{ "id": 6140832, "name": "Cyndall SHARP v. M.J. KEELER", "name_abbreviation": "Sharp v. Keeler", "decision_date": "2008-10-01", "docket_number": "CA 07-1027", "first_page": "233", "last_page": "247", "citations": [ { "type": "official", "cite": "103 Ark. App. 233" }, { "type": "parallel", "cite": "288 S.W.3d 256" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "269 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712405 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "80" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/ark/269/0079-01" ] }, { "cite": "296 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892741 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "140" }, { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0137-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-10-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "page": "(a)(3)" }, { "page": "(a)(3)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "373 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3666615 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "522-23", "parenthetical": "collecting cases" }, { "page": "204", "parenthetical": "collecting cases" } ], "opinion_index": 0, "case_paths": [ "/ark/373/0518-01" ] }, { "cite": "88 Ark. App. 115", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137703 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "122" }, { "page": "369" }, { "page": "122" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ark-app/88/0115-01" ] }, { "cite": "103 Ark. App. 207", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140502 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "215", "parenthetical": "Marshall, J., concurring" }, { "page": "250", "parenthetical": "Marshall, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/ark-app/103/0207-01" ] }, { "cite": "101 Ark. App. 217", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139650 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "220" }, { "page": "862-63" } ], "opinion_index": 0, "case_paths": [ "/ark-app/101/0217-01" ] }, { "cite": "97 Ark. App. 37", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136541 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "38" }, { "page": "11" }, { "page": "38-42" }, { "page": "11-14" }, { "page": "38" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ark-app/97/0037-01" ] }, { "cite": "75 Ark. App. 390", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142338 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "394" }, { "page": "424-25" } ], "opinion_index": 0, "case_paths": [ "/ark-app/75/0390-01" ] }, { "cite": "336 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51354 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "384-88" }, { "page": "727-29" } ], "opinion_index": 0, "case_paths": [ "/ark/336/0379-01" ] }, { "cite": "100 Ark. App. 199", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139107 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "201-02" }, { "page": "215-16" } ], "opinion_index": 0, "case_paths": [ "/ark-app/100/0199-01" ] }, { "cite": "256 S.W.3d 528", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6136870, 6137102 ], "weight": 4, "year": 2007, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "536-38" }, { "page": "536-38" }, { "page": "529, 537" } ], "opinion_index": 0, "case_paths": [ "/ark-app/99/0037-01", "/ark-app/99/0042-01" ] }, { "cite": "99 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137102 ], "weight": 4, "year": 2007, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "54-56" }, { "page": "54-56" }, { "page": "43-44, 55" } ], "opinion_index": 0, "case_paths": [ "/ark-app/99/0042-01" ] }, { "cite": "325 Ark. 326", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369371 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/325/0326-01" ] }, { "cite": "707 S.W.2d 777", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1986, "opinion_index": 1 }, { "cite": "17 Ark. App. 253", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6656204 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/ark-app/17/0253-01" ] }, { "cite": "54 Ark. App. 11", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136238 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/54/0011-01" ] }, { "cite": "873 S.W.2d 564", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6657231 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ark-app/45/0167-01" ] }, { "cite": "45 Ark. App. 165", "category": "reporters:state", "reporter": "Ark. App.", "year": 1994, "opinion_index": 1 }, { "cite": "65 Ark. App. 110", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138313 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "112" }, { "page": "106" } ], "opinion_index": 1, "case_paths": [ "/ark-app/65/0110-01" ] }, { "cite": "98 Ark. App. 350", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141668 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "353" }, { "page": "493" } ], "opinion_index": 1, "case_paths": [ "/ark-app/98/0350-01" ] }, { "cite": "93 Ark. App. 37", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136529 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark-app/93/0037-01" ] }, { "cite": "93 Ark. App. 358", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141263 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark-app/93/0358-01" ] }, { "cite": "75 Ark. App. 390", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142338 ], "weight": 2, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/75/0390-01" ] }, { "cite": "256 S.W.3d 528", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6136870, 6137102 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "537" } ], "opinion_index": 1, "case_paths": [ "/ark-app/99/0037-01", "/ark-app/99/0042-01" ] }, { "cite": "99 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137102 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "55" } ], "opinion_index": 1, "case_paths": [ "/ark-app/99/0042-01" ] } ], "analysis": { "cardinality": 1362, "char_count": 32592, "ocr_confidence": 0.781, "pagerank": { "raw": 6.699805336962679e-08, "percentile": 0.40717084277886473 }, "sha256": "4b3ebb00934f6ee9806de73e6acb948d07d371a1f15f1df65e062ae51a5e3cc9", "simhash": "1:836dca04608a52a6", "word_count": 5432 }, "last_updated": "2023-07-14T22:49:33.837419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin, Griffen, and Glover, JJ., agree.", "Hart and Heffley, JJ., dissent." ], "parties": [ "Cyndall SHARP v. M.J. KEELER" ], "opinions": [ { "text": "D.P Marshall Jr., Judge.\nThis extraordinarily contentious custody case returns to us. The core issue is who should have custody of C., a four-year-old boy. Appellant Cyndall Sharp is C.\u2019s mother; appellee M.J. Keeler is the boy\u2019s father. Sharp and Keeler were never married. In the first appeal, we affirmed the circuit court\u2019s decision changing custody of C. to Keeler, but reversed the court\u2019s requirement that Sharp\u2019s visitation with her son be supervised. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007)(en banc). While the case was on appeal, the parties continued litigating about visitation and custody in the circuit court. We now have before us Sharp\u2019s appeal from the circuit court\u2019s March 2007 orders denying her motion to change custody back to her and holding her in contempt for violating court orders. Sharp also challenges an evidentiary ruling, which excluded some proposed expert testimony. At the end of the proceedings in 2007, the circuit court ordered both Sharp and Keeler to spend four days in jail for willfully violating the court\u2019s orders. Keeler has not appealed the contempt ruling.\nThere is a preliminary, but nonetheless important, point. The circuit court did not have the benefit of our mandate in Sharp I, which issued in May 2007, when it entered the March 2007 orders now being challenged. In one of those orders, and on Keeler\u2019s motion, the circuit court expanded supervision of Sharp\u2019s visitation. Sharp does not challenge this part of the order. Keeler does not defend the supervised visitation, and says that this issue became moot after our first decision. We take all of this to mean that the circuit court and the parties are honoring our Sharp I mandate in letter and spirit, Williams v. State, 100 Ark. App. 199, 201-02, 266 S.W.3d 213, 215-16 (2007), and that Sharp\u2019s visitation is not being supervised in any way.\nI.\nWe reject Sharp\u2019s main point. The circuit court did not clearly err by concluding in March 2007 that no material change in circumstances had occurred since the original custody order. Campbell v. Campbell, 336 Ark. 379, 384-88, 985 S.W.2d 724, 727-29 (1999). The facts that led the circuit court to change custody of this boy from his mother to his father in March 2006 are discussed in detail in this court\u2019s thorough en banc opinion in Sharp I. 99 Ark. App. at 54-56, 256 S.W.3d at 536-38. Sharp acknowledges that she had the burden of proving a material change in circumstances during the year between the two orders. After three days of testimony, the circuit court concluded: \u201cI find that the petitioner, Ms. Sharp, has failed to meet her burden of proof with respect to a material change in circumstances. The only thing that she\u2019s proven today is that the parties still cannot get along.\u201d We agree. And we see no useful purpose in describing the many ways large and small in which Sharp and Keeler have refused to cooperate with one another and have made each other\u2019s life unnecessarily difficult.\nDuring its 2007 bench ruling, the circuit court reminded Sharp that, \u201cI changed custody [to Keeler in 2006] because I found that you were alienating parental affections from father to son and vice versa. Now, it wasn\u2019t at that time you just not getting along with Mr. Keeler. That you continued to take action to the detriment of your son.