Elliott v. Skaggs ( 2013 )

Cite as 2013 Ark. App. 720
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-13-543
Opinion Delivered December 4, 2013
GINNY SKAGGS ELLIOTT APPEAL FROM THE CRAWFORD
APPELLANT COUNTY CIRCUIT COURT,
[NO. 17DR-08-73]
V.
HONORABLE GARY COTTRELL,
DANNY SKAGGS and MINOR CHILD JUDGE
APPELLEES
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Ginny Elliott appeals from an order of the Crawford County Circuit Court
changing custody of the parties’ minor daughter to appellee, Danny Skaggs. She argues on
appeal that the trial court erred by granting Danny primary custody of V.E. Ginny contends
that there was no material change in circumstances sufficient to modify the court’s previous
custody order. We find no error and affirm.
The parties were divorced by decree entered on May 30, 2012. Only one child was
born of the marriage, V.E., born February 12, 2008. Ginny was awarded custody of V.E., and
Danny was granted standard visitation. The divorce decree stated that visitation between
Danny and V.E. “shall not be obstructed, altered or denied unless authorized by this Court.”
The court also found that Ginny had “made efforts to exclude [Danny] from a relationship
with the minor child from the time the child was born until the date of this hearing.” The
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decree addressed three separate reports made to the Arkansas Department of Human Services
(DHS) alleging sexual assault of the child by Danny, and the court described them as
“understanding and proper,”“ willful,” and “preposterous,” respectively.
On September 5, 2012, Danny filed a petition for contempt and to modify custody.
He alleged that a material change in circumstances had occurred since the entry of the divorce
decree in that Ginny had made allegations of inappropriate behavior against either Danny or
his adult daughter concerning the child. He also alleged that Ginny had taken steps to limit
his visitation, including taking the child to the doctor and getting a letter stating that it was
in the child’s best interest to stay at home for the next seventy-two hours. According to
Danny, Ginny’s behavior was causing severe and permanent damage to the child. He asked
that custody be transferred to him, that Ginny be ordered to pay child support, and that she
be found in contempt for her behavior.
On September 20, 2012, Danny filed a motion for emergency ex parte custody,
alleging that Ginny had completely eliminated his visitation with the child as of August 26,
2012. He also alleged that he had recently received information that Ginny had left the state
and gone to Colorado with the child. In the motion, Danny also stated that he was contacted
by Dana Dusha, an investigator for the Arkansas State Police Crimes Against Children
Division (CACD), and was informed that the recent allegations against him would be found
untrue and the case would be closed. Ginny filed a response to Danny’s motion for
emergency ex parte custody on October 5, 2012, denying the material allegations of the
motion. She asked that the court reinstate supervised visitation between Danny and the child.
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In the response, she also acknowledged that she had taken the child with her to Colorado to
see Ginny’s ill stepmother. Ginny filed a response to Danny’s petition for contempt and
modification of custody on October 15, 2012. In the response, she denied the material
allegations of the petition, but she asserted that “the minor child continues to articulate
statements consistent with improper conduct on the part of [Danny] and/or other individuals
who have come in contact with the minor child while in the custody of [Danny].”
A scheduling conference took place on October 23, 2012. The court entered an order
on November 19, 2012, continuing Danny’s standard visitation schedule, but ordering that
it be exercised in the presence of either his daughter or sister. The court set a January 31,
2013, bench trial for the matter, and appointed an attorney ad litem for the child. Ginny filed
a motion to modify on October 20, 2012, alleging that a material change in circumstances had
occurred and urging that visitation between V.E. and Danny “occur only under the
supervision of appropriate individuals consistent with the intent of keeping the minor child
free from harm.” The motion also stated that the “minor child continues to assert significant
inappropriate conduct on the part of [Danny] and such conduct is not in keeping with the
best interests of the minor child.” Danny replied to Ginny’s motion on December 3, 2012,
denying the material allegations of the motion.
On January 7, 2013, Ginny filed a motion for a forensic examination and for
continuance of the scheduled trial date. Ginny stated that the forensic examination would
assist and aid the court in its determination of the allegations of abuse. She also indicated that
the attorney ad litem agreed that the forensic examination may be helpful. Ginny included
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the curriculum vitae of Jamie G. Vogt in her motion. Danny filed a motion for emergency
relief on January 8, 2013, alleging that Ginny had once again eliminated his visitation with
the minor child. He also claimed that Ginny had subjected the child “to physical and
psychological examinations in an effort to produce testimony and/or evidence against [him].”
