{ "id": 6137102, "name": "Cyndall SHARP v. M.J. KEELER", "name_abbreviation": "Sharp v. Keeler", "decision_date": "2007-05-09", "docket_number": "CA 06-714", "first_page": "42", "last_page": "63", "citations": [ { "type": "official", "cite": "99 Ark. App. 42" }, { "type": "parallel", "cite": "256 S.W.3d 528" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "80 Ark. App. 408", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142056 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "410-11", "parenthetical": "internal citations omitted" }, { "page": "426", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark-app/80/0408-01" ] }, { "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": "90 Ark. App. 71", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137044 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "74-75", "parenthetical": "internal citations omitted" }, { "page": "105-06", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark-app/90/0071-01" ] }, { "cite": "15 Ark. App. 325", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142609 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark-app/15/0325-01" ] }, { "cite": "968 S.W.2d 62", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6141196, 703830 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/61/0240-01", "/ark/333/0577-01" ] }, { "cite": "61 Ark. App. 240", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141196 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/61/0240-01" ] }, { "cite": "88 Ark. App. 257", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140592 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "citing Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)" }, { "parenthetical": "citing Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)" } ], "opinion_index": 1, "case_paths": [ "/ark-app/88/0257-01" ] }, { "cite": "22 U. Ark. Little Rock L. Rev. 565", "category": "journals:journal", "reporter": "U. Ark. Little Rock L. Rev.", "year": 2000, "pin_cites": [ { "page": "592" } ], "opinion_index": 1 }, { "cite": "81 Ark. App. 292", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140957 ], "weight": 9, "year": 2003, "pin_cites": [ { "parenthetical": "holding that, because a caring relationship with both parents is important to a healthy upbringing, evidence that one parent is alienating a child from the other is an important factor to be considered in deciding whether custody should be changed" }, { "parenthetical": "holding that, because a caring relationship with both parents is important to a healthy upbringing, evidence that one parent is alienating a child from the other is an important factor to be considered in deciding whether custody should be changed" }, { "page": "299" }, { "page": "261" }, { "page": "296" }, { "page": "259" } ], "opinion_index": 1, "case_paths": [ "/ark-app/81/0292-01" ] }, { "cite": "59 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137573 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "Arkansas courts do consider whether one parent is alienating a child from the other parent when making custody decisions" }, { "parenthetical": "Arkansas courts do consider whether one parent is alienating a child from the other parent when making custody decisions" } ], "opinion_index": 1, "case_paths": [ "/ark-app/59/0108-01" ] } ], "analysis": { "cardinality": 1440, "char_count": 55534, "ocr_confidence": 0.75, "pagerank": { "raw": 7.470795701962704e-07, "percentile": 0.9697854971467449 }, "sha256": "ad2261f1b7d5087da53e8e4f0a47bfe79baec337f7c7cf0b91fa273d65d1a727", "simhash": "1:992e7f271a12d4af", "word_count": 9498 }, "last_updated": "2023-07-14T20:09:21.655097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin, Robbins, Griffen, and Marshall, JJ., agree.", "Bailer, J., dissents." ], "parties": [ "Cyndall SHARP v. M.J. KEELER" ], "opinions": [ { "text": "David M. Glover, Judge.\nCyndall Sharp appeals the Washington County Circuit Court\u2019s grant of M.J. Keel-er\u2019s petition for change of custody of the parties\u2019 minor son, [ MINOR NAME REDACTED ] [ MINOR NAME REDACTED ] Sharp Keeler, who was bom August 30, 2004. On appeal, she argues that the trial court erred in finding (1) that she \u201cacted in ways to the detriment of the child and that parental alienation on the part of appellant was a material change of circumstances warranting modification of its original custody decree and thereby granting custody to appellee, M.J. Keeler,\u201d and (2) that she was only entitled to supervised visitation when there were no facts to support a finding that supervised visitation was in [ MINOR NAME REDACTED ]\u2019s best interest. Briefly stated, we affirm the trial court\u2019s decision regarding the change of custody and reverse and remand with regard to visitation. However, \u201cbrevity\u201d is not the watchword in this matter \u2014 there was a detailed initial order of custody, a detailed petition seeking a change of custody, detailed testimony at the hearing, and a detailed mling from the bench, all captured in detail in the opinion of this court.\nIn Alphin v. Alphin, 90 Ark. App. 71, 74-75, 204 S.W.3d 103, 105-06 (2005) (internal citations omitted), our court set forth the standards for reviewing modifications of custody:\nAlthough the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification. The primary consideration is the best interest and welfare of the child, and all other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent.\nIn child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous. A finding is clearly erroneous, 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. Because the question of whether the trial court\u2019s findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child\u2019s best interest. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children.\nBackground Facts\nThe parties in this case were never married. In a very precise order filed of record on April 4, 2005, but ordered to be effective as to February 25, 2005, the trial court initially awarded custody of [ MINOR NAME REDACTED ] to Sharp, subject to visitation by Keeler. The order contained numerous terms and conditions of visitation, including that neither party would make derogatory comments about the other in the presence of the child; that Sharp would not text message Keeler while he was exercising visitation with [ MINOR NAME REDACTED ]; that Sharp would cease leaving \u201ctacky\u201d notes for Keeler; that Sharp was not to do anything to alienate [ MINOR NAME REDACTED ] from Keeler; that Sharp was to have [ MINOR NAME REDACTED ] ready for visitation at the time visitation was to begin; and that when Sharp needed a babysitter, she was to give Keeler first opportunity to babysit and she was to notify Keeler as soon as she was aware she needed a babysitter. The order further enumerated that until [ MINOR NAME REDACTED ] was three years old, visitation would be every Saturday from 9:00 a.m. until 5:00 p.m.; every Wednesday from 5:30 p.m. until 7:30 p.m., unless Keeler\u2019s college or employment conflicted, and then the visitation was to be on Thursday at the same time; and any additional visitation upon which the parties agreed was appropriate. Holiday visitation was set forth, as well as visitation for [ MINOR NAME REDACTED ]\u2019s birthday, on which Keeler was entitled to visitation from 11:00 a.m. until 2:00 p.m. The order also provided that the parties were to keep each other fully informed of his or her address, telephone number, and all known pertinent information regarding [ MINOR NAME REDACTED ]\u2019s health, education, and welfare. In addition, the order stated that [ MINOR NAME REDACTED ]\u2019s birth certificate was to be changed to reflect that his name was [ MINOR NAME REDACTED ] [ MINOR NAME REDACTED ] Sharp Keeler.