{ "id": 6140502, "name": "Andrea HICKS v. Joshua A. COOK", "name_abbreviation": "Hicks v. Cook", "decision_date": "2008-10-01", "docket_number": "CA 07-1321", "first_page": "207", "last_page": "221-B", "citations": [ { "type": "official", "cite": "103 Ark. App. 207" }, { "type": "parallel", "cite": "288 S.W.3d 244" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "99 Ark. App. 210", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140308 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/99/0210-01" ] }, { "cite": "87 Ark. App. 156", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138519 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/87/0156-01" ] }, { "cite": "222 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652993 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/222/0390-01" ] }, { "cite": "252 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629908 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0340-01" ] }, { "cite": "263 Ark. 813", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672644 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0813-01" ] }, { "cite": "53 Ark. App. 90", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137862 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "95" }, { "page": "732" }, { "page": "94" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/ark-app/53/0090-01" ] }, { "cite": "15 Ark. App. 331", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142663 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "334" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ark-app/15/0331-01" ] }, { "cite": "84 Ark. App. 36", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136433 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/84/0036-01" ] }, { "cite": "82 Ark. App. 562", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143169 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0562-01" ] }, { "cite": "83 Ark. App. 7", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136083 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/83/0007-01" ] }, { "cite": "85 Ark. App. 481", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142222 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/85/0481-01" ] }, { "cite": "315 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910476 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0255-01" ] }, { "cite": "98 Ark. App. 355", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141742 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/98/0355-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-10-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "334 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655457 ], "weight": 3, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0100-01" ] }, { "cite": "361 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5683490 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "85" }, { "page": "516" } ], "opinion_index": 2, "case_paths": [ "/ark/361/0082-01" ] }, { "cite": "270 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709207 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "170" }, { "page": "475-76" } ], "opinion_index": 2, "case_paths": [ "/ark/270/0163-01" ] }, { "cite": "345 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939009 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "304" }, { "page": "224" } ], "opinion_index": 2, "case_paths": [ "/ark/345/0300-01" ] }, { "cite": "337 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240954 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "465" }, { "page": "523" } ], "opinion_index": 2, "case_paths": [ "/ark/337/0460-01" ] }, { "cite": "61 S.W.3d 140", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 683188, 1111348 ], "year": 2001, "opinion_index": 2, "case_paths": [ "/ark/347/0081-01", "/ark/346/0519-01" ] }, { "cite": "347 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683188 ], "year": 2001, "opinion_index": 2, "case_paths": [ "/ark/347/0081-01" ] }, { "cite": "41 Minn. L. Rev. 751", "category": "journals:journal", "reporter": "Minn. L. Rev.", "opinion_index": 2 }, { "cite": "342 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342396 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "677" }, { "page": "728-29" }, { "page": "677" }, { "page": "728" }, { "page": "677" }, { "page": "729" } ], "opinion_index": 2, "case_paths": [ "/ark/342/0672-01" ] }, { "cite": "15 Ark. App. 302", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142360 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "307" }, { "page": "792" } ], "opinion_index": 2, "case_paths": [ "/ark-app/15/0302-01" ] }, { "cite": "266 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720825 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "563-64" }, { "page": "23" }, { "page": "564-69" }, { "page": "23-26", "parenthetical": "Fogleman, J." } ], "opinion_index": 2, "case_paths": [ "/ark/266/0556-01" ] }, { "cite": "3 Dallas 321", "category": "reporters:scotus_early", "reporter": "Dallas", "year": 1796, "pin_cites": [ { "page": "327" } ], "opinion_index": 2 }, { "cite": "100 Ark. App. 90", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137325 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "95" }, { "page": "552" }, { "page": "95-98" }, { "page": "552-54" } ], "opinion_index": 2, "case_paths": [ "/ark-app/100/0090-01" ] }, { "cite": "99 Ark. App. 210", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140308 