Jones v. Jones

907 S.W.2d 745, 51 Ark. App. 24, 1995 Ark. App. LEXIS 502

• Court: Court of Appeals of Arkansas
• Decided: October 11, 1995
• Docket: CA 94-1022
• Status: Published

Opinions

John B. Robbins, Judge.

On November 13, 1990, appellant Christine M. Jones and appellee Dr. Jerry A. Jones were divorced. The divorce decree incorporated a property settlement agreement which gave custody of their infant child, Cameron, to Ms. Jones and provided that Dr. Jones was to pay $2,000 per month in child support. On Sunday, December 13, 1992, the chancery court issued an emergency ex parte order which provided that Dr. Jones was not required to return Cameron to Ms. Jones following Dr. Jones’ weekend visitation and that an emergency custody hearing would be scheduled. The emergency hearing was scheduled for December 16, 1992, and on December 18, 1992, the chancery court issued a temporary order changing custody of Cameron from Ms. Jones to Dr. Jones pending a final hearing. A trial was held in February 1994 for the purpose of hearing Dr. Jones’ petition for a permanent change of custody. After the trial, the chancery court determined that there had been a material change in circumstances which warranted a change in custody from Ms. Jones to Dr. Jones. In its order, the court allowed Ms. Jones liberal visitation rights and abated Dr. Jones’ child support obligation. Specifically, the chancery court relied on its finding that Ms. Jones was unable to provide for Cameron’s emotional needs; that Dr. Jones lived in Conway, which is a much safer environment than Little Rock, where Ms. Jones had recently relocated; and that Dr. Jones had recently remarried and could provide a more stable home than Ms. Jones, who remained single.

For reversal, Ms. Jones raises numerous arguments pertaining to each of the three custody proceedings. She first argues that the trial court exceeded its authority in conducting a child custody hearing on Sunday, December 13, 1992, and abused its discretion in changing custody based upon ex parte communications. As to the December 16, 1992, emergency hearing, Ms. Jones contends that she was not given adequate notice of the hearing as is required by the due process clause of the Fourteenth Amendment, and that the manner in which the hearing was conducted deprived her of due process of law. Ms. Jones also argues that the trial court erred in awarding an emergency change of custody after the hearing because there was insufficient evidence that Cameron was in danger or that it was detrimental for Cameron to be in the custody of Ms. Jones. In addition, Ms. Jones chai-lenges the sufficiency of the evidence with regard to the permanent change of custody to Dr. Jones. She asserts that the trial court’s finding that “it questioned] [Ms. Jones’] ability to adequately provide an emotionally stable and wholesome home for the child” indicated a clearly erroneous standard, and that the trial court abused its discretion in finding that her move from Conway to Little Rock was a substantial change in circumstances supporting a change in custody. Ms. Jones further asserts that the trial court abused its discretion in concluding that the remarriage of Dr. Jones, the subsequent birth of a child, and the presence of a stepson was a significant change of circumstances justifying a change of custody. Finally, Ms. Jones argues that the chancellor abused his discretion in refusing to recuse.

We first note that all of Ms. Jones’ arguments which pertain to the temporary custody orders are now moot and need not be addressed by this court. It is well settled that a temporary order is terminated upon entry of a subsequent permanent order. Vairo v. Vairo, 27 Ark. App. 231, 769 S.W.2d 423 (1989). The rights of the parties in the present litigation have been settled by the final award of custody, and a decision on the merits of the temporary awards would have no practical effect on the rights of the parties. See id. However, because error by a chancellor in granting or denying ex parte emergency relief incident to an action seeking a change of custody is virtually always moot and evades review, we will use this occasion to briefly address appellant’s contention that the ex parte order here should not have been entered. See Wright v. Keller, 319 Ark. 201, 203, 890 S.W.2d 271, 272 (1995).

We acknowledge that the matter of emergency ex parte applications in child custody proceedings must be one of the most difficult areas of a chancellor’s jurisdiction. This is so because ex parte decision-making is contrary to the basic premise of our justice system that an adversarial presentation of a controversy will result in a better reasoned, and hopefully correct, decision. However, because of the harm which can so quickly be suffered by a helpless child, emergency measures without an adversarial presentation are sometimes necessary to terminate or avoid a perceived harmful situation. While divining the truth can be difficult in adversarial proceedings, it is even more difficult when a chancellor has an ex parte petition and affidavits suddenly thrust upon him. The risk and consequence of erring in rendering ex parte protection to a child can appear to be of lesser gravity than the harm which might result if relief is denied.

