Judge Rhonda's Blog
Vote Early! Find your Polling Place.
Early voting is going on now. Please visit http://www.votenaturally.com/ to find your polling place and please vote Judge Wood for Arkansas Court of Appeals.
Judge Hart case of the week.
ARKANSAS COURT OF APPEALS
DIVISIONS I &II
No. CA07-1321
ANDREA HICKS APPELLANT
V.
JOSHUA A. COOK APPELLEE
Opinion Delivered OCTOBER 1, 2008
APPEAL FROM THE CHICOT
COUNTY CIRCUIT COURT,
[NO. DR-2007-19-2]
HONORABLE ROBERT C.
VITTITOW, JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
1. FAMILY LAW – CHILD CUSTODY – INITIAL CUSTODY DETERMINATION – BEST-INTEREST
DETERMINATION WAS PROPER.– In awarding custody of the parties’ child to the biological
father, the trial court did not consider that a paternity action was never filed, but
acknowledged that the father’s name was on the birth certificate, there was never a question
as to the paternity, and the father was paying child support of his own accord; when the father
filed a petition for custody, the trial court correctly interpreted it as the initial custody
determination; therefore, the trial court’s duty was to determine the best interests of the child
in making an initial custody determination.
2. FAMILY LAW – CHILD CUSTODY – RESOLUTION OF CUSTODY DETERMINATION WAS NOT BASED
ON APPELLANT’S INVOLVEMENT WITH WICCA – APPELLANT LACKED CREDIBILITY.– The trial
judge did not impermissibly base his award-of-custody decision on his perception of
appellant’s religious preferences; although appellant urged the appellate court to consider the
trial court’s mention of Wicca to represent an expression of prejudice, there was no basis to
hold that the trial court resolved this initial custody determination on appellant’s interest or
involvement with Wicca—rather, it simply pointed out appellant’s lack of credibility on the
issue; the appellate court declined to accept appellant’s argument that this case turned on the
trial court’s acceptance or rejection of a specific religion; instead, the trial court considered
appellant’s credibility on a matter testified to before it; giving special deference to the trial
judge’s ability to evaluate and judge the credibility of the witnesses, the appellate court held
that the trial court was not clearly erroneous in judging appellant incredible on this issue.
-2-
3. FAMILY LAW – CHILD CUSTODY – DUE DEFERENCE GIVEN TO SUPERIOR POSITION OF THE TRIAL
COURT – MENTAL HEALTH AND PHYSICAL CONDITION WERE PROPERLY CONSIDERED.– Giving
special deference to the superior position of the trial court to evaluate and judge the credibility
of the witnesses in child-custody cases, the appellate court found no error where the trial court
considered appellant’s mental health and physical condition in making its decision to award
custody to appellee—the child’s biological father.
Appeal from Chicot Circuit Court; Robert C. Vittitow, Judge; affirmed.
Eubanks, Baker & Schulze, by: J.G. “Gerry” Schulze, for appellant.
Haddock & Tisdale, P.A., by: James W. Haddock, for appellee.
Appellant Andrea Hicks appeals the custody order filed August 31, 2007, in Chicot
County Circuit Court. She contends the trial court erred in awarding custody of her son to
appellee Joshua A. Cook, the biological father, impermissibly basing the decision on its
perceptions of her religious preferences and mental health. Giving special deference to the trial
judge’s ability to evaluate and judge the credibility of the witnesses, we affirm the trial court’s
order.
Facts
The child, a two-year-old boy, was born out of wedlock on January 17, 2005, and the
biological father’s name was placed on the birth certificate. The father voluntarily paid child
support to appellant and enjoyed liberal visitation with his son. On February 6, 2007, the
father filed a custody petition. At the custody hearing held August 9, 2007, the father testified
he had been remarried in February 2007, that he lives in Smackover, Arkansas, that his new
wife has two daughters, and that he has joint custody of a daughter with an ex-wife, to whom
he pays $400 per month in child support.