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "211" }, { "page": "788" } ], "opinion_index": 2, "case_paths": [ "/ark-app/99/0210-01" ] }, { "cite": "98 Ark.App. 350", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141668 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "353" } ], "opinion_index": 3, "case_paths": [ "/ark-app/98/0350-01" ] }, { "cite": "219 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609179 ], "weight": 2, "year": 1951, "opinion_index": 3, "case_paths": [ "/ark/219/0594-01" ] }, { "cite": "218 Ark. 885", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612098 ], "weight": 2, "year": 1951, "opinion_index": 3, "case_paths": [ "/ark/218/0885-01" ] }, { "cite": "353 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155469 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "reversing a custody award based on \"perceptions and appearances rather than concrete proof of likely harm\"" }, { "parenthetical": "reversing a custody award based on \"perceptions and appearances rather than concrete proof of likely harm\"" } ], "opinion_index": 5, "case_paths": [ "/ark/353/0069-01" ] } ], "analysis": { "cardinality": 1460, "char_count": 37727, "ocr_confidence": 0.771, "pagerank": { "raw": 2.4466251621914303e-07, "percentile": 0.8036325669952187 }, "sha256": "c4e8d8c4c56aa240e396a49742d8aa425e9160646143d799a535ce1a0cb2c774", "simhash": "1:06eabc246d0ed2d5", "word_count": 6191 }, "last_updated": "2023-07-14T22:49:33.837419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glover, J., agrees.", "Griffen and Marshall, JJ., concur.", "Hart and Heffley, JJ., dissent." ], "parties": [ "Andrea HICKS v. Joshua A. COOK" ], "opinions": [ { "text": "Robert J. Gladwin, Judge.\nAppellant Andrea Hicks appeals the custody order filed August 31, 2007, in Chicot County Circuit Court. She contends the trial court erred in awarding custody of her son to appellee Joshua A. Cook, the biological father, impermissibly basing the decision on its perceptions of her religious preferences and mental health. Giving special deference to the trial judge\u2019s ability to evaluate and judge the credibility of the witnesses, we affirm the trial court\u2019s order.\nFacts\nThe child, a two-year-old boy, was bom out of wedlock on January 17, 2005, and the biological father\u2019s name was placed on the birth certificate. The father voluntarily paid child support to appellant and enjoyed liberal visitation with his son. On February 6, 2007, the father filed a custody petition. At the custody hearing held August 9, 2007, the father testified he had been remarried in February 2007, that he fives in Smackover, Arkansas, that his new wife has two daughters, and that he has joint custody of a daughter with an ex-wife, to whom he pays $400 per month in child support.\nThe father testified about dog bites or wounds on the boy\u2019s shoulder, terrible diaper rash, dirty fingernails and toenails, a bad earwax condition, and some sort of fungus on the child\u2019s face, all of which were discovered by him at the same time. These discoveries prompted the custody petition. Further, the father testified about all the family that five around him, the access to parks and a good preschool in Smackover, and the willingness of his family to help. His grandmother and in-laws each testified that he is a great father and that they would be willing to help if he were awarded custody. His ex-wife, the mother of his daughter, testified that he is a great father and that she and her new husband send the new husband\u2019s child with the daughter for visitation.\nAppellant testified that she lives in Little Rock, that she is a nursing assistant, and that she wants to go back to school to be a social worker. She testified that the boy\u2019s shoulder wound was from a dog bite, and that the dog hair in the car seat came from her brother\u2019s dog. She stated she had several prescriptions for anxiety and sleeplessness, but that she does not take those anymore. She testified that she only told the father she was practicing Wicca, but that she was really a Baptist. She explained to the trial court that Wicca was an earth religion that had gods and goddesses and believed in doing good.\nThe trial court awarded custody to the father, citing Arkansas Code Annotated section 9-10-113 (Supp. 2007), and found the father met the requirements of assuming his responsibilities toward the child by providing care, supervision, protection, and financial support. The trial court also found that he was a fit parent to raise the child and it was in the child\u2019s best interest to be in the father\u2019s custody. The trial court cited its grave concerns regarding the mother\u2019s ability to raise the child in a safe and nurturing manner. The judge cited the child\u2019s dirty state, the wound on his shoulder, and the mother\u2019s nonchalance. He cited concerns over the mother\u2019s mental health, in that she had filled prescriptions for medications to treat anxiety, depression, and sleeplessness, but that she quit taking the medication. Finally, he stated his concern over her testimony regarding the Wicca religion, stating she probably was more involved in it than she led the court to believe. The court awarded the mother reasonable visitation and did not require her to pay child support. This appeal timely followed.\nLaw\nArkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. See id. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark. Code Ann. \u00a7 9-10-113(c).\nIn Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007), this court analyzed two cases that relied upon Arkansas Code Annotated section 9-10-113, and held that in order to determine which standard the trial court should use in a custody dispute involving parties who were not married at the time the child was born \u2014 best interests of the child (as is utilized for initial custody determinations) or material change of circumstances (which is used when custody is being changed) \u2014 the issue rests entirely on whether the initial order in the paternity action was permanent or temporary. If it was permanent, the trial court should follow Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), and require a change of circumstances to change custody. If it was temporary, the trial court should follow Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004), and conclude that there is no need for the father to prove changed circumstances to obtain custody.\nHere, the trial court did not consider that a paternity action was never filed, but acknowledged that the father\u2019s name was on the birth certificate, there was never a question as to the paternity, and the father was paying child support on his own accord. When the father filed a petition for custody, the trial court correctly interpreted it as the initial custody determination. Therefore, the trial court\u2019s duty was to determine the best interests of the child in making an initial custody determination.\nIn reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court\u2019s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). 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. Id. 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. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). 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. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. Durham, supra.\nWicca\nAppellant argues the trial judge impermissibly based his decision on his perceptions of her religious preferences. The trial judge\u2019s letter of August 16, 2007, states as follows:\nOne final concern is her testimony regarding the WICCA religion, movement, cult or whatever that may be. She testified that she told Mr. Cook she was involved, but was only joking. That is no joking matter. The Court believes she is much more involved than she would now lead us to believe.\nAppellant argues that the above comments showed an impermissible prejudice. She claims that \u201ccult\u201d is pejorative, and argues there was no evidence that Wicca was anything other than a nature religion. She claims the judge\u2019s comments have a chilling effect on religion and freedom of religious exploration. She argues it is a burden on the freedom of religion for the trial court to have determined custody based upon her investigation of a religion not approved by the State. She contends that the trial judge considered her religion, which should have been irrelevant, and maintains that his comments prove he considered it. Therefore, the presumption that he relied only on admissible evidence has been rebutted. See Mitchell v. City of North Little Rock, 15 Ark. App. 331, 334, 692 S.W.2d 624, 626 (1985).\nAppellant expounds on this argument, claiming that the dissent in Johns v. Johns, 53 Ark. App. 90, 95, 918 S.W.2d 728, 732 (1996), notes that intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark. In Johns, the trial court ordered the non-custodial parent to take his children to church and Sunday school. The trial court was affirmed, but the vote was split. This court held:\nThe chancellor did not order him to attend religious services, but rather that he see that his children did so in order to maintain consistency in the religious regimen that their mother has set for them. Therefore, no limitation has been placed on appellant\u2019s freedom of religion. Because the chancellor\u2019s order imposes no duty on him to attend, appellant is free to attend or not attend the services with the children.\nId. at 94, 918 S.W.2d at 731.\nAppellant herein argues that the U.S. Constitution and the Arkansas Constitution prohibit discrimination on the basis of religious belief. She maintains that Wicca is a religion for purposes of the First Amendment. Arkansas courts have not addressed the issue; however, she argues that the testimony here establishes that Wicca is a mode of worship as set out in the Arkansas Constitution. She claims that from the trial judge\u2019s comments, it is obvious he disapproves of Wicca. Appellant maintains that his prejudice is constitutionally impermissible.\nAppellant contends that no substantial evidence links her religious beliefs and interests \u2014 whatever they may be \u2014 with the child\u2019s well being. She is correct. Our cases say that a parent\u2019s moral instruction of the child, which may include religious beliefs, is an issue in determining the child\u2019s best interest. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Plum v. Plum, 252 Ark. 340, 478 S.W.2d 882 (1972); McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463 (1953). Therefore, religious beliefs and practices are only material as they affect children\u2019s best interests. However, in this case, no party explored the connections between religious belief and upbringing.