Stehle v. Zimmerebner
| Decision Date | 30 January 2009 |
| Docket Number | No. 08-610.,08-610. |
| Citation | 375 Ark. 446,291 S.W.3d 573 |
| Parties | Katie Zimmerebner STEHLE, Appellant, v. Ernest William ZIMMEREBNER, Appellee. |
| Court | Arkansas Supreme Court |
Lynn Frank Plemmons, Conway, for appellant.
Scarlett R. Melikian, Cabot, for appellee.
Appellant Katie Zimmerebner Stehle ("Katie") appealed the order of the circuit judge denying her motion for change of custody of her daughter, KZ, to the court of appeals.1 That court reversed the circuit judge's decision and held that Katie should have primary custody of KZ based on a material change of circumstances. The appellee, KZ's father, Ernest William ("Billy") Zimmerebner, petitioned this court for review, and we granted his petition. We affirm the circuit judge's order, and we reverse the decision of the court of appeals.
On October 4, 2001, Katie and Billy divorced, and Katie was awarded primary custody of KZ. On August 27, 2003, the circuit judge held a hearing on Billy's motion to change custody of KZ to him. That motion was granted by an order entered on November 10, 2003, which gave Billy primary custody of KZ, subject to visitation by Katie. On July 25, 2006, Katie moved to change custody back to her and asserted that there had been a material change of circumstances. Those circumstances, she contended, were based on these alleged facts: (1) Billy and his then-wife, now Amber Robertson ("Amber"), had been in a physical altercation, and Amber had filed for divorce;2 (2) KZ and her stepbrother had to "lay on top of" Amber to "get [Billy] to stop attacking her"; (3) Billy and KZ had been living in Billy's parents' home since March 2006, and the sleeping arrangements were inadequate because KZ and Billy shared a room; (4) Billy did not have his own transportation, but used his employer's vehicle to transport KZ; (5) KZ had been in four different schools since 2003; and (6) on July 2, 2006, Billy dropped KZ at Katie's house for summer visitation with insufficient asthma medication and failed to respond to Katie's calls regarding the matter.
The circuit judge heard Katie's motion on March 20, 2007, and, on March 23, 2007, he issued a letter opinion, giving his reasons for denying it. On April 16, 2007, an order was entered to the same effect. Katie appealed, and on May 21, 2008, a three-judge panel of the court of appeals, in three separate opinions, reversed the circuit judge's order and held that Katie should have primary custody of KZ.
The following facts in the instant case are undisputed. When Billy and Katie divorced in 2001, KZ was age three and under school age. After custody was awarded to Katie, KZ lived with her in Conway. When Billy was awarded custody of KZ in 2003, he enrolled KZ in school in Greenbrier. Toward the end of the school year in 2004, Billy enrolled KZ in a magnet school in Maumelle, where she completed kindergarten and first grade. Shortly after she started the second grade, Billy and Amber moved to Cabot, and KZ attended public school there for the remainder of her second-grade year. KZ returned with her father to Maumelle, after Billy and Amber's marriage dissolved in 2006. KZ was enrolled in the third grade at Academics Plus Charter School in Maumelle, the school she attended at the time of the hearing on the change-of-custody petition.
At the hearing before the circuit judge on March 20, 2007, regarding her motion to change custody, Katie testified to the following:
• Despite her many efforts, she was unable to communicate with Billy about KZ because he would not answer her telephone calls or share information with her regarding KZ's educational or medical issues.
• She attended KZ's parent-teacher conferences, class parties, and field trips when she was able and regularly visited KZ at school during lunchtime; Billy did not attend KZ's school functions; rather, Amber had handled those matters.3
• KZ was on the honor roll and got As and Bs at school.4
• She had often been delinquent in paying Billy court-ordered child support but had paid her arrearages and was current at the time of the hearing.
• On one occasion, Billy dropped KZ off for visitation with inadequate medication, and she had to pay to have it refilled because KZ was no longer receiving medical insurance through the state-funded AR Kids program.
• When she filed the motion, Billy only had one vehicle, insured for work purposes, and, therefore, lacked adequate means to transport KZ.5
• After Billy and Amber separated, KZ remained with Amber for six weeks, and Katie was not notified.
• She had remarried and had another child since custody was awarded to Billy.
