Nichols v. Teer , 432 S.W.3d 151 ( 2014 )

Cite as 2014 Ark. App. 132
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-833
Opinion Delivered February 19, 2014
TASHA L. NICHOLS APPEAL FROM THE MILLER
APPELLANT COUNTY CIRCUIT COURT
[No. 46DR-09-222]
V.
HONORABLE KIRK JOHNSON,
JUDGE
ROGER TEER and TERESA TEER
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Tasha Nichols appeals the order entered by the Miller County Circuit Court denying her
motion to change custody. On appeal, Tasha argues that the trial court erred in finding that she
failed to establish a material change of circumstances. We affirm.
Tasha and her former husband, Troy, have four children, TAN (dob 9-24-02), TWN
(dob 12-21-04), TEN (dob 2-19-04), and TNN (dob 2-6-07). In May 2009, Troy filed for divorce
and was awarded temporary custody of the children. After a July 9, 2009 hearing, the divorce
was granted and permanent custody of the children was awarded to Troy.
On July 31, 2010, Troy’s parents, appellees Teresa and Roger Teer, moved to intervene
in the Nicholses’ divorce case, seeking custody of the children based on allegations that the
children had been in their care since April 2009 and that neither parent had stable housing. A
hearing on the Teers’ request for custody was held on August 5, 2010, during which Tasha
agreed that the Teers should have temporary custody of the children. Tasha was permitted
Cite as 2014 Ark. App. 132
supervised visitation, at her mother’s home, unless a “disruption” occurred, in which case future
visitation would take place at Family Matters (a child visitation and exchange center) at Tasha’s
expense. A final hearing on the Teers’ motion for custody was held on October 21, 2010,1 after
which the trial court (1) awarded permanent custody of the children to the Teers; (2) awarded
Tasha supervised visitation, including the provision that authorized a change in the visitation
location; and (3) ordered Tasha to pay child support.
On February 16, 2012, Tasha filed a petition for change of custody, alleging a material
change of circumstances. At the hearing on her motion a year later on February 26, 2013, Tasha
testified that she had held the same job and lived in the same home for the past six months and
that the Teers moved the children from public school and placed them in a private school
without her consent. The focus of her motion, however, was her contention that for the past
year the Teers frustrated visitation by refusing to talk to her and demanding that visitation take
place at Family Matters.2 Tasha told the trial court that the Teers’ actions effectively terminated
her visitation because she had been unable to contact Family Matters to arrange it. She said that
no one answered the phone at Family Matters when she called and that the doors were locked
when she went there. She also claimed that she could not afford to pay the visitation fees
required by Family Matters. Tasha denied disrupting visitation, specifically denying that she
cursed Teresa in the presence of the children.
1
Tasha did not attend the hearing.
2
Tasha testified that the Teers were making her move visitation to Family Matters
because they were upset when she told them that she was going to hire a lawyer to seek custody
of the children.
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When questioned about child support, Tasha admitted that she did not pay it from
September 2010 to March 2011, because she was not working. She said that she did not pay
support from August 2012 to February 25, 2013 (the day before the hearing), although she was
working. She added, however, that she paid $125 in child support the day before the hearing and
that her $791 tax refund was “intercepted” by the IRS for child-support purposes, which she
claimed would cover the arrearage.
April Potts, Tasha’s mother, who initially supervised Tasha’s visitation, testified that there
had been no disruptions. Potts corroborated Tasha’s testimony that visitation stopped after
Tasha told the Teers that she planned to seek custody. Potts testified that on more than five
occasions, she contacted Teresa (by phone and text message) to request visitation, but Teresa
said no.
Priscilla Hines, Tasha’s sister, testified that she was aware of Tasha’s attempts to set up
visitation but that the Teers would not talk to Tasha. Tasha’s aunt, Dawn Jordan, testified that
she was at the park during one of Tasha’s visitations, and no disruptions occurred.
Teresa testified that she has had the children since April 2009, when Tasha dropped them
off, announcing “you can have these kids. I’m going on with my life. I can’t find a babysitter.
. . . You’re welcome to these kids.” Teresa told the court that the children were doing very well.
They made the A honor roll at the private Christian school the Teers moved them to. She
admitted not contacting Tasha about moving the children to private school because she said that
she had full custody and the children wanted to go there. She said that she and her husband have
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taken good care of the children—fed, clothed, and housed them—and it would upset them to
leave.
