Fred-Allen Self v. Jennifer Dittmer

2021 Ark. App. 85, 619 S.W.3d 43

• Court: Court of Appeals of Arkansas
• Decided: February 24, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 85 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CV-20-323 2023.06.22 14:14:14 -05'00' 2023.001.20174 Opinion Delivered: February 24, 2021 FRED-ALLEN SELF APPELLANT APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72DR-19-1398] JENNIFER DITTMER APPELLEE HONORABLE JOANNA TAYLOR, JUDGE

AFFIRMED

RITA W. GRUBER, Judge

Fred-Allen Self appeals the Washington County Circuit Court’s denial of his request

to modify custody from joint custody to primary custody with him. On appeal, he argues

that the court clearly erred when, after finding a material change in circumstances based on

the parties’ inability to cooperate and communicate, it failed to find that the best interest of

the children warranted termination of joint custody. We affirm.

Jennifer Dittmer and Fred-Allen Self were divorced in 2012 in Wisconsin and

entered into a marital settlement agreement, which, among other things, provided for joint

legal and physical custody of their three daughters. 1 Sometime after the divorce, the parties

moved to Northwest Arkansas and continued to exercise alternate-week custody of the

children. On August 8, 2019, Dittmer filed a petition to register the Wisconsin divorce

1 At the time of the final hearing in this case, LS was 13, BS was 9, and ES was 7. decree and a motion to modify the decree and award primary custody to her. She contended

that communication between the parties had broken down to the extent that joint custody

was no longer feasible. Self responded and also filed a countermotion to modify the decree,

alleging that there had been a material change in circumstances warranting modification

concerning the children’s health and well-being and that it was in the best interest of the

children for him to be awarded primary custody.

The circuit court appointed an attorney ad litem for the children and held a

temporary hearing on October 28, 2019. In an agreed temporary order, the court continued

joint custody; instituted various rules regarding bedtimes, medical treatment, and a few other

items; forbade either party from making derogatory comments about the other parent to the

children; ordered coparenting counseling; and ordered the parties or the ad litem to find a

separate therapist for LS. The temporary order was entered on January 3, 2020.

The circuit court held a final hearing on February 3, 2020. Testimony at the final

hearing demonstrated that LS had been diagnosed with anxiety and depression; had, at times,

engaged in self-harming behavior; and had often acted out when in Dittmer’s custody. The

evidence was clear that LS and Dittmer had a strained relationship, but it was less clear what

or who was responsible for the disharmony. Examples of the disharmony included LS’s

throwing a potato and hitting Dittmer in the head with it when she was angry with her,

LS’s written “escape plan” in the event things got so bad at Dittmer’s house that she had to

leave, and LS’s repeated outbursts at Dittmer’s home. In addition, the parties testified that

they had been unable to agree about medical decisions, including vaccinations, medications

prescribed for the children, and recommended medical treatment for aches and pains.

2 Evidence indicated that the two younger children related well with both parents. In

addition, testimony indicated that all three children were involved in extracurricular

activities, earned good grades, and were well-behaved at school.

Self testified that there had been a major breakdown in communication between the

parties in the previous two years and that coparenting counseling had not gone well. He

testified that he has a degenerative medical condition—Ehlers-Danlos syndrome (EDS)—

that causes the connective tissue in his body to break down, resulting in chronic pain and

daily dislocations. LS and ES had been tested by a geneticist, and both suffer from the same

condition, which requires them to pay more attention to aches and pains than a typical

person. Self said people with this disorder cannot safely do many simple things that most

kids do, like jumping jacks, because it breaks down their joints. He said that ES constantly

complains of back, neck, and knee pain and that LS’s knee randomly dislocates and causes

her constant pain. Self opined that Dittmer did not believe the girls suffer from this

condition. He expressed concern that she had taken the girls to a chiropractor, which he

said is “strongly contraindicated” for people with EDS. He also said that Dittmer was not

consistent about giving the girls their prescribed medications for allergies, reflux, and pain

management. Self said he has a great relationship with all three children and that they

regularly confided in him when things were difficult. He also said that he had remarried and

that the children have an excellent relationship with his husband.

Dittmer said that in addition to the three girls, both her parents and her three-year-

old daughter, LMS, live with her. She agreed with Self they had made no progress in

coparenting counseling and that the parties had serious difficulty communicating. She

3 testified that she and Self had different ideas regarding bedtimes, medical issues, and screen

time. She did not dispute that LS and ES suffer from EDS, and she agreed with Self on their

treatment plan.