\u201d This harm and alienation was the basis for our affirmance of the March 2006 order changing custody from Sharp to Keeler. Sharp I, 99 Ark. App. at 54-56, 256 S.W.3d at 536-38.\nIn 2007, the circuit court acknowledged that Sharp and Keeler still did not get along and were still disobeying court orders. The court held Keeler in contempt for interfering with visitation, having Sharp removed by security during a hospital visit, and other bad behavior. Keeler served four days in jail for these actions and has not appealed his contempt citation. But the court also found that, unlike in the prior round, the custodial parent\u2019s actions were not harming C.\nIn its detailed ruling, the court pointed to particular events that differentiated Keeler\u2019s recent bad conduct from Sharp\u2019s earlier actions. Among \u201cseveral alarming things,\u201d first was the fact that Sharp \u201cadmitted at the February \u201906 hearing to lying about your son being in the emergency room to teach this man a lesson, which goes far beyond the little games that you two had previously been playing back and forth.\u201d Second, in the earlier round of litigation, the court \u201cfound [Sharp] to be unfit because she had [C.] in the middle of a slapping contest between her and her mother, and her mother was charged with felony battery to a child and [Sharp] still allowed her mother to babysit little [C.]\u201d These are some of the circumstances that led the circuit court to conclude that Keeler\u2019s recent misbehavior, though similar to Sharp\u2019s past actions, was not identical in either quality or effect on the child. Sharp does not argue that our decision in the first appeal somehow mandates \u2014 as a matter of precedent, equal treatment, or anything else \u2014 another custody change in her favor.\nNor did the circuit court find that Keeler\u2019s recent actions were alienating C. from Sharp. The court concluded that \u201cthe decisions [Keeler is] making in violating court orders, I haven\u2019t heard anything that it\u2019s causing little [C.] to have a rough time or not be in his best interest. .. Precedent requires that we defer to the circuit court\u2019s findings in this \u201che said and did\u201d \u2014 \u201cshe said and did\u201d controversy about custody. Word v. Remick, 75 Ark. App. 390, 394, 58 S.W.3d 422, 424-25 (2001). And the circuit court\u2019s most recent conclusion that, notwithstanding his poor behavior, Keeler is not harming C. or alienating the boy from his mother is not clearly against the preponderance of the evidence. Harris v. Grice, 97 Ark. App. 37, 38, 244 S.W.3d 9, 11 (2006).\nSharp also argues that the circuit court erred by making her prove that changing custody was in C.\u2019s best interest. No reversible error occurred here. Our law imposes this burden on Sharp because she sought the custody change. Brown v. Ashcraft, 101 Ark. App. 217, 220, 272 S.W.3d 859, 862-63 (2008). We likewise see no clear error in the best-interest finding. Harris, 97 Ark. App. at 38-42, 244 S.W.3d at 11-14.\nWe are not chancellors. Our standard of review, faithfully applied, decides this case. Harris, 97 Ark. App. at 38, 244 S.W.3d at 11; see also Hicks v. Cook, 103 Ark. App. 207, 215, 288 S.W.3d 244, 250 (2008) (Marshall, J., concurring). The question presented is not: what would we have decided as the finder of facts? The circuit judge has presided over this poisonous dispute since 2004. In the most recent round, the parties made a record of more than five hundred pages during several days of trial. As the circuit judge said in preface to her comprehensive oral findings, \u201cI have been able to observe both of the parties testify and see their demeanor and see their expressions and hear their testimony and hear their stories.\u201d The trial court has had a front-row seat at these parents\u2019 long-running tug of war. We are, and should be, duty bound to defer to the trial court\u2019s better vantage point for discerning what custody arrangement between these contending parents is best for this child. Sharp I, 99 Ark. App. at 43-44, 55, 256 S.W.3d at 529, 537.\nII.\nWe also reject Sharp\u2019s second main argument \u2014 that the circuit court abused its discretion by limiting the testimony of Dr. Martin Faitak. The circuit court appointed Dr. Faitak to perform a psychological evaluation of Sharp. Fie did so, and testified about his findings and conclusions. He also testified about the impact that Sharp\u2019s and Keeler\u2019s hostility toward each other had on C. The court did not allow Dr. Faitak to testify about two things: his opinion about a videotape of Sharp allegedly inappropriately touching C. while changing his diaper, and his opinion about Keeler\u2019s mental health. We see no abuse of the circuit court\u2019s broad discretion in either evidentiary ruling. Aswell v. Aswell, 88 Ark. App. 115, 122, 195 S.W.3d 365, 369 (2004).