\nFive months later, in September 2005, Keeler filed a thirty-five page document entitled \u201cPetition for Contempt Citation and Petition for Change of Custody,\u201d in which Keeler alleged that Sharp had continued to use the name Sharp instead of Sharp-Keeler for [ MINOR NAME REDACTED ]; that she would not acknowledge \u201c[ MINOR NAME REDACTED ] Keeler,\u201d stating that that was not their son\u2019s name; and that [ MINOR NAME REDACTED ]\u2019s medical records indicated Sharp instead of Keeler. Keeler further alleged that Sharp had made derogatory remarks about him in front of [ MINOR NAME REDACTED ]; that Sharp had continued to text message and call him during his visitation; that Sharp had made him miss his Father\u2019s Day visitation; that Sharp had continued to leave him tacky notes; that Sharp had actively done things to alienate Keeler from [ MINOR NAME REDACTED ]; that Sharp had failed to have [ MINOR NAME REDACTED ] ready for visitation; that Sharp had denied Keeler visitation; and that Sharp had failed to keep Keeler updated on [ MINOR NAME REDACTED ]\u2019s medical conditions.\nHearing Testimony\nKeeler testified at length during a two-day hearing. He stated that he was happy when the trial judge initially set rules for visitation because he thought it would be less stressful and that he would be able to babysit [ MINOR NAME REDACTED ] when Sharp could not be with him. However, Keeler testified that Sharp presented difficulties for him getting to see [ MINOR NAME REDACTED ], that Sharp continued to use \u201cSharp\u201d as [ MINOR NAME REDACTED ]\u2019s last name instead of Keeler, and that she told him that she does not know who [ MINOR NAME REDACTED ] Keeler is. For example, in response to an instant message Keeler testified he sent Sharp to tell [ MINOR NAME REDACTED ] Keeler that he loved him, Sharp replied that Keeler could only speak to his imaginary son because Keeler was not [ MINOR NAME REDACTED ]\u2019s name. Keeler stated that [ MINOR NAME REDACTED ]\u2019s account with AR. Kids First was under the name [ MINOR NAME REDACTED ] Sharp. Keeler also said that Sharp\u2019s mother continued to call him names like \u201csissy\u201d and \u201casshole\u201d in front of [ MINOR NAME REDACTED ].\nKeeler testified that Sharp tried to give him a book on babysitting, which offended him because he was [ MINOR NAME REDACTED ]\u2019s father, not just his babysitter. Keeler recounted that on a check Sharp wrote him for stop-payment fees, she wrote \u201csexual favors\u201d on the memo line. Keeler also said that Sharp had on one occasion left him a note taped to [ MINOR NAME REDACTED ]\u2019s diaper, which he thought was \u201cdisturbing.\u201d\nKeeler stated that he felt alienated from [ MINOR NAME REDACTED ]. As examples, he said that Sharp would not let him have visitation because [ MINOR NAME REDACTED ] was too sick, but then when he checked with the doctors, they told him that [ MINOR NAME REDACTED ] was not too sick; that Sharp still did not use the last name Keeler for [ MINOR NAME REDACTED ]; that Sharp acted like Keeler was not capable of taking care of [ MINOR NAME REDACTED ]; that Sharp would not let him go to [ MINOR NAME REDACTED ]\u2019s doctor visits; that if [ MINOR NAME REDACTED ] was napping when he came to pick him up for visitation, he was required to wait until [ MINOR NAME REDACTED ] woke up, but that rule did not apply if Sharp came to get [ MINOR NAME REDACTED ] at Keeler\u2019s and he was napping; and that Sharp would accuse him of causing [ MINOR NAME REDACTED ] to be constipated.\nKeeler said that on one occasion when he was picking [ MINOR NAME REDACTED ] up for visitation, Sharp told him that [ MINOR NAME REDACTED ] had an ear infection and needed to see the doctor. Keeler did not take him to the doctor because [ MINOR NAME REDACTED ] was not running a fever and seemed to be okay; however, Keeler testified that he called a doctor and found out the correct dosage of Tylenol for a child under two and gave a smaller dose to [ MINOR NAME REDACTED ] just to be safe. When Keeler returned [ MINOR NAME REDACTED ] to Sharp, he told her that he had given him Tylenol. Thereafter, he testified that Sharp began text messaging him, asking how much Tylenol he had given [ MINOR NAME REDACTED ]. She finally text-messaged him that she and [ MINOR NAME REDACTED ] were at the emergency room and that the doctors needed to know if they needed to pump [ MINOR NAME REDACTED ]\u2019s stomach. According to Keeler, he went to the emergency room but did not find [ MINOR NAME REDACTED ] or Sharp there; it turned out that Sharp had never taken [ MINOR NAME REDACTED ] to the emergency room and she was at home all the time.\nKeeler testified that Sharp failed to keep him informed about [ MINOR NAME REDACTED ]\u2019s medical issues. He said that he found out about [ MINOR NAME REDACTED ]\u2019s surgery to put tubes in his ears by reading Sharp\u2019s \u201caway\u201d message to friends on Yahoo Messenger that said, \u201cEVERYONE, thanks for all the prayers! Please continue to pray for [ MINOR NAME REDACTED ] during his surgery, leave a message.\u201d It was Keeler\u2019s testimony that his wife discovered that [ MINOR NAME REDACTED ] was having surgery at the Ear, Nose and Throat Clinic and, when he arrived to see what type of surgery [ MINOR NAME REDACTED ] was having, the doctor told him that Sharp had said that she did not want him back there and that the doctor did not want him to make a scene. Keeler said that he remained outside until the surgery was completed and then he went back. He said that Sharp ignored him at first but then let him hold [ MINOR NAME REDACTED ] while she got her car.\nKeeler said that on another occasion, Sharp began calling his sister, mother, and wife and began asking about family-disease history. Sharp sent Keeler an instant message that she needed to talk to him about [ MINOR NAME REDACTED ]\u2019s arm, that it was urgent; Keeler did not answer the message because he was not at a computer. Keeler said that when he finally reached her, Sharp would not tell him why she needed his family disease history but \u201cnever mind\u201d because she had found it anyway. Keeler said that on September 22, 2005, he got a message from Sharp that he would not be able to have his visitation because she and [ MINOR NAME REDACTED ] were at the hospital, but that she did not tell him in which hospital they were. He finally found they were in Arkansas Children\u2019s Hospital. When he spoke with Sharp next, she told him that [ MINOR NAME REDACTED ] had histiocytosis, a rare blood disease, and that he had had to have a tumor removed from his arm. Keeler said that he thought that Sharp did not want him to come to Little Rock for the surgery and that was why she did not tell him about it. He further stated that at first, Children\u2019s Hospital would not tell him anything, then they said that he needed a code word from Sharp before they could tell him anything. He said that he had to beg Sharp for the code word before she gave it to him, and then that Sharp would not let the nurse give him any more information than what Sharp had told him.