Abby Wallace v. Robert Pyle ( 2024 )


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  •                                  Cite as 
    2024 Ark. App. 496
    ARKANSAS COURT OF APPEALS
    DIVISION III
    No. CV-23-463
    ABBY WALLACE                                    Opinion Delivered October 9, 2024
    APPELLANT
    APPEAL FROM THE CRAIGHEAD
    V.                                              COUNTY CIRCUIT COURT,
    WESTERN DISTRICT
    ROBERT PYLE                                     [NO. 16JDR-22-976]
    APPELLEE
    HONORABLE CHRIS THYER, JUDGE
    AFFIRMED
    MIKE MURPHY, Judge
    The parties in this case, appellant Abby Wallace and appellee Robert Pyle, were
    divorced by decree entered by the Craighead County Circuit Court on March 16, 2023.
    Wallace appeals from the decree, arguing that the circuit court clearly erred by awarding joint
    custody. We affirm.
    Wallace and Pyle met in January 2021 and had a child together (M.C.) in December
    that same year. The parties were married on April 27, 2022, and separated August 27, 2022,
    when Wallace pursued criminal charges against Pyle for domestic battery and false
    imprisonment. Pyle filed for divorce on November 4, and Wallace counterclaimed. Both
    parties sought primary custody of M.C. A temporary order placed custody of M.C. with
    Wallace with Pyle having visitation.
    A final hearing was held March 8, 2023, wherein Pyle consented to the divorce and
    orally amended his complaint to seek joint custody rather than sole custody. At the time of
    trial, Pyle had pending criminal charges for domestic battery, false imprisonment, and
    interference with emergency communications.
    The entirety of the testimony and proof at the divorce hearing related to the custody
    of and visitation with M.C. Wallace’s position below was that she should have sole custody
    due to Pyle’s drinking problem and repeated pattern of domestic abuse. She testified that
    shortly before M.C. was born, Pyle got a DWI. Pyle voluntarily went to a seven-month rehab
    in January 2022 but left the program after about two months. Shortly after leaving the
    program, Wallace and Pyle married. Pyle then received a second DWI in July 2022 that
    required him to have an interlock device in his car.
    In accusing Pyle of a pattern of domestic abuse, Wallace recalled several instances.
    Some instances occurred before the parties were married and included allegations that Pyle
    had at different times locked her in a closet (“until she settled down”), pinned her on the
    bed and yelled at her, and disclosed suicidal ideations to her via text message. Pyle did not
    dispute the text message, said he thought they were “play fighting” regarding the yelling, and
    disputed the closet allegation entirely.
    Wallace testified to another instance of abuse that occurred the weekend of August
    26, 2022. Wallace said Pyle was drunk, became aggressive toward her, held her down, and
    called her a “cry baby.” Wallace left that night and stayed with a friend. When she came
    home Sunday, she told Pyle she wanted a divorce. She thought Pyle was drunk or high. He
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    would not let her leave, so she used her phone to record him. She said he took her phone,
    pinned her down, hit her, and pocketed her phone. Wallace pressed charges over this
    incident, and due to the pending charges, Pyle opted not to testify about the matter.
    Pyle testified that he no longer has a drinking problem but that he still occasionally
    drinks. He explained that he was sober for ten months until the last month of his
    relationship with Wallace because he and Wallace thought they could “hold it together” and
    drink socially. Pyle testified that he recently started dating someone but had not yet
    introduced her to M.C.
    In addition to the parties, Wallace’s grandmother testified. She said that M.C. was
    not present during the August 28 incident because he was at her house getting a bath.
    Bobby Johnson, a private investigator, testified that he was hired by Pyle after the
    temporary hearing to prove that Wallace was living with her boyfriend instead of her mother
    as reported. Wallace testified that she stayed at her boyfriend’s house with M.C. four to five
    nights a week.
    Pyle’s sister testified that Pyle had come to live with her and her family after the no-
    contact order was entered. She testified that Pyle would exercise his visitation at her house,
    and she said he is nurturing and hands on with M.C. She did not have any concerns with
    Pyle caring for M.C.
