Sharp v. Keeler

• Decision Date: 01 October 2008
• Docket Number: No. CA 07-1027.,CA 07-1027.
• Citation: Sharp v. Keeler, 288 S.W.3d 256, 103 Ark. App. 233 (Ark. App. 2008)
• Parties: Cyndall SHARP, Appellant, v. M.J. KEELER, Appellee.
• Court: Arkansas Court of Appeals

288 S.W.3d 256

103 Ark. App. 233

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

No. CA 07-1027.

Court of Appeals of Arkansas.

October 1, 2008.

Rehearing Denied November 12, 2008.

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

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

D.P. MARSHALL JR., Judge.

This extraordinarily contentious custody case returns to us.The core issue is who should have custody of C., a four-year-old boy.Appellant Cyndall Sharp is C.'s mother; appelleeM.J. Keeler is the boy's father.Sharp and Keeler were never married.In the first appeal, we affirmed the circuit court's decision changing custody of C. to Keeler, but reversed the court's requirement that Sharp's visitation with her son be supervised.Sharp v. Keeler,99 Ark.App. 42, 256 S.W.3d 528(2007)(en banc).While the case was on appeal, the parties continued litigating about visitation and custody in the circuit court.We now have before us Sharp's appeal from the circuit court's March 2007 orders denying her motion to change custody back to her and holding her in contempt for violating court orders.Sharp also challenges an evidentiary ruling, which excluded some proposed expert testimony.At the end of the proceedings in 2007, the circuit court ordered both Sharp and Keeler to spend four days in jail for willfully violating the court's orders.Keeler has not appealed the contempt ruling.

There is a preliminary, but nonetheless important, point.The circuit court did not have the benefit of our mandate in Sharp I, which issued in May 2007, when it entered the March 2007 orders now being challenged.In one of those orders, and on Keeler's motion, the circuit court expanded supervision of Sharp's visitation.Sharp does not challenge this part of the order.Keeler does not defend the supervised visitation, and says that this issue became moot after our first decision.We take all of this to mean that the circuit court and the parties are honoring our Sharp I mandate in letter and spirit, Williams v. State,100 Ark.App. 199, 201-02, 266 S.W.3d 213, 215-16(2007), and that Sharp's visitation is not being supervised in any way.

I.

We reject Sharp's main point.The circuit court did not clearly err by concluding in March 2007 that no material change in circumstances had occurred since the preceding custody order.Campbell v. Campbell,336 Ark. 379, 384-88, 985 S.W.2d 724, 727-29(1999).The facts that led the circuit court to change custody of this boy from his mother to his father in March 2006 are discussed in detail in this court's thorough en banc opinion in Sharp I,99 Ark.App. at 54-56, 256 S.W.3d at 536-38.Sharp acknowledges that she had the burden of proving a material change in circumstances during the year between the two orders.After three days of testimony, the circuit court concluded: "I find that the petitioner, Ms. Sharp, has failed to meet her burden of proof with respect to a material change in circumstances.The only thing that she's proven today is that the parties still cannot get along."We agree.And we see no useful purpose in describing the many ways large and small in which Sharp and Keeler have refused to cooperate with one another and have made each other's life unnecessarily difficult.

During its 2007 bench ruling, the circuit court reminded Sharp that, "I changed custody [to Keeler in 2006] because I found that you were alienating parental affections from father to son and vice versa.Now, it wasn't at that time you just not getting along with Mr. Keeler.That you continued to take action to the detriment of your son."This harm and alienation was the basis for our affirmance of the March 2006 order changing custody from Sharp to Keeler.Sharp I,99 Ark. App. at 54-56, 256 S.W.3d at 536-38.

In 2007, the circuit court acknowledged that Sharp and Keeler still did not get along and were still disobeying court orders.The court held Keeler in contempt for interfering with visitation, having Sharp removed by security during a hospital visit, and other bad behavior.Keeler served four days in jail for these actions and has not appealed his contempt citation.But the court also found that, unlike in the prior round, the custodial parent's actions were not harming C.

In its detailed ruling, the court pointed to particular events that differentiated Keeler's recent bad conduct from Sharp's earlier actions.Among "several alarming things," first was the fact that Sharp "admitted at the February '06 hearing to lying about your son being in the emergency room to teach this man a lesson, which goes far beyond the little games that you two had previously been playing back and forth."Second, in the earlier round of litigation, the court"found [Sharp] to be unfit because she had [C.] in the middle of a slapping contest between her and her mother, and her mother was charged with felony battery to a child and [Sharp] still allowed her mother to babysit little [C.]"These are some of the circumstances that led the circuit court to conclude that Keeler's recent misbehavior, though similar to Sharp's past actions, was not identical in either quality or effect on the child.Sharp does not argue that our decision in the first appeal somehow mandates—as a matter of precedent, equal treatment, or anything else—another custody change in her favor.

