Sharp v. Keeler

• Decision Date: 09 May 2007
• Docket Number: No. CA 06-714.,CA 06-714.
• Citation: 99 Ark.App. 42,256 S.W.3d 528
• Court: Arkansas Court of Appeals
• Parties: Cyndall SHARP, Appellant, v. M.J. KEELER, Appellee.

256 S.W.3d 528

99 Ark.App. 42

Cyndall SHARP, Appellant, v. M.J. KEELER, Appellee.

No. CA 06-714.

Court of Appeals of Arkansas.

May 9, 2007.

Brenda Austin, Ltd., by: Brenda Horn Austin, Fayetteville, for appellant.

Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: George R. Rhoads and Sarah L. Waddoups, Rogers, for appellee.

DAVID M. GLOVER, Judge.

Cyndall Sharp appeals the Washington County Circuit Court's grant of M.J. Keeler's petition for change of custody of the parties' minor son, Corbin Michael Jonas Sharp Keeler, who was born August 30, 2004. On appeal, she argues that the trial court erred in finding (1) that she "acted in ways to the detriment of the child and that parental alienation on the part of appellant was a material change of circumstances warranting modification of its original custody decree and thereby granting custody to appellee, M.J. Keeler," and (2) that she was only entitled to supervised visitation when there were no facts to support a finding that supervised visitation was in Corbin's best interest. Briefly stated, we affirm the trial court's decision regarding the change of custody and reverse and remand with regard to visitation. However, "brevity" is not the watchword in this matter — there was a detailed initial order of custody, a detailed petition seeking a change of custody, detailed testimony at the hearing, and a detailed ruling from the bench, all captured in detail in the opinion of this court.

In Alphin v. Alphin, 90 Ark.App. 71, 74-75, 204 S.W.3d 103, 105-06 (2005) (internal citations omitted), our court set forth the standards for reviewing modifications of custody:

Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification. The primary consideration is the best interest and welfare of the child, and all other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent.

In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous. A finding is clearly erroneous, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children.

Background Facts

The parties in this case were never married. In a very precise order filed of record on April 4, 2005, but ordered to be effective as to February 25, 2005, the trial court initially awarded custody of Corbin to Sharp, subject to visitation by Keeler. The order contained numerous terms and conditions of visitation, including that neither party would make derogatory comments about the other in the presence of the child; that Sharp would not text message Keeler while he was exercising visitation with Corbin; that Sharp would cease leaving "tacky" notes for Keeler; that Sharp was not to do anything to alienate Corbin from Keeler; that Sharp was to have Corbin ready for visitation at the time visitation was to begin; and that when Sharp needed a babysitter, she was to give Keeler first opportunity to babysit and she was to notify Keeler as soon as she was aware she needed a babysitter. The order further enumerated that until Corbin was three years old, visitation would be every Saturday from 9:00 a.m. until 5:00 p.m.; every Wednesday from 5:30 p.m. until 7:30 p.m., unless Keeler's college or employment conflicted, and then the visitation was to be on Thursday at the same time; and any additional visitation upon which the parties agreed was appropriate. Holiday visitation was set forth, as well as visitation for Corbin's birthday, on which Keeler was entitled to visitation from 11:00 a.m. until 2:00 p.m. The order also provided that the parties were to keep each other fully informed of his or her address, telephone number, and all known pertinent information regarding Corbin's health, education, and welfare. In addition, the order stated that Corbin's birth certificate was to be changed to reflect that his name was Corbin Michael Jonas Sharp Keeler.