    Following testimony, the court took the case under advisement and issued a
    thoroughly written decree on March 16, 2023. In granting the parties joint custody of M.C.,
    it found that Wallace had failed to prove a pattern of domestic abuse by a preponderance of
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    the evidence and had failed to overcome the joint-custody presumption by clear and
    convincing evidence. Wallace timely appealed.
    I. Joint Custody
    This court reviews matters of child custody de novo on appeal, but the circuit court’s
    findings are not reversed unless they are clearly erroneous. Janjam v. Rajeshwari, 
    2020 Ark. App. 448
    , 
    611 S.W.3d 202
    . A finding is clearly erroneous when, although there is evidence
    to support it, the reviewing court on the entire evidence is left with a definite and firm
    conviction that a mistake has been committed. 
    Id.
     Whether a circuit court’s findings are
    clearly erroneous turns in large part on the credibility of the witnesses, and special deference
    is given to the circuit court’s superior position to evaluate the witnesses, their testimony, and
    the child’s best interest. 
    Id.
    The primary consideration in child-custody cases is the welfare and best interest of
    the child, with all other considerations being secondary. 
    Id.
     In an original child-custody
    determination, there is a rebuttable presumption that joint custody is in the best interest of
    a child. 
    Ark. Code Ann. § 9-13-101
    (a)(1)(A)(iv)(a) (Supp. 2023). The presumption may be
    rebutted in four instances. 
    Ark. Code Ann. § 9-13-101
    (a)(1)(A)(iv)(b)(1)–(4). Here, there are
    two relevant rebuttable presumptions: (1) if the court finds by clear and convincing evidence
    that joint custody is not in the best interest of the child and (2) if there is a finding by the
    preponderance of the evidence that a parent has “engaged in a pattern of domestic abuse.”
    
    Ark. Code Ann. § 9-13-101
    (a)(1)(A)(iv)(b)(1) and (c)(2). A presumption is a “legal inference
    or assumption that a fact exists, based on the known or proven existence of some other fact
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    or group of facts. . . . A presumption shifts the burden of production or persuasion to the
    opposing party, who can them attempt to overcome the presumption.” Stills v. Stills, 
    2010 Ark. 132
    , at 9, 
    361 S.W.3d 823
    , 828 (citing Black’s Law Dictionary 1223 (8th ed. 2004)).
    A. Pattern of Domestic Abuse
    In her first point on appeal, Wallace argues that the circuit court erred in finding that
    Pyle did not engage in a pattern of domestic abuse under § 9-13-101(c)(2) such that she did
    not overcome the presumption of joint custody. She contends all the incidents the court
    addressed in the decree fell within the scope of domestic abuse as defined in 
    Ark. Code Ann. § 9-15-103
    (4) (Repl. 2020).
    “Domestic abuse” is defined as “physical harm, bodily injury, assault, or the infliction
    of fear of imminent physical harm, bodily injury, or assault between family or household
    members.” 
    Ark. Code Ann. § 9-15-103
    (4).1 It is important to note that our statutes do not
    define “pattern of domestic abuse,” so we treat what constitutes a “pattern of domestic
    abuse” as a question of fact. Oates v. Oates, 
    2010 Ark. App. 346
    , at 3.
    In Oates, the wife sought sole custody of the children due to a pattern of domestic
    abuse by her husband. The court found that the husband had engaged in two incidents of
    domestic abuse approximately seven years a part with an intervening act of domestic abuse
    by the wife upon the husband. Even though the court found two incidents of domestic abuse,
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    The decree erroneously cites 
    Ark. Code Ann. § 9-15-101
    (4) twice to define “domestic
    abuse,” but it is clear the court intended to rely on 
    Ark. Code Ann. § 9-15-103
    (4) because
    the court’s first reference in the decree to the statutory definition of domestic abuse was to
    § 9-15-103(4), which is accurate.