• She and her husband had recently purchased a newly-constructed house in Vilonia, where KZ had her own room.
• KZ had bonded with her younger half-sister.
• If granted custody, Katie would allow KZ to finish the current school year at the charter school in Maumelle and would consider transferring her to public schools in Vilonia the following year.
• She worked two blocks from the Maumelle charter school, and it would be convenient for KZ to remain enrolled there.
• KZ would attend daycare after school and would return with Katie to Vilonia when she finished work.
• If granted custody, she would keep Billy updated regarding KZ's school and health information.
Amber testified at the same hearing as follows:
• When she and Billy were married, she provided the day-to-day care for KZ and her other children.
• She went to KZ's parent-teacher conferences and other school events without Billy.
• She was responsible for communicating with Katie.
• Billy and his parents, but especially his mother, said bad things about Katie in KZ's presence.
• During the marriage, Billy was abusive to her, and KZ witnessed these acts of violence.6
• KZ would sometimes "throw a fit" before going to Katie's house, and once returned "with a large part of her hair missing."
• She had previously testified against Katie and had since changed her mind about Katie's fitness as a mother.
Billy also took the stand and testified as follows:
• He worked as a plumbing contractor and lived with his parents in their three-bedroom house, in which KZ had her own room.
• His mother took KZ to school each morning, and his father picked her up from school every afternoon.
• He returned most evenings about 30 minutes after KZ got home from school, and then the two of them worked on her homework and read together.
• KZ had always been an honor roll student.
• After finishing her school work, KZ had chores and then often played with her best friend who lived across the street.
• He played on the trampoline with KZ and was teaching her to ride a bike.
• He often did not answer the phone when Katie called because she would call as many as "30 times" in a row and would "threaten" him when he answered.
• He had not said bad things about Katie in KZ's presence and had admonished Amber when she had done so.
• KZ returned many times from Katie's house without having brushed her teeth.
• KZ had "resisted" going to Katie's house and had acted unhappy when she returned from visitation.
• Amber "gets pretty crazy when she gets mad," and he was never violent toward Amber except as necessary to defend himself.
• He owned a vehicle in addition to his work truck and was insured to use both for personal use.
• When he told Amber he would request custody of their two children, she told him she would testify on Katie's behalf in the instant custody proceeding.7
Billy's mother, Debbie Zimmerebner, testified that:
• Billy was very active with KZ and his other two children; KZ and Billy read together every night, played on the trampoline together, and went bike riding.
• Billy made sure KZ was clean and that she had brushed her teeth.
• She had never heard Billy make negative remarks about Katie in front of KZ and he had stopped Amber from doing so.
• Katie called her house "non-stop," after Amber and Billy separated.
• On one occasion, she met Katie in a parking lot to retrieve something KZ needed, and Katie screamed foul language at her.
• Sometimes she referred to Katie as "the witch" but never in KZ's presence.
• KZ had her own bedroom at their house, decorated in "all pink cause that's [KZ's] favorite color."
Finally, Billy's father, David Zimmerebner, told the court under oath that:
• He picked KZ up after work each day, and she would change her clothes, get a snack, and start working on her homework.
• He would help her occasionally with her assignments, but sometimes she would "save[ ] it" for when Billy returned from work because "she wanted him to work with her."
• Billy provided the day-to-day necessities for KZ.
• Billy tucked KZ in at night.
After hearing all the testimony, the circuit judge observed from the bench that he was concerned about the lack of stability in KZ's life. He said that it bothered him that Billy had moved with KZ so often and "always seems to find his way back to his mamma and daddy's." He also expressed concern that Katie only paid her child support when she "decided to bring somebody back to court." He concluded the hearing by telling the parties that he was going to "weigh some of this credibility and some of the testimony" and would then make a decision regarding the motion for change of custody.
On March 23, 2007, the circuit judge filed his letter order, outlining his decision to deny Katie's motion. The judge said that he "had an opportunity to review [his] notes, the exhibits, and to reflect" about the best interest of the child in the instant case. He noted his concern that, despite the fact that there are times when Billy does engage and assist with the care of KZ, "if there is somebody else who will do it he is more than willing to turn that task over." The judge commented on Billy's tendency to "abdicate his responsibility as a parent." He made it clear that "there is no question that while the child has been in his custody she has continued to thrive, is a good student, and in...
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