-3-
The father testified about dog bites or wounds on the boy’s shoulder, terrible diaper
rash, dirty fingernails and toenails, a bad earwax condition, and some sort of fungus on the
child’s face, all of which were discovered by him at the same time. These discoveries
prompted the custody petition. Further, the father testified about all the family that live
around him, the access to parks and a good preschool in Smackover, and the willingness of his
family to help. His grandmother and in-laws each testified that he is a great father and that
they would be willing to help if he were awarded custody. His ex-wife, the mother of his
daughter, testified that he is a great father and that she and her new husband send the new
husband’s child with the daughter for visitation.
Appellant testified that she lives in Little Rock, that she is a nursing assistant, and that
she wants to go back to school to be a social worker. She testified that the boy’s shoulder
wound was from a dog bite, and that the dog hair in the car seat came from her brother’s dog.
She stated she had several prescriptions for anxiety and sleeplessness, but that she does not take
those anymore. She testified that she only told the father she was practicing Wicca, but that
she was really a Baptist. She explained to the trial court that Wicca was an earth religion that
had gods and goddesses and believed in doing good.
The trial court awarded custody to the father, citing Arkansas Code Annotated section
9-10-113 (Supp. 2007), and found the father met the requirements of assuming his
responsibilities toward the child by providing care, supervision, protection, and financial
support. The trial court also found that he was a fit parent to raise the child and it was in the
child’s best interest to be in the father’s custody. The trial court cited its grave concerns
-4-
regarding the mother’s ability to raise the child in a safe and nurturing manner. The judge
cited the child’s dirty state, the wound on his shoulder, and the mother’s nonchalance. He
cited concerns over the mother’s mental health, in that she had filled prescriptions for
medications to treat anxiety, depression, and sleeplessness, but that she quit taking the
medication. Finally, he stated his concern over her testimony regarding the Wicca religion,
stating she probably was more involved in it than she led the court to believe. The court
awarded the mother reasonable visitation and did not require her to pay child support. This
appeal timely followed.
Law
Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall
be in the custody of its mother unless a court of competent jurisdiction enters an order placing
the child in the custody of another party. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263
(1998). Section 9-10-113(b) provides that a biological father may petition the court for custody
if he has established paternity in a court of competent jurisdiction. See id. Custody may be
awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2)
he has assumed his responsibilities toward the child by providing care, supervision, protection,
and financial support for the child; and (3) it is in the best interest of the child to award custody
to the biological father. Ark. Code Ann. § 9-10-113(c).
In Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007), this court analyzed two
cases that relied upon Arkansas Code Annotated section 9-10-113, and held that in order to
determine which standard the trial court should use in a custody dispute involving parties who
-5-
were not married at the time the child was born -- best interests of the child (as is utilized for
initial custody determinations) or material change of circumstances (which is used when
custody is being changed) -- the issue rests entirely on whether the initial order in the paternity
action was permanent or temporary. If it was permanent, the trial court should follow Norwood
v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), and require a change of circumstances to
change custody. If it was temporary, the trial court should follow Sheppard v. Speir, 85 Ark.
App. 481, 157 S.W.3d 583 (2004), and conclude that there is no need for the father to prove
changed circumstances to obtain custody.
Here, the trial court did not consider that a paternity action was never filed, but
acknowledged that the father’s name was on the birth certificate, there was never a question
as to the paternity, and the father was paying child support on his own accord. When the
father filed a petition for custody, the trial court correctly interpreted it as the initial custody
determination. Therefore, the trial court’s duty was to determine the best interests of the child
in making an initial custody determination.
In reviewing child-custody cases, we consider the evidence de novo, but will not
reverse the trial court’s findings unless they are clearly erroneous or clearly against the
preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625
(2003). A finding is clearly against the preponderance of the evidence when, although there
is evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made. Id. We also give special deference to the superior position of the trial
court to evaluate and judge the credibility of the witnesses in child-custody cases. Durham v.
-6-
Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). We know of no cases in which the
superior position, ability, and opportunity of the trial court to observe the parties carry as great
a weight as those involving children. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304
(2003). In custody cases, the primary consideration is the welfare and best interest of the child
involved, while other considerations are merely secondary. Durham, supra.