The procedural method employed by Dr. Jones in seeking emergency custody of the minor child without notice to Ms. Jones, as the custodial parent, is found only under Rule 65 of the Arkansas Rules of Civil Procedure. This rule provides for injunctive relief where irreparable harm or damage will or might result if such relief is not granted. Section (a)(1) of the rule requires the court to decide the merits of an ex parte request for relief on the basis of assertions of fact contained in supporting affidavits or a verified complaint. Here, Dr. Jones’ request for emergency ex parte relief was supported by four documents: Dr. Jones’ verified petition and affidavit, a letter from Dr. Gayle Harrison, and a letter from Dr. Justin Ternes. Because the letters from Dr. Harrison and Dr. Ternes were not under oath they could not constitute affidavits. Ark. Code Ann.§ 16-40-103(b). The fact that these letters were attached as exhibits to Dr. Jones’ verified petition for relief does not bootstrap them into affidavits, and they should not have been considered by the chancellor. This leaves only Dr. Jones’ verified petition and affidavit. When the hearsay statements of Dr. Harrison and Dr. Ternes are disregarded, the only remaining allegations of fact addressing the need for relief could only support, if proven, a change of custody after notice and a hearing on the merits, but fall short of establishing such an emergency that irreparable harm would or might result if immediate ex parte relief was not granted. We believe that the chancellor erred by granting ex parte relief under these circumstances.

Although Rule 65 provides for relief without written or oral notice to the adverse party or his attorney where the requisite proof of emergency is shown, we believe the better practice is to give oral notice to the adverse party’s attorney, if known and available to receive such notice, prior to submission of the ex parte request. Many times the adverse party may not have retained an attorney at this stage of the proceeding. However, if the ex parte request is incident to a change of custody following an earlier custody award, the attorney who represented the adverse party in the earlier proceeding should be notified unless the earlier proceeding occurred in the distant past. Dr. Jones’ petition for ex parte relief was submitted to the chancellor on December 13, 1992. The record reflects that the parties’ divorce was granted by decree filed November 13, 1990, some twenty-five months earlier, at which time Ms. Jones was represented by an attorney, Thomas S. Stone. Notice was not given Mr. Stone of the ex parte proceeding.

Ms. Jones also argues on appeal that the chancellor erred by considering the petition for ex parte relief and signing the resulting order on a Sunday, citing Ark. Code Ann.§ 16-10-114 and Chester v. Arkansas Board of Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100 (1968). Dr. Jones responds to this by denying the applicability of § 16-10-114 to emergency ex parte proceedings, but arguing that even if it is applicable then it is unconstitutional. Because we have found on other grounds that the ex parte order should not have been granted, we will not reach this constitutional issue. See Board of Equalization v. Evelyn Hills Shopping Ctr., 251 Ark. 1055, 476 S.W.2d 211 (1972).

For the same reason we addressed the appellant’s argument about the propriety of the ex parte order, we will briefly consider appellant’s contention that the chancellor also erred in granting the temporary change of custody order. A hearing was held on December 16, three days after issuance of the ex parte order. While appellant argues that notice was received less than forty-eight hours prior to the hearing, and that she was not given sufficient time to arrange for several other witnesses to testify on her behalf, appellant neither moved to reset the hearing nor to continue the hearing at the conclusion of her proof.

Appellant contends that the evidence before the chancellor was insufficient to support a temporary change of custody. Appellee testified and called Dr. Gayle Harrison, a psychologist, and Dr. Justin Ternes, a child psychiatrist, as witnesses. Appellant testified and called her sister, Dr. Cathleen Burgess, an anesthesiologist, and her pastor, Dr. Arnold Murray. On rebuttal, appellee called Tina Verser, a nurse employed by appellee. The facts were in sharp dispute. However, appellee’s expert, Dr. Harrison, expressed her opinion that the child had an adjustment disorder with disturbances of emotion and conduct, and had been traumatized while in the mother’s custody. While there was evidence to the contrary, in child custody cases we defer to the superior position of the chancellor in assessing credibility of the witnesses. Bennett v. Howell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). While we may have made a contrary decision, we cannot conclude that the chancellor’s determination to place custody of the child with appellee on an interlocutory basis was clearly erroneous.

We are primarily concerned with Ms. Jones’ three arguments pertaining to the final custody determination, as well as her argument that the chancellor erroneously refused to recuse from this case. Ms. Jones takes issue with the final custody award, arguing that the trial court’s decision to change custody was clearly against the preponderance of the evidence. Specifically, she attacks the trial court’s reliance on each of three changes of circumstances upon which the court determined that a change of custody was warranted. This court has stated many times that a material change in circumstances must be shown before a court can modify an order regarding child custody, and the party seeking modification has the burden of showing a change in circumstances. Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993). The best interest of the child is the polestar for making judicial determinations concerning child custody matters. Welch v. Welch, 5 Ark. App. 289, 635 S.W.2d 303 (1982). On appeal from chancery court cases, this court considers the evidence de novo, but the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against a preponderance of the evidence. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).

