Rector v. Rector , 58 Ark. App. 132 ( 1997 )

Sam Bird, Judge.

Mary Rector brings this appeal from the Chancery Court of Benton County, which granted permanent custody of her son, Kevin, to Kevin’s father, Joseph Michael “Mike” Rector. On November 16, 1995, Mr. Rector, appellee, filed a complaint in chancery court, alleging he was entitled to a divorce and requesting custody of Kevin. Ms. Rector answered and also petitioned the court for full custody of Kevin.

A temporary hearing was held November 27 to determine who should be awarded temporary custody of Kevin while the divorce was pending. The chanceEor noted that, as with many cases, the parents in this case were not perfect. The chanceEor was disturbed that Ms. Rector had aEegedly threatened to burn down the house, that Ms. Rector was not able to control her anger in front of Kevin, and that she did not communicate weE with Kevin or her other chEdren. In addition, the court noted that Ms. Rector has taken a lot of anti-depressants for her inabEity to control her stress.

The chanceEor was concerned about Mr. Rector’s admitted use of marijuana, that he had taken Kevin out of school during the time Kevin was in the middle of a chess tournament, that Mr. Rector does not seem to think that education is important, that Mr. Rector did not yet have a stable location he could call home, and that Mr. Rector’s work takes him out of town often.

Ms. Rector was awarded temporary custody because the chancellor found that she could meet the needs of the child and because her work schedule would allow Kevin to have a more stable environment.

A hearing was held on February 5, 1996, to determine whether a divorce should be granted, and if so, who should be awarded full custody of Kevin. Again, Mr. Rector admitted to using illegal drugs and Ms. Rector admitted to using a large amount of prescription drugs. Joseph Michael Rector, the parties’ eldest son, testified that Ms. Rector had a number of mood swings. Both parents admitted to disciplining Kevin with a belt, and testimony was presented that Ms. Rector also used a wire fly swatter. Kevin testified that he wanted to live with his father because his dad “takes me out camping and everything, and Mom just watches TV and tells me to go to school and stuff.”

Nicki McDonald, Ms. Rector’s adult daughter from another marriage, also testified. Ms. McDonald stated that Mr. Rector had sexually abused her when she was a child. Appellee objected, stating that the evidence was irrelevant. After questioning Ms. McDonald, the court sustained the objection, stating that a complete investigation into these allegations had not been made and that a link between the incident that happened ten years ago and what was being decided in the hearing was missing.

The chancellor granted Mr. Rector a divorce and permanent custody of Kevin, subject to visitation rights of Ms. Rector. In his oral findings, the chancellor stated that he was concerned about the use and storage of illegal drugs and prescription drugs. However, the chancellor felt that an illegal drug problem could be handled by ordering Mr. Rector to take drug tests, ordering examinations of the home and ordering that the child be removed from an environment where illegal drugs are used. However, these options were not available in monitoring Ms. Rector’s use of prescription drugs. He found that Ms. Rector was taking a large amount of anxiety drugs because of her mood swings, and found that Kevin needed a stable environment and needed to be able to know what to expect from each parent. The chancellor also noted that Mr. Rector tended to spend more time in activities with Kevin.

This court reviews chancery decisions de novo and reverses only if it finds that the chancellor’s findings are clearly against the preponderance of the evidence. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). In a custody hearing, the court considers what is in the best interest of the child. Ark. Code Ann. § 9-13-101 (Repl. 1993). Factors a court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child’s relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Anderson v. Anderson, 43 Ark. App. 194, 863 S.W.2d 325 (1993). In child custody cases, the chancellor has a heavy burden of evaluating the witnesses, their testimony, and determining what is in the child’s best interest. Fitzpatrick, 29 Ark. App. at 40, 776 S.W.2d at 837. In Fitzpatrick, this court held, “We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving child custody.” Id. (citing Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981)).

Appellant argues on appeal that the chancellor abused his discretion in determining that it was in the best interest of the minor child to be placed in the permanent custody of appellee because the chancellor’s decision was clearly against the preponderance of the evidence. For this claim, the appellant relies on three arguments. We affirm.

First, appellant argues the court erred when it ruled that the testimony by Nicki McDonald that Mr. Rector had sexually abused her was irrelevant. She argues that the testimony is a reflection on Mr. Rector’s morality and that morality must be considered in determining what is in the best interest of the child. We agree that morality is a factor to be considered in determining a child-custody case; however, we also agree with the chancellor that neither a proper fink had been made to connect the allegation to the case at hand nor had a proper investigation been made into the allegation.

Nicki McDonald testified that Mr. Rector sexually abused her when she was in the ninth or tenth grade. She testified that he would come into her bedroom and “he touched me and that was it.” However, she never talked to anyone about the incident. She stated that she confronted Mr. Rector and he did not touch her again. Appellee objected to the testimony based on relevance. The court then questioned Ms. McDonald and ruled,

I think this is an issue that needs to be resolved. It’s not totally collateral to this, but I think there needs to be some tie-in to something that happened over ten years ago and what is happening today. If he has exhibited these propensities of abuse toward other children or something, the male children, I need to know about that. We are dealing with a male child here. I am not putting down the allegations Mrs. McDonald is making here today, but I just don’t think that this is the platform for doing it.