\nKeeler stated that [ MINOR NAME REDACTED ] had to have chemotherapy treatments in Little Rock, but even though he offered, Sharp would not let him take [ MINOR NAME REDACTED ] to Little Rock by himself. Keeler, his wife, Sharp, and [ MINOR NAME REDACTED ] all made the trip together, and Keeler said that they got along fine. He stated that everyone was getting along when [ MINOR NAME REDACTED ] began receiving his treatments in Northwest Arkansas, but then at one treatment, Sharp got upset that Keeler\u2019s wife was also present at the treatment. Keeler said that the treatments were initially scheduled in Bentonville so that he could go to them, but that Sharp switched them to Fayetteville so that he could not go anymore. When he arrived at a treatment in Fayetteville, Sharp told him in front of everyone in the waiting room that he could not go back with her when [ MINOR NAME REDACTED ] got his treatment because it was stressful to [ MINOR NAME REDACTED ]; Keeler said that he then left because his feelings were hurt and he was embarrassed. He later asked Sharp if she would let him go back if he came to the next chemotherapy appointment; she said no, so he did not bother going back. Keeler said that he would like to be able to go to the appointments, but he did not feel like he was welcome, and that was why he did not go anymore. Keeler stated that he had tried to get [ MINOR NAME REDACTED ]\u2019s medical records, but that Sharp had still not signed a medical authorization.\nKeeler said that he was denied visitation after the tubes were put in [ MINOR NAME REDACTED ]\u2019s ears. He said he was also denied visitation for a longer period of time after the surgery at Children\u2019s Hospital because Sharp said that [ MINOR NAME REDACTED ] was too clingy and could not be away from her. He testified that Sharp insisted on supervised visitations, which Keeler agreed to a couple of times. Keeler said that he believed that there were times when [ MINOR NAME REDACTED ] was left with other people after his surgery at Children\u2019s Hospital even though he was denied his visitation.\nKeeler recounted a time where Sharp would not allow Keeler\u2019s mother to pick up [ MINOR NAME REDACTED ], even though she was authorized to pick him up. Sharp emailed Keeler and said that she did not think it would be best for his mother to pick [ MINOR NAME REDACTED ] up because in the past [ MINOR NAME REDACTED ] had been stressed after visiting Keeler\u2019s mom. Sharp also told Keeler that she did not think that his mother was capable of taking care of a child undergoing chemotherapy.\nKeeler said that on February 18, 2006, he and his wife went to pick [ MINOR NAME REDACTED ] up for visitation. Sharp heard Keeler\u2019s wife cough while standing outside in the cold, and Sharp denied visitation because she thought Keeler\u2019s wife was sick. He also said that on numerous occasions, Sharp has not had [ MINOR NAME REDACTED ] ready for visitation when he arrived and that he has had to wait for Sharp to get him ready. Keeler said that he does not get to make up any visitation time he misses when he has to wait on Sharp to get [ MINOR NAME REDACTED ] ready.\nKeeler stated that Sharp refused to allow his wife to pick [ MINOR NAME REDACTED ] up, even though she was authorized to do so. According to Keeler, he told Sharp that his wife was authorized to pick [ MINOR NAME REDACTED ] up \u2014 Sharp told him that she did not care what the order said.\nKeeler complained that Sharp would not give him the first right to babysit. He said that Sharp told him that her mother was not considered a babysitter because she was family. Keeler said that he thought Sharp was saying to him that her family got the first option to babysit [ MINOR NAME REDACTED ] instead of him. Keeler said that he asked several times to babysit while Sharp was at work, and that she told him that she needed at least forty-eight hours\u2019 notice if he wanted [ MINOR NAME REDACTED ]. He said she told him that a babysitter was a paid person, not family. While Keeler admitted that Sharp occasionally allowed him to have extra visitation, he said that he did not know if she ever allowed him to babysit while she was working.\nKeeler testified that he received a call from DHS because he had been accused of mistreating [ MINOR NAME REDACTED ]; however, that accusation was determined to be unfounded.\nKeeler stated that he also had problems getting his mid-week visitation. He said that his understanding was that if he could not have visitation on Wednesday, that he got Thursdays; he said that Sharp now said that visitation should only be on Thursdays, even if there was a conflict.\nKeeler said that he had not freely been given [ MINOR NAME REDACTED ]\u2019s medical information, and that Sharp sent him a message threatening to withhold all information about [ MINOR NAME REDACTED ]\u2019s life if Keeler continued to \u201cloathe [ MINOR NAME REDACTED ]\u2019s Mommy.\u201d Keeler said that he had to work on [ MINOR NAME REDACTED ]\u2019s birthday during his scheduled visitation time, and that Sharp told him that she was not obligated to change her schedule to accommodate him. Keeler said that he did not believe that he had been treated well by Sharp over the last year with regard to [ MINOR NAME REDACTED ], and that he had learned how a non-custodial parent should be treated. He said that he knew it was important for [ MINOR NAME REDACTED ] to be with Sharp and how important visitation was; he said that if he received custody, he would not treat her the way she treated him.\nJennifer Keeler, Keeler\u2019s wife, testified about the times she had tried to pick up [ MINOR NAME REDACTED ], and Sharp would not allow her to do so. Jennifer said that after she tried twice to pick up [ MINOR NAME REDACTED ], without being allowed to do so, she did not try to pick him up for visitation any more. Jennifer said that she and Sharp were getting along until she came to one of [ MINOR NAME REDACTED ]\u2019s chemotherapy appointments, at which time Sharp became very upset. Jennifer said that she was never really sure with which Sharp she was going to talk.\nSharp also testified at length. She testified that there were different times that she did not follow the court order because she did not believe that it was what the trial court had ordered and she did not think it was a valid order. She said that other times she did not follow the order, she was concerned about [ MINOR NAME REDACTED ]\u2019s safety. She stated that there was a period of time after [ MINOR NAME REDACTED ]\u2019s biopsy that she did not allow unsupervised visitation because [ MINOR NAME REDACTED ] had had a difficult time at the hospital. Sharp said that Keeler had not made her feel safe about [ MINOR NAME REDACTED ] being with him, and that she had tried to give him information about [ MINOR NAME REDACTED ]\u2019s health problems and food allergies, but that Keeler always treated her like she was overreacting. Sharp said that she was nervous at first because she was a new mom, and then Keeler had refused to tell her what and how much medication he had given [ MINOR NAME REDACTED ]. Sharp also said that Keeler took [ MINOR NAME REDACTED ] into public when [ MINOR NAME REDACTED ] was sick and that he did not feed him properly. In addition, Sharp complained that Keeler had failed to properly clean [ MINOR NAME REDACTED ] after he had bowel movements.