Myers v. McCall

334 S.W.3d 878, 2009 Ark. App. 541, 2009 Ark. App. LEXIS 600
CourtCourt of Appeals of Arkansas
DecidedJuly 1, 2009
DocketCA 09-19
StatusPublished
Cited by10 cases

This text of 334 S.W.3d 878 (Myers v. McCall) 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
Myers v. McCall, 334 S.W.3d 878, 2009 Ark. App. 541, 2009 Ark. App. LEXIS 600 (Ark. Ct. App. 2009).

Opinion

KAREN R. BAKER, Judge.

Appellant Tammy Lynn McCall (now Myers) appeals the trial court’s change of custody from her to appellee Steven Carter McCall asserting four points of error: (1) The trial court erred in requiring appellant and her daughters to testify by telephone; (2) The trial court abused its discretion by re-framing their answers in a manner prejudicial to appellant; (3) The trial court erred in finding a material change in circumstances had occurred since the entry of the last order; (4) The trial court erred in deciding that it was in the best interest of the children to be removed from appellant’s care. We affirm.

Appellant filed a complaint for divorce on November 25, 1997. On January 20, 1998, the parties were granted a divorce. The decree incorporated the parties’ agreement regarding custody and child support. This agreement included the provision that appellant could move 12in the future with the children on the condition that she notified appellee of the move with sixty days notice. On April 30, 2008, ap-pellee asked the court to change custody and child support alleging that there had been a material change of circumstances in that the children had moved out of the State of Arkansas to Missouri, were scheduled to move to Wisconsin, and that the children were unhappy with the move, which was not in their best interests. The children had moved with their mother and new stepfather to Missouri while the stepfather completed a process in his clerical training, and the move to Wisconsin was necessitated by his assignment as a clergyman. The trial court found that a change of circumstances existed in that the move, remarriage, and religious preference of the children coupled with the desires of the children constituted the change of circumstances necessary for the court to act.

Appellant’s first challenge to the trial court’s decision alleges that the trial court erred in requiring appellant and her daughters to testify by telephone. We are unable to reach the merits of appellant’s claim because the arguments presented to this court regarding the unreliability of the testimony and lack of guidance for procedural safeguards in telephone testimony were not made below. Our supreme court has repeatedly held that appellants are precluded from raising arguments on appeal that were -not first brought to the attention of the trial court. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Issues raised for the first time on appeal will not be considered because the trial court never had an opportunity to rule on them. Id.

|3In this case, the record is unclear as to the process by which the telephone testimony was arranged to be conducted. However, it is clear that appellant objected only to appellant having to testify via telephone and raised no objection to the minor children speaking with the court by telephone. The trial court did not administer an oath to either child and specifically stated that neither would be cross-examined. The judge treated its inquiry with the children as an informal interview, and appellant did not object to this procedure. Appellant’s objection below focused on the trial court’s denial of her motion to continue the matter, thus requiring her to testify by telephone. The specific arguments presented to this court regarding the unreliability of the testimony and lack of guidance for procedural safeguards in telephone testimony were not made to the trial court. Nor did appellant argue below that the judge’s difficulty in hearing the children and ascertaining their responses over the telephone contributed to the unreliability of the testimony. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Lewis v. Robertson, 96 Ark.App. 114, 239 S.W.3d 30 (2006). Because this allegation of error was not raised and decided below, we are precluded from reaching its merits now. Id.; see also Norman v. Cooper, 101 Ark.App. 446, 278 S.W.3d 569 (2008).

Appellant’s second assertion of error is also not preserved. She alleges that the trial court abused its discretion by re-framing the answers of the children as witnesses in a manner ^prejudicial to appellant. However, appellant did not object to the trial court interviewing the children by telephone. Counsel for both parties were present, although the parties were excluded from the room while the children spoke with the judge, creating an in camera interview. A complete transcript of the record was made of the in camera interviews. See Ark.Code Ann. § 16 — 13— 510 (Repl.1999); Mattocks v. Mattocks, 66 Ark.App. 77, 986 S.W.2d 890 (1999) (holding that failure to make complete record of in camera interview in custody case required remand). No objection was raised by appellant to either the procedure or to any specific questions asked by the judge. Because no allegation of error was raised below, we cannot address the merits of the issue. Lewis, supra.

Appellant asserts for her third point of error that the trial court erred in finding a material change in circumstances had occurred since the entry of the last order. Appellant submits that at the time the August 1, 2007, order was entered the parties were aware that appellant was getting married to someone of the Lutheran faith, that the new family would be moving and that the minor children were teenagers whose preference was to remain in Arkansas. Therefore, appellant argues no change of circumstance occurred subsequent to the last order, which reflected the pai’ties’ agreement for appellee to extend child support and to have the children covered by his insurance leaving the previous orders ■ undisturbed'in all other regards.

Determining whether there has been a change of circumstances that materially affects Isthe child’s best interest requires a full consideration of the circumstances that existed when the last order was entered in comparison to the circumstances at the time the change is considered. See Blair, supra. A judicial award of custody will not be modified unless it is shown that the circumstances have changed such that a modification of the decree would be in the best interest of the child. See, e.g., Campbell v. Campbell, 336 Ark. 379, 383, 985 S.W.2d 724, 727 (1999). In order to avoid the relitigation of factual issues already decided, the courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. Id. at 384, 985 S.W.2d at 727. The requirement that limits the trial court’s review to the circumstances of the last order contemplates that the trial court was aware of those circumstances at the time the order was entered. A change of circumstances can be found where the facts existed at the time of the previous order, but were unknown to the trial court. See Campbell, su/pra. While the parties may have been aware of additional factors bearing on custody, there is no indication that the trial judge was aware of these factors. Accordingly, the trial court was not limited in its consideration of factors establishing a change in circumstances to matters that arose after the August 1, 2007, order.

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Bluebook (online)
334 S.W.3d 878, 2009 Ark. App. 541, 2009 Ark. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-mccall-arkctapp-2009.