The court obviously gave little weight to the testimony of Ms. McDonald about her sexual-abuse allegations against Mr. Rector because no investigation had been made into the allegation, because the alleged incidents had gone unreported to anyone by Ms. McDonald for ten years, and because the custody hearing concerned a twelve-year-old boy and not a high-school girl. No evidence was presented that Mr. Rector had ever sexually abused his son and he steadfastly denied that he had ever touched Ms. McDonald inappropriately. Where testimony conflicts, the issue of credibility is a matter in which this court defers to the chancellor. Fitzpatrick, supra.

Ark. R. Evid. 401 defines relevant evidence as evidence that has a tendency to make the existence of any fact more probable or less probable than it would be without the evidence. This court will not reverse a chancellor’s ruling on relevancy unless it finds an abuse of the trial court’s discretion. James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989). In child-custody cases, the chancellor’s personal observation of the mother and father and their respective personalities is vital and of inestimable value. Fitzpatrick, supra.

For her second argument, appellant contends that the chancellor’s findings that the appellant’s use of prescription drugs was abusive is arbitrary and groundless. The appellant cites no authority for this argument but argues that this finding was not supported by substantial evidence.

The chancellor did not specifically find that appellant was abusing drugs, but he did express that he was “concerned about the number of prescription drugs that are passing through the hands of the defendant.” Evidence was introduced that showed appellant was getting prescriptions filled about every month. She testified that she was taking, or has taken in about a year, Valium, which she characterized as an antianxiety drug taken to help her sleep; Phentermine and Pondimine to help her lose weight; Darvocet, for chronic headaches; Polyhistine-D for sinus; Cephalexin, which is an antibiotic; and Paxil, as an antidepressant. She also testified that she had taken Fiorinal during the past year for pneumonia. Further, she stated that although she gets refills of Valium of about 100 every other month, she does not take all of them. Also, she testified that she receives refills of Darvocet in quantities of about forty every other month but does not take all of them either.

The chancellor found that she was taking some of these drugs for mood swings, and the chancellor held that Kevin needed stability. The chancellor stated, “I believe the child needs to know what to expect from his parents and I believe it needs to be stable and needs to be consistent in that response.” Based on the number of drugs appellant takes or has taken recently and the number or refills she receives, the chancellor did not abuse his discretion in considering appellant’s prescription drug use as a factor in determining what was in the best interest for Kevin.

For her third argument, the appellant contends that the chancellor should not have considered drug-test results of the appellee because the tests were not admitted into evidence. The appellant states that the chancellor further erred by discounting appellee’s illegal drug use.

During the hearing, Mr. Rector testified that he had submitted to drug tests monthly since the temporary hearing so that he “could convince the judge that I am serious when I say I am not going to be using it.” However, when appellee’s counsel sought to have the documents containing the results of the drug tests marked as exhibits, appellant’s counsel objected to their introduction on grounds that they were “inadmissible.” The court did not rule on the objection but the documents containing the results of the drug tests were not introduced into evidence. The judge later commented that he was impressed by the drug tests.

The dissenting opinion suggests that the drug-test results were not introduced because of failure on the part of appellee to produce them, and that such failure gives rise to a presumption that the evidence, if produced, would be unfavorable to appellant. Exactly the opposite is true. Appellee had the test results present in court and was preparing to have them marked as exhibits as a prerequisite to their introduction when appellant objected because the person who conducted the tests was not present to authenticate them. Appellant obviously knew what the test results would show and did not want the court to consider them. It would be unreasonable to infer that the drug-test results were unfavorable to appellee where it was appellee who revealed that he had taken the tests, where he took the tests to try to persuade the judge that he was no longer using marijuana, and where appellee was attempting to offer the test results into evidence until they were objected to by the appellant.

The judge did not comment that he was impressed with the results of the drug tests. Instead, he said that he was impressed with the tests, obviously meaning that he was impressed that appellee had gone to the trouble and expense of having the tests performed. It was not impermissible for the court to consider such evidence. Clearly it bears upon the credibility of appellee’s testimony that he had stopped using marijuana.

The court did not rely on the drug tests in determining custody and what would be in the best interest of the child. In the court’s order, the chancellor stated that he might take Mr. Rector “up on these drug tests. If, in fact, it comes to . . . my attention that there is a — I guess if I’m convinced that there may be a violation of this trust that I have in you on the consumption of drugs, I reserve the right to order you to take a drug test.”

Further, the trial court did not discount appellee’s illegal drug usage. To the contrary, the judge found that he could monitor and had options to deal with any allegations of illegal drug use by Mr. Rector, but it would be more difficult to monitor or take action on the allegation of abuse of prescription drugs. The court held,

I certainly do not encourage the use of illegal drugs. I don’t encourage the abuse of prescription drugs. I am concerned about the number of prescription drugs that are passing through the hands of the Defendant. I am concerned about the security of those drugs just as much as I am concerned about the security of illegal drugs. There is a way the illegal drugs can be modified [sic] by this Court, because I can order drug tests, I can order protective services, I can order examination of the home, and with illegal drugs, I can remove the child from that environment. Where it is [an] abuse of legal drugs, I don’t have those options.

We do not find that the chancellor’s decision to place Kevin in the custody of his father was clearly against the preponderance of the evidence, and we affirm.

Affirmed.

Jennings, Stroud, Neal, and Crabtree, JJ., agree. Rogers, J., dissents.