Five months later, in September 2005, Keeler filed a thirty-five page document entitled "Petition for Contempt Citation and Petition for Change of Custody," in which Keeler alleged that Sharp had continued to use the name Sharp instead of Sharp-Keeler for Corbin; that she would not acknowledge "Corbin Keeler," stating that that was not their son's name; and that Corbin's medical records indicated Sharp instead of Keeler. Keeler further alleged that Sharp had made derogatory remarks about him in front of Corbin; that Sharp had continued to text message and call him during his visitation; that Sharp had made him miss his Father's Day visitation; that Sharp had continued to leave him tacky notes; that Sharp had actively done things to alienate Keeler from Corbin; that Sharp had failed to have Corbin ready for visitation; that Sharp had denied Keeler visitation; and that Sharp had failed to keep Keeler updated on Corbin's medical conditions.

Hearing Testimony

Keeler testified at length during a two-day hearing. He stated that he was happy when the trial judge initially set rules for visitation because he thought it would be less stressful and that he would be able to babysit Corbin when Sharp could not be with him. However, Keeler testified that Sharp presented difficulties for him getting to see Corbin, that Sharp continued to use "Sharp" as Corbin's last name instead of Keeler, and that she told him that she does not know who Corbin Keeler is. For example, in response to an instant message Keeler testified he sent Sharp to tell Corbin Keeler that he loved him, Sharp replied that Keeler could only speak to his imaginary son because Keeler was not Corbin's name. Keeler stated that Corbin's account with AR Kids First was under the name Corbin Sharp. Keeler also said that Sharp's mother continued to call him names like "sissy" and "asshole" in front of Corbin.

Keeler testified that Sharp tried to give him a book on babysitting, which offended him because he was Corbin's father, not just his babysitter. Keeler recounted that on a check Sharp wrote him for stop-payment fees, she wrote "sexual favors" on the memo line. Keeler also said that Sharp had on one occasion left him a note taped to Corbin's diaper, which he thought was "disturbing."

Keeler stated that he felt alienated from Corbin. As examples, he said that Sharp would not let him have visitation because Corbin was too sick, but then when he checked with the doctors, they told him that Corbin was not too sick; that Sharp still did not use the last name Keeler for Corbin; that Sharp acted like Keeler was not capable of taking care of Corbin; that Sharp would not let him go to Corbin's doctor visits; that if Corbin was napping when he came to pick him up for visitation he was required to wait until Corbin woke up, but that rule did not apply if Sharp came to get Corbin at Keeler's and he was napping; and that Sharp would accuse him of causing Corbin to be constipated.

Keeler said that on one occasion when he was picking Corbin up for visitation, Sharp told him that Corbin had an ear infection and needed to see the doctor. Keeler did not take him to the doctor because Corbin was not running a fever and seemed to be okay; however, Keeler testified that he called a doctor and found out the correct dosage of Tylenol for a child under two and gave a smaller dose to Corbin just to be safe. When Keeler returned Corbin to Sharp, he told her that he had given him Tylenol. Thereafter, he testified that Sharp began text messaging him, asking how much Tylenol he had given Corbin. She finally text-messaged him that she and Corbin were at the emergency room and that the doctors needed to know if they needed to pump Corbin's stomach. According to Keeler, he went to the emergency room but did not find Corbin or Sharp there; it turned out that Sharp had never taken Corbin to the emergency room and she was at home all the time.

Keeler testified that Sharp failed to keep him informed about Corbin's medical issues. He said that he found out about Corbin's surgery to put tubes in his ears by reading Sharp's "away" message to friends on Yahoo Messenger that said, "EVERYONE, thanks for all the prayers! Please continue to pray for Corbin during his surgery, leave a message." It was Keeler's testimony that his wife discovered that Corbin was having surgery at the Ear, Nose and Throat Clinic and, when he arrived to see what type of surgery Corbin was having, the doctor told him that Sharp had said that she did not want him back there and that the doctor did not want him to make a scene. Keeler said that he remained outside until the surgery was completed and then he went back. He said that Sharp ignored him at first but then let him hold Corbin while she got her car.

Keeler said that on another occasion, Sharp began calling his sister, mother, and wife and began asking about family-disease history. Sharp sent Keeler an instant message that she needed to talk to him about...