Nor did the circuit court find that Keeler's recent actions were alienating C. from Sharp.The court concluded that "the decisions [Keeler is] making in violating court orders, I haven't heard anything that it's causing little [C.] to have a rough time or not be in his best interest. . . ."Precedent requires that we defer to the circuit court's findings in this "he said and did"—"she said and did" controversy about custody.Word v. Remick,75 Ark.App. 390, 394, 58 S.W.3d 422, 424-25(2001).And the circuit court's most recent conclusion that, notwithstanding his poor behavior, Keeler is not harming C. or alienating the boy from his mother is not clearly against the preponderance of the evidence.Harris v. Grice,97 Ark.App. 37, 38, 244 S.W.3d 9, 11(2006).

Sharp also argues that the circuit court erred by making her prove that changing custody was in C.'s best interest.No reversible error occurred here.Our law imposes this burden on Sharp because she sought the custody change.Brown v. Ashcraft,101 Ark.App. 217, 220, 272 S.W.3d 859, 862(2008).We likewise see no clear error in the best-interest finding.Harris,97 Ark.App. at 38-42, 244 S.W.3d at 11-14.

We are not chancellors.Our standard of review, faithfully applied, decides this case.Harris,97 Ark.App. at 38, 244 S.W.3d at 11;see alsoHicks v. Cook,103 Ark.App. 207, ___, 288 S.W.3d 244, 250(2008)(Marshall, J., concurring).The question presented is not: what would we have decided as the finder of facts?The circuit judge has presided over this poisonous dispute since 2004.In the most recent round, the parties made a record of more than five hundred pages during several days of trial.As the circuit judge said in preface to her comprehensive oral findings, "I have been able to observe both of the parties testify and see their demeanor and see their expressions and hear their testimony and hear their stories."The trial court has had a front-row seat at these parents' long-running tug of war.We are, and should be, duty bound to defer to the trial court's better vantage point for discerning what custody arrangement between these contending parents is best for this child.Sharp I,99 Ark.App. at 43-44, 55, 256 S.W.3d at 529, 537.

II.

We also reject Sharp's second main argument—that the circuit court abused its discretion by limiting the testimony of Dr. Martin Faitak.The circuit court appointed Dr. Faitak to perform a psychological evaluation of Sharp.He did so, and testified about his findings and conclusions.He also testified about the impact that Sharp's and Keeler's hostility toward each other had on C.The court did not allow Dr. Faitak to testify about two things: his opinion about a videotape of Sharp allegedly inappropriately touching C. while changing his diaper, and his opinion about Keeler's mental health.We see no abuse of the circuit court's broad discretion in either evidentiary ruling.Aswell v. Aswell,88 Ark.App. 115, 122, 195 S.W.3d 365, 369(2004).

First, Dr. Faitak was not present when the videotape was made.Keeler's mother—a court-approved visitation supervisor—was present and testified about the incident.Sharp also testified about it.And the circuit judge watched the videotape.In light of all this evidence about the events portrayed on the videotape, we conclude that the circuit court did not abuse its discretion by excluding Dr. Faitak's proposed testimony about his impressions of it.Aswell,88 Ark.App. at 122, 195 S.W.3d at 369.

Nor did the court abuse its discretion by excluding Dr. Faitak's testimony about Keeler's mental health.Ibid.Dr. Faitak was appointed to evaluate Sharp, not Keeler.The circuit judge observed Keeler throughout the hearings just as Dr. Faitak did.She allowed Dr. Faitak to testify about the distrust between the parties, give his opinion—based on Keeler's testimony—about Keeler's lack of desire for collaborative counseling, and testify about the potential effect of the parents' strained relationship on C.Given that Dr. Faitak had not evaluated Keeler, and given all the detailed evidence already in the record about Keeler's actions toward Sharp, we see no abuse of discretion in excluding Dr. Faitak's proposed testimony about Keeler's mental health.Ibid.

III.

Finally, we come to contempt.At the end of its bench ruling, the circuit court held both parties in contempt for violating its prior orders.The court had held Sharp in contempt for the same reason the year before, but had "suspended" her sentence.After reciting...