\nFirst, Dr. Faitak was not present when the videotape was made. Keeler\u2019s mother \u2014 a court-approved visitation supervisor \u2014 was present and testified about the incident. Sharp also testified about it. And the circuit judge watched the videotape. In light of all this evidence about the events portrayed on the videotape, we conclude that the circuit court did not abuse its discretion by excluding Dr. Faitak\u2019s proposed testimony about his impressions of it. Aswell, 88 Ark. App. at 122, 195 S.W.3d at 369.\nNor did the court abuse its discretion by excluding Dr. Faitak\u2019s testimony about Keeler\u2019s mental health. Ibid. Dr. Faitak was appointed to evaluate Sharp, not Keeler. The circuit judge observed Keeler throughout the hearings just as Dr. Faitak did. She allowed Dr. Faitak to testify about the distrust between the parties, give his opinion \u2014 based on Keeler\u2019s testimony \u2014 about Keeler\u2019s lack of desire for collaborative counseling, and testify about the potential effect of the parents\u2019 strained relationship on C. Given that Dr. Faitak had not evaluated Keeler, and given all the detailed evidence already in the record about Keeler\u2019s actions toward Sharp, we see no abuse of discretion in excluding Dr. Faitak\u2019s proposed testimony about Keeler\u2019s mental health. Ibid.\nIII.\nFinally, we come to contempt. At the end of its bench ruling, the circuit court held both parties in contempt for violating its prior orders. The court had held Sharp in contempt for the same reason the year before, but had \u201csuspended\u201d her sentence. After reciting their particular violations, the court sent both Keeler and Sharp to jail for four days directly from the last hearing. Both served their sentence. Keeler does not appeal his contempt citation, but Sharp challenges hers.\nSharp served her sentence, which mooted the contempt issue. Swindle v. State, 373 Ark. 518, 522-23, 285 S.W.3d 200, 204 (2008) (collecting cases). We may and do address the contempt issue, however, because it may arise again and it is practically impossible to get immediate appellate review of an order sending someone to jail for contempt directly from a hearing. Swindle, supra. Because our decision cannot affect the time Sharp has already served in jail, if we agree with her argument against the contempt citation, then we will declare error rather than reversing the order. Ibid.\nThe circuit court entered a separate order of contempt. It provides, as to Sharp, that:\n1. Both parties have been admonished by this Court at numerous hearings about the importance of following court orders. However, the parties still are violating, willfully, the court\u2019s orders.\n2. The Court hereby invokes the four (4) days in the Washington County Jail which was previously suspended. The Court finds that Cyndall Sharp willfully disobeyed court orders since Feb 24, 2006 by: not following the supervision terms for visitation, threatening to take [C.] to the ER when not necessary, harassing the child\u2019s father and family by videotaping visits, and using hidden cameras, driving by father\u2019s house w/o reason.\nThe Court sentences Cyndall Sharp to four (4) full days in the Washington County Jail to be served immediately, with NO TRUSTEE status, to be released on Saturday, March 10, 2007, at NOON.\nSharp argues that, while willfully disobeying a court order outside the court\u2019s presence may be criminal contempt, she was entitled to notice of the accusation and a reasonable time to make her defense. Ark. Code Ann. \u00a7 16-10-108(a)(3) & (c) (Supp. 2007); see also Fitzhugh v. State, 296 Ark. 137, 140, 752 S.W.2d 275, 277 (1988). The key statutory provision is \u00a7 16-10-108(c): \u201cContempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.\u201d\nBecause neither a motion for contempt nor an order to show cause was pending, Sharp says she had insufficient notice. She also argues that the circuit court\u2019s prior orders were not specific enough to support a contempt citation for the actions relied on by the court. Keeler responds that the court\u2019s prior orders put Sharp on notice: she attempted to evade the supervision specifically-ordered, and she harassed him in various particular ways contrary to the court\u2019s general order that neither party should harass the other.\nWe declare error on the criminal contempt citation. Though it is not a basis for our decision, we point out that a sentence for criminal contempt may not be suspended indefinitely. [A]n attempt to suspend the execution of a sentence for contempt of court, other than a mere postponement, is invalid and amounts to a complete remission of the punishment.