\nThe father argues that appellant never raised the constitutional issues regarding Wicca at the trial-court level and they should not be considered on appeal. However, the father also contends that the trial judge did not impermissibly base his decision on his perception of appellant\u2019s religious preferences. We agree.\nSetting aside the trial judge\u2019s comments regarding Wicca, the evidence before the trial court in this initial custody determination was that the father had a clean, stable, loving environment for the child, and while in the mother\u2019s care, the child endured dog bites, diaper rash, a facial fungus, and dirty fingernails and toenails. Further, appellant had been prescribed medications for depression and anxiety, but determined without doctor\u2019s advice to quit taking the medications. The trial court ruled the father proved he had assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child, and he proved he was a fit parent to raise the child. These were not denied by appellant.\nIn the trial court\u2019s letter opinion, the trial judge stated his concern about appellant\u2019s credibility relative to the extent of her involvement with Wicca. The trial court clearly did not believe appellant\u2019s testimony that she was merely joking about her interest in Wicca. Appellant urges this court to consider the trial court\u2019s mention of Wicca to represent an expression of prejudice. However, there is no basis to hold that the trial court resolved this initial custody determination on appellant\u2019s interest or involvement with Wicca, but simply pointed out appellant\u2019s lack of credibility on the issue. We decline to accept appellant\u2019s argument that this case turns on the trial court\u2019s acceptance or rejection of a specific religion. Instead, the trial court, in this initial custody determination, considered appellant\u2019s credibility on a matter testified to before it. Remembering to give special deference to the trial judge\u2019s ability to evaluate and judge the credibility of the witnesses, we hold that the trial court was not clearly erroneous in judging appellant incredible on this issue. Moreover, even if the Wicca issue went beyond credibility and otherwise affected the merits in the circuit court\u2019s decision, precedent allows us to disregard an improper factor and affirm if the court\u2019s other reasons for changing custody were proper and adequate. Compare Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004), with Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007). And, as discussed above, no clear error exists on those other factors.\nMental Health\nAppellant argues that the trial judge impermissibly based his decision on a conclusion about her mental health that was not in evidence. She claims there was no medical evidence admitted. Further, she argues there was no indication that she was engaged in bizarre behavior in any way inconsistent with the best interest of her child. Therefore, she contends there was no basis for the judge to conclude the child would be better off if the mother took medications that had been prescribed to her in the past.\nThe father argues that the trial judge properly considered appellant\u2019s mental health and physical condition. He claims the evidence showed that shortly before trial, appellant received prescriptions for depression, anxiety attacks, sleeplessness, and restlessness. At trial, she claimed to be \u201cbetween doctors.\u201d The trial court stated, \u201cThe court does not believe that depression and anxiety occurred overnight. If she suffers from these conditions and she obviously does, the child would be much better off if she took her medicine.\u201d Based on what she told the doctor, she received those medications. Later, she apparently declared herself to be well because she stopped taking the prescribed medications, according to her testimony. Again, giving special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases, we find no error. Accordingly, we affirm.\nAffirmed.\nGlover, J., agrees.\nGriffen and Marshall, JJ., concur.\nHart and Heffley, JJ., dissent.", "type": "majority", "author": "Robert J. Gladwin, Judge." }, { "text": "Wendell L. Griffen, Judge,\nconcurring. I join the majority because I agree that the trial judge did not err in awarding custody of Joshua to appellee. I write separately to emphasize that the change of custody in this case does not turn on appellant\u2019s religion, be it Baptist, Methodist, Wiccan, or no religion at all. The issue is whether the trial judge\u2019s change of custody is clearly erroneous where he found that appellant failed to provide a safe and sanitary home environment for the child, where he cited concerns regarding appellant\u2019s mental health, and where he mentioned appellant\u2019s involvement in Wicca, expressed disbelief in appellant\u2019s testimony that she was joking concerning her involvement with Wicca, and expressed concern about appellant\u2019s truthfulness regarding the extent of her interest or involvement with Wicca.