Wicca
Appellant argues the trial judge impermissibly based his decision on his perceptions of
her religious preferences. The trial judge’s letter of August 16, 2007, states as follows:
One final concern is her testimony regarding the WICCA religion, movement, cult or
whatever that may be. She testified that she told Mr. Cook she was involved, but was
only joking. That is no joking matter. The Court believes she is much more involved
than she would now lead us to believe.
Appellant argues that the above comments showed an impermissible prejudice. She claims that
“cult” is pejorative, and argues there was no evidence that Wicca was anything other than a
nature religion. She claims the judge’s comments have a chilling effect on religion and
freedom of religious exploration. She argues it is a burden on the freedom of religion for the
trial court to have determined custody based upon her investigation of a religion not approved
by the State. She contends that the trial judge considered her religion, which should have
been irrelevant, and maintains that his comments prove he considered it. Therefore, the
presumption that he relied only on admissible evidence has been rebutted. See Mitchell v. City
of North Little Rock, 15 Ark. App. 331, 334, 692 S.W.2d 624, 626 (1985).
Appellant expounds on this argument, claiming that the dissent in Johns v. Johns, 53 Ark.
App. 90, 95, 918 S.W.2d 728, 732 (1996), notes that intervention in matters of religion is a
-7-
perilous adventure upon which the judiciary should be loath to embark. In Johns, the trial
court ordered the non-custodial parent to take his children to church and Sunday school. The
trial court was affirmed, but the vote was split. This court held:
The chancellor did not order him to attend religious services, but rather that he see that
his children did so in order to maintain consistency in the religious regimen that their
mother has set for them. Therefore, no limitation has been placed on appellant’s
freedom of religion. Because the chancellor’s order imposes no duty on him to attend,
appellant is free to attend or not attend the services with the children.
Id. at 94, 918 S.W.2d at 731.
Appellant herein argues that the U.S. Constitution and the Arkansas Constitution
prohibit discrimination on the basis of religious belief. She maintains that Wicca is a religion
for purposes of the First Amendment. Arkansas courts have not addressed the issue; however,
she argues that the testimony here establishes that Wicca is a mode of worship as set out in the
Arkansas Constitution. She claims that from the trial judge’s comments, it is obvious he
disapproves of Wicca. Appellant maintains that his prejudice is constitutionally impermissible.
Appellant contends that no substantial evidence links her religious beliefs and interests
---whatever they may be---with the child’s well being. She is correct. Our cases say that a
parent’s moral instruction of the child, which may include religious beliefs, is an issue in
determining the child’s best interest. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978);
Plum v. Plum, 252 Ark. 340, 478 S.W.2d 882 (1972); McCullough v. McCullough, 222 Ark. 390,
260 S.W.2d 463 (1953). Therefore, religious beliefs and practices are only material as they
affect children’s best interests. However, in this case, no party explored the connections
between religious belief and upbringing.
-8-
The father argues that appellant never raised the constitutional issues regarding Wicca
at the trial-court level and they should not be considered on appeal. However, the father also
contends that the trial judge did not impermissibly base his decision on his perception of
appellant’s religious preferences. We agree.
Setting aside the trial judge’s comments regarding Wicca, the evidence before the trial
court in this initial custody determination was that the father had a clean, stable, loving
environment for the child, and while in the mother’s care, the child endured dog bites, diaper
rash, a facial fungus, and dirty fingernails and toenails. Further, appellant had been prescribed
medications for depression and anxiety, but determined without doctor’s advice to quit taking
the medications. The trial court ruled the father proved he had assumed his responsibilities
toward the child by providing care, supervision, protection, and financial support for the child,
and he proved he was a fit parent to raise the child. These were not denied by appellant.
In the trial court’s letter opinion, the trial judge stated his concern about appellant’s
credibility relative to the extent of her involvement with Wicca. The trial court clearly did
not believe appellant’s testimony that she was merely joking about her interest in Wicca.
Appellant urges this court to consider the trial court’s mention of Wicca to represent an
expression of prejudice. However, there is no basis to hold that the trial court resolved this
initial custody determination on appellant’s interest or involvement with Wicca, but simply
pointed out appellant’s lack of credibility on the issue. We decline to accept appellant’s
argument that this case turns on the trial court’s acceptance or rejection of a specific religion.
