Skinner v. Shaw

• Decision Date: 16 September 2020
• Docket Number: No. CV-19-452,CV-19-452
• Citation: Skinner v. Shaw, 2020 Ark. App. 407, 609 S.W.3d 454 (Ark. App. 2020)
• Parties: Christine SKINNER (Previously Shaw), Appellant v. Brandon SHAW, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 407

609 S.W.3d 454

Christine SKINNER (Previously Shaw), Appellant

v.Brandon SHAW, Appellee

No. CV-19-452

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: September 16, 2020

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor, Tasha C. Taylor, Little Rock and Jennifer Williams Flinn, for appellant.

Coplin & Hardy, PLLC, Little Rock, by: Betty J. Hardy, for appellee.

PHILLIP T. WHITEAKER, Judge

AppellantChristine Skinner appeals from an order of the Pulaski County Circuit Court granting appelleeBrandon Shaw's petition for change of custody.On appeal, Christine argues that the circuit court erred in denying her motion to dismiss Brandon's petition on the basis of res judicata; in finding that a material change in circumstances existed to warrant a change of custody; and in concluding that the change of custody was in the child's best interest.We find no error and affirm.

I.Factual and Procedural Background

Christine and Brandon married in 2005 and have one daughter, L.S.The couple divorced in August 2009, and Christine was awarded primary custody of L.S. at that time, subject to Brandon's visitation.Christine subsequently married John Shaw, who had several other children, including a daughter, K.S.

In October 2016, L.S. informed Christine that her grandfather, Michael Maness(Christine's father) had touched her and K.S. inappropriately.This disclosure resulted in simultaneous but separate proceedings of child abuse and child custody.

In the child-abuse proceeding, Christine immediately reported the abuse to the Lonoke County Sheriff's Office, and an investigation commenced.The Lonoke County Sheriff's Office referred Christine and L.S. to the Wade Knox Child Advocacy Center, where both L.S. and Christine were interviewed.In her interview, Christine disclosed that Maness had abused her during her childhood.Maness was arrested and charged with two counts of rape and two counts of second-degree sexual assault for his abuse of L.S. and K.S.Additionally, the matter was referred to the Crimes Against Children Division(CACD) of the Arkansas State Police.

While the CACD and law enforcement investigations were still pending, Brandon initiated the child-custody proceeding by filing a motion for change of custody that sought ex parte emergency relief, citing the charges against Maness and alleging that Christine had concealed the sexual-abuse investigation from him.¹The circuit court granted Brandon's motion, awarding him primary physical custody of L.S. until such time that a hearing could be held.²

After holding an emergency hearing, the court entered an order in which it continued primary physical custody of L.S. with Brandon pending a final hearing.The court also granted visitation to Christine with numerous restrictions; specifically, Maness was to have absolutely no contact with L.S., and Jan Maness, Christine's mother, was not to be present during Christine's overnight visitations, could not babysit L.S., and could not be left alone with L.S.

Meanwhile, in the child-abuse proceeding, CACD continued its investigation of Christine.It determined that Maness had pled guilty to the rape and first-degree sexual abuse of Christine in 1988.CACD ultimately recommended a true finding of neglect and failure to protect against Christine citing the fact that Christine had disclosed that her father abused her during her childhood years but still allowed the girls to be around Maness.Ultimately, CACD determined that Christine's name should be placed in the Child Maltreatment Central Registry.As a result of this true finding, the Arkansas Department of Human Services(DHS) filed a petition for dependency-neglect against Christine.

Christine appealed the CACD finding and sought a hearing before an administrative law judge (ALJ).The ALJ subsequently entered an order finding that the CACD erred in placing Christine's name on the child-maltreatment registry.Specifically, the ALJ found that there was insufficient evidence to show that Christine knew or should have known that Maness abused L.S. or K.S. before L.S. disclosed the abuse to Christine.Following the ALJ's decision, DHS dismissed its dependency-neglect action against Christine.

