{ "id": 6141056, "name": "Michelle LOWELL v. Robert E. LOWELL, et al.", "name_abbreviation": "Lowell v. Lowell", "decision_date": "1996-12-11", "docket_number": "CA 95-875", "first_page": "211", "last_page": "219", "citations": [ { "type": "official", "cite": "55 Ark. App. 211" }, { "type": "parallel", "cite": "934 S.W.2d 540" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "319 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453617 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0301-01" ] }, { "cite": "9 Ark. App. 145", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138539 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0145-01" ] }, { "cite": "48 Ark. App. 95", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138254 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/48/0095-01" ] }, { "cite": "31 Ark. App. 260", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141710 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ark-app/31/0260-01" ] }, { "cite": "661 S.W.2d 361", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1742345, 1742361 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0045-01", "/ark/281/0042-01" ] }, { "cite": "281 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742345 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0045-01" ] }, { "cite": "292 Ark. 501", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871254 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0501-01" ] }, { "cite": "278 Ark. 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748296 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0206-01" ] }, { "cite": "310 Ark. 597", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898916 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0597-01" ] }, { "cite": "313 Ark. 645", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914655 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0645-01" ] }, { "cite": "309 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906100 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0336-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-310", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "pin_cites": [ { "page": "(b)(3)(A)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-27-306", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "302 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884292 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0305-01" ] } ], "analysis": { "cardinality": 742, "char_count": 14874, "ocr_confidence": 0.82, "pagerank": { "raw": 1.270043986907933e-07, "percentile": 0.614573668194555 }, "sha256": "e16e42e6022fdb1139926243d8361db8318ddccd41632e1a6c3c6bc020f32cc7", "simhash": "1:42e5c426466e9dbd", "word_count": 2405 }, "last_updated": "2023-07-14T22:52:16.845649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Rogers and Neal, JJ., agree." ], "parties": [ "Michelle LOWELL v. Robert E. LOWELL, et al." ], "opinions": [ { "text": "JOHN F. Stroud, Jr., Judge.\nAppellant, Michelle Lowell, has three sons by different former husbands, who are the appellees in this case. She was first married to appellee Brian Jackson. Their son is Joshua Scott Jackson. Appellant\u2019s second husband was appellee Jimmy Smith. Their son is Brock Smith. Appellant\u2019s third husband was appellee Robert E. Lowell. Their son is Robert A. Blake Lowell. Appellant was married to Robert Lowell when Jimmy Smith filed a petition in juvenile court for determination of dependency-neglect regarding his son, Brock Smith. Appellee Robert Lowell subsequently filed for divorce from appellant in chancery court. By temporary order filed October 22, 1993, the juvenile court found probable cause to believe the children were dependent-neglected. On that same day, the other two fathers, appellees Jackson and Lowell, filed motions to intervene in the juvenile proceeding and to consolidate their divorce actions with Smith\u2019s juvenile proceeding. All three fathers sought custody of their respective sons. On November 12, 1993, the juvenile court granted Lowell\u2019s and Jackson\u2019s motions to intervene and consolidated the three actions. After several hearings, the juvenile court concluded that the children were dependent-neglected and that custody of the children should be vested with their respective fathers. Appellant raises six points on appeal, but finding no error we affirm.\nAppellant\u2019s first argument is that the juvenile court erred in assuming jurisdiction of appellee Smith\u2019s dependency-neglect petition. She asserts that the chancellor in the Smiths\u2019 divorce proceeding in the judicial district where the juvenile, Brock Smith, resided had previously determined that appellant should have custody of Brock, and this prior custody determination was open for modification and should be heard in that chancery court, rather than in the juvenile court. We find no error.\nThe juvenile courts of Arkansas are a division of chancery. Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). However, juvenile courts have exclusive original jurisdiction for proceedings in which a juvenile is alleged to be dependent-neglected. Ark. Code Ann. \u00a7 9-27-306(a)(l) (Supp. 1995). The juvenile code provides that petitions for dependency-neglect may be filed by any adult. Ark. Code Ann. \u00a7 9-27-310(b)(3)(A) (Supp. 1995). Appellant argues that the juvenile courts were not intended to assume jurisdiction over ordinary custody matters. The allegations of dependency-neglect, however, separated this case from those involving ordinary custody matters. Moreover, the trial judge was correct in reasoning that the consolidation of the three divorce proceedings with the juvenile action was appropriate to prevent conflicting custody orders within the same judicial district. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).\nAppellant next argues that the juvenile court erred in allowing appellees Lowell and Jackson to intervene in the dependency-neglect proceedings because the motion to intervene was untimely, insufficient, and improper. We disagree.