\u201d Higgins v. Merritt, 269 Ark. 79, 80, 598 S.W.2d 418, 419 (1980). The reversible error here was the lack of notice required by the statute. The circuit court gave Sharp ample and repeated notice from the bench in the first round of litigation that she must obey the court\u2019s orders or she would be jailed for contempt. But Sharp did not have notice \u2014 either by motion, show-cause order, or statement from the bench during any of the last hearings \u2014 that Keeler or the court was accusing her at that time of acting contemptuously in the various particular ways adjudicated in the contempt order. The earlier citation, having been remitted by its suspension, cannot fill this gap. The court\u2019s orders for supervised visitation and against harassment were a necessary condition for a contempt finding, Ark. Code Ann. \u00a7 16-10-108(a)(3), but not a sufficient condition. Sharp was entitled to notice of specific accusations and then a reasonable time to defend before the court decided the contempt issue. Ark. Code Ann. \u00a7 16-10-108(c). The circuit court\u2019s summary citation \u2014 while understandable in light of the parties\u2019 egregious behavior \u2014 was error.\nAffirmed in part, error declared in part.\nGladwin, Griffen, and Glover, JJ., agree.\nHart and Heffley, JJ., dissent.", "type": "majority", "author": "D.P Marshall Jr., Judge." }, { "text": "Josephine Linker Hart, Judge,\ndissenting. The genius of the American system of government is that it is structured to prevent any one individual from exercising unbridled discretion. That is the purpose of judicial review. The Arkansas Constitution guarantees every citizen the right to have a decision made by one trial judge reviewed by a panel of judges; in this case, six judges ultimately participated. Moreover, it is not sufficient that three or more judges agree or disagree with the trial court. As a further safeguard, the system of review requires that the vote of the reviewing judges be justified by written opinion, setting out the legal basis for the decision. Integral to setting out the legal basis of a decision is the doctrine of stare decisis, a convention that requires courts to abide by settled decisions. These written decisions show the litigants, the bar, and the public at large that an important decision like a child-custody determination is not the product of improper influences \u2014 for example, friendship with the trial judge, bitterness left over from a judge\u2019s own contentious divorce, the desire to court political favor, a lack of effort to properly review the record, failure to find and apply the relevant law, or simply limited legal acumen or experience. It is not a perfect process, but one that consistently yields predictable results \u2014 what we may humbly call justice. I am deeply troubled that the process has failed today.\nThe dearth of facts recounted in the majority\u2019s ten-page opinion is misleading in the extreme. The three-day hearing produced more than 550 pages of testimony. The court\u2019s order, at the direction of the trial judge, included twenty-eight pages of \u201cfindings\u201d made from the bench. To affirm this case because the majority agrees with a single sentence from the trial court\u2019s \u201cfindings\u201d that acknowledges that the parties \u201ccannot get along\u201d is astoundingly disingenuous. The very reason we have lawsuits at all is because the parties cannot get along!\nI submit that today\u2019s majority can \u201csee no useful purpose in describing the many ways large and small in which Sharp and Keeler have refused to cooperate with one another and have made each other\u2019s life unnecessarily difficult,\u201d not because these facts are not legally significant \u2014 clearly they are \u2014 but because these facts make their decision today undefendable. It is undefendable because today\u2019s majority, which constituted four-fifths of the court that affirmed the trial court\u2019s change of custody from Sharp to Keeler in Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007) \u2014 Keeler I, and by their own reckoning, they discussed Ms. Sharp\u2019s transgressions \u201cin detail in this court\u2019s thorough en banc opinion in Sharp I\u201d Apparently they see no problem in recounting facts \u201cin detail\u201d when the facts support their position, and see no need to be \u201cthorough\u201d when the facts are hard to explain away.\nThe law seems to be a problem for the majority as well. In Keeler I, the majority held that an attempt to \u201calienate Keeler from his son\u201d was both a material change of circumstances and proof of best interest of child to change custody. 99 Ark. App. at 55, 256 S.W.3d at 537. In Keeler I, the offending conduct was Sharp\u2019s \u201crefusal to keep Keeler apprised of medical information, especially in light of [C.K.\u2019s] serious medical condition, her refusal to have [C.K.] ready for visitation, the fact that she refused Keeler visitation when she decided that she did not allow Keeler the first right to babysit [C.K.] when she could not be with [C.K.].\u201d Id.\nIn the instant case, Keeler not only failed to keep Sharp \u201capprised\u201d of C.K.