Instead, the trial court, in this initial custody determination, considered appellant’s credibility
-9-
on a matter testified to before it. Remembering to give special deference to the trial judge’s
ability to evaluate and judge the credibility of the witnesses, we hold that the trial court was
not clearly erroneous in judging appellant incredible on this issue. Moreover, even if the
Wicca issue went beyond credibility and otherwise affected the merits in the circuit court’s
decision, precedent allows us to disregard an improper factor and affirm if the court’s other
reasons for changing custody were proper and adequate. Compare Dansby v. Dansby, 87 Ark.
App. 156, 189 S.W.3d 473 (2004), with Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788
(2007). And, as discussed above, no clear error exists on those other factors.
Mental Health
Appellant argues that the trial judge impermissibly based his decision on a conclusion
about her mental health that was not in evidence. She claims there was no medical evidence
admitted. Further, she argues there was no indication that she was engaged in bizarre behavior
in any way inconsistent with the best interest of her child. Therefore, she contends there was
no basis for the judge to conclude the child would be better off if the mother took medications
that had been prescribed to her in the past.
The father argues that the trial judge properly considered appellant’s mental health and
physical condition. He claims the evidence showed that shortly before trial, appellant received
prescriptions for depression, anxiety attacks, sleeplessness, and restlessness. At trial, she claimed
to be “between doctors.” The trial court stated, “The court does not believe that depression
and anxiety occurred overnight. If she suffers from these conditions and she obviously does,
the child would be much better off if she took her medicine.” Based on what she told the
-10-
doctor, she received those medications. Later, she apparently declared herself to be well
because she stopped taking the prescribed medications, according to her testimony. Again,
giving special deference to the superior position of the trial court to evaluate and judge the
credibility of the witnesses in child-custody cases, we find no error. Accordingly, we affirm.
Affirmed.
GLOVER, J., agrees.
GRIFFEN and MARSHALL, JJ., concur.
HART and HEFFLEY, JJ., dissent.
WENDELL L. GRIFFEN, Judge, concurring. I join the majority because I agree that the
trial judge did not err in awarding custody of Joshua to appellee. I write separately to
emphasize that the change of custody in this case does not turn on appellant’s religion, be it
Baptist, Methodist, Wiccan, or no religion at all. The issue is whether the trial judge’s change
of custody is clearly erroneous where he found that appellant failed to provide a safe and
sanitary home environment for the child, where he cited concerns regarding appellant’s mental
health, and where he mentioned appellant’s involvement in Wicca, expressed disbelief in
appellant's testimony that she was joking concerning her involvement with Wicca, and
expressed concern about appellant's truthfulness regarding the extent of her interest or
involvement with Wicca.
First, there is no basis for us to hold that the trial court resolved the change-of-custody
dispute on appellant's interest in or involvement with Wicca, despite the substantial emphasis
devoted to that subject by both parties on appeal. The parties argue as if they tried the matter
-11-
of appellant’s involvement in Wicca to the trial judge, and argue as if the trial judge decided
the custody issue on that basis. However, neither party below objected to the trial judge
considering appellant’s involvement in Wicca. As appellant did not object to any questions
about Wicca, and as the trial judge made no disparaging or otherwise unfavorable comments
about Wicca during the trial or in the letter opinion, her contention that she lost custody of
her child due to judicial religious bigotry is bottomed on conjecture and surmise.
Second, even if one considers the trial judge’s mention of Wicca to represent an
expression of prejudice, the prejudice was not against Wicca but was against what the judge
considered appellant's lack of truthfulness concerning her interest or involvement in Wicca.
The trial judge clearly did not believe appellant's testimony that she was merely joking about
her interest in Wicca. We routinely defer to a trial judge’s determination regarding witness
credibility. That this trial judge expressed concern about the truthfulness of appellant's
testimony concerning Wicca does not warrant reversal.