\nThe timeliness of the motion is a matter clearly within the trial court\u2019s discretion, and it will be reversed only where that discretion has been abused. Employers Nat\u2019l Ins. Co. v. Grantors to Diaz Refinery PRP Comm. Site Trust, 313 Ark. 645, 855 S.W.2d 937 (1993). The factors that we consider regarding the timeliness of a motion to intervene are: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Cupples Farms Partnership v. Forrest City Prod. Credit Ass\u2019n, 310 Ark. 597, 839 S.W.2d 187 (1992). Here, the original petition for determination of dependency-neglect was filed by appellee Smith on September 14, 1993. Appellees Jackson and Lowell moved to intervene on the day the temporary order finding probable cause for dependency-neglect was entered, October 22, 1993, which was just over a month after the original petition had been filed. Appellant has not shown that there was any prejudice as a result of the intervention. We find that the juvenile court did not abuse its discretion in finding that the motion was timely.\nWith respect to the propriety of the intervention, Arkansas Rule of Civil Procedure 24(b) deals with permissive intervention. It provides that intervention may be permitted when the main action and an applicant\u2019s claim or defense have a question of law or fact in common. Here, the common facts and questions of law involved the proper care and custody of the three sons. As with timeliness, permissive intervention is also a matter within the trial court\u2019s discretion, and we will reverse only for abuse of that discretion. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). We do not find that the trial court abused its discretion in allowing the intervention.\nWith respect to the sufficiency of the motion to intervene, appellant argues that Arkansas Rule of Civil Procedure 24(c) requires that the motion state the grounds for intervention and that it be accompanied by a pleading setting forth the claim or defense for which intervention is sought. She argues that no separate pleading was attached to appellee Jackson\u2019s and Lowell\u2019s motions to intervene, and therefore the trial court erred in allowing the intervention. We disagree.\nArkansas Rule of Civil Procedure 24(c) provides in pertinent part:\n(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.\n(Emphasis added.) In Polnac-Hartman & Assoc. v. First Nat\u2019l Bank, 292 Ark. 501, 731 S.W.2d 202 (1987), the supreme court affirmed the lower court\u2019s denial of intervention, which had been based in part upon the appellant\u2019s failure to file a pleading setting forth a claim or defense. In doing so, however, the supreme court explained:\nThe failure to file a pleading with a motion to intervene was the subject of our decision in Schact v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983). In that case a party moving to intervene refused to file a pleading setting forth its claim or defense as required by Rule 24(c) but insisted on being allowed to intervene in the litigation. The trial court denied the motion, and this court affirmed, noting that the movant had not shown entitlement to intervene as a matter of right or permissively. That, of course, is the purpose of filing a pleading. Without it, the court may not have any idea of the right asserted by the would-be intervenor. Although the appellant in this case attached the assignments to the motion, it did not state how or why they should be protected or what the claim of priority, if any, was. There was not even a statement telling the court that the assignments were, or were related to, the same properties which were the subjects of the foreclosure action.\n(Emphasis added.) Thus, the purpose of attaching to the motion a pleading that sets forth the claim or defense for which intervention is sought is to inform the court of the right asserted by the would-be intervenor. Here, the motions to intervene contained statements of the relief sought, as well as affidavits setting forth facts and allegations in support thereof. Thus, the purpose of the rule was satisfied, and the trial court did not abuse its discretion in allowing the intervention. See 3B Moore\u2019s Federal Practice \u00b6 24.14 (2d ed.) (general discussion regarding leeway that has been allowed by federal courts under Rule 24(c) of the Federal Rules of Civil Procedure, which is virtually identical to our Rule 24(c)).\nAppellant\u2019s third argument is that the juvenile court erred in failing to appoint a guardian ad litem for the children and in failing to grant her motion for reconsideration on the guardian ad litem issue. At one of the early hearings, the juvenile judge stated that he would appoint a guardian ad litem for the children, but no such appointment was ever made. The parents of all three children were present with counsel at every hearing. Appellant did not complain or otherwise object to this oversight at or prior to the subsequent and final hearing on this matter held March 9, 1995. Rather, appellant merely requested in her motion to reconsider, filed March 14, 1995, that such an appointment be implemented before finalizing the order relating to custody. Accordingly, appellant cannot now argue this basis for reversal.\nAppellant\u2019s fourth argument is that the juvenile court erred in denying her motion to restore custody of the minor children to her. In making this argument, appellant asserts: (1) that the fundamental goal of the juvenile code is to restore the family unit, and that the juvenile court\u2019s closing comments provided support for restoration of custody to appellant; (2) that with respect to Jimmy Smith and Brian Jackson, the only material change in circumstances that was proven was that appellant had changed for the better, a situation that should have resulted in a return of custody to her; and (3) that with respect to Robert Eugene Lowell, it was in his best interests to keep the siblings together in one household. We find no error in the juvenile court\u2019s refusal to restore custody to appellant.