Cranston v. Carroll

• Decision Date: 15 November 2006
• Docket Number: No. CA 06-209.,CA 06-209.
• Citation: Cranston v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 (Ark. App. 2006)
• Parties: Tammy CRANSTON, Appellant, v. Timothy CARROLL, Appellee.
• Court: Arkansas Court of Appeals

242 S.W.3d 643

97 Ark. App. 23

Tammy CRANSTON, Appellant, v.Timothy CARROLL, Appellee.

No. CA 06-209.

Court of Appeals of Arkansas.

November 15, 2006.

Wm. C. Plouffe, Jr., El Dorado, AR, for appellant.

Mary Thomason, El Dorado, AR, for appellee.

TERRY CRABTREE, Judge.

AppellantTammy Cranston appeals from an order granting appelleeTimothy Carroll's petition for a change of custody.Tammy raises one issue on appeal in which she argues that the trial court applied the wrong burden of proof, and six others contesting the individual findings made by the trial court in reaching its decision.We affirm the trial court's decision.

On April 30, 1999, Tammy gave birth to a daughter, J.T.At the behest of the Child Support Enforcement Unit, it was subsequently established that Tim was the child's biological father.Tim was granted visitation with J.T. by an agreed order entered in March 2003.Tim filed a petition for a change of custody on November 9, 2004, alleging as changed circumstances that Tammy had physically abused the child, that Tammy was abusing drugs, that Tammy did not have stable employment, and that Tammy was not providing a stable home because she had lived in several places over a sixteen-month period.The trial court set a hearing on Tim's petition for November 29, 2004.

Although Tammy was served with notice of the hearing and had hired an attorney, neither she nor her attorney appeared at the scheduled hearing.On the day of the hearing, the trial court entered an order vesting temporary custody in Tim and awarding Tammy visitation every other weekend and a week at Christmas.On June 7, 2005, Tammy filed both an answer to Tim's petition for a change of custody and a motion to set aside the temporary order.In her motion, Tammy asserted that she had experienced problems with her attorney who had assured her that he would obtain a continuance of the November hearing and that, when she was finally able to retrieve her file from the attorney, it contained a motion for a continuance that had been prepared before the hearing, but had not been filed.The court scheduled a hearing for August 22, 2005, on Tim's petition for a change of custody and Tammy's motion to set aside the temporary order.The trial court found that Tammy was not at fault for failing to appear a the previous hearing and proceeded to decide anew Tim's motion fore a change in custody.

On this issue, Tim testified that he was employed as a pipe fitter and lived in the Norphlet school district.Another child of his, a son, had been killed crossing the road in front of Tim's house.He said that he was prompted to file the petition for a change of custody after an incident that occurred during an exchange of visitation.Tim testified that he was supposed to return the child to Tammy at 6:00 on Sunday evenings, but that on this occasion Tammy appeared at his house at 5:30 to pick up the child.He said that the child did not want to go with Tammy and that he begged Tammy to let him talk to J.T. and bring her home later.He stated that Tammy would not listen, and instead put her arm around the child's neck and dragged her to the car.Tammy continued to hold the child around the neck in the car, at which time the child bit Tammy on the arm and ran back inside the house.Tim testified that Tammy pulled the child out from behind the couch by her leg and dragged the child, who was screaming and crying, back to the car.

Tim further testified that the child's coat had been left at his house in all the confusion and that he and his wife went to Tammy's home the next day to return the coat.He said that J.T. had a black eye.He testified that the child was not in school on Tuesday or Wednesday but that he visited her at school on Thursday.Tim said that the child's eye was still faintly bruised and that there was bruising on her hip and wrists.

Tim enrolled J.T. in kindergarten in Norphlet when he acquired temporary custody in November.He said that J.T. had missed a lot of school and was often tardy in kindergarten at Smackover where Tammy had her in school, and that she was behind in her skills.He said that she had only four excused absences due to illness in the 104 days that she was in school while in his custody.He said that at kindergarten graduation, J.T. received the "N" award for good citizenship.Tim said that his wife did not work and that she and J.T. got along well.He denied using illegal drugs and offered to submit to a hair-follicle test to prove that point.Tim testified that for fun he and J.T. caught bugs, lizards, and frogs and that they went camping and fishing.He said that J.T. loves to swim and be outdoors and that they had floated the Caddo River in a canoe.Tim stated that he had never spanked J.T., and that he disciplines, her by talking to her, having timeouts, or by taking away privileges.Tim produced a leather strap that was introduced into evidence.Tim said that he came into possession of the strap when Tammy moved out of his house and that he had seen Tammy use the strap on J.T.He stated that he had obtained an order of protection when he and Tammy separated because Tammy had held a cocked gun to his head.