Additionally, he alleged that since the scheduling order, he and/or his family “have been
exonerated in two additional [CACD] investigations. There have been at least five separate
investigations, with at least three different investigators, all of which have been
unsubstantiated.” Danny stated that this pattern of behavior would result in substantial
damage to both him and the minor child. He asked that Ginny be held in contempt and that
custody be transferred to him. Ginny filed a response on January 9, 2013, denying the
material allegations in Danny’s motion. However, she admitted that supervised visitation had
not taken place as ordered because the child continued to express “inappropriate and unlawful
behavior on the part of [Danny].”
Danny filed a response to Ginny’s motion for a forensic examination and continuance
on January 9, 2013. He denied the material allegations of the motion and asked the court to
deny Ginny’s request. He stated that Ginny had “continuously and systematically taken every
opportunity available to her to deny [him] a relationship with his own child.” He further
stated that Ginny’s “behavior is irrational, arrogant, and is not aimed at the best interest of this
helpless child.” He opined that Ginny’s actions had “caused irreparable and undeniable
damages which [he] and the minor child will be dealing with for the rest of their lives.”
Ginny filed a response on January 10, 2013, asserting that an independent forensic
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examination was helpful to the case and agreeing to initially pay the $3500 for the exam. The
court denied the motion for a forensic examination and continuance in an order filed on
January 22, 2013.
The bench trial took place as scheduled on January 31, 2013. Investigators Dana
Dusha, Sam Dorrough, and Tara Flute of CACD all testified that there had been three
separate reports of abuse and investigations concerning Danny and the minor child since May
2012.1 All three of the reports were unsubstantiated or unfounded by the investigators, and
subsequently closed after the necessary parties had been interviewed. According to the
investigators, at the conclusion of their investigations none of them felt that Danny was
sexually abusing V.E. However, they agreed that in as many as ninety-percent of sexual abuse
cases, there is no physical evidence of the abuse.
Danny testified that visitation between him and V.E. initially went well after the
divorce. He stated that the child never acted out sexually or inappropriately while at his
house. He said that although he was granted unsupervised visitation with V.E., he decided
to have someone else present for his own protection against the allegations previously made
by Ginny, and because he wanted the child to be exposed to their family unit. He testified
that he was contacted by the Van Buren Police Department on August 15, 2012, and
informed that Wednesday night visitation would not take place as scheduled because the child
was at the Hamilton House. Danny said that he was unable to exercise his weekend visitation
1
Referrals concerning inappropriate behavior and/or sexual abuse were made August
14, 2012, October 2, 2012, and October 27, 2012.
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because on August 17, 2012, Ginny gave him a letter indicating that the child was sick and
needed to stay home several days. He stated that when V.E. came over on August 22, 2012,
for visitation, she was wearing a whistle around her neck. Subsequent visitations were
eliminated by Ginny until after the scheduling order in October.
Danny denied ever being alone with V.E., except for taking her to the restroom,
between October 2012 and January 2013. He also denied having sexual contact with V.E.,
Danielle, or Jeremy.2 Danny described the allegations against him and other members of his
family as “bizarre” and “crazy.” Danny testified that Ginny terminated visitation again,
shortly after the scheduling order. He stated that it seems like it does not matter what the
court says. According to Danny, V.E. never wants to go back home to Ginny and when it
gets close to time to go, she “starts sullying up.” He said that the child just has a blank look
on her face at the conclusion of their visitations. Danny stated that he believed that the
allegations of abuse had been conditioned in V.E.’s mind, and have been instilled as “false
memories.” He denied ever threatening to harm Ginny, H.E., or Shirley.3 Danny testified
that, excluding his sister, Janet Maddox, there had been allegations made against every
member of his family.
Danielle testified that she was a LPN. She said that Danny raised her from the time
she was twelve and that she never had any problems with him doing anything sexually or
physically inappropriate to her. She stated that she had never seen her father act
2
Danielle Parks is Danny’s adult daughter who is married to Jeremy Parks.
3
H.E. is Ginny’s son and V.E.’s older brother. Shirley is Ginny’s mother.