\nFirst, there is no basis for us to hold that the trial court resolved the change-of-custody dispute on appellant\u2019s interest in or involvement with Wicca, despite the substantial emphasis devoted to that subject by both parties on appeal. The parties argue as if they tried the matter of appellant\u2019s involvement in Wicca to the trial judge, and argue as if the trial judge decided the custody issue on that basis. However, neither party below objected to the trial judge considering appellant\u2019s involvement in Wicca. As appellant did not object to any questions about Wicca, and as the trial judge made no disparaging or otherwise unfavorable comments about Wicca during the trial or in the letter opinion, her contention that she lost custody of her child due to judicial religious bigotry is bottomed on conjecture and surmise.\nSecond, even if one considers the trial judge\u2019s mention of Wicca to represent an expression of prejudice, the prejudice was not against Wicca but was against what the judge considered appellant\u2019s lack of truthfulness concerning her interest or involvement in Wicca. The trial judge clearly did not believe appellant\u2019s testimony that she was merely joking about her interest in Wicca. We routinely defer to a trial judge\u2019s determination regarding witness credibility. That this trial judge expressed concern about the truthfulness of appellant\u2019s testimony concerning Wicca does not warrant reversal.\nUltimately, the trial judge changed custody because he found that appellant failed to provide a safe and sanitary home environment for the child, and due to his concerns about appellant\u2019s mental health. Those reasons, supported by the record before us, constitute sufficient grounds for changing custody, no matter what the trial judge concluded regarding appellant\u2019s truthfulness as to her involvement with Wicca.", "type": "concurrence", "author": "Wendell L. Griffen, Judge," }, { "text": "D.P. Marshall Jr., Judge,\nconcurring. I join the court\u2019s opinion. But I write separately to express my concerns about our standard of appellate review. It is a contradiction. This case makes the point: one of the main issues dividing our court is which aspect of the standard \u2014 de novo or clear error \u2014 controls our review. The court defers to the circuit court\u2019s findings of fact. My dissenting colleagues sift the facts and find them wanting. This choice, in my view, determines the differing conclusions on the merits. Our supreme court should clarify this important issue, which is passed over in these cases with routine citations but no analysis: what is the correct standard of appellate review in cases involving equity?\nThe court and my dissenting colleagues begin on common ground. We are supposed to review this equity matter de novo on the record as a whole, but not reverse unless the circuit court\u2019s factual findings are clearly erroneous or clearly against the preponderance of the evidence. Rawe v. Rawe, 100 Ark. App. 90, 95, 264 S.W.3d 549, 552 (2007). This is like saying that we review the judgment for green redness.\nThe plenary aspect of the standard has deep roots in chancery practice. It springs in part from the kind of appellate review given long ago in chancery cases where there was no testimony except by depositions. 9 W.S. Holdsworth, A History of English Law 353-58, 369 (1926). In that context, de novo review made some sense. A panel of appellate judges could reconsider afresh the decision of one chancellor on a paper record equally accessible at both levels. There is a broader historical context: before merger, different primary methods of appellate review existed for law cases and equity cases. In general, law cases were reviewed on writs of error, while equity cases were reviewed by appeal. Chief Justice Ellsworth explained the distinction: \u201cAn appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact as well as the law, to a review and retrial: but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law.\u201d Wiscart v. D\u2019Auchy, 3 Dallas 321, 327 (1796); see generally Roscoe Pound, Appellate Procedure In Civil Cases 300-01 (1941) (describing further procedural variations in nineteenth-century equity appeals). These are the old truths that our courts still express when they say that equity cases are tried de novo on appeal. E.g., Ferguson v. Green, 266 Ark. 556, 563-64, 587 S.W.2d 18, 23 (1979); Equity General Agents, Inc. v. O\u2019Neal, 15 Ark. App. 302, 307, 692 S.W.2d 789, 792 (1985).\nIn the ConAgra case, a unanimous supreme court expounded this kind of searching review on its way to reversing the decree.\nEquity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court\u2019s reviewing the entire case de novo. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.\nConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677, 30 S.W.3d 725, 728-29 (2000).\nBut our judicial system has changed. By the end of the nineteenth century, chancellors in most jurisdictions were routinely hearing live testimony. Charles Alan Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 764-66 and n. 61 (1957). In 1978, the Arkansas Supreme Court adopted our Rules of Civil Procedure, which governed chancery and law cases and provided for clear-error review of the court\u2019s factual findings. Ark. R. Civ. P. 1 & 52(a). Amendment 80 to the Arkansas Constitution and the implementing amendment to Rule of Civil Procedure 2 merged law and equity. Clark v. Farmers Exchange, Inc., 347 Ark. 81, 83 n.1, 61 S.W.3d 140, 141 n.1 (2001); Ark. R. Civ. P. 2, Addition to Reporter\u2019s Notes, 2001 Amendment. But our often-stated rule of de novo review in cases involving equity has endured, even though the main reasons for it have not.