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    it did not find that a pattern of domestic abuse had been established, which we held was not
    clearly erroneous. We reasoned that without a statutory definition, we declined to address
    the issue as a matter of law but rather one of whether sufficient evidence supported the
    court’s decision.
    Here, in the twenty-seven-page decree, the court addressed “four instances of alleged
    domestic abuse prior to the marriage and one continuous incident that led to the parties’
    separation.” In giving little weight to the instances that occurred before the marriage, the
    court considered all the evidence presented and weighed the evidence accordingly. It is clear
    the court considered the effect of all the incidents together and that it did not find Wallace
    fully credible. For example, in addressing the incidents raised by Wallace the court used
    language such as “alleged abuse”; Pyle was “allegedly intoxicated”; and “both parties are
    young” and “immature.” Notably, the decree states, “Even assuming the Court were to give
    full credence to the facts of these events as described by [Wallace], the Court gives very little
    weight to either.” The court was within its province to do this. As our longstanding caselaw
    states, we know of no cases in which the superior position, ability, and opportunity of the
    circuit court to observe the parties carry as great a weight as in those involving children.
    Heileman v. Cahoon, 
    2024 Ark. App. 72
    , at 14, 
    685 S.W.3d 256
    , 264.
    Wallace’s argument goes to the sufficiency of the evidence, despite her couching it as
    a question of law. Therefore, her contention that the court improperly ignored or discounted
    the premarital incidents lacks merit. Wallace argues that because the custody statute, 
    Ark. Code Ann. § 9-13-101
    , does not make any distinction between marital and premarital abuse,
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    and the statute defining domestic abuse, 
    Ark. Code Ann. § 9-15-103
    , specifically includes
    individuals in dating relationships, the court erred. However, as explained in Oates, we treat
    what constitutes a “pattern of domestic abuse” as a question of fact, and the court was within
    its authority to weigh the evidence as it saw fit. See McCandlis v. McCandlis, 
    2024 Ark. App. 339
    , at 5 (trial court considered that both parties had engaged in domestic abuse but noted
    that wife’s behavior occurred before the marriage). Wallace’s argument is merely a request
    to reweigh the evidence.
    Accordingly, we affirm the court’s decision that Wallace did not establish by a
    preponderance of the evidence that Pyle had engaged in a pattern of domestic abuse such
    that joint custody was inappropriate.
    B. Best Interest
    Next, Wallace argues the record contains clear and convincing evidence that joint
    custody was not in M.C.’s best interest. She first contends that even if the court found only
    one incident of domestic abuse, it failed to adequately consider the abuse under Arkansas
    Code Annotated § 9-13-101(c)(1), which provides, in relevant part:
    If a party to an action concerning custody . . . has committed an act of domestic
    violence against the party making the allegation . . . and such allegations are proven
    by a preponderance of the evidence, the circuit court must consider the effect of such
    domestic violence upon the best interests of the child, whether or not the child was
    physically injured or personally witnessed the abuse, together with such facts and
    circumstances as the circuit court deems relevant in making a direction pursuant to
    this section.
    Here, the court found that the incident of domestic violence had no discernable effect
    on M.C. It reasoned that M.C. was only nine months old at the time of the August incident,
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    he was safely secured in his car seat on the ground for part of the incident, and he was not
    present for the remaining part. The court further found that “[this] proof should be added
    to the mix of other proof in the case and then weighed in order to make a best interest
    determination.” All section 9-13-101(c)(1) requires is that the circuit court consider the effect
    of the domestic violence on the best interest of the child, which is what the court did. See
    Szwedo v. Cyrus, 
    2020 Ark. App. 319
    , at 12, 
    602 S.W.3d 759
    , 767.
    Wallace further argues that the circuit court failed to give adequate consideration to
    the evidence of alcohol abuse and suicidal threats in its best-interest-of-the-child analysis.
    However, this argument is also merely a request to reweigh the evidence.