LS testified that her mom told her she had “filed against” her dad and requested full

custody. She told LS “something about maybe never seeing [Self] again if the judge

decided.” LS said this caused her anxiety to get a little worse but that her dad reassured her

that things would be okay “no matter what.” She said living with her dad was more “laid

back” than living with her mom, giving bedtime and screen-time limits as examples. She

said there is a lot of yelling at her mom’s house. She also said that her mom had put cameras

in the house—one facing directly at LS’s door—which made her uncomfortable. She

testified that she feels more welcome and safer at her dad’s house and would prefer to spend

more time with him.

Carrie Nichols testified that she had been LS’s counselor off and on since November

2016, sometimes as her primary therapist and sometimes in family sessions. She said that she

had seen Dittmer and LS together since August 2019, that she was also seeing Dittmer

individually, and that LS was seeing another therapist individually. She said that there was a

lot of arguing, disrespect, defiance, misunderstandings, and poor communication between

Dittmer and LS. She expressed concern that LS’s relationship with Self might be “negative

or interfering with her relationship with [Dittmer]” and that he might be causing parental

alienation. However, her opinion was that regardless of where or with whom the children

lived, they were at risk because the problem was systemic: the parents cannot get along and

have prioritized fighting and blaming over parenting. She opined that “whether we change

4 it and have the children with one parent, both parents, leave it the same, there’s the risk no

matter what.”

In her closing argument to the court, the ad litem recognized that LS did not see her

mother as an ally and that it was imperative to address this issue and improve LS’s willingness

to engage and change this dynamic. She advised, however, that the parties continue to share

custody and explained, “I don’t think the schedule is the problem. The girls have been

doing week-on/week-off for years. It hasn’t affected their grades. It hasn’t affected their

behavior at school.” She also told the court that all three children had said that they preferred

to spend more time with dad.

At the close of the hearing, the circuit court found that there had been a material

change in circumstances but did not change joint custody. The court identified the problem

as a “failure to communicate.” It recognized that both parents love the children, the children

love both parents, the parents are both “capable of being good parents,” joint custody had

worked from 2012 until recently, and the issues “basically” concerned LS. The court also

stated that it had heard no testimony that either parent mistreated LS. The court was less

concerned that LS, as a teenager, was capable of “drum[ming] up . . . drama” and more

concerned about the parties’ inability to communicate and work together to address these

issues.

So, in not communicating with each other, you have given away your power as parents. Because you get frustrated with LS or you get angry with LS or you’re scared of what LS is going to do. That is a powerful position for a child to be in with her parents. So, you all have got to change the balance of power.

I find that there has been a material change in circumstances for all of the reasons that I just laid out with regard to LS, and the lack of ability to communicate with each other.

5 And as a result of your inability to communicate with each other, you are unable to act collectively in LS’s best interest.

....

So, there has been a material change in circumstances. So, what is this Court to do to make it better? What is best for these three little girls as far as their parents are concerned? Well, you all are doing some things absolutely right. You have children that can behave themselves in public, that make good grades, and that active in activities and other people like them. Those are really good things. Because believe me, I hear about some kids that can’t do any of those things and it is heartbreaking. Heartbreaking. So, I’m telling the two of you that what you have got to do is communicate with each other. I’m leaving you with joint custody. I don’t see that changing custody is going to make any difference in this equation at all. And, in fact, it might upset things in a way that we can’t even predict. And if I can’t see a clear reason for change then I am not going to order change. So, joint custody is the custody order of the day, it’s staying the same.

Now, there are things that are going to change. I do find that it is in the children’s best interest that there be some big modifications in the way the two of you deal with each other or don’t deal with each other.

The court then enumerated various requirements for moving forward including regular

telephone calls between the parties, open communication, refraining from speaking ill of

the other party to the children, therapy for all parties, and continued coparenting classes.

In its written order, the court found that a material change in circumstances exists in

that “the parties do not effectively communicate for the best interest of their children,” and

it found it was “in the best interests of the minor children for joint custody to remain because

the evidence presented today did not indicate a clear reason for a change of custody or to

the visitation schedule.” Self appeals, contending that the circuit court clearly erred in failing

to modify custody after finding the existence of a material change in circumstances based on

failure to communicate. He argues that this type of material change in circumstances requires

termination of the joint-custody arrangement.

6 This court performs a de novo review of child-custody matters, but we will not

reverse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark.

69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence

to support it, the reviewing court is left with the definite and firm conviction that a mistake

has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999). We recognize and

give special deference to the superior position of a circuit court to evaluate the witnesses,

their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d

528 (2007). For a circuit court to change custody of children, it must first determine that a

material change in circumstances has transpired from the time of the divorce decree and

then determine that a change in custody is in the best interest of the children. Stibich v.

Stibich, 2016 Ark. App. 251, at 4, 491 S.W.3d 475, 478.