Tim testified that since he had gotten custody he had never had a baby sitter, saying that "if we can't do it as a family, we don't do it."He said that in his home there was a set routine and that his home was stable, unlike that of Tammy who had lived in different places over the past few years.He said that there were times when he could not find where Tammy lived, and he said that he had picked up J.T. for visitation at Tammy's parents' and sister's houses, as well as a house owned by a man named Tony, who lived across from the Smackover school.

Tim also testified about an incident that occurred at J.T.'s kindergarten graduation.He said that Tammy had insisted on taking the child's original papers even though he offered to make copies for her.He said that Tammy threw back her fist as if she were going to hit him and said that he was a "dead mother fucker."

Tim's wife, Yield, testified that they had married in July 2004.She had three grown daughters and had been employed as a waitress.She said that she quit her job when J.T. came to live with them.She also recalled the visitation exchange where Tammy had dragged the child out of the house kicking and screaming.She said that she, too, saw the black eye on J.T. the next day.

Vicki had kept a journal regarding visitation since the temporary custody order.She said that Tammy was an hour and a half late picking J.T. up for Christmas visitation, and that they were supposed to get her back at 1:00 p.m. on the appointed day, but that Tammy was not at home.On Tammy's next visitation, J.T. was picked up by a woman named Becky and the following time J.T. was picked up by Tammy's parents.Tammy was not at home when they went to pick her up, and the child was waiting for them in their driveway when they got home.Tammy had not informed them that she had moved.On February 27 and March 13, Tim and Vicki picked J.T. up at the home of Thomas Logois, who lived across the street from the school in Smackover.On March 25, Tammy's sister picked the child up, and they retrieved her from the sister's house.Vicki testified that, when Tammy picked her up on April 9, Tammy got loud and began cursing while demanding clothes and information about the child's school.On May 20, Tammy honked her horn all the way down the street and again in the driveway.She said that there was a big bruise on J.T.'s leg when she got home On June 5.She and Tammy exchanged heated words on July 1 when Vicki simply asked Tammy where they were supposed to pick the child up.

Vicki testified, that at the child's kindergarten graduation Tammy pushed her out of the way as she(Vicki) was putting on the child's cap and gown.She Said that Tim asked Tammy if she wanted copies of J.T.'s diploma and papers but that Tammy demanded the originals.She saw Tammy draw her fist back and heard her say to Tim, within earshot of J.T., "You're a dead mother fucker."Vicki said that afterward Tammy hit her in the stomach with a camera bag.Vicki said that the blow was painful.

Vicki further testified that they had established a routine for J.T. that consisted of a set time for meals, bathing, school, and going to bed.She said that Tim took her to the bus stop for school every morning.Vicki stated that, when they enrolled J.T. in school at Norphlet, they had to help her with her numbers and letters, but that by the time the school year was over she had caught up with the other children.

Steve Carroll, Tim's brother, testified that Tim was a loving and caring father.He said that Tim provided her with all that she needed and that she seemed to be well-adjusted.He recalled an occasion when Tammy had asked him to come over to her house to uncock a loaded gun that she claimed to have held to Tim's head.He said that the gun was a .357 Magnum revolver and that he removed the round in the chamber and took the bullets with him.

On her part, Tammy testified that she had been living with her parents in Pigeon Hill for six months and that she had just started teaching in El Dorado.She said that she was certified to teach special education and art.She had resigned in December 2002 from teaching in El Dorado after seven years.After that, she worked for the Elaine school district from November 2003 until June 2004.She said that she had lived at 209 East Sixth Street in Smackover beginning in August of 2004 prior, to moving in with her parents.Before that, she had lived in West Helena for two months.She said that she had not lived with a man named Thomas Logois in Smackover.She maintained that she had lived in an apartment in the back of his house, and that she cleaned his house and did chores for him.She said that she had no relationship with him other than his being her landlord.

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