\nOn appeal from a chancery court case, we review the evidence de novo. We will not reverse the chancery court unless its decision is clearly contrary to a preponderance of the evidence. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). A finding is clearly erroneous when, although there is evidence to support the trial court\u2019s decision, after looking at all the evidence the reviewing court is left with a definite and firm conviction that a mistake has been committed. Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280 (1995). As in all custody cases, the primary consideration is the welfare and best interests of the children involved. All other considerations are secondary. Kerby, 31 Ark. App. at 264. In these type cases, the chancellor must utilize to the fullest extent all powers of perception in evaluating witnesses, their testimony, and the best interests of the children. In no other type of case does the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as those cases involving minor children. Id. Juvenile courts are a division of chancery, and therefore the same standards of review apply. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990).\nHere, it is true that the trial court noted that appellant\u2019s attitude and demeanor had improved and that she had responded to the wake-up call as best she could. The court also stated, however, that she still had a \u201cway to go.\u201d Dr. Alan Tuft, a clinical psychologist, provided expert testimony in this case. The court credited Dr. Tuft\u2019s testimony that he did not believe appellant had the ability to care for all three boys for an extended period of time. Moreover, the court determined that the evidence showed that the fathers provided safe, nurturing environments and that they were the more stable custodians for the boys. Appellant acknowledged that the fathers were excellent caretakers. Furthermore, there was ample testimony that the boys had customarily spent large amounts of time with their respective fathers, which undercuts appellant\u2019s argument that they should be together in one household. In short, a review of the entire record demonstrates that the trial judge\u2019s refusal to restore custody to appellant was not clearly erroneous.\nAppellant\u2019s fifth argument is that the juvenile court erred in granting Smith\u2019s dependency-neglect petition and Jackson\u2019s and Lowell\u2019s motions because doing so was against the preponderance of the evidence. In particular, appellant argues that Dr. Alan Tuft\u2019s initial report to the court favored appellant\u2019s having custody of the children, and that the doctor\u2019s only initial concern was appellant\u2019s financial ability to keep the family together as a unit. She asserts that his opinion was turned upside down by the time he testified at the hearing because of \u201cex parte conferences\u201d with persons friendly to the fathers. She also relies upon the fact that everyone who comes in contact with Josh, the oldest child, has nothing but good things to say about him. She argues that because she has had Josh fifty percent of the time, her positive parenting abilities are proven by the fact that Josh has developed so well. She concludes that the lower court\u2019s findings to the contrary are therefore against the preponderance of the evidence. We disagree.\nAppellant\u2019s assertions about \u201cex parte conferences\u201d with Dr. Tuft are not supported by legal authority nor well-reasoned argument. We do not consider allegations of error absent citation to authority or convincing argument. Bank of Cabot v. Bledsoe, 9 Ark. App. 145, 653 S.W.2d 144 (1983). Moreover, even though Josh has developed well and is highly regarded, that fact alone does not support appellant\u2019s position that the trial court\u2019s findings regarding custody are clearly erroneous. As stated previously in this opinion, the trial court\u2019s findings were not clearly contrary to the preponderance of the evidence.\nAppellant\u2019s final argument is that the juvenile court erred in unreasonably restricting her visitation rights with the children. Appellant\u2019s visitation with the children is very restricted. However, it is clear from the visitation schedule set forth in the final order that the lower court gave careful consideration to this issue. In reviewing chancery cases, we give due deference to the trial court\u2019s superior position to evaluate the evidence, and we will not reverse the lower court\u2019s findings unless they are clearly against the preponderance of the evidence. We find no clear error in this regard.\nABSTRACTING ABUSES\nWe cannot ignore the abstracting abuses of appellant\u2019s counsel. Excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony. Saint Paul Fire & Marine Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995). Appellant\u2019s abstract consisted of 402 pages. Much of this information could have been abridged or deleted for purposes of this appeal. This court\u2019s efforts to resolve this matter on appeal would have been aided considerably by the scrupulous adherence to our abstracting rule. See Arkansas Supreme Court Rule 4-2(a)(6).\nAffirmed.\nRogers and Neal, JJ., agree.", "type": "majority", "author": "JOHN F. Stroud, Jr., Judge." } ], "attorneys": [ "Booth & Honeycutt, P.L.C., by: Frank W. Booth, for appellant.", "Gunn, Sexton, Canova & Platt, by: Jane Watson Sexton and Katherine E. Platt, for appellees." ], "corrections": "", "head_matter": "Michelle LOWELL v. Robert E. LOWELL, et al.\nCA 95-875\n934 S.W.2d 540\nCourt of Appeals of Arkansas Division I\nOpinion delivered December 11, 1996\nBooth & Honeycutt, P.L.C., by: Frank W. Booth, for appellant.\nGunn, Sexton, Canova & Platt, by: Jane Watson Sexton and Katherine E. Platt, for appellees." }, "file_name": "0211-01", "first_page_order": 237, "last_page_order": 245 }