Ultimately, the trial judge changed custody because he found that appellant failed to
provide a safe and sanitary home environment for the child, and due to his concerns about
appellant’s mental health. Those reasons, supported by the record before us, constitute
sufficient grounds for changing custody, no matter what the trial judge concluded regarding
appellant’s truthfulness as to her involvement with Wicca.
D.P. MARSHALL JR., Judge, concurring. I join the court’s opinion. But I write
separately to express my concerns about our standard of appellate review. It is a
contradiction. This case makes the point: one of the main issues dividing our court
-12-
is which aspect of the standard—de novo or clear error—controls our review. The court
defers to the circuit court’s findings of fact. My dissenting colleagues sift the facts and
find them wanting. This choice, in my view, determines the differing conclusions on
the merits. Our supreme court should clarify this important issue, which is passed over
in these cases with routine citations but no analysis: what is the correct standard of
appellate review in cases involving equity?
The court and my dissenting colleagues begin on common ground. We are
supposed to review this equity matter de novo on the record as a whole, but not reverse
unless the circuit court’s factual findings are clearly erroneous or clearly against the
preponderance of the evidence. Rawe v. Rawe, 100 Ark. App. 90, 95, __ S.W.3d __,
__ (2007). This is like saying that we review the judgment for green redness.
The plenary aspect of the standard has deep roots in chancery practice. It springs
in part from the kind of appellate review given long ago in chancery cases where there
was no testimony except by depositions. 9 W.S. HOLDSWORTH, A HISTORY OF
ENGLISH LAW 353–58, 369 (1926). In that context, de novo review made some sense.
A panel of appellate judges could reconsider afresh the decision of one chancellor on
a paper record equally accessible at both levels. There is a broader historical context:
before merger, different primary methods of appellate review existed for law cases and
equity cases. In general, law cases were reviewed on writs of error, while equity cases
were reviewed by appeal. Chief Justice Ellsworth explained the distinction: “An
-13-
appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact
as well as the law, to a review and retrial: but a writ of error is a process of common
law origin, and it removes nothing for re-examination but the law.” Wiscart v.
D’Auchy, 3 Dallas 321, 327 (1796); see generally ROSCOE POUND, APPELLATE
PROCEDURE IN CIVIL CASES 300S01 (1941) (describing further procedural variations
in nineteenth-century equity appeals). These are the old truths that our courts still
express when they say that equity cases are tried de novo on appeal. E.g., Ferguson v.
Green, 266 Ark. 556, 563–64, 587 S.W.2d 18, 23 (1979); Equity General Agents, Inc. v.
O’Neal, 15 Ark. App. 302, 307, 692 S.W.2d 789, 792 (1985).
In the ConAgra case, a unanimous supreme court expounded this kind of
searching review on its way to reversing the decree.
Equity cases are tried de novo on appeal upon the record made in the
chancery court, and the rule that this court disposes of them and resolves
the issues on that record is well established; the fact that the chancellor
based his decision upon an erroneous conclusion does not preclude this
court’s reviewing the entire case de novo. An appeal in a chancery case
opens the whole case for review. All of the issues raised in the court
below are before the appellate court for decision and trial de novo on
appeal in equity cases involves determination of fact questions as well as
legal issues. The appellate court reviews both law and fact and, acting as
judges of both law and fact as if no decision had been made in the trial
court, sifts the evidence to determine what the finding of the chancellor
should have been and renders a decree upon the record made in the trial
court. The appellate court may always enter such judgment as the
chancery court should have entered upon the undisputed facts in the
record.
ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677, 30 S.W.3d 725, 728–29 (2000).
This phrase was added to the Federal Rule in 1985, and to the Arkansas Rule in 1989, to
*
make clear that the same standard of appellate review applies regardless of whether the trial court’s
findings were based on oral or written evidence or both. Ark. R. Civ. P. 52, Addition to
Reporter’s Notes, 1989 Amendment; Fed. R. Civ. P. 52, Advisory Committee Notes, 1985
Amendment.