Teresa also told the court that when she was initially awarded custody and Tasha was
awarded supervised visitation, Teresa requested that she not be required to supervise Tasha’s
visitation because “I’ve taken many confrontations from [Tasha] and I did not feel like it would
be a good situation for the children to sit there and listen to that.” Teresa stated that she also
asked for the provision in the custody order permitting visitation at Family Matters should
visitation problems arise.
According to Teresa, there were several instances when Tasha, upset when the Teers
could not schedule visitation convenient for Tasha, would send “nasty texts” or give a “cussing”
to Teresa. On one occasion Tasha told Teresa that she wished Teresa would die. Teresa also
testified about an incident during a visitation at a park where Tasha wanted to take one of the
children to the restroom at Potts’s house but Teresa wanted the child to use a restroom at the
park. Tasha became upset, and she and one of her sisters “cussed” Teresa in the presence of the
children. After that incident, Teresa told Tasha that future visitations should be held at Family
Matters. That same week, Teresa went to Family Matters, registered, and paid the fee.
Teresa also testified about an incident that occurred while she was at work at a
convenience store. On one occasion, Roger and the children stopped by Teresa’s work to pick
up pizza. According to Teresa, Tasha entered the store and walked around while talking on her
cell phone. When they saw their mother, two of the children (girls) followed Tasha around the
store calling “mama.” The two boys hid under a booth. When Tasha got to the cash register, one
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of the girls said, “Mama, are you not going to talk to us?” and walked away upset. Before leaving
the store, Tasha reached down and said something to the girls, kissing one of them on the cheek.
She told the boys to come out from under the booth and give her a hug.
Teresa’s co-worker, Alisa Bottoms, was also working at the convenience store the day
that Tasha entered while talking on her phone. Bottoms corroborated Teresa’s testimony that
two of the children ran up to Tasha and tried to talk to her but Tasha did not get off the phone.
Bottoms testified that Tasha did not say anything to her children until she was walking out of
the store.
Roger, who also witnessed the convenience-store incident, agreed with the accounts given
by Teresa and Bottoms.3 He further testified that it was in the best interest of the children to stay
with him and his wife.4
The trial court entered a lengthy letter opinion on April 23, 2013, denying Tasha’s motion
for change of custody. A formal order was entered May 29, 2013, finding that Tasha failed to
establish a material change of circumstances. The order further provided that while it was not
necessary to make a best-interest determination because Tasha failed to prove a material change
of circumstances, it was in the best interest of the children to remain in the custody of the Teers
3
Tasha testified in rebuttal that she remembered the convenience-store incident. She
denied ignoring the children. She said that she gave all four kids hugs and kisses and told them
she loved them.
4
The Teers also presented the testimony of Cody Bohn and Vonda Williams, who
attended church with the Teers and the children. Both Bohn and Williams testified that it is in
the best interest of the children to stay with the Teers.
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“as the history of the case shows neither parent has been a fit parent to the children.” This
appeal followed.
In reviewing child-custody cases, we consider the evidence de novo but will not reverse
a trial court’s findings unless they are clearly erroneous or clearly against the preponderance of
the evidence. Preston v. Preston, 2014 Ark. App. 58, at 2. We give due deference to the superior
position of the trial court to view and judge the credibility of the witnesses. Id. This deference
to the trial court is even greater in cases involving child custody, as a heavier burden is placed
on the trial court to utilize to the fullest extent its powers of perception in evaluating the
witnesses, their testimony, and the best interest of the children. Id.
Arkansas law is well settled that the primary consideration in child-custody cases is the
welfare and best interest of the children; all other considerations are secondary. Anderson v.
Thomas, 2013 Ark. App. 653, at 2. Generally, courts impose more stringent standards for
modifications in custody than they do for initial determinations of custody. Id. at 2–3. The
reason for requiring more stringent standards for modifications is to promote stability and
continuity in the life of the children and to discourage repeated litigation of the same issues. Id.
at 3.
The party seeking modification of the custody order has the burden of showing a material
change in circumstances. Id. In order to change custody, the trial court must first determine that
a material change in circumstances has occurred since the last order of custody; if that threshold
requirement is met, it must then determine who should have custody with the sole consideration
being the best interest of the children. Id.
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In its letter opinion, the trial court provided great detail in support of its conclusion that
Tasha failed to prove a material change of circumstances. The trial court found that Teresa was
a credible witness and that the Teers were justified in removing themselves and the children
from Tasha’s disruptive behavior. The trial court further found that the Teers’ decision to have
visitation at Family Matters was not unreasonable based on the custody order giving them that
option, stating that the Teers “acted completely within the parameters of the custody order and
cannot be said to be interfering with visitation rights when they were exercising the discretion
granted to them in the order.”
