did. See

Szwedo v. Cyrus, 2020 Ark. App. 319, at 12, 602 S.W.3d 759, 767.

Wallace further argues that the circuit court failed to give adequate consideration to

the evidence of alcohol abuse and suicidal threats in its best-interest-of-the-child analysis.

However, this argument is also merely a request to reweigh the evidence.

Each child-custody determination ultimately must rest on its own facts. McCandlis,

2024 Ark. App. 339, at 9. Consider the following. In Wakefield v. Bell, the husband accused

the wife of battering the child, but the circuit court rejected the allegation and awarded

custody to the wife, finding that “joint custody was not possible at that point because the

parents could not get along.” Wakefield, 2018 Ark. App. 120, at 8, 542 S.W.3d 908, 913. In

McCandlis, we affirmed the circuit court’s award of custody to the wife when the court found

that joint custody was not in the children’s best interest due to the husband’s work schedule,

his alcohol use around the children, his multiple threats of physical harm toward the wife,

and one child’s preference for living with the wife and fear of the husband. Additionally, the

circuit court noted the husband’s angry demeanor during trial, and it ordered him to

complete anger-management classes before exercising visitation. Id.

8 Compare these fact patterns to Zihala v. Staley, 2024 Ark. App. 269, 689 S.W.3d 82,

where we affirmed that the wife failed to rebut the presumption that joint custody was in the

child’s best interest following the parties’ divorce. There, the wife had primary physical

custody during the parties’ four-year separation before their divorce and had been the child’s

caretaker and physical custodian for his entire life due, in part, to the husband’s struggle

with alcoholism. However, the wife did not allege that the husband’s status as a recovering

alcoholic prevented him from being a good parent; she testified that there had been no

incidents since the husband had achieved sobriety that caused her concern about his

sobriety, and she admitted that the child had never been harmed in the husband’s care and

that husband and the child had a meaningful relationship. Also, in Cunningham v.

Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38, in affirming the joint-custody award, we

acknowledged the significant level of animosity between the parties but noted that the record

demonstrated both parties were capable parents, loved the children, and were equally

involved in their activities.

Turning to the facts at hand, the circuit court made extensive findings in support of

its conclusion that Wallace failed to rebut that joint custody was not in M.C.’s best interest.

Notably, it found Pyle credibly testified that he has stopped drinking other than an

occasional social drink, and it credited the other witnesses’ testimony that Pyle is a “loving,

nurturing, and caring father.” The circuit court acknowledged that joint custodial parents

must possess the ability to cooperate in reaching shared decisions affecting the child, but

based on the proof presented, “[it was] convinced that these parties possess the ability to

9 sufficiently cooperate with each other.” We give special deference to the circuit court in

custody cases, and we hold that the circuit court did not err in finding that the joint-custody

presumption had not been rebutted and in awarding the parties joint custody of M.C.

II. Biased Statements

Last, Wallace argues that in light of some of the court’s comments toward her, the

court had a bias against her from the beginning and had prejudged the custody issue. Wallace

generally contends that the court did not take her seriously and that the court made it clear

it was not willing to earnestly consider evidence of premarital abuse.

She concedes that she failed to move for the judge’s recusal and asks that we conduct

a plain-error review under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). However,

she does not state which of the exceptions would apply in this case, nor does she argue how

any of the exceptions would apply in this case. It is not the duty of this court to make her

argument. See McDaniels v. State, 2012 Ark. App. 219. Further, the application of the

exceptions listed in Wicks is limited to specific constitutional and statutory-error arguments

that are distinct from sufficiency-of-the-evidence arguments. AP v. State, 2019 Ark. App. 373.

Accordingly, we decline to extend Wicks to the case at hand.

Affirmed.

VIRDEN and GLADWIN, JJ., agree.

Owens, Mixon, Heller & Smith, P.A., by: Aaron D. Heller and Haley Smith, for appellant.

The Troutt Law Firm, by: R. Scott Troutt, for appellee.