After the ALJ's order was entered in the child-abuse proceeding, Christine filed a motion in the child-custody proceeding seeking to dismiss Brandon's motion for change of custody.In her motion, she argued that the allegations advanced in Brandon's motion––specifically, the claim that she knew or should have known about the risk to L.S.––had been fully litigated in the administrative hearing and addressed by the ALJ.Therefore, she contended, Brandon's claims should be barred by application of res judicata.She also alleged that Maness, the perpetrator of the abuse, had died and was no longer a threat.

The circuit court denied Christine's motion to dismiss.In doing so, the court rejected the idea that res judicata barred the claims in Brandon's custody motion and found that the issues litigated in the administrative proceeding were not the same as those being litigated in the custody proceeding.The court found that the issue pending before the ALJ was whether there was sufficient evidence to indicate a failure to protect, while the issue pending before the circuit court was whether there had been a material change in circumstances sufficient to warrant a change in custody.As such, the court found that res judicata did not bar the litigation of the issues presented in the custody case.

Brandon then filed a verified motion for permanent change of custody in August 2017.The circuit court held hearings on the motion over the course of several months in March and July 2018 and January 2019.On February 15, 2019, the circuit court entered its order granting Brandon's petition for change of custody.The court also ordered Christine to pay child support and concluded that Brandon was entitled to attorney's fees.Christine timely filed a notice of appeal.

II.Res Judicata

In her first argument on appeal, Christine argues that the circuit court erred in denying her motion to dismiss Brandon's motion for change of custody.Specifically, she assigns error to the court's conclusion that res judicata did not bar relitigation of the issues presented in the change-of-custody proceeding that had been decided previously in the DHS administrative proceedings.We review a circuit court's conclusions regarding the application of res judicata as a question of law, which this court reviews de novo.

Elsner v. Kalos Fin. Servs., Inc. , 2012 Ark. App. 639, 2012 WL 5439935.

Christine maintains that the issue-preclusion aspect of res judicata, or collateral estoppel, applies in this case.Decisions of an administrative board may be entitled to collateral-estoppel effect.Beaver v. John Q. Hammons Hotels, Inc. , 81 Ark. App. 413, 102 S.W.3d 903(2003).Collateral estoppel, or issue preclusion, requires that four elements must be met before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment.Ogborn v. Ark. Dep't of Human Servs. , 2017 Ark. App. 600, at 6, 532 S.W.3d 621, 625(citingPowell v. Lane , 375 Ark. 178, 186, 289 S.W.3d 440, 445(2008);State Office of Child Support Enf't v. Willis , 347 Ark. 6, 59 S.W.3d 438(2001) ).In addition, the party against whom collateral estoppel is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding.Id. at 6–7, 532 S.W.3d at 625.

The circuit court found that the first element of collateral estoppel was not satisfied.We agree.In this case, the issue that was litigated in the administrative proceeding was whether Christine's name should be placed on the child-maltreatment registry for neglect or failure to protect because she knew or should have known that her father was abusing her daughter.The issue being litigated in the custody matter was whether a material change in circumstances had occurred that warranted a modification of the custody arrangement between Christine and Brandon.Regarding this first element of collateral estoppel, the circuit court determined that "the evidentiary requirement to sustain a true finding of neglect in an administrative hearing is different than what is required to find misconduct of a party, poor parenting decisions, or parental neglect that may be grounds for a material change in circumstances."We hold that the circuit court correctly decided this question and affirm on this point.³

III.Material Change of Circumstances

In her second point on appeal, Christine argues that the circuit court erred in finding that a material change in circumstances had occurred sufficient to warrant modifying custody.Our standard of review in custody matters is well settled.This court considers the evidence de novo and does not reverse unless the circuit court's findings of fact are clearly erroneous.Cordell v. Cordell , 2018 Ark. App. 521, 565 S.W.3d 500.A finding is clearly erroneous when, although there is evidence to support it, the court is left with a definite and firm conviction that the circuit court made a mistake.Id.

In custody-modification cases, courts impose more stringent standards than they do for initial determinations of custody in order to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues.Geren Williams v. Geren , 2015 Ark. App. 197, at 10, 458 S.W.3d 759, 766.A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child or when there...