-14-
But our judicial system has changed. By the end of the nineteenth century,
chancellors in most jurisdictions were routinely hearing live testimony. Charles Alan
Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 764–66 and
n. 61 (1957). In 1978, the Arkansas Supreme Court adopted our Rules of Civil
Procedure, which governed chancery and law cases and provided for clear-error review
of the court’s factual findings. Ark. R. Civ. P. 1 & 52(a). Amendment 80 to the
Arkansas Constitution and the implementing amendment to Rule of Civil Procedure
2 merged law and equity. Clark v. Farmers Exchange, Inc., 347 Ark. 81, 83 n.1, 61
S.W.3d 140, 141 n.1 (2001); Ark. R. Civ. P. 2, Addition to Reporter’s Notes, 2001
Amendment. But our often-stated rule of de novo review in cases involving equity has
endured, even though the main reasons for it have not.
The clear-error aspect of our standard of review is more deferential. It embodies
the command of Rule 52(a): “Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous (clearly against the
*
preponderance of the evidence), and due regard shall be given to the opportunity of the
circuit court to judge the credibility of the witnesses.” The books are full of cases
holding that we must defer to the trial court’s superior position to evaluate the
-15-
credibility of witnesses—whom they see and hear and we do not. E.g., Hamilton v.
Barrett, 337 Ark. 460, 465, 989 S.W.2d 520, 523 (1999). In custody matters, moreover,
we give special deference to the circuit court’s weighing of the multitude of
circumstances comprising the best interest of children. Taylor v. Taylor, 345 Ark. 300,
304, 47 S.W.3d 222, 224 (2001).
Review for clear error is incompatible with a trial de novo on appeal. We cannot
act “as judges of both law and fact as if no decision had been made in the trial court,
sift[ing] the evidence to determine what the finding of the [trial court] should have
been . . .[,]” ConAgra, 342 Ark. at 677, 30 S.W.3d at 728, and—at the same time—give
“special deference to the superior position of the trial court to evaluate and judge the
credibility of the witnesses . . .[,]” Sykes v. Warren, 99 Ark. App. 210, 211, ___ S.W.3d
___, ___ (2007), reversing only if the decision below is clearly wrong. Rawe, 100 Ark.
App. at 95–98, __ S.W.3d at __. This is an impossible task. And our imperfect
performance of it leads to uncertainty and inconsistency.
When he was a member of this court, Justice Newbern revealed in a dissenting
opinion what he called “perhaps the least guarded secret” about appellate review in our
equity cases. Warren v. Warren, 270 Ark. 163, 170, 603 S.W.2d 472, 475–76 (Ark.
App. 1980). If the appellate court plans to reverse, then it emphasizes the de novo aspect
of the standard of review; if the court plans to affirm, then it emphasizes the deference
in the clear-error aspect of the standard. Ibid. Litigants deserve better.
-16-
Clear-error review promotes the healthy administration of justice by keeping trial
courts and appellate courts in their proper places. Fact questions in nonjury cases are
primarily for the trial courts, just as appellate courts sit primarily to correct errors of law
and clarify the law. Clear-error review is not toothless. When the record as a whole
leaves the appellate court with the definite and firm conviction that the circuit court
made a mistake of fact, then the judgment is vulnerable to reversal or modification.
ConAgra, 342 Ark. at 677, 30 S.W.3d at 729. Straight-up issues of law deserve and
receive de novo review no matter what kind of case they arise in. Helena-West Helena
School District v. Monday, 361 Ark. 82, 85, 204 S.W.3d 514, 516 (2005). But findings
of fact deserve deference, especially when they embody evaluations of witnesses’
demeanor.
Our law can and should maintain the traditional appellate flexibility to affirm a
judgment as modified or remand for more findings in cases that, before Amendment
80, would have been chancery matters. Ferguson, 266 Ark. at 564–69, 587 S.W.2d at
23–26 (Fogleman, J.). We do not need a “trial de novo on appeal” to preserve this
flexibility. This out-dated expression no longer captures what happens on appeal.
When we talk at the threshold of these cases about de novo review, sifting facts, and
being judges of the facts, we confuse the primary appellate task. We should stop. We
should review circuit courts’ findings of fact for clear error pursuant to Rule 52(a).