\nSharp stated that she had a lot of trouble getting Keeler to administer [ MINOR NAME REDACTED ]\u2019s medication, and that was her basis for not allowing unsupervised visitation. She admitted that she had told Keeler that she had taken [ MINOR NAME REDACTED ] to the emergency room \u2014 she said that she thought that if Keeler believed it was an emergency, he would tell her how much Tylenol he had given [ MINOR NAME REDACTED ].\nSharp said that she had tried to tell Keeler about [ MINOR NAME REDACTED ]\u2019s ear surgery but that Keeler kept hanging up on her. She also said that she tried to tell him about the surgery at Children\u2019s Hospital, but that he hung up again, and she quit trying.\nSharp testified that she felt physically threatened by Jennifer Keeler because she followed her after Sharp would not let her take [ MINOR NAME REDACTED ]. Sharp said that she was driving [ MINOR NAME REDACTED ] to Keeler\u2019s house so that he could have his visitation, and that Jennifer followed her extremely closely and that it did not seem to her that Jennifer was thinking of [ MINOR NAME REDACTED ]\u2019s safety at all.\nSharp said that she changed the chemotherapy treatments to Fayetteville because [ MINOR NAME REDACTED ]\u2019s nurse transferred to Fayetteville. She said that it was an issue of convenience, and that it was not to deliberately keep Keeler from attending the treatments.\nSharp stated that it was her understanding of the order that if she had special dates or appointments that she was supposed to call Keeler to watch [ MINOR NAME REDACTED ]. She said that it seemed disruptive to require [ MINOR NAME REDACTED ] to get up from a nap so that Keeler could watch him. She also said that she did not feel like [ MINOR NAME REDACTED ] was being babysat when he had special play dates with her mother or Sharp\u2019s brother. She further explained that she did not contact Keeler if she went into work after [ MINOR NAME REDACTED ] was asleep because her sisters were at home.\nSharp testified that when she wrote \u201csexual favors\u201d on the check memo line, she was just joking. She denied knowing why [ MINOR NAME REDACTED ]\u2019s medication was labeled Sharp instead of Sharp-Keeler. In response to her message to Keeler about \u201cloathing [ MINOR NAME REDACTED ]\u2019s Mommy,\u201d she said that she was just saying that Keeler\u2019s hatred of her would get in the way of his relationship with [ MINOR NAME REDACTED ]. Sharp also claimed that Keeler had free access to any of [ MINOR NAME REDACTED ]\u2019s medical records. She testified that the times she denied unsupervised visitation, she did so out of concern for [ MINOR NAME REDACTED ]\u2019s safety, health, and mental health.\nWith respect to [ MINOR NAME REDACTED ]\u2019s stay at Children\u2019s Hospital, Sharp denied that she instructed the nurse not to release any information to Keeler. She said that as soon as she knew [ MINOR NAME REDACTED ]\u2019s diagnosis, she called Keeler and told him. She said that she did not tell any of Keeler\u2019s family about the diagnosis because she thought it would be best to calmly explain things to Keeler.\nTrial Court\u2019s Findings\nAt the close of the hearing, the trial court changed custody to Keeler. In a lengthy ruling from the bench, the court first took issue with Sharp\u2019s testimony that she did not believe that the initial court order was a valid court order, stating that it was a valid order until the trial court vacated it. The trial court also noted that Sharp \u201cwant[ed] your cake, and you want to eat it, too,\u201d stating that while Sharp did not want to follow the order, she certainly wanted Keeler to be bound by it. The trial court read the initial order out loud in open court, and then reminded everyone that the court had specifically admonished Sharp to promote the bond and relationship between [ MINOR NAME REDACTED ] and Keeler, but that the court had heard that day that things were worse than they were previously. As an example, the trial court cited the many instances where Sharp continued to send Keeler \u201ctacky little e-mails.\u201d The trial court addressed the fact that Sharp sent Keeler notes about [ MINOR NAME REDACTED ]\u2019s food taped to [ MINOR NAME REDACTED ]\u2019s diaper, and notes in which Sharp had stated that with a little \u201cguidance,\u201d Keeler could be a better father. The court questioned how Keeler could get any information from [ MINOR NAME REDACTED ]\u2019s doctors when Sharp refused to sign a medical release and continued to instruct nurses not to give Keeler any medical information. The court noted that all of that behavior was to the detriment of the child.\nThe trial court addressed the \u201cTylenol incident,\u201d noting that Keeler and his wife called a medical professional to find out the correct dose of Tylenol to give [ MINOR NAME REDACTED ], and then only gave him one-half of that amount to be on the safe side, that [ MINOR NAME REDACTED ] was doing fine and not running a fever, but that Sharp threw a \u201chissy fit\u201d because Keeler did not take [ MINOR NAME REDACTED ] to the doctor. The court then contrasted that incident with the one where [ MINOR NAME REDACTED ] was running a fever while in Sharp\u2019s custody but Sharp did not take him to the doctor because she could maintain his fever at home and he was not getting worse.\nAddressing the visitation after the biopsy incident, the trial court stated that it understood Sharp\u2019s concern for [ MINOR NAME REDACTED ] after the biopsy, but it found that there was no testimony to show that Keeler was unfit and could not take care of [ MINOR NAME REDACTED ] during that time. The court further noted that Keeler\u2019s visitation was only for the day, that it was not like Keeler was going to have him for an extended period of time.\nThe trial court addressed the issue of Sharp failing to let Keeler babysit [ MINOR NAME REDACTED ] and allowing her mother, brother, or sisters to do so instead. The court reaffirmed that its order did not say to let Keeler babysit only when Sharp thought it was okay or when [ MINOR NAME REDACTED ] would not miss a nap or only when [ MINOR NAME REDACTED ] was awake, but that Keeler was to have the first right to take care of his child when Sharp could not do so. The court found it \u201cludicrous\u201d that Sharp did not consider her family to be babysitters but considered Keeler to be a babysitter and that she provided him with a babysitter\u2019s guide, which undercut the father-son relationship and evidenced Sharp\u2019s attempts to undermine Keeler\u2019s relationship with [ MINOR NAME REDACTED ] even after being ordered by the court not to do so. The trial court held Sharp in contempt for failing to allow Keeler to babysit and sentenced Sharp to two days in jail but suspended it on the condition that Sharp follow court orders.