    Each child-custody determination ultimately must rest on its own facts. McCandlis,
    
    2024 Ark. App. 339
    , at 9. Consider the following. In Wakefield v. Bell, the husband accused
    the wife of battering the child, but the circuit court rejected the allegation and awarded
    custody to the wife, finding that “joint custody was not possible at that point because the
    parents could not get along.” Wakefield, 
    2018 Ark. App. 120
    , at 8, 
    542 S.W.3d 908
    , 913. In
    McCandlis, we affirmed the circuit court’s award of custody to the wife when the court found
    that joint custody was not in the children’s best interest due to the husband’s work schedule,
    his alcohol use around the children, his multiple threats of physical harm toward the wife,
    and one child’s preference for living with the wife and fear of the husband. Additionally, the
    circuit court noted the husband’s angry demeanor during trial, and it ordered him to
    complete anger-management classes before exercising visitation. 
    Id.
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    Compare these fact patterns to Zihala v. Staley, 
    2024 Ark. App. 269
    , 
    689 S.W.3d 82
    ,
    where we affirmed that the wife failed to rebut the presumption that joint custody was in the
    child’s best interest following the parties’ divorce. There, the wife had primary physical
    custody during the parties’ four-year separation before their divorce and had been the child’s
    caretaker and physical custodian for his entire life due, in part, to the husband’s struggle
    with alcoholism. However, the wife did not allege that the husband’s status as a recovering
    alcoholic prevented him from being a good parent; she testified that there had been no
    incidents since the husband had achieved sobriety that caused her concern about his
    sobriety, and she admitted that the child had never been harmed in the husband’s care and
    that husband and the child had a meaningful relationship. Also, in Cunningham v.
    Cunningham, 
    2019 Ark. App. 416
    , 
    588 S.W.3d 38
    , in affirming the joint-custody award, we
    acknowledged the significant level of animosity between the parties but noted that the record
    demonstrated both parties were capable parents, loved the children, and were equally
    involved in their activities.
    Turning to the facts at hand, the circuit court made extensive findings in support of
    its conclusion that Wallace failed to rebut that joint custody was not in M.C.’s best interest.
    Notably, it found Pyle credibly testified that he has stopped drinking other than an
    occasional social drink, and it credited the other witnesses’ testimony that Pyle is a “loving,
    nurturing, and caring father.” The circuit court acknowledged that joint custodial parents
    must possess the ability to cooperate in reaching shared decisions affecting the child, but
    based on the proof presented, “[it was] convinced that these parties possess the ability to
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    sufficiently cooperate with each other.” We give special deference to the circuit court in
    custody cases, and we hold that the circuit court did not err in finding that the joint-custody
    presumption had not been rebutted and in awarding the parties joint custody of M.C.
    II. Biased Statements
    Last, Wallace argues that in light of some of the court’s comments toward her, the
    court had a bias against her from the beginning and had prejudged the custody issue. Wallace
    generally contends that the court did not take her seriously and that the court made it clear
    it was not willing to earnestly consider evidence of premarital abuse.
    She concedes that she failed to move for the judge’s recusal and asks that we conduct
    a plain-error review under Wicks v. State, 
    270 Ark. 781
    , 
    606 S.W.2d 366
     (1980). However,
    she does not state which of the exceptions would apply in this case, nor does she argue how
    any of the exceptions would apply in this case. It is not the duty of this court to make her
    argument. See McDaniels v. State, 
    2012 Ark. App. 219
    . Further, the application of the
    exceptions listed in Wicks is limited to specific constitutional and statutory-error arguments
    that are distinct from sufficiency-of-the-evidence arguments. AP v. State, 
    2019 Ark. App. 373
    .
    Accordingly, we decline to extend Wicks to the case at hand.
    Affirmed.
    VIRDEN and GLADWIN, JJ., agree.
    Owens, Mixon, Heller & Smith, P.A., by: Aaron D. Heller and Haley Smith, for appellant.
    The Troutt Law Firm, by: R. Scott Troutt, for appellee.
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Document Info

Filed Date: 10/9/2024

Precedential Status: Precedential

Modified Date: 10/10/2024