\u2019s medical information, but actually had Sharp removed from the hospital by security officers when Sharp showed up at her child\u2019s appointment. It is not disputed that C.K. screamed for his mother as Keeler directed that security guards remove Sharp from out of the hospital. I submit that this undisputed evidence of how Keeler\u2019s conduct obviously affected C.K. is more significant than a nasty text message sent from one parent to another! Finally, Keeler also brazenly, and without any valid reason, cut off Sharp\u2019s visitation when she had the foresight to videotape her visit, apparently to head off abuse allegations by Keeler\u2019s family.\nRemarkably, today\u2019s majority justify ducking these facts by insouciantly declaring that \u201cprecedent requires that we defer to the circuit court\u2019s findings in this \u2018he said and did\u2019 \u2014 \u2018she said and did\u2019 controversy about custody.\u201d This not-so-deft sidestep ignores the fact that there is absolutely no dispute that Keeler engaged in that reprehensible conduct, and the trial court\u2019s finding that the majority purports to defer to was that Keeler was \u201cdoing all the things that Ms. Sharp was doing the last time we were here.\u201d The testimony of both sides supports this finding!\nToday\u2019s majority cites no authority for the proposition that we are \u201cduty bound to defer to the trial court\u2019s better vantage point,\u201d save their own wrongly decided opinion in Sharp I, which they apparently think stands for the proposition that anything a trial judge decides in a custody case is copacetic with the majority. They are wrong.\nIt is axiomatic that in child-custody cases, we only defer to the trial judge\u2019s superior position to determine the credibility of witnesses. See, e.g., Bridges v. Bridges, 93 Ark. App. 358, 219 S.W.3d 699 (2005); Hurtt v. Hurtt, 93 Ark. App. 37, 216 S.W.3d 604 (2005). Unfortunately, my research indicates that it is not the first time that an opinion from this court has attempted to alter the standard of review by misstatement. I have traced this error to an opinion authored by this scribe. In Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007), he attributed the standard-of-review to Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). I note, however, that the standard of review in Hollinger was stated as follows:\nChancery cases are tried de novo on appeal. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). We will not disturb a chancellor\u2019s findings unless they are clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving children. Id. A finding is clearly erroneous or 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. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).\n65 Ark. App. 110, 112, 986 S.W.2d 105, 106, but in Brandt v. Whillhite, that language was reduced to:\nIn 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.\n98 Ark. App. 350, 353, 255 S.W.3d 491, 493. This quote is a misstatement of the law. We defer to the trial court\u2019s credibility determinations, but the findings regarding best interest of the child are reviewed de novo. The outcome of this case should not be a surprise given the majority\u2019s demonstrated lack of understanding of well-settled law.\nBut the issue here is not only the quality of the opinion but the result. I lament that today\u2019s majority thinks that it is acceptable to treat two parties differently when the parties engaged in the same conduct. The Constitution guarantees all litigants equal treatment under the law. I am appalled that today\u2019s majority actually states that they are free to deny Ms. Sharp equal treatment under the law in this court and excuse their action by asserting a procedural rule.\nFinally, I note that today\u2019s majority, the same judges less one who were the majority in Keeler I, have at least implicitly repudiated their remarkable decision of just fifteen months ago in Keeler I, notwithstanding their failure to acknowledge that is what they are doing. Given the majority\u2019s failure to properly apply the standard of review, insubstantial legal or factual justification for their decision, and employment of what seems to be a \u201cdouble standard\u201d in treating similarly situated litigants of different genders, I decline to speculate as to why today\u2019s majority decided to affirm this case; I suspect that the litigants, the bar, and the public at large will not be so indulgent.\nThe writing judge cites Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), as support for this proposition. However, Word is completely inapposite. In Word, there was a \u201csharp dispute\u201d in the evidence, while in the instant case, Keeler freely admitted that he engaged in his reprehensible conduct.\nInterestingly, the three-judge panel in Brandt v. Willhite, did apparently conduct a proper review of the case, reversing the trial judge\u2019s finding on best interest of the child because the \u201cevidence\u201d contradicted the circuit court\u2019s \u201cconclusion.