\nThe trial court also addressed the issue of Sharp failing to have [ MINOR NAME REDACTED ] ready for visitation and the fact that Keeler was required to wait for [ MINOR NAME REDACTED ] to wake up if he was asleep when Keeler arrived to pick him up for visitation, but that Sharp did not wait if she was picking [ MINOR NAME REDACTED ] up from Keeler and [ MINOR NAME REDACTED ] was asleep. The court stated that it was as if Keeler played by Sharp\u2019s rules or did not get to play at all.\nThe trial court also addressed the issue of Keeler learning that his son was having surgery from a text message sent out by Sharp on her messenger, but that Sharp did not inform Keeler that [ MINOR NAME REDACTED ] was having surgery. The court told Sharp that her e-mail did not take care of letting Keeler know about the surgery ahead of time; that an e-mail that just says to pray for [ MINOR NAME REDACTED ] was \u201cevil\u201d; and that it was no wonder that Keeler was irritated when he finally tracked down where the surgery was taking place and was then told by the doctor not to make a scene because he did not know what was going on with his son. The court found that Sharp was clearly not advising Keeler of medical procedures and information; that she did not let him get medical information; and that she then told him that he could not be a good father because he did not know the medical information. The court also found that Sharp e-mailed Keeler that she was at the emergency room with [ MINOR NAME REDACTED ], when in fact she was not, so that Sharp could \u201cteach [Keeler] a lesson,\u201d and that Sharp continued to refuse to keep Keeler updated on medical information with regard to [ MINOR NAME REDACTED ]\u2019s biopsy on his arm, leaving only a \u201clittle message\u201d that there was something wrong but not giving Keeler the whole picture, i.e., that [ MINOR NAME REDACTED ] had an appointment in Little Rock the next day. In the trial court\u2019s words, it found that Sharp was playing \u201cevil games\u201d against Keeler; that her actions were detrimental to her child; that she was terrorizing and harassing Keeler to the detriment of [ MINOR NAME REDACTED ]; and that Sharp, in the whole spirit of co-parenting, rated \u201czero.\u201d The court found that [ MINOR NAME REDACTED ] should have had both his parents at the hospital but that due to his mother\u2019s actions, his father was not there. The court also found that [ MINOR NAME REDACTED ] should have had both parents at his chemotherapy treatments, but because Sharp decided that she would not let Keeler come back for the treatment, [ MINOR NAME REDACTED ], to his detriment, was again denied his father\u2019s presence.\nThe trial court also found that Sharp was in contempt of court for failing to allow Keeler to exercise his court-ordered visitation, finding that Sharp\u2019s stated reason of having concerns about Keeler\u2019s care of [ MINOR NAME REDACTED ] after the medical procedures was \u201cbogus\u201d and \u201can extension of this problem that [Sharp has] with undermining [Keeler\u2019s] relationship with his son.\u201d Accordingly, in addition to the two days in jail that the trial court ordered for Sharp failing to allow Keeler the first right to babysit, the trial court ordered an additional two days in jail for Sharp\u2019s failure to allow visitation, but again suspended it on the condition that Sharp follow court orders.\nThe trial court held that Sharp had continued to damage Keeler\u2019s relationship with [ MINOR NAME REDACTED ] and had tried to prevent them from having a healthy bond, picking and choosing what part of the court orders she would follow, to the detriment of her son. It held that Sharp denied visitation for no reason; played \u201cmind games\u201d with Keeler regarding [ MINOR NAME REDACTED ]\u2019s medical procedures; and failed to advise Keeler of any medical information and procedures. The court further found a lot of Sharp\u2019s testimony to be \u201cincredulous\u201d and untruthful. Based upon the testimony, the court found that there had been a material change in circumstances since the last hearing and that it was in [ MINOR NAME REDACTED ]\u2019s best interest for custody to be changed from Sharp to Keeler. The court noted that removing [ MINOR NAME REDACTED ] from the home that he had known since birth was not something that the court did lightly, but that Sharp had been failing [ MINOR NAME REDACTED ] miserably and that Sharp was unfit to be the custodial parent. The court stated that the change in custody was not a way to punish anyone, but rather it was for the best interest of the child. Explaining its decision, the trial court said that if it could \u201cjust send mom to jail for a couple of days and think that [ MINOR NAME REDACTED ] would be okay after that and get mom\u2019s attention to where she promotes the relationship between the son and the father and . . . didn\u2019t disregard Court Orders, pick and choose what she wanted, and I thought four or five days in jail would get mom\u2019s attention, then it would just strictly be a contempt issue, but it\u2019s more than that. I\u2019m not changing custody in any way to punish mom. I\u2019m doing it to protect this young man, little [ MINOR NAME REDACTED ], who deserves to have two parents who love him.\u201d The trial court further ordered that Sharp undergo a mental-health examination and also ordered that Sharp have supervised visitation.\nI. Change of Custody\nOn appeal, Sharp argues that the trial court erred in changing custody of [ MINOR NAME REDACTED ] from her to Keeler. She complains that the court placed stricter requirements on her than the original custody order required and that the court failed to consider her diligent and consistent care for [ MINOR NAME REDACTED ]\u2019s health. She contends that the court erred in finding that she had engaged in parental alienation by not keeping Keeler completely informed prior to all medical procedures and by disallowing some visitation because she was not ordered to notify Keeler of medical appointments or procedures before they occurred and because when she denied visitation it was based upon health concerns for [ MINOR NAME REDACTED ] after he had received chemotherapy.\nFrom our review, the trial court\u2019s extensive ruling from the bench does not indicate that it placed stricter requirements on Sharp than the original order required. Sharp\u2019s argument that she was not required to keep Keeler informed of [ MINOR NAME REDACTED ]\u2019s medical appointments and procedures prior to them occurring is simply not persuasive. Rather, her actions appear to be another way for her to have control over [ MINOR NAME REDACTED ] to the exclusion of Keeler. The same rationale applies to visitation \u2014 Sharp was not to interfere with visitation unless it was an emergency, yet she took it upon herself to determine when Keeler was going to have visitation based upon her own subjective beliefs. As the trial court pointed out, Keeler is [ MINOR NAME REDACTED ]\u2019s father and there was no testimony that he was unfit to care for his child.