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inappropriately with V.E. during the visitations. Danielle said that during the supervised
visitations, she never left V.E. alone with Danny, Jeremy, or her daughter, A.P. She stated
that V.E. had never said or disclosed anything sexual in nature in her presence. She testified
that V.E.’s behavior changed when it was time for her to go home and that she got real quiet.
Janet testified that she had been present at about three or four of the supervised
visitations. She stated that her home is in Oklahoma and that it takes her about an hour and
forty-five minutes to reach Danny’s home. She said that she had never seen any inappropriate
interactions between Danny and V.E. She also stated that she had never seen inappropriate
interactions between Danny and A.P., or any child. Janet testified that she was familiar with
all of the allegations that had been made against Danny, Danielle, and Jeremy, and that she
thought they were all outrageous.
Cathy Gifford testified that Ginny was dating her ex-son-in-law, Jimmy. She stated
that she sells insurance for Farm Bureau and that Jimmy was involved in an accident.
According to Cathy, Jimmy, Ginny, and V.E. came over to her house one evening for her
to explain an insurance letter to Jimmy. She stated that at some point, she was left alone with
V.E., and decided to ask V.E. if she enjoyed going to her father’s house. Cathy said that V.E.
disclosed to her that Danny licks her bottom and sticks his finger in her bottom. Cathy stated
that V.E. also told her that Jeremy sometimes licks her bottom, too. Upon hearing this
information, Cathy said that she got up and left the room and placed a call to the State Police
Child Abuse Hotline. She admitted that she had initially gotten information concerning the
alleged abuse from Jimmy and Rhonda Bell.
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Diana Elkins testified that she was the Director of First Place Academy, where V.E.
attends preschool. She stated that on December 19, 2012, it was V.E.’s turn to go with her
to ring the bell. She said that the two walked around the facility “talking about friends and
trust and things like that.” She stated that V.E. indicated to her that she had a secret.
According to Diana, V.E. never disclosed this secret but V.E. formed what appeared to be a
gun with her hand and indicated that she could not tell the secret because “her daddy said he
would shoot Ginny . . . , and [H.E.], if she told the secret.” Diana stated that V.E.’s whole
demeanor changed. She said that she immediately called DHS, because she is a mandated
reporter. However, she stated that she was told that there was nothing they could do. Diana
conceded that she knew about the various sexual-abuse allegations prior to December 19,
2012.
Ginny testified that visitation proceeded as directed for a period of time after the
divorce. She stated that she began to have concerns about V.E.’s safety between late June and
early July. Ginny said that in August, V.E. began coming from visitation disclosing things to
her. She also stated that V.E. had said something to H.E. about “playing dirty doctor.”
According to Ginny, these disclosures usually came at bath time or while Ginny was blow
drying V.E.’s hair. The disclosures included acts of oral sex between V.E. and Danny. Ginny
stated that she asked a teacher at school to talk to V.E. while they were preparing their rooms
for the next school year. Based upon that conversation, a report was made to CACD. Ginny
stated that subsequent to the report, she took V.E. with her to Colorado so that she could
tend to her ill stepmother. She stated that they stayed in Colorado for about two-and-a-half
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weeks and that V.E. continued to make disclosures during this time. Ginny testified that the
next reporting event happened as a result of statements V.E. made to Cathy. Ginny stated
that the third reporting event happened after she went and talked to someone. According to
Ginny, she followed the visitation schedule after the scheduling order until she had a
conversation with Diana in late December. She testified that visitation was terminated
because she was fearful for her and V.E.’s lives. Ginny denied sexually abusing V.E.,
witnessing V.E. being abused, or telling V.E. or anyone else that V.E. had been abused. She
stated that she only wanted V.E. to be safe and that she did not feel V.E. was safe in Danny’s
company.
Ginny admitted that part of her reason for going to Colorado was to try to keep V.E.
safe. She stated that she did not tell Danny or Investigator Dusha about her plans to go to
Colorado. Ginny testified that she had no communication with Danny between the time she
went to Colorado until the scheduling hearing in October. She testified that she subsequently
requested a leave of absence from work. Ginny stated that she questioned V.E. after each
visitation with Danny. She acknowledged that V.E. had been the subject of at least six
investigations and that V.E. had undergone numerous examinations. Ginny continued, “She
[V.E.] has been forced to sit in a room with a forensic interviewer and discuss things that
would make a pervert embarrassed. She has done it over and over.” She stated that she made
a unilateral decision to stop visitation in August because she felt it was best for V.E. Ginny
agreed that visitation did not resume until the scheduling order in October. She stated that
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although V.E.’s disclosure at school in December was not a physical threat, she decided that
visitation would no longer continue.