\u201d", "type": "dissent", "author": "Josephine Linker Hart, Judge," }, { "text": "Sarah J. Heffley, Judge, dissenting.\nOur standard of review requires us to defer to the trial court on matters of credibility and to affirm when the trial court\u2019s decision is not clearly against the preponderance of the evidence. We thus place a great deal of trust, and rightly so, in our trial courts to protect the best interest of children in making custody decisions. While the primary responsibility lay in the trial court, it is no less our duty to ensure that the trust reposed in the trial court is carried out faithfully and impartially and that its decision is well-grounded in fact. Remaining true to our standard of review is not to blindly approve any and all custody decisions with the rap of a rubber stamp, especially when admitted facts emerge from a record that clearly show a change in circumstances affecting the best interest of the child. This is such a case, as the record reveals a pattern of reprehensible conduct on the part of the custodial parent designed, not just to drive a wedge between, but to eliminate the non-custodial parent from the child\u2019s life. I dissent because this court should not place its stamp of approval on the trial court\u2019s decision allowing the child to remain with the custodial parent.\nIn the previous appeal, we affirmed the trial court\u2019s decision changing custody of the child to appellee because appellant was found to have engaged in behavior deemed to alienate appellee from the child. This behavior included sending \u201ctacky\u201d emails, withholding medical information, the denial of visitation after the child had a biopsy, lying about taking the child to the emergency room because of a dosage of Tylenol appellee had given, failing to follow a court order to let appellee babysit the child, not having the child ready for visitation, delaying visitation when the child was asleep, and informing appellee about the child\u2019s surgery late and by email. The trial court considered appellant\u2019s actions \u201chorrific,\u201d \u201cevil,\u201d and detrimental to the child. While we affirmed the change of custody, we reversed the requirement of supervised visitation because there was no evidence of mental instability to warrant supervision.\nLet us now examine the record in the current case to see how appellee has acquitted himself as the custodial parent. At the moment custody was changed, appellee did not allow the child to keep any of his toys, not even his favorite one. He has refused to allow the child to bring home birthday and Christmas gifts given to the child by appellant and her family. He has also refused to allow the child to wear clothing given the child by appellant, and he has apparently imparted his no-gift policy to his mother, who supervised visitation for a while. She once removed a Razorback outfit the child had been given at visitation and, in her words, she \u201cthrew it on the car and left.\u201d\nJust several months after custody was changed, appellee and his family falsely accused appellant of sexually abusing the child during a diaper change in full view of everyone in the room. Appellee\u2019s mother reported that appellant held the head of the child\u2019s penis, picked all around it, and wiped it off. She felt this was \u201cunnatural.\u201d This incident was videotaped, and a review of the tape reveals that absolutely nothing untoward happened at all. Yet, appellee has persisted in his claim of sexual abuse, despite clear evidence to the contrary.\nAfter this visit, appellee issued an ultimatum through his attorney that he would cease visitation unless appellant agreed in writing to not change the child\u2019s diaper. Appellee has made other demands in regards to visitation. The child has eczema, and appellee has seen to it that appellant may not use that word during visitation. Appellant\u2019s sister moved to Great Britain, and she showed the child where it was located on a globe during one visitation session and said they might visit there. The child came home and told appellee this, and appellee told the child \u201cno,\u201d causing the child to \u201cfreak out,\u201d according to appellee. After that, appellant was forbidden to mention England during visitation. Appellant was also forbidden to correct the child when he referred to her by her first name instead of \u201cmommy.\u201d Appellant was also forbidden to correct the child when he referred to appellee\u2019s wife as \u201cmommy.\u201d Those supervising visitation were to closely monitor appellant\u2019s communications with the child to make sure that she did not speak of these vile subjects. And, speaking of supervisors, appellee saw to it that one of them was fired after she chastised him for coming to the door instead of waiting at the car and also chastised him for berating appellant for \u201cmessing up\u201d the child\u2019s hair.