And if we discern a clear error in a case involving equity, only then should we sift the
There is a main opinion with two judges in complete agreement and two
**
concurring opinions that diverge from the main opinion on key issues, but still support
the main opinion’s disposition.
Interestingly enough, the only description of Wicca as a “cult” came from a
***
proffered hearsay definition that was properly excluded by Hicks’s timely objection, but
nonetheless considered as evidence by the trial judge. Neither the testimony of Hicks nor
Cook, which was the only properly admitted evidence, mentioned the word “cult.” The
definition, from the American Heritage Dictionary, stated that Wicca is “the cult of
witchcraft.”
-17-
facts as we decide whether justice would be better served by modifying the judgment
or remanding the case.
JOSEPHINE LINKER HART, Judge, dissenting. For the third time in a month I find
myself dissenting in a child-custody case in which the same four judges have cast the deciding
votes. Though remarkable enough, it is even more noteworthy because for the second time
**
in a week I find myself compelled to once again call attention to how this majority has tortured
the law and mishandled the judicial-review process to reach their result.
Regarding Hicks’s first point, that the trial judge erred in basing his change-of-custody
decision on Hicks’s alleged practice of Wicca, I am glad that there is unanimous agreement on
this court that basing a custody decision on a parent’s religious beliefs is unequivocally wrong.
Nonetheless, the majority in one way or another excuses this obvious trial court error. I
believe Judge Griffen is simply wrong when he asserts that “the trial judge made no disparaging
or otherwise unfavorable comments about Wicca.” In his written findings, the trial judge
referred to Wicca as a “cult.” The American Heritage Dictionary defines “cult” as “a religion
***
In Judge Marshall’s concurrence, he has betrayed his lack of understanding of
****
the standard of review when he equates it to reviewing “the judgment for green redness.”
I note that he has previously cited an incorrect standard of review in a domestic relations
case. In Brandt v. Willhite, 98 Ark. App. 350, 353, 255 S.W.3d 491(2007), he stated that
the standard of review was as follows: “In reviewing the circuit court’s decisions, we defer
to that court's superior position for measuring the witnesses’ credibility and evaluating
what was in the child's best interest.” This is not review; this is abdication.
-18-
or religious sect generally considered to be extremist or bogus.” There are none that are so
blind who will not see.
The remaining Judges handle this inconvenient fact with no greater acumen. The main
opinion simply “sets aside” the trial judge’s comments regarding Wicca. Along the way,
however, they twist the words in the finding regarding Hicks’s alleged practice of Wicca to
be a finding regarding Hicks’s credibility, notwithstanding the fact that this case does not turn
on the credibility of any witness! While our convention of deferring to the finders of fact on
issues of credibility is well established, it is troubling to discover that this opinion seems to
betray the belief by the majority that this deference is somehow the way to resolve every
case.
****
The treatment of Hicks’s second point by the majority is no more satisfactory. Hicks
argues that the trial court “impermissibly” based its decision on a conclusion about her mental
health that was unsupported by substantial evidence. She asserts that there is “absolutely no
evidence that [she] had continuing medical problems” or that an episode of “situational
depression and anxiety” cannot be cured “overnight.” Moreover, she contends that there was
Arkansas Rule of Evidence 201(b) provides that “[a] judicially noticed fact
*****
must be one not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
-19-
absolutely no suggestion that she engaged in “even the slightest bizarre behavior or behavior
in any way inconsistent with the best interest of her child.”