\nThe clear-error aspect of our standard of review is more deferential. It embodies the command of Rule 52(a): \u201cFindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses.\u201d The books are full of cases holding that we must defer to the trial court\u2019s superior position to evaluate the credibility of witnesses \u2014 whom they see and hear and we do not. E.g., Hamilton v. Barrett, 337 Ark. 460, 465, 989 S.W.2d 520, 523 (1999). In custody matters, moreover, we give special deference to the circuit court\u2019s weighing of the multitude of circumstances comprising the best interest of children. Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001).\nReview for clear error is incompatible with a trial de novo on appeal. We cannot act \u201cas judges of both law and fact as if no decision had been made in the trial court, sift[ing] the evidence to determine what the finding of the [trial court] should have been . . . .[,]\u201d ConAgra, 342 Ark. at 677, 30 S.W.3d at 728, and \u2014 at the same time \u2014 give \u201cspecial deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses . . .[,]\u201d Sykes v. Warren, 99 Ark. App. 210, 211, 258 S.W.3d 788, 788 (2007), reversing only if the decision below is clearly wrong. Rawe, 100 Ark. App. at 95-98, 264 S.W.3d at 552-54. This is an impossible task. And our imperfect performance of it leads to uncertainty and inconsistency.\nWhen he was a member of this court, Justice Newbern revealed in a dissenting opinion what he called \u201cperhaps the least guarded secret\u201d about appellate review in our equity cases. Warren v. Warren, 270 Ark. 163, 170, 603 S.W.2d 472, 475-76 (Ark. App. 1980). If the appellate court plans to reverse, then it emphasizes the de novo aspect of the standard of review; if the court plans to affirm, then it emphasizes the deference in the clear-error aspect of the standard. Ibid. Litigants deserve better.\nClear-error review promotes the healthy administration of justice by keeping trial courts and appellate courts in their proper places. Fact questions in nonjury cases are primarily for the trial courts, just as appellate courts sit primarily to correct errors of law and clarify the law. Clear-error review is not toothless. When the record as a whole leaves the appellate court with the definite and firm conviction that the circuit court made a mistake of fact, then the judgment is vulnerable to reversal or modification. ConAgra, 342 Ark. at 677, 30 S.W.3d at 729. Straight-up issues of law deserve and receive de novo review no matter what kind of case they arise in. Helena-West Helena School District v. Monday, 361 Ark. 82, 85, 204 S.W.3d 514, 516 (2005). But findings of fact deserve deference, especially when they embody evaluations of witnesses\u2019 demeanor.\nOur law can and should maintain the traditional appellate flexibility to affirm a judgment as modified or remand for more findings in cases that, before Amendment 80, would have been chancery matters. Ferguson, 266 Ark. at 564-69, 587 S.W.2d at 23-26 (Fogleman, J.). We do not need a \u201ctrial de novo on appeal\u201d to preserve this flexibility. This out-dated expression no longer captures what happens on appeal. When we talk at the threshold of these cases about de novo review, sifting facts, and being judges of the facts, we confuse the primary appellate task. We should stop. We should review circuit courts\u2019 findings of fact for clear error pursuant to Rule 52(a). And if we discern a clear error in a case involving equity, only then should we sift the facts as we decide whether justice would be better served by modifying the judgment or remanding the case.\nThis phrase was added to the Federal Rule in 1985, and to the Arkansas Rule in 1989, to make clear that the same standard of appellate review applies regardless of whether the trial court\u2019s findings were based on oral or written evidence or both. Ark. R. Civ. P. 52, Addition to Reporter\u2019s Notes, 1989 Amendment; Fed. R. Civ. P. 52, Advisory Committee Notes, 1985 Amendment.", "type": "concurrence", "author": "D.P. Marshall Jr., Judge," }, { "text": "Josephine Linker Hart, Judge,\ndissenting. For the third time in a month I find myself dissenting in a child-custody case in which the same four judges have cast the deciding votes. Though remarkable enough, it is even more noteworthy because for the second time in a week I find myself compelled to once again call attention to how this majority has tortured the law and mishandled the judicial-review process to reach their result.\nRegarding Hicks\u2019s first point, that the trial judge erred in basing his change-of-custody decision on Hicks\u2019s alleged practice of Wicca, I am glad that there is unanimous agreement on this court that basing a custody decision on a parent\u2019s religious beliefs is unequivocally wrong. Nonetheless, the majority in one way or another excuses this obvious trial court error. I believe Judge Griffen is simply wrong when he asserts that \u201cthe trial judge made no disparaging or otherwise unfavorable comments about Wicca.\u201d In his written findings, the trial judge referred to Wicca as a \u201ccult.\u201d The American Heritage Dictionary defines \u201ccult\u201d as \u201ca religion or religious sect generally considered to be extremist or bogus.\u201d There are none that are so blind who will not see.