The first change of circumstances relied on by the chancellor related to his finding that “[w]hile [Ms. Jones] has proven that she is able to function adequately and competently in most areas of her social and work life, the Court questions [her] ability to adequately provide an emotional, stable and wholesome home for the child.” Ms. Jones argues that this finding erroneously shifted the burden of proof away from Mr. Jones and in effect forced her to prove her case beyond question. Ms. Jones also argues that the finding that she is unable to adequately provide a stable home is clearly against the preponderance of the evidence.

We find that the burden of proof was not shifted to Ms. Jones in this case. Rather, the chancellor was merely expressing his concern for the welfare of the child when he announced his uncertainty regarding Ms. Jones’ ability to provide a stable home. The record, in fact, does contain evidence that Cameron was suffering emotionally while in Ms. Jones’ custody and that Ms. Jones had a history of mental problems. Dr. Avam Jeffery Zolten, Directory of Psychology Services at the Family Guidance Center, examined Ms. Jones and testified that she exhibited paranoid behavior. Dr. Zolten also expressed concern as a result of Ms. Jones’ statement that she could tell her son not to do something in a certain tone of voice and he would run to the corner and start crying. Drs. Gayle Harrison and Becky Porter both rendered psychological treatment to Cameron, and both expressed an opinion that Cameron had been traumatized by a female authority figure and that Christy Jones’ home presented an unstable environment for Cameron. Dr. Jones testified and expressed concern because Ms. Jones had been discussing serpents, demons, and death with Cameron and that she would have the child participate in exorcism rituals of cleansing her home of these plagues; and that Ms. Jones told him in Cameron’s presence that she “heard snakes under the house and they were turning” and “when the snakes are turning, that means evil is on its way, and you’re evil.”¹ Finally, Dr. William Siegal testified that he diagnosed Ms. Jones as having a borderline personality disorder approximately seven years before the final custody hearing and there was evidence that, prior to the birth of Cameron, Ms. Jones had attempted suicide on three occasions. Although these two factors predate the original custody award and do not constitute a change of circumstances, a judicial award of custody may be modified upon a showing of facts affecting the best interest of the child that were not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). While it is true that there were medical opinions in this case that tended to show the fitness of Ms. Jones as a parent, this court defers to the superior position of the chancellor in determining credibility of witnesses, particularly in child custody cases. See Bennett v. Howell, supra. The chancery court was entitled to give credence to the evidence indicating that Ms. Jones’ custody of Cameron was detrimental to the child, and its reliance on this evidence in changing custody was not clearly against the preponderance of the evidence.

Ms. Jones next argues that the trial court abused its discretion in holding that her move from Conway to Little Rock and her husband’s remarriage constituted substantial changes of circumstances supporting a change of custody. We cannot agree. There was evidence presented that Ms. Jones’ home in Little Rock is in a higher crime area than Dr. Jones’ home in Conway. This is a legitimate factor to be considered in determining what is in the best interest of the child. Remarriage of one of the parties is also a factor to be considered when deciding what is in a minor child’s best interest. See Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). In the case at bar, Dr. Jones remarried and has a stable family unit consisting of himself, his wife, Cameron’s half brother, and Cameron’s stepbrother. The chancery court did not abuse its discretion in taking this change of circumstances into account. Furthermore, in light of all of the material changes in circumstances, we find no error on the part of the court in its decision to change custody.

The remaining issue in this case is whether the chancery judge erroneously refused to recuse. Ms. Jones essentially contends that the chancery judge should have recused because his impartiality was put into question when he entered the emergency ex parte custody order. Ms. Jones also argues that the judge indicated bias when, prior to the emergency custody hearing held three days after the ex parte order, he refused to allow her to take Cameron to an independent psychiatrist for an examination without court approval.

Judges are presumed to be impartial and the party seeking disqualification bears a substantial burden proving otherwise. Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Disqualification of a judge is discretionary with the judge himself, and his decision will not be reversed absent an abuse of that discretion. Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991). Although we agree that the chancery judge in this case erroneously issued the emergency ex parte order, we do not find that this or any other action taken by the judge rose to the level of putting his impartiality at issue. We find no abuse of discretion in the judge’s refusal to recuse.

Affirmed.

Pittman, J., concurs. Rogers, J., dissents.

1 The record does not reflect that Ms. Jones disputed this testimony. In fact, the record does not reflect that Ms. Jones testified at all over the course of the four-day final hearing.