Wills v. Wills

Cite as 2016 Ark. App. 174
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-639
Opinion Delivered March 16, 2016
SHANE LEE WILLS APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. DR-04-554]
V.
HONORABLE JOANNA TAYLOR,
JUDGE
THERESA WILLS AND MINOR CHILD
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Shane Wills appeals the Washington County Circuit Court’s order denying his request
for a change of custody of his son and granting appellee Theresa Wills’s request for a change
of visitation. We affirm.
Shane Wills has a biological son whose biological mother, Cherokee Shea, has been
largely absent from his life. By all accounts, Theresa Wills, whom Shane married after his
divorce from Cherokee Shea, has been the child’s mother figure since he was an infant. In
2011, the court allowed Theresa to intervene in Shane and Cherokee’s custody case and
found that Theresa stood in loco parentis to the child. The order stated that Shane was the
custodial parent but that Theresa should be granted visitation. The court then entered an
agreed order stating Theresa would receive one-half of the child-support payments that
Cherokee Shea paid to Shane Wills. The following year, Shane and Theresa were divorced.
While there was conflicting testimony, it appears that their divorce was not amicable. On
Cite as 2016 Ark. App. 174
March 25, 2014, Shane filed a motion to terminate Theresa’s visitation rights. He argued that
his acrimonious divorce from Theresa constituted a change in circumstances warranting
modification of visitation. After a hearing on the issue, the court found that there were no
changed circumstances warranting a change of custody but that circumstances had changed
enough to warrant a modification of visitation. The court ordered Shane and Theresa to
have equal visitation in a week-on, week-off format. The order also found Shane in
contempt for failing to give Theresa her share of the child-support payments he had
received. He was given sixty days to pay Theresa $5,040.82 in back child support. Shane
filed a timely notice of appeal.
In reviewing domestic-relations cases, appellate courts consider the evidence de novo.
Brown v. Brown, 2012 Ark. 89, at 6–7, 387 S.W.3d 159, 163. We will not reverse the circuit
court’s findings unless they are clearly erroneous. Id., 387 S.W.3d at 163. When our
determination of whether the circuit court’s findings are clearly erroneous turns on the
credibility of the witnesses, we give special deference to the superior position of the circuit
court to evaluate the witnesses, their testimony, and the child’s best interest. Baber v. Baber,
2011 Ark. 40, at 9–10, 378 S.W.3d 699, 705. A circuit court maintains continuing jurisdiction
over visitation and may modify or vacate those orders at any time when it becomes aware of
a change in circumstances or facts not known to it at the time of the initial order. Martin v.
Scharbor, 95 Ark. App. 52, 233 S.W.3d 689 (2006). Although visitation is always modifiable,
to promote stability and continuity for the children and to discourage repeated litigation of
the same issues, courts require more rigid standards for modification than for initial
determinations. Meins v. Meins, 93 Ark. App. 292, 218 S.W.3d 366 (2005). Thus, the party
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seeking a change in visitation has the burden to demonstrate a material change in
circumstances that warrants such a change. Baber, 2011 Ark. 40, at 9–10, 378 S.W.3d at 705.
The primary consideration regarding visitation is the best interest of the child. Meins,
93 Ark. App. 292, 218 S.W.3d 366. Important factors the court considers in determining
reasonable visitation are the wishes of the child, the capacity of the party desiring visitation
to supervise and care for the child, problems of transportation and prior conduct in abusing
visitation, the work schedule or stability of the parties, and the relationship with siblings and
other relatives. Id., 218 S.W.3d 366. Fixing visitation rights is a matter that lies within the
sound discretion of the circuit court. Id., 218 S.W.3d 366.
The Arkansas Supreme Court has repeatedly discussed the concept of in loco
parentis:
In Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991), we cited
Black’s Law Dictionary (5th ed. 1979) defining “in loco parentis ” as “in place of a
parent; instead of a parent; charged factitiously with a parent’s rights, duties, and
responsibilities.” In Moon Distributors v. White, 245 Ark. 627, 434 S.W.2d 56 (1968), we
permitted a wrongful-death award to a decedent’s stepdaughter to whom the
decedent stood in loco parentis, noting that the stepdaughter lived in the home with her
stepmother “as mother and daughter.” Finally, this court has treated grandparents
who stood in loco parentis differently from grandparents who did not. See Johnson v.
Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000). In Johnson, we held that the
grandparents had no right to present evidence on whether adoption would be in their
grandchild’s best interest. Id. We distinguished our decisions in Quarles v. French, 272
Ark. 51, 611 S.W.2d 757 (1981), and Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617
(1981), in which we held that grandparents had standing to intervene in adoption
proceedings involving their grandchildren, because the grandparents in those cases
stood in loco parentis to their grandchildren. We hold that a court may award visitation
to a stepparent who stands in loco parentis to a minor child when it determines that it is
in the best interest of the child.
Bethany v. Jones, 2011 Ark. 67, at 10, 378 S.W.3d 731, 737 (quoting Robinson v. Ford-Robinson,
362 Ark. 232, 239–40, 208 S.W.3d 140, 144 (2005)).
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Shane argues on appeal that the trial court violated his constitutional right to direct
the control and upbringing of his child when it refused to terminate Theresa’s visitation
rights. It is fundamental that the Due Process Clause of the Fourteenth Amendment
protects the rights of parents to direct and govern the care, custody, and control of their
children. Bethany, 2011 Ark. 67, at 8, 378 S.W.3d at 736 (citing Troxel v. Granville, 530 U.S. 57
(2000) (plurality opinion) (declaring Washington State’s grandparent-visitation act
unconstitutional as applied) and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002) (holding
that Arkansas’s grandparent-visitation statute was unconstitutional as applied where it
violated a mother’s fundamental liberty interest under the due-process clause to parent her
child)). Shane contends that allowing an in loco parentis stepparent to exercise visitation
over the objections of the natural parent violates the natural parent’s constitutional right to
direct the care and upbringing of his child. Shane relies heavily on Troxel v. Granville, 530 U.S.
57, 65–66 (2000), and Foust v. Montez-Torres, 2015 Ark. 66. He argues that both cases require
that a biological parent’s choices for his child must trump the interest of a nonparent,
meaning that he should be allowed to terminate Theresa’s visitation rights.
However, we cannot rule on the merits of Shane’s constitutional argument 1 because
he failed to obtain a ruling on that issue from the circuit court. While he raised the issue
below, the circuit court’s order does not mention it. It is the obligation of an appellant to
obtain a ruling from the trial court in order to preserve an issue for appellate review.
McCraney v. State, 2010 Ark. 96, at 7, 360 S.W.3d 144, 149. Failure to obtain a ruling precludes
1
The Arkansas Supreme Court has previously addressed the same issue in Robinson
v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005), and Bethany v. Jones, 2011 Ark.
67, 378 S.W.3d 731, and held that a circuit court may award visitation to a stepparent
standing in loco parentis over the natural parent’s objection.
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our review of that argument on appeal. Wilson v. Union Pac. R.R. Co., 2011 Ark. App. 508, at
6 (citing Bunn Builders, Inc. v. Womack, 2011 Ark. 231 (holding that the failure to obtain a
ruling at the trial court level precludes the review of an issue on appeal)). Thus, we will not
consider appellant’s constitutional challenge.
To the extent that Shane attempts in his brief to challenge the circuit court’s finding
of changed circumstances, 2 he has failed to provide persuasive authority or argument to
support his position. In Stilley v. James, 347 Ark. 74, 79, 60 S.W.3d 410, 414 (2001), the
Arkansas Supreme Court explained, “We have stated on many occasions that we will not
consider the merits of an argument if the appellant fails to cite any convincing legal authority
in support of that argument, and it is otherwise not apparent without further research that
the argument is well taken.” Shane cites no law in his brief relevant to changed
circumstances and makes no persuasive argument as to why the circuit court’s changed-
circumstances finding should be reversed.
Affirmed.
HOOFMAN and BROWN, JJ., agree.
Osborne Law Firm, by: Ken Osborne, for appellant.
Law Offices of Steven H. Kay and Associates, by: Steven H. Kay, for appellee.
2
While Shane’s brief contains numerous factual arguments presenting Theresa in a
bad light, he repeatedly argues that these facts demonstrate why her in loco parentis status
should not trump his own right to direct the care and upbringing of his child. He
addresses the issue of changed circumstances only in a single conclusory sentence at the
end of his brief. In Nucor Steel-Arkansas v. Arkansas Pollution Control & Ecology Commission,
2015 Ark. App. 703, at 15, we addressed a very similar situation and held that a
conclusory sentence is insufficient to raise an issue for appellant review. A finding or
conclusion by a lower tribunal, if not attacked on appeal, must stand as a basis for
affirmance. See generally Sheppard v. Ark. Alcoholic Bev. Control Bd., 2014 Ark. App. 604,
447 S.W.3d 614; Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).
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