Ginny testified that V.E. was doing better but that she was “still an emotional mess.”
She stated that when V.E. returned from visiting Danny the last time in December, she was
in an altered state and that she “was absolutely exhausted and disassociated.” Ginny also stated
that when she gave V.E. a bath, the inside of V.E.’s vagina was “as red as an apple.” She said
that she called her sister-in-law, an LPN, who stated that she had never seen anything that
red. Ginny denied doing anything to “incite [the court’s] fury” and stated that she only tried
to “look after the best interest of [her] child.”
Jackie Hamilton, of Hamilton House, stated that the State Police usually defer to the
interviewers at Hamilton House to conduct the interviews concerning sexual assault. She
acknowledged that there had been three reporting events concerning V.E. since March 2012.
Jackie stated that she did not conduct or observe all the interviews with V.E. She said that
V.E. needed counseling because there was a reason V.E. continued to report. Jackie testified
that she did not doubt that something had happened to V.E. She continued that
[s]he has either seen it, heard it, been told it or experienced it. At her age, she could
not have the vocabulary. At age four, it would be difficult for her to maintain
something that someone had told her. It would be difficult for her to do, what I call,
maintaining a lie. She is a very smart girl but children just tend to not have the
capacity. They are horrific things that she has reported. And whether or not it
happened, or she saw it happen, or was told it happened, it is still horrific and
traumatic for her. . . .What she has done in my experience, is consistent with what I
have seen with other youngsters who have been sexually abused.
Jackie stated that she had no first-hand knowledge of what happened in V.E.’s
interviews, but that she had read the summaries. She opined that a psychological evaluation
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would be helpful in this case. She testified that children V.E.’s age generally know two things,
who and what. She stated that they get confused with time schedules. Jackie said that it
would be hard for a child V.E.’s age to maintain a lie, even in a single interview. She testified
that she could not say with certainty that Danny sexually abused V.E. or that Ginny coached
V.E. in any way.
At the conclusion of the trial, Danny asked that the court grant his request to hold
Ginny in contempt, and to grant him custody of V.E. Ginny asked that she be able to
maintain custody. The attorney ad litem, on the other hand, asked the court to deny Danny’s
request for custody, to remove custody from Ginny, and to place the child in DHS custody.
The court found Ginny in contempt and sentenced her to jail for the weekend. The court
also found that there had been a material change in circumstances significant enough to
warrant a change in custody. The court filed an order on March 1, 2013, granting Danny’s
petition. The order stated in pertinent part:
2. The Court hereby finds that the Defendant has willfully disobeyed the Orders of
this Court and the Court hereby sentences the Defendant to serve jail time beginning
9:00 a.m. Friday, February 1, 2013, until Sunday, February 3, 2013, at 9:00 p.m.
3. The Court finds that the investigators for the Arkansas State Police, the Plaintiff,
and the Plaintiff’s daughter were all credible. The Court finds that the Defendant was
credible in that the Court believes that she believed these disclosures were made. The
Court finds that Ms. Elkins’[s] and Ms. Gifford’s testimony were well intending but
that the discussions with the minor child were colored by their previous discussions
with the Defendant. The Defendant has precipitated the investigations into the Plaintiff
by leading the minor child to be questioned by a mandated reporter. The Defendant
has indicated that she has not and will not obey the orders of this Court. The Court
hereby finds that there has been a material change in circumstance and that custody of
the parties’ minor child, [V.E.], is hereby changed to the Plaintiff.
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4. The Defendant is awarded standard visitation with the minor child with such
visitation to begin the Wednesday night after she is released from jail, with her first
weekend visitation being Friday, February 8, 2013, at 5:00 p.m. until Sunday,
February 11, 2013, at 5:00 p.m. All other visitation shall be pursuant to this Court’s
Standard Order Regarding Child Visitation and Related Matters. This Court’s
Standard Order Regarding Children’s Medical and Dental Expenses is attached hereto
and is incorporated as if set forth word for word herein.