\nWe find no error in the trial court\u2019s decision to change custody from Sharp to Keeler. The record is replete with Sharp\u2019s attempts to alienate Keeler from his son \u2014 for example, her refusal to keep Keeler apprised of medical information, especially in light of [ MINOR NAME REDACTED ]\u2019s serious medical conditions; her refusal to have [ MINOR NAME REDACTED ] ready for visitation; the fact that she refused Keeler visitation when she decided it was in [ MINOR NAME REDACTED ]\u2019s best interest to do so; and the fact that she did not allow Keeler the first right to babysit [ MINOR NAME REDACTED ] when she could not be with [ MINOR NAME REDACTED ]. The trial judge is the person in the best position to observe the parties and evaluate the witnesses, their testimony, and the child\u2019s best interest. See Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004). It is obvious from the trial court\u2019s comments from the bench that it did not believe Sharp\u2019s testimony about why she did some of the things that she did nor her motivation behind some of her actions, and this was the trial court\u2019s determination to make.\nThe record of continued alienation of Keeler by Sharp is a material change of circumstances. Sharp failed to keep Keeler updated regarding [ MINOR NAME REDACTED ]\u2019s medical conditions. In addition to telephoning Keeler, Sharp had other ways of contacting him about [ MINOR NAME REDACTED ]\u2019s biopsy and surgery. For example, Sharp knew how to text message, as adduced by the testimony, yet she did not send the important information; rather she just kept leaving cryptic messages. She refused to allow the nurses at Arkansas Children\u2019s Hospital to divulge to Keeler more information than she decreed necessary, even after Keeler had to beg Sharp for the password to be able to be told any information about his son. Sharp changed [ MINOR NAME REDACTED ]\u2019s chemotherapy appointments and refused to let Keeler be present during the treatments. She denied visitation at times, although she said that she allowed some of it to be made up, and she would not have [ MINOR NAME REDACTED ] ready when visitation was supposed to begin. Sharp would not allow Keeler\u2019s wife or mother to pick [ MINOR NAME REDACTED ] up, although they were approved persons. On the whole, the evidence demonstrates a material change of circumstances since the entry of the initial custody order; the trial court found that it was in [ MINOR NAME REDACTED ]\u2019s best interest to have custody changed to Keeler; and we cannot say that this decision was clearly erroneous.\nSharp also argues that custody was modified to punish her. We disagree. In its lengthy ruling from the bench, the trial court found Sharp to be in contempt of the court orders and sentenced her to four days in the Washington County jail, suspended on the condition that Sharp follow court orders. In changing custody, the trial court stated that the fact that it was removing [ MINOR NAME REDACTED ] from the home that he had known since his birth was not something that the court did lightly, but the court admonished Sharp that Sharp had been \u201cfailing [[ MINOR NAME REDACTED ]] miserably.\u201d Explaining its decision, the trial court found that there had been material changes in circumstances; it was in the child\u2019s best interest to change custody; and that if a person was not following court orders, that changing custody was not a way to punish anyone. The court explained that if it could send Sharp to jail for contempt for \u201ca couple of days\u201d and it thought that it would get Sharp\u2019s attention to the point that she would promote the father-son relationship and would obey court orders, then it would be strictly a contempt issue, but that this case was about more than just contempt. The court reiterated that it was not changing custody to punish Sharp, but rather to protect [ MINOR NAME REDACTED ], who deserved to have two parents who loved him. Based upon our review of this ruling, we cannot say that the trial court changed custody simply to punish Sharp.\nOn this point, the dissent argues that this case was one of contempt, not change of custody. It is not either/or; it is both. We cannot ignore the fact that the trial court did hold Sharp in contempt on two separate bases. The record reflects that the court specifically noted that if it thought placing Sharp in jail for several days would cure the problem, then it would indeed simply be a contempt issue, but that this was in fact more.\nII. Visitation\nSharp next argues that the trial court erred in awarding her supervised visitation and that the supervised visitation was only to punish her. In Hass v. Hass, 80 Ark. App. 408, 410-11, 97 S.W.3d 424, 426 (2003) (internal citations omitted), this court held:\nIn reviewing domestic-relations cases, this court considers 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. It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. It is also well settled under Arkansas law that reversal is warranted where a trial court modifies visitation where no material change in circumstances warrants such a change. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation. The main consideration in making judicial determinations concerning visitation is the best interest of the child. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. The fixing of visitation rights is a matter that lies within the sound discretion of the trial court.\nThe trial court found that in light of the \u201chorrific testimony\u201d that it heard, which rose to the level of harassment and torment and which was not in the child\u2019s best interest, that it had serious concerns about Sharp\u2019s mental health, and the court ordered that visitation be supervised. Sharp now argues that there was no evidence to support supervised visitation, and that the trial court ordered that only to punish her.\nFollowing the February 24 hearing, Sharp promptly submitted to a psychological evaluation on March 9, the day before the order changing custody was entered on March 10. The psychological report was filed of record on April 3, the day before Sharp filed her notice of appeal. In that report, Dr. Martin Faitak, a clinical psychologist, summarized that Sharp tended to minimize problems and present herself in a positive manner; that she wanted positive regard but she might have difficulty with empathy and flexibility. However, he also noted that Sharp appeared to have good self esteem; that she was able to maintain employment, including soon to be adding a second job; that she was in good health and had appropriate expectations; that she had a stable mood; and that she had a sense of personal responsibility. Dr. Faitak also commented that Sharp seemed to have many responsibilities for a twenty year old. He reported that it was difficult for him to know for sure about Sharp\u2019s mental-health issues because there was a possibility that she minimized them, and that it was unusual for someone with a history similar to hers not to have more \u201csignificant and pervasive emotional problems.\u201d He concluded that if what Sharp had reported was true, there was no need for individual counseling, and he recommended that she and Keeler obtain counseling and work together in order for them to be able to give [ MINOR NAME REDACTED ] the long-term support [ MINOR NAME REDACTED ] needed.