The trial court also found that Tasha’s lack of visitation was based solely on her inaction
to complete the Family Matters application and schedule the visits—it was not based on the
actions/inactions of the Teers—and that Tasha’s explanation as to why she did not use Family
Matters was not credible. Furthermore, the trial court found that Tasha’s plea of distress of not
having visitation was severely undermined by her behavior at the convenience store when she
demonstrated a lack of interest when she saw her children and by her lack of effort in pursuing
visitation at Family Matters. The trial court acknowledged Tasha’s testimony that she had made
improvements toward stability by maintaining employment and housing for the past five to six
months but found that Tasha’s behavior in failing to pay child support the past six months and
virtually ignoring the children when she saw them at Teresa’s workplace “belied” her
improvement.
Finally, the trial court found that the Teers’ decision to remove the children from public
school and place them in private school was not a material change of circumstances. The trial
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court noted that the Teers had full custody of the children, which gave them implied authority
to enroll them in the school of their choice. Also, there was no evidence that the new school had
any negative impact on the children.
On appeal, Tasha disputes the trial court’s findings and contends that the evidence
showed that the Teers “without good cause, took it upon themselves to stop . . . visitation.” She
denies that a disruption in visitation occurred sufficient to change the location of visitation to
Family Matters. And she contends that her testimony that she attempted to establish visitation
at Family Matters on several occasions was not refuted. Finally, she argues that there is no
dispute that the Teers removed the children from public school to private school without
consulting her.
These arguments are challenges to the credibility findings made by the trial court and to
the weight the trial court gave to the evidence, and the trial court did not weigh the evidence in
favor of Tasha. Rather, it found that her testimony lacked credibility and that her behavior
contradicted her statements to the court. The trial court further found that the testimony of the
Teers was credible; accordingly, it weighed the evidence in their favor. We defer to the trial
court’s superior position to view and judge the credibility of the witnesses. Preston, 2014 Ark.
App. 58, at 2.
Furthermore, in our de novo review, we cannot say that the trial court clearly erred in
concluding that Tasha failed to prove a material change of circumstances. There was evidence
that during visitation Tasha was verbally abusive to Teresa; that Tasha’s behavior occurred in
the presence of the children, caused them stress, and disrupted visitation; and that the Teers
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were justified in changing the location of the visitation based on the disruption provision found
in the custody order. There was also an absence of evidence demonstrating that the change in
schools caused harm to the children. Therefore, we affirm on this point.
Alternatively, Tasha argues that “she should not have been required to show a material
change of circumstances.” In what appears to be a best-interest-of-the-children argument, she
contends that the trial court should have granted her motion to modify custody because she
presented evidence that she is a fit and stable parent and that she has never been declared unfit.
However, the law is clear that
[t]he party seeking modification of the custody order has the burden of showing
a material change in circumstances. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160
(2005). In order to change custody, the trial court must first determine that a material
change in circumstances has occurred since the last order of custody; if that threshold
requirement is met, it must then determine who should have custody with the sole
consideration being the best interest of the children. Tipton v. Aaron, 87 Ark. App. 1, 185
S.W.3d 142 (2004).
Anderson, 2013 Ark. App. 653, at 3. In this case, Tasha’s burden was to first prove a material
change of circumstances. The trial court found that she failed to carry her burden, and we affirm
that finding. Therefore, we do not reach the merits of Tasha’s best-interest-of-the-children
arguments.5
5
To the extent that Tasha’s best-interest arguments incorporate the claim that she was
entitled to the constitutional presumption afforded a natural parent in a custody case, we cannot
reach the merits of such a claim. It was not raised below, was not ruled on by the trial court,
and cannot be raised for the first time on appeal. Harrison v. Phillips, 2012 Ark. App. 474, at 1,
___ S.W.3d ___, ___ (holding that the appellant’s constitutional argument was not preserved
for appeal because it was not raised and developed before the trial court and because the
appellant failed to obtain a ruling from the trial court); Camp v. McNair, 93 Ark. App. 190, 198,
217 S.W.3d 155, 159 (2005) (stating that “[o]ur court has stated many times that it will not
consider arguments raised for the first time on appeal, and even constitutional arguments must
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Affirmed.
GLADWIN, C.J., and HIXSON, J., agree.
Claudell Woods, for appellant.
be raised below”).
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