Hanna v. Hanna

377 S.W.3d 275, 2010 Ark. App. 58, 2010 Ark. App. LEXIS 72
CourtCourt of Appeals of Arkansas
DecidedJanuary 20, 2010
DocketNo. CA 09-214
StatusPublished
Cited by6 cases

This text of 377 S.W.3d 275 (Hanna v. Hanna) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanna v. Hanna, 377 S.W.3d 275, 2010 Ark. App. 58, 2010 Ark. App. LEXIS 72 (Ark. Ct. App. 2010).

Opinion

JOSEPHINE LINKER HART, Judge.

11 Donna Wilson Hanna appeals from an order of the Washington County Circuit Court changing custody of her two teenage children to her ex-husband Burton Dugan Hanna. On appeal, she argues that the trial court erred 1) in considering evidence that “went behind” the last order when the evidence was erroneously found to have occurred in the time since the last order, because it caused the trial court to weigh the old evidence in its analysis of whether there was a material change in circumstances and whether a change of custody was in the best interest of the children; 2) in determining that parental alienation had occurred where there was no showing that her offending acts actually caused the children to view their father in a negative light, where there was no evidence that the children were even aware of the acts, and where there was evidence that the father himself was the cause of any discord and alienation between himself and the children; 3) when it found that the noncustodial parent rebutted the | ^presumption in favor of her relocation to Florida, because there was insufficient evidence concerning the Hollandsworth factors to overcome the presumption; 4) when it failed to find that the issue of relocation was not res judicata and that Burt was precluded from relit-igating the issue; and 5) in removing her from the courtroom without cause and over her objection so that she was precluded from hearing the testimony of the two teenage children. We affirm.

At the outset, we acknowledge that it is axiomatic that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the trial court or were not known by the trial court at the time the original custody order was entered. Id. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reasons for requiring more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues. Id.

The current case arises from a long and contentious series of domestic battles conducted in and out of the courtroom after the parties ended their twenty-year marriage by divorce. The parties’ two children were trapped in the no-man’s land of the parties’ internecine ^struggles. Jake was sixteen and a high-school junior, and his sister Brooke was fourteen and a high-school freshman at the time of this litigation. Although various custody arrangements were attempted by the parties, the original decree vested the parties with a form of “joint- custody” in which Brooke stayed with Donna and Jake stayed with Burt. When that arrangement proved unworkable, Burt ceded full custody of both children to Donna. An agreed order, entered March 16, 2007, memorialized that Donna had full custody of the children. That order also authorized Donna to relocate the children’s residence outside of northwest Arkansas.

On February 5, 2008, Donna filed a document styled, “NOTICE OF CUSTODIAL PARENT RELOCATION AND REQUEST TO MODIFY VISITATION SCHEDULE,” in which she announced her intention to give “the Court and Defendant” notice of her intention to remove the children to Naples, Florida. That pleading also prayed for a revision of the visitation schedule. . Burt immediately opposed the move and petitioned for a change in custody. In his pleadings, Burt alleged that Donna had “engaged in systematic and continuous acts designed to alienate the parent-child relationship between [Burt] and the parties’ minor children.” The matter came to a final-merits hearing on August 14, 2008.

At the hearing, the July 30, 2008 deposition of psychiatrist Dr. Bradley Diner was introduced. He first became involved with the parties in November 2006, when the trial court commissioned him to conduct psychological evaluations of Burt, Donna, Jake, and Brooke. Based on his studies, he opined that some of the problems between Burt and his children were |4the result of Burt’s parenting style. Based on his conversations with the children, he believed that there was “no question the children want to be with their mother.” Further, he did not believe that Donna was trying to alienate, the children. Nonetheless, he was concerned about Donna not getting counseling to help her deal with her history of childhood sexual abuse. He opined that her experience seemed to have made her “hypersensitive” about the possibility of molestation involving her daughter Brooke. He also evaluated certain emails sent by Donna to Burt, and he opined that Donna was attempting to align the children against Burt. Based on the information that he had before him, Dr. Diner stated that he did not think that the children would be “well served” by relocation to Florida, but he candidly observed that he has not seen any of the subjects of his psychological evaluations in over a year and a half.

Donna testified that she was “retired” and currently resided with the children in a beach-front home in Bonita Springs, Florida, that she was renting for $7000 a month. That home enabled Brooke to occupy the “lower level,” which had a private bath, television room, and extra bedroom. Jake was upstairs with a bedroom that overlooked the beach. Donna stated that she planned to live there for a few months before purchasing property in the same community.

Donna was questioned at length about emails she sent to Burt. In the first one, dated April 24, 2008, she informed him that her new residence in Rogers was in a gated community and told Burt to use the call box rather than giving him the entry code. The second, dated 1 ¡January 14, 2008, referred to the “trust litigation”1 that she initiated on behalf of her children, in which she stated that Jake was within two years of his majority, at which time he could pursue the matter of his own accord. It also chided Burt for walking into Brooke’s room while she was naked and warned him not to “inappropriately ‘bump’ or hang on Brooke.” It informed Burt that she advised Brooke that she was entitled to a “hoola hoop” of personal space.

When questioned at the hearing, Donna affirmed that she thought Burt was looting the children’s trust, and although she claimed to hope that Burt was not molesting Brooke, Donna did not disavow what the email suggested, that she thought that Burt was engaging in sexually perverse conduct with his daughter. The third email, dated January 23, 2008, indicated that Donna intended to inform the children that Burt was opposing her move to Florida. Donna admitted showing the children the portion of the March 16, 2007 order, which stated that she had the right to relocate “anywhere.” Donna stated that she intended to relocate to Florida, with or without the children. She was not swayed by Dr. Diner’s opinion that it was not in the children’s best interest.

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Bluebook (online)
377 S.W.3d 275, 2010 Ark. App. 58, 2010 Ark. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanna-v-hanna-arkctapp-2010.