\nThere is nothing in the psychologist\u2019s report to indicate that Sharp had mental-health issues that rendered her incapable of caring for [ MINOR NAME REDACTED ] during visitation. Furthermore, none of the evidence presented at the hearing revealed that Sharp had mistreated [ MINOR NAME REDACTED ] or neglected his needs during the time he was in her care. In short, we find that there was no evidence to support the trial court\u2019s decision that Sharp should only receive four hours of supervised visitation per week, and we hold that that decision was clearly against the preponderance of the evidence. We direct that the trial court award Sharp the same unsupervised visitation that Keeler enjoyed prior to the change of custody, all of which is set out in detail in the initial April 4, 2005 filed order.\nAffirmed in part; reversed and remanded in part with instructions.\nGladwin, Robbins, Griffen, and Marshall, JJ., agree.\nBailer, J., dissents.", "type": "majority", "author": "David M. Glover, Judge." }, { "text": "Karen R. Baker, Judge,\ndissenting. Upon review of the record in this case, I believe that the trial court\u2019s decision changing custody of this eighteen-month-old child from his mother to his father was clearly erroneous. I dissent due to my conviction that the majority misinterprets and misapplies our precedent regarding alienation of a child in custody disputes and because changing custody was not in the best interest of the child.\nThe majority\u2019s misapplication of precedent concerning alienation of a child is apparent in the majority\u2019s statement that the trial judge\u2019s decision was correct because \u201cthe record is replete with Sharp\u2019s attempts to alienate Keeler from his son.\u201d There are two problems with the this position. First, alienation has never been understood to mean alienation of a parent; rather, it has been understood to mean alienation of the child from the parent. See generally Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997) (Arkansas courts do consider whether one parent is alienating a child from the other parent when making custody decisions) (emphasis added); Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003) (holding that, because a caring relationship with both parents is important to a healthy upbringing, evidence that one parent is alienating a child from the other is an important factor to be considered in deciding whether custody should be changed) (emphasis added). Although we have recognized that a vulnerable child may need protection from the attempts of a parent to alienate him from the other parent, a parent should be expected to be able to resist any attempt to alienate his affections for his own child.\nSecond, even if our court were to adopt a new standard, the trial court\u2019s finding that Sharp was alienating Keeler from this child was not supported by the evidence. Although Sharp\u2019s actions might have been irritating to Keeler personally, they were not the type of actions that have been recognized as having an alienating effect. See Carver, 81 Ark. App. at 299, 101 S.W.3d at 261 (appellant\u2019s interference with visitation was so extreme that the best interest of the children required that they be removed from the situation where there was no evidence to support appellant\u2019s drug-abuse allegations, and the sexual-abuse allegations were unsubstantiated; moreover, during the investigation, the children were subjected to medical sexual-assault examinations and were denied visitation with their father even after the investigation concluded that the allegations were unsubstantiated).\nThere was no evidence that this eighteen-month-old child was alienated from his father despite the majority\u2019s statement that \u201cthe record is replete with Sharp\u2019s attempts to alienate Keeler from his son.\u201d Alienation occurs when divorcing parents transform a child into a relationship weapon by engaging in patterns of behavior designed to destroy the child\u2019s psychological connection with the other parent. See Thomas E. Schacht, Psy.D., Prevention Strategies to Protect Professionals and Families Involved In High-Conflict Divorce, 22 U. Ark. Little Rock L. Rev. 565, 592 (2000). This type of behavior was not present in this case. The trial court and the majority focus on Keeler\u2019s lengthy testimony at a two-day hearing describing how he felt alienated from his son.\nThe majority notes that'Sharp\u2019s attempts to alienate Keeler included her refusal to keep Keeler apprised of medical information, her refusal to have the child ready for visitation, her refusal of visitation when she decided it was in the child\u2019s best interest, and the fact that she did not allow Keeler the first right to babysit when she could not be with the child. Great importance is also placed on Keeler\u2019s feelings concerning the use of the mother\u2019s surname rather than the father\u2019s last name.\nWhile the trial court\u2019s order stated that the parents were to communicate generally with each other about the health, education, and welfare of the child, there were no specific requirements that Sharp notify Keeler of any specific medical appointments or give him notice prior to any medical procedures. Moreover, the testimony showed that many attempts made by Sharp to inform Keeler of medical information were met with Keeler and his family members hanging up on her. Moreover, the testimony showed that there was a period just after the child\u2019s biopsy that visits with Keeler were not allowed. Sharp testified that her decision was based on her concern for the child, as he had just been in the hospital and had a surgical procedure, and that he was still recovering. Once the child was diagnosed with hystiocytosis, he had to undergo chemotherapy, thereby weakening his immune system and requiring restricted access to the public. Testimony showed that the child became \u201cclingy\u201d with Sharp following chemotherapy treatments and would become upset when she left the room. Further, Sharp admitted that there were a couple of occasions when she did not call Keeler to babysit. However, she testified that on those occasions, the child was asleep, and she thought it would be disruptive to wake the child and take him to Keeler\u2019s house for a short period of time. Taken together, none of these actions amount to alienation of this child from his father. Yet, the majority concludes that because of Sharp\u2019s alienation of Keeler \u2014 not the child \u2014 a material change of circumstances existed to warrant a change of custody.\nI dissent from the majority opinion for a second reason: it is clear that the trial court\u2019s ruling was intended to punish the mother for what the trial court saw as her \u201cevil\u201d behavior. In these cases, the primary consideration is the best interest and welfare of the child. Carver, 81 Ark. App. at 296, 101 S.W.3d at 259. All other considerations are secondary. Id. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Id.