Stacks v. Stacks

377 S.W.3d 265, 2009 Ark. App. 862, 2009 Ark. App. LEXIS 1028
CourtCourt of Appeals of Arkansas
DecidedDecember 16, 2009
DocketNo. CA 09-642
StatusPublished
Cited by7 cases

This text of 377 S.W.3d 265 (Stacks v. Stacks) 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
Stacks v. Stacks, 377 S.W.3d 265, 2009 Ark. App. 862, 2009 Ark. App. LEXIS 1028 (Ark. Ct. App. 2009).

Opinion

M. MICHAEL KINARD, Judge.

I ,This is an appeal from the circuit court’s denial of appellant Harold Stacks’s motion to modify custody and motion for contempt. Appellant raises challenges to several evidentiary rulings and to the court’s findings that his daughter had not expressed a preference as to custody and that she was not mature enough to express a custody preference. We affirm.

The parties were divorced in November 2000. Appellee Angela Stacks was awarded custody of the parties’ two minor children, born in 1996 and 1998, with appellant having visitation rights and support obligations. After several years of litigation in this case, an agreed order was entered in April 2008. The agreed order provided that appellee would assist appellant in obtaining copies of the children’s school and medical ^records. It also set a schedule for regular telephone visitation between appellant and the children.

On June 4, 2008, appellant filed in a single document a motion to modify custody and motion for contempt. In the motion, appellant alleged that there had been a material change in circumstances since the divorce — the fact that the children were expressing a preference that they live with him — and that it was in the best interest of the children for appellant to have custody. Citing Arkansas Code Annotated section 9 — 13—101(a)(l)(A)(ii), he contended that the older child, Elizabeth, was “of a sufficient age and capacity to reason” such that the court should consider her stated preference. Appellant alleged that appellee was in contempt for refusing to follow the agreed order by failing to contact the children’s schools and medical providers and not allowing him telephone visitation on “numerous occasions.”

A hearing was held in this matter on December 23, 2008, with appellee appearing pro se. Both parties, their daughter, and a therapist testified. The daughter’s testimony included statements that she was “not real sure” about whether she was happy living where she was, that she was happy at her father’s and at her mother’s, that seeing her father more “would mean a lot,” and that what she did not like about living at her mother’s was there were “too many rules.” The judge issued a bench ruling in favor of appellee. In its subsequent written order, the court found that appellant failed to sustain his burden of proving the contempt allegations. It further found that he failed to sustain Rhis burden of proof regarding his request for a change of custody based on the preference of the minor children.

On January 22, 2009, appellant filed a timely motion for reconsideration and/or motion for a new trial. Appellant requested a new trial based on newly discovered evidence of appellee “improperly influence[ing]” the parties’ daughter regarding her testimony. He also requested that the court reconsider its finding that appellee was not in contempt. The trial court did not rule on appellant’s motion, so it was deemed denied thirty days after it was filed. See Whitmer v. Sullivent, 373 Ark. 327, 284 S.W.3d 6 (2008). This timely appeal followed.

Appellant’s first point on appeal is that the circuit court erred in excluding the parents’ testimony of prior statements of their daughter regarding her preference as to custody under Arkansas Rule of Evidence 802 (hearsay) and in refusing to consider testimony of the therapist regarding the daughter’s statements, which appellant contends were statements of her then-existing state of mind and thus admissible under Arkansas Rule of Evidence 803(3) (then-existing mental, emotional, or physical condition). First, we note that appellant’s objection to the court’s sua sponte ruling excluding inadmissible hearsay is misplaced; a trial judge has the authority to exclude improper evidence even in the absence of an objection. Epps v. State, 72 Ark.App. 370, 38 S.W.3d 899 (2001). Appellant acknowledges that the arguments under his first point were not made before the trial court, but cites Pear-row v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989), in arguing |4that this court should entertain his arguments under an exception that applies where there was no opportunity to raise the argument below. He contends that we should consider his argument because the trial court allowed the testimony and then stated during the bench ruling that the only testimony that could be considered regarding preference was that of the daughter.

We do not find appellant’s preservation argument to be persuasive. It is elementary that this court will not consider arguments that are not preserved for appellate review. Advance America Servicing of Arkansas, Inc. v. McGinnis, 375 Ark. 24, 33, 289 S.W.3d 37, 43 (2008) (citing Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008)). We will not do so because it is incumbent upon the parties to raise arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of reversing a trial court for reasons not addressed by that court. Id. Here, when the court ruled that appellee could not testify regarding what the children had said about custody preferences, appellant did not raise the argument that the testimony should be allowed under Rule 803 as evidence of the daughter’s then-existing state of mind. Appellant not only did not raise this argument at the hearing (where he argues he did not have the opportunity to do so), he also failed to raise these points in his motion for reconsideration. Thus, this point is not preserved for appellate review.

The trial court has broad discretion when it comes to the admissibility of evidence. Meins v. Meins, 93 Ark.App. 292, 299-300, 218 S.W.3d 366, 370 (2005). The appellate |5court will not reverse the lower court’s ruling on either the admissibility of expert testimony or on a hearsay question unless the appellant can show that the court abused its discretion. Id. In order to show abuse of discretion, the appellant must demonstrate that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Additionally, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Id. Under these standards, we affirm the trial court.

We address appellant’s final point next because our decision on this point affects the outcome of other arguments appellant makes. Appellant argues that the trial court’s finding that the daughter was not mature enough to express a preference as to custody was clearly erroneous.

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Bluebook (online)
377 S.W.3d 265, 2009 Ark. App. 862, 2009 Ark. App. LEXIS 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stacks-v-stacks-arkctapp-2009.