Ginny was also ordered to pay child support. She filed a timely notice of appeal. This appeal
followed.
In child-custody cases, we review the evidence de novo, but we do not reverse the
findings of the court unless it is shown that they are clearly contrary to the preponderance of
the evidence.4 We also give special deference to the superior position of the trial court to
evaluate and judge the credibility of the witnesses in child-custody cases.5 We have often
stated that we know of no cases in which the superior position, ability, and opportunity of the
trial court to observe the parties carry as great a weight as those involving children.6 A finding
is clearly against the preponderance of the evidence, 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.7
4
Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003).
5
Id.
6
Id.
7
Id.
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The primary consideration in child-custody cases is the best interest and welfare of the
child; all other considerations are secondary.8 Custody awards are not made or changed to
punish or reward or gratify the desires of either parent.9 Before a custody order can be
changed, there must be proof of material facts that 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.10 The burden of proving such a change is on the
party seeking the modification.11
Ginny argues that the trial court erred by finding a material change in circumstances
and changing custody of V.E. to Danny. She also contends that the trial court did not
consider the best interest of V.E. but granted Danny’s petition to punish her for not following
court orders. Ginny concedes that she disobeyed court orders, but contends that she was
trying to further the best interest of V.E. She states that because she has only been held in
contempt this one time, the trial court should not have changed custody of V.E. to Danny.
There is a two-step process through which a court must proceed in deciding a petition for
change of custody.12 First, the court must determine whether there has been a significant
8
Id.
9
Id.
10
Id.
11
Id.
12
Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994).
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change in the circumstances of the parties since the most recent custody decree.13 If the trial
judge finds that a significant change in circumstances has occurred, the court must then decide
custody placement with the primary consideration being the best interest of the child.14 In
the present case, the trial court found that Ginny had indicated that she will not obey court
orders and that she had precipitated investigations into Danny by directing V.E. to be
questioned by mandated reporters. The court found this behavior to be enough to justify a
change of custody.
In Hepp v. Hepp,15 we held that violation of the court’s previous directives does not
compel a change in custody. The fact that a party seeking to retain custody of a child has
violated court orders is a factor to be taken into consideration, but it is not so conclusive as
to require the court to act contrary to the best interest of the child.16 To hold otherwise
would permit the desire to punish a parent to override the paramount consideration in all
custody cases, i.e., the welfare of the child involved.17 Moreover, to ensure compliance with
its orders, a trial judge has at his or her disposal the power of contempt.18 And, we have said
that a court’s contempt powers should be used prior to the more drastic measure of changing
13
Id.
14
Id.
15
61 Ark. App. 240, 968 S.W.2d 62 (1998).
16
Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975); Kerby v. Kerby, 31 Ark.
App. 260, 792 S.W.2d 364 (1990).
17
Id.
18
Carver, supra.
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custody,19 which is keeping with the principle that custody is not to be changed merely to
punish or reward a parent.20 In addition, we have held that whether one parent is alienating
a child from the other is also an important factor to be considered in change of custody cases
because a caring relationship with both parents is essential to a healthy upbringing.21
Here, Ginny admitted to unilaterally terminating visitation between Danny and V.E.,
although she had been court ordered not to do so in the divorce decree. This had the effect
of alienating V.E. from Danny. Additionally, Ginny caused several unsubstantiated reports
of sexual abuse to be filed against Danny and his family members over the course of just a few
months. As a result of these reports, V.E. had to go through numerous investigations and
examinations. Based on the evidence, we cannot say that it was clearly against the
preponderance of the evidence for the trial court to find a material change of circumstances
significant enough to warrant a change custody.22 Accordingly, we affirm.
In her reply brief, Ginny argues that it was error for the trial court to deny her motion
for a more detailed forensic examination for V.E. However, we do not address arguments
made for the first time in a reply brief.23
19
Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986).
20
Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991).
21
Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).
22
See Brewer v. Smith, 2010 Ark. App. 134, 374 S.W.3d 87 (affirming a change in
custody based on the appellant’s repeated failure to follow visitation orders and repeated,
unfounded allegations of abuse).
23
Stautzenberger v. Stautzenberger, 2013 Ark. 148, ___ S.W.3d ___.
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Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
Bequette & Billingsley, P.A., by: Keith I. Billingsley, for appellant.
Walters, Gaston, Alison & Parker, by: Troy Gaston, for appellee.
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