\nWithin days of the \u201cdiaper\u201d incident, the child was scheduled for an important doctor\u2019s visit. Though it was a violation of a court order, appellee decided not to let appellant attend the visit. Appellant came anyway, and appellee had her escorted out of the hospital by security, while the child was screaming for his mother. As a result, appellant was required to sit in her car all day until appellee finally let her come back inside for the test results. At another doctor\u2019s appointment, the child was crying for his mother as appellee carried him back to the room. Although the child wanted his mother, appellee would not let her come into the room initially, and he only relented because the child would not stop crying. On another occasion, appellant wanted to carry the child to the car after the doctor visit, as she had allowed appellee to do when she had custody. Appellee told her to stop, and when she did not obey him, he forcibly removed the child from her arms.\nAppellee has also denied visitation when it suited him. Appellee has canceled the child\u2019s doctor appointments so that appellant could not attend. He and his wife once went to the restaurant where appellant worked and, unsolicited, he spoke badly about her to a coworker, saying that she had lost custody and was under supervised visitation. Appellant drove by appellee\u2019s home on one occasion, and appellee got in his car and chased her. Appellee has adamantly refused to participate in family counseling and maintains that there is nothing wrong with him and that it would not benefit the child.\nThere is an ill wind blowing from different directions in this case. The record reveals a certain coziness between appellee and the child\u2019s attorney ad litem that is disturbing. The record is punctuated with objections made by the trial judge during appellant\u2019s counsel\u2019s examination of witnesses, with the court sustaining those objections when counsel had the temerity to express her point of view. In addition, the trial court, sua sponte, held appellant in contempt, a decision that even the majority finds fault with. The record also shows that appellant had been entrusted with the custody of her sisters, one of whom had a baby. From those who observed appellant during that time, she was said to have handled the situation \u201cbeautifully.\u201d At the time of the hearing, appellant still had custody of the one sister with a baby. Yet, appellant is still considered unfit to either have custody or unsupervised visitation of her own child?\nThe trial court did make extensive findings outlining its decision. In those findings, the trial court declared there was no evidence that the child was being harmed by appellee\u2019s conduct. However, in the previous appeal we recognized that one parent\u2019s efforts to alienate the child from the other has a detrimental effect on the child. In the previous case, there was no direct evidence of harm presented. The conduct was considered harmful in and of itself because it is desirable and in a child\u2019s best interest to maintain a good relationship with the non-custodial parent. Here, appellee\u2019s misdeeds were admitted by him, which allows us to objectively view the evidence to determine whether there was a material change in circumstances affecting the best interest of the child. Keeping in mind that this litigation was begun by appellee filing a motion to further restrict appellant\u2019s already limited visitation, the record reveals a concerted effort on the part of appellee to alienate the child from appellant. And, when one compares his present behavior to her past conduct, one sees that his behavior is far more damaging to the child. Whereas appellant\u2019s conduct was directed at appellee personally, appellee\u2019s more egregious conduct took place in the presence of the child. At the end of the day, it is not the length and detail of a trial court\u2019s findings that matters when the record reveals them to be nothing more than empty words. Being faithful to our standard of review, I am convinced that the trial court\u2019s decision is clearly against the preponderance of the evidence. Therefore, I dissent. I am authorized to state that Judge Hart joins in this dissent.", "type": "dissent", "author": "Sarah J. Heffley, Judge, dissenting." } ], "attorneys": [ "Brenda Austin, Ltd., by: Brenda Horn Austin, for appellant.", "Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: George R. Rhoads and Sarah L. Waddoups, for appellee." ], "corrections": "", "head_matter": "Cyndall SHARP v. M.J. KEELER\nCA 07-1027\n288 S.W.3d 256\nCourt of Appeals of Arkansas\nOpinion delivered October 1, 2008\n[Rehearing denied November 12, 2008.]\nBrenda Austin, Ltd., by: Brenda Horn Austin, for appellant.\nMatthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: George R. Rhoads and Sarah L. Waddoups, for appellee.\nHART and Heffley JJ., would grant rehearing." }, "file_name": "0233-01", "first_page_order": 263, "last_page_order": 277 }