\nBelow are excerpts from the trial judge\u2019s oral ruling that demonstrate her intention to punish the mother by changing custody:\nNow, the other thing about the babysitting thing is that you don\u2019t consider your family to be quote/unquote babysitters, but yet when you send your child off to go with daddy you hand him a babysitter\u2019s guide. So you don\u2019t consider your family babysitting, but you consider this man a babysitter which is the most ludicrous thing that just undercuts this relationship between father and son and is huge evidence of parental alienation, and more importantly, of your undermining [the child\u2019s] relationship with his father to this little guy\u2019s detriment after I\u2019ve told you not to. Then more evidence of contempt and parental alienation is that if this man shows up and the son is napping, he has to wait to pick him up until he wakes up, and I told both parties that he was to be ready at the time, and then he says that he\u2019s waited 5 to 20 minutes while you\u2019re changing him or putting him in his clothes or whatever. But then he testified, and this was not refuted by her testimony, that if [the child] is sleeping at his house and it\u2019s time to take him home, by golly, he better get awakened and taken over to mama\u2019s. It\u2019s like we play by Ms. Cyndall\u2019s rales or we don\u2019t play at all. So when he has to wait around to pick up [the child] if he\u2019s sleeping at mama\u2019s, that he doesn\u2019t get to make up his time most of the time. The worst testimony \u2014 well, there\u2019s so much bad testimony \u2014\u2022 one of the worst things that I heard today, Ms. Sharp, in addition to you denying this man visitation for no good reason, is this evil mind game thing that you\u2019re playing with him, and that would be text messaging about surgery and saying, pray for him on this surgery, and you send it out to different people. Let me \u2014 maybe counsel can help me about which one that is \u2014 but you send it out to everybody, and you never tell him that your son is going in for surgery, and when you\u2019re asked on cross-examination about that you say that you told him the time had come for your child to have ear surgery because he\u2019s had eight ear infections. Well, that tells me two things. That\u2019s well, when Ms. Cyndall speaks we\u2019re going to do what she says. And, number two, that tells me that you knew he had ear surgery lined up, that he\u2019s supposed to be the Ali Baba and have ESP and just know that you set up and appointment the day after his birthday for his ears to be \u2014 tubes in \u2019em, but you don\u2019t tell him. You don\u2019t tell him, and then when they ask you about what did you say, you try to say that this little e-mail that you sent out to everybody took care of letting him know that he was going to have surgery that day. Well, it didn\u2019t. It didn\u2019t advise him ahead of time. What it said was \u2014 let me find it.... \u201cEveryone, thanks for all the prayers. Please continue to pray for [the child] during his surgery.\u201d You never tell him about the surgery. You just send this e-mail out that says \u201cpray for him.\u201d Now, that is evil. That is so evil I can\u2019t even understand why you\u2019d do that, and then when asked why do you do these little things, you say, well, I did it to let him know.\n[Mr. Keeler] doesn\u2019t know what\u2019s going on. Not only is that bad for [the child\u2019s] relationship to have daddy come to the clinic, and he\u2019s out there trying to come out of a groggy state, dad\u2019s upset and agitated, as well he should be because mom\u2019s sending out this little e-mail and she doesn\u2019t even tell him what\u2019s going on. That is so evil, and that is more evidence of parental alienation.\nThe games that are being played, ma\u2019am, are by you, and they are evil, and they are detrimental to your child, and I don\u2019t understand why you are doing it, and I\u2019m ordering a psychological evaluation on you.\nI\u2019m not changing custody in any way to punish mom. I\u2019m doing it to protect this young man, [the child], who deserves to have two parents who love him.\nWhile the trial judge said that she was not changing custody to punish the mother, it is unclear how the change of custody was intended to protect the child. Throughout the trial court\u2019s thirty-five page oral ruling, it is clear that the judge was concerned with protecting Keeler from Sharp\u2019s \u201cevil\u201d behavior. The trial court\u2019s finding that the mother\u2019s lack of compliance warranted a change in custody allowed the court\u2019s desire to punish the mother to override the primary consideration in the case, which was the welfare of the child. See Powell v. Marshall, 88 Ark. App. 257, 197 S.W.3d 24 (2004) (citing Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)). A violation of the court\u2019s previous directives does not compel a change in custody, Carver, supra. The majority outlines areas concerning the best interest of Keeler rather than the best interest of the child. This is evidenced by the statement that Sharp\u2019s \u201cactions appear to be another way for her to have control over [ MINOR NAME REDACTED ] to the exclusion of Keeler\u201d and that \u201cthere was no testimony that [Keeler] was unfit to care for his child.\u201d\nWhile I agree that there was ample evidence of the immaturity of both parents in this case, I see no evidence supporting a finding that it was in the best interest of this eighteen-month-old child, while undergoing chemotherapy treatments, to be removed from his mother\u2019s care and given to his father, who until that time had never even had overnight visitation, and allowing only four hours of supervised visitation with his mother a week. As the majority recognizes, there was no evidence to support the trial court\u2019s decision restricting the mother\u2019s visitation to only two hours, twice a week, supervised. If the focus in these cases is truly the best interest of the child, this case should be reversed.\nAccordingly, I dissent.\nThe first complaint cited by the majority, and used to justify their reasoning, is that the mother continued to use the name Sharp instead of Sharp-Keeler or simply Keeler. The mother did not appeal the order in which the name was changed, but the order specifically directed only that the child\u2019s birth certificate be changed \u2014 not that the mother ensure that all records maintained by third parties be changed.\nRegarding this testimony the trial judge in ruling from the bench stated,\u201cThe doctor _tells you you\u2019ve got an appointment at the bone doctor tomorrow in Little Rock, so you start calling [father]. You start calling him. Do you call him up and leave a message, oh my goodness, we have an appointment tomorrow at the bone doctor, we don\u2019t know what\u2019s going on, be there in Litde Rock? No. You leave a litde message that there\u2019s something wrong with his arm. Just enough to get this man worried .... Then you start calling his family to really stir it up and get everybody worried. And you call his mother up. I\u2019m not surprised she\u2019s rude to you. Do you say, hold on, don\u2019t be mad, I\u2019m just calling to let you know that litde [ MINOR NAME REDACTED ] has a thing tomorrow.\u201d\nKeeler testified that he was \u201coffended\u201d when Sharp gave him a book on babysitting. He stated that he was offended because h\u2019e was the child\u2019s father, not a babysitter. It is noteworthy that in the trial court\u2019s order, it directs that Sharp give Keeler first right when she needs a babysitter.", "type": "dissent", "author": "Karen R. Baker, Judge," } ], "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 06-714\n256 S.W.3d 528\nCourt of Appeals of Arkansas\nOpinion delivered May 9, 2007\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." }, "file_name": "0042-01", "first_page_order": 72, "last_page_order": 93 }