Self does not challenge the court’s finding that a material change in circumstances

exists in this case due to the parties’ failure to communicate. He argues that the type of

material change found here particularly affects the best interest of the children and requires

termination of joint custody. He cites Montez v. Montez, 2017 Ark. App. 220, 518 S.W.3d

751 (Montez I), and Montez v. Montez, 2018 Ark. App. 55, 539 S.W.3d 630 (Montez II), in

support of his argument.

We disagree with Self’s interpretation of our caselaw. We have held that when parties

have fallen into such discord that they are unable to cooperate in sharing physical care of

their children, this constitutes a material change in circumstances affecting the children’s

best interest. Montez v. Montez, 2019 Ark. App. 61, at 3, 572 S.W.3d 401, 404 (Montez III).

And we have reversed a circuit court’s award of joint custody when there was significant

7 hostility of a level and/or duration such that the parties were unwilling or unable to

cooperate in reaching shared decisions. See, e.g., Montez II; Hewett v. Hewett, 2018 Ark. App.

235, 547 S.W.3d 138; Stibich, 2016 Ark. App. 251, 491 S.W.3d 475. But we have not

taken away from the circuit court the decision whether joint custody is in the best interest

of the children when the court has found that a material change in circumstances exists,

even when that material change is based on parental discord and failure of cooperation. See,

e.g., Montez III (affirming award of sole legal custody but 50/50 shared “parenting time”

where parents unable to cooperate and communicate on shared decisions affecting the

children); Hoover v. Hoover, 2016 Ark. App. 322, at 4, 8, 498 S.W.3d 297, 299, 301

(affirming award of joint custody where, although a “significant level of animosity” and

“considerable” difficulty in communication and cooperation existed between the parties,

record demonstrated both parties were capable parents who love their children and were

equally involved).

Modification of custody is still a two-step process: first, the circuit court must

determine whether a material change in circumstances has occurred since the last custody

order; second, if the court finds that there has been a material change in circumstances, the

court must determine whether a change of custody is in the child’s best interest. Shell v.

Twitty, 2020 Ark. App. 459, at 4, 608 S.W.3d 926, 929–30. The best interest of the children

is the polestar in every child-custody case; all other considerations are secondary. Skinner v.

Shaw, 2020 Ark. App. 407, at 11–12, 609 S.W.3d 454, 461. Moreover, the crux of these

cases is that a child-custody determination is fact specific, and each case ultimately must rest

on its own facts. Hoover, 2016 Ark. App. 322, at 9, 498 S.W.3d at 302.

8 Self also contends that the circuit court clearly erred in continuing joint custody

because it is in the best interest of the children for him to be awarded primary custody since

he follows medical recommendations of the children’s doctors, maintains a more peaceful

home environment, and has good communication with the children. Self essentially asks us

to reweigh the evidence, which we will not do.

The circuit court recognized the parties’ lack of communication and the effect on

their ability to effectively coparent LS. Testimony also clearly indicated that the parties had

differing views on a number of issues, including bedtimes, screen-time limits, and medical

issues. But the court noted that both parents love the children, the children love both

parents, the parents are both capable of being good parents, and the children were doing

well at school and in their various extracurricular activities. Moreover, LS and Dittmer’s

counselor testified that the problem was a result of discord and lack of communication and

that changing physical custody of the children would not solve the issues. The attorney ad

litem agreed and advised the court to continue shared custody.

The court specifically found that changing custody was unlikely to make any

difference and might upset things. The court did, however, institute certain modifications

to address the issues. The court ordered the parties to communicate by phone every Sunday,

Tuesday, and Thursday evening to discuss the children’s upcoming activities, behavior,

health, appointments, and any changes in either home. Both parties and LS were ordered

to continue in therapy and follow the recommendations of the therapist. The parties were

ordered to refrain from making any derogatory comments about the other parent in the

presence of the children and to encourage a loving, meaningful relationship with the other

9 parent. The parties were to follow the recommendation of the children’s doctors regarding

vaccinations and medical issues. Finally, the court forbade the parties from discussing the

case with the children or allowing anyone else to do so. The court listened to the testimony

and had the ability to judge the credibility of the witnesses. It then attempted to tailor its

decision to the facts of this case and the best interest of these children. Whether the circuit

court’s findings are clearly erroneous turns largely on the credibility of the witnesses, and

we give special deference to the superior position of the circuit court to evaluate the

witnesses, their testimony, and the child’s best interest. Wadley v. Wadley, 2019 Ark. App.

549, at 2, 590 S.W.3d 754, 756. We will not substitute our judgment for that of the circuit

court, which observed the witnesses firsthand. Accordingly, we hold that the circuit court’s

decision was not clearly erroneous, and we affirm.

Affirmed.

VIRDEN and BARRETT, JJ., agree.

Elizabeth J. Finocchi, for appellant.

Andrea D. McCurdy, for appellee.