\nThe remaining Judges handle this inconvenient fact with no greater acumen. The main opinion simply \u201csets aside\u201d the trial judge\u2019s comments regarding Wicca. Along the way, however, they twist the words in the finding regarding Hicks\u2019s alleged practice of Wicca to be a finding regarding Hicks\u2019s credibility, notwithstanding the fact that this case does not turn on the credibility of any witness! While our convention of deferring to the finders of fact on issues of credibility is well established, it is troubling to discover that this opinion seems to betray the beliefby the majority that this deference is somehow the way to resolve every case.\nThe treatment of Hicks\u2019s second point by the majority is no more satisfactory. Hicks argues that the trial court \u201cimpermissibly\u201d based its decision on a conclusion about her mental health that was unsupported by substantial evidence. She asserts that there is \u201cabsolutely no evidence that [she] had continuing medical problems\u201d or that an episode of \u201csituational depression and anxiety\u201d cannot be cured \u201covernight.\u201d Moreover, she contends that there was absolutely no suggestion that she engaged in \u201ceven the slightest bizarre behavior or behavior in any way inconsistent with the best interest of her child.\u201d\nIn rejecting Hicks\u2019s argument, to the extent that the majority addresses it at all, the main opinion betrays a lack of understanding of how our deference to the trial judge on issues of credibility affects this case. Aside from the evidence that medication had been prescribed for Hicks to treat anxiety and depression, there was no evidence that she currently suffered from either of these maladies. The prescriptions were, at best, circumstantial evidence that the conditions existed at the time the medication was prescribed. The trial judge was not competent to make a medical diagnosis, nor was the factual basis for his finding susceptible to being proved by judicial notice. If a court takes judicial notice of any fact, it must be so notoriously true as not to be subject to reasonable dispute or must be capable of immediate accurate demonstration. Collier-Dunlap Coal Co. v. Dickerson, 218 Ark. 885, 239 S.W.2d 9 (1951). Whether or not a person suffers from depression and the efficacy of treatment are facts that are subject to dispute. Furthermore, the personal knowledge of the judge is not judicial knowledge of the court, for there is no way of testing the accuracy of knowledge that rests entirely within the breast of the court. Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951). Therefore the finding concerning Hicks\u2019s continuing need for medication is based on mere speculation and conjecture and cannot be a reason for changing custody. In finding that Hicks still suffered from depression and anxiety, the trial judge was actually practicing medicine without a license, not making a credibility determination. Even more chilling is the fact that in Judge Griffen\u2019s concurrence, he states that a trial judge\u2019s \u201cconcerns about appellant\u2019s mental health\u201d are an appropriate basis to change custody.\nFinally, I note with appropriate irony that the majority\u2019s failure to effectively address Hicks\u2019s argument that evidence of J.O.C. \u201cbeing dirty and having rashes and a dog bite wound\u201d is not adequate to support a change of custody, is the soundest aspect of their opinion. We had before us the same photographs that the trial judge found \u201cquite revealing,\u201d and apparently the entire panel did not share the trial judge\u2019s \u201cconcern.\u201d While there was clearly some dirt under J.O.C.\u2019s nails, the child was not unkempt, and while it was certainly true that J.O.C. had diaper rash, Cook himself testified that it was not an unusual for a child of that age to be so afflicted. Furthermore, the photos revealed that Hicks was treating the rash with a topical ointment, which was not a markedly different treatment than Cook prescribed. Finally, I believe that the so-called \u201cwound\u201d onJ.O.C.\u2019s shoulder was likely just a bug bite, as Cook hypothesized.\nBy all indications, J.O.C. was a happy, active, and thriving young child \u2014 flourishing in his mother\u2019s care. There was no proof that J.O.C.\u2019s residence was inappropriate and, aside from an apparently isolated incident in which J.O.C. went to a visit wearing ill-fitting shoes, that Hicks was not attending to her child\u2019s material needs. By any standard, the trial court clearly erred in changing custody.\nThere is a main opinion with two judges in complete agreement and two concurring opinions that diverge from the main opinion on key issues, but still suppport the main opinion\u2019s disposition.\nInterestingly enough, the only description of Wicca as a \u201ccult\u201d came from a proffered hearsay definition that was properly excluded by Hicks\u2019s timely objection, but nonetheless considered as evidence by the trial judge. Neither the testimony of Hicks nor Cook, which was the only properly admitted evidence, mentioned the word \u201ccult.\u201d The definition, from the American Heritage Dictionary, stated that Wicca is \u201cthe cult of witchcraft.\u201d\nIn Judge Marshall\u2019s concurrence, he has betrayed his lack of understanding of the standard of review when he equates it to reviewing \u201cthe judgment for green redness.