In rejecting Hicks’s argument, to the extent that the majority addresses it at all, the main
opinion betrays a lack of understanding of how our deference to the trial judge on issues of
credibility affects this case. Aside from the evidence that medication had been prescribed for
Hicks to treat anxiety and depression, there was no evidence that she currently suffered from
either of these maladies. The prescriptions were, at best, circumstantial evidence that the
conditions existed at the time the medication was prescribed. The trial judge was not
competent to make a medical diagnosis, nor was the factual basis for his finding susceptible to
being proved by judicial notice. If a court takes judicial notice of any fact, it must be so
*****
notoriously true as not to be subject to reasonable dispute or must be capable of immediate
accurate demonstration. Collier-Dunlap Coal Co. v. Dickerson, 218 Ark. 885, 239 S.W.2d 9
(1951). Whether or not a person suffers from depression and the efficacy of treatment are facts
that are subject to dispute. Furthermore, the personal knowledge of the judge is not judicial
knowledge of the court, for there is no way of testing the accuracy of knowledge that rests
entirely within the breast of the court. Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638
(1951). Therefore the finding concerning Hicks’s continuing need for medication is based on
mere speculation and conjecture and cannot be a reason for changing custody. In finding that
-20-
Hicks still suffered from depression and anxiety, the trial judge was actually practicing medicine
without a license, not making a credibility determination. Even more chilling is the fact that
in Judge Griffen’s concurrence, he states that a trial judge’s “concerns about appellant’s mental
health” are an appropriate basis to change custody.
Finally, I note with appropriate irony that the majority’s failure to effectively address
Hicks’s argument that evidence of J.O.C. “being dirty and having rashes and a dog bite
wound” is not adequate to support a change of custody, is the soundest aspect of their opinion.
We had before us the same photographs that the trial judge found “quite revealing,” and
apparently the entire panel did not share the trial judge’s “concern.” While there was clearly
some dirt under J.O.C.’s nails, the child was not unkempt, and while it was certainly true that
J.O.C. had diaper rash, Cook himself testified that it was not an unusual for a child of that age
to be so afflicted. Furthermore, the photos revealed that Hicks was treating the rash with a
topical ointment, which was not a markedly different treatment than Cook prescribed. Finally,
I believe that the so-called “wound” on J.O.C.’s shoulder was likely just a bug bite, as Cook
hypothesized.
By all indications, J.O.C. was a happy, active, and thriving young child—flourishing
in his mother’s care. There was no proof that J.O.C.’s residence was inappropriate and, aside
from an apparently isolated incident in which J.O.C. went to a visit wearing ill-fitting shoes,
that Hicks was not attending to her child’s material needs. By any standard, the trial court
clearly erred in changing custody.
-21-
SARAH J. HEFFLEY, Judge, dissenting. I dissent. The trial court in this case
impermissibly considered appellant’s alleged interest in Wicca, which taints the outcome of its
decision to change custody. The trial court’s mention of Wicca cannot be dismissed as a
simple credibility determination. It is clear from the trial judge’s comments that he was
concerned that appellant was more involved than she would admit. Obviously, the judge held
her interest in Wicca against her.
In the absence of the Wicca consideration, we are left with a child who is moved from
his home since birth, based on one occasion on which he had dirty fingernails (not unusual in
a toddler), a common diaper rash (not unusual in a toddler), a messy car seat (not unusual with
a toddler), earwax (not unusual in a toddler), and an alleged dog bite, which does not
necessarily arise from neglect. The child was removed from a home, which the record reflects
was otherwise appropriate in every way. In making its determination, the trial court also made
a medical diagnosis without the benefit of expert testimony or reports of any type. Far be it
for someone to stop taking medication that one does not need. I would reverse and remand
for consideration without reference or regard to Wicca or an inappropriate medical diagnosis.
Judge Rhonda Wood Yard Signs!
You can sign up to recieve your yard sign to elect Judge Rhonda Wood to the Arkansas Court of Appeals here...
http://www.judgerhondawood.com/get-involved
Thank you all for your support of Judge Wood!
Judge Hart's opinion
ARKANSAS COURT OF APPEALS
DIVISION III & I
No. E08-20
MIKE P. CUSACK APPELLANT
V.
ARTEE WILLIAMS, DIRECTOR
DEPARTMENT OF WORKFORCE
SERVICES AND UNIVERSITY OF
CENTRAL ARKANSAS APPELLEES
Opinion Delivered JUNE 25, 2008
APPEAL FROM THE ARKANSAS
STATE BOARD OF REVIEW
[NO. 2007-BR-01870]
AFFIRMED
KAREN R. BAKER, Judge
1. UNEMPLOYMENT COMPENSATION – SUBSTANTIAL EVIDENCE