\u201d I note that he has previously cited an incorrect standard of review in a domestic relations case. In Brandt v. Willhite, 98 Ark.App. 350, 353, 255 S.W.3d 491 (2007), he stated that the standard of review was as follows: \u201cIn reviewing the circuit court\u2019s decisions, we defer to that court\u2019s superior position for measuring the witnesses\u2019 credibility and evaluating what was in the child\u2019s best interest.\u201d This is not review; this is abdication.\nArkansas Rule of Evidence 201(b) provides that \u201c[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\u201d", "type": "dissent", "author": "Josephine Linker Hart, Judge," }, { "text": "Sarah J. Heffley, Judge,\ndissenting. I dissent. The trial court in this case impermissibly considered appellant\u2019s alleged interest in Wicca, which taints the outcome of its decision to change custody. The trial court\u2019s mention of Wicca cannot be dismissed as a simple credibility determination. It is clear from the trial judge\u2019s comments that he was concerned that appellant was more involved than she would admit. Obviously, the judge held her interest in Wicca against her.\nIn the absence of the Wicca consideration, we are left with a child who is moved from his home since birth, based on one occasion on which he had dirty fingernails (not unusual in a toddler), a common diaper rash (not unusual in a toddler), a messy car seat (not unusual with a toddler), earwax (not unusual in a toddler), and an alleged dog bite, which does not necessarily arise from neglect. The child was removed from a home, which the record reflects was otherwise appropriate in every way. In making its determination, the trial court also made a medical diagnosis without the benefit of expert testimony or reports of any type. Far be it for someone to stop taking medication that one does not need. I would reverse and remand for consideration without reference or regard to Wicca or an inappropriate medical diagnosis.\nSUPPLEMENTAL OPINION ON DENIAL OF REHEARING NOVEMBER 19,2008.", "type": "dissent", "author": "Sarah J. Heffley, Judge," }, { "text": "osephine Linker Hart, Judge,\ndissenting. I dissent from this court\u2019s denial of rehearing. As the appellant points out,\nthis court committed a clear error by ignoring the obvious fact that the trial judge based his change-of-custody decision in large part on his finding that the appellant was a participant in some nefarious \u201ccult.\u201d The majority was wrong to ignore the clear indication that the trial judge was so influenced. As I pointed out in my dissent, after the appellee interjected the accusation that the appellant practiced Wicca, the trial judge interjected himself into the proceedings and began interrogating the appellant about that practice. If that was not a clear indication that the trial judge was extraordinarily concerned about the possibility that the appellant was practicing Wicca, it was certainly confirmed beyond any doubt by the fact that the trial judge made an explicit finding to that effect in his written order.\nAs I stated in my dissent, even if it were proven that the appellant was a practicing Wiccan, that conclusion can have no bearing on the decision to change custody. The majority makes a clear mistake of fact because there is absolutely no evidence that practicing Wicca was in any way harmful to the child or even that there were any practices conducted in the child\u2019s presence. Accordingly, this cannot be a reason for changing custody. The majority made a clear error of law by not holding that this case is controlled by Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003) (reversing a custody award based on \u201cperceptions and appearances rather than concrete proof of likely harm\u201d).\nFinally, I am compelled to mention that the appellee\u2019s intemperate response to the appellant\u2019s rehearing petition was not only inappropriate but was vile and slanderous. He argues, among other things, that the majority was correct to allow the trial court to make a custody decision based on his perception of the appellant\u2019s religious beliefs because not all religions are worthy of constitutional protection. He denigrates Mormons, asserting that \u201cMormons practice incest and child marriages,\u201d and proclaims that \u201cWicca is a cult, not a religious belief.\u201d He admonishes that \u201cthis court is committing a grievous error if it allows cult activities to be protected\u201d and that the \u201ctrial judge appropriately ruled in this case after carefully considering the facts.\u201d In light of the appellee\u2019s further illumination of this issue, I simply cannot say that the trial court\u2019s decision was \u201cappropriate.\u201d I lament that this court has accepted the appellee\u2019s invitation to embark on a grand inquisition.", "type": "dissent", "author": "osephine Linker Hart, Judge," } ], "attorneys": [ "Eubanks, Baker & Schulze, by: J.G. \u201cGerry\u201d Schulze, for appellant.", "Haddock & Tisdale, P.A., by: James W. Haddock, for appellee." ], "corrections": "", "head_matter": "Andrea HICKS v. Joshua A. COOK\nCA 07-1321\n288 S.W.3d 244\nCourt of Appeals of Arkansas\nOpinion delivered October 1,2008\n[Rehearing denied November 19, 2008.]\nEubanks, Baker & Schulze, by: J.G. \u201cGerry\u201d Schulze, for appellant.\nHaddock & Tisdale, P.A., by: James W. Haddock, for appellee.\nHART and HeffleyJJ., would grant rehearing." }, "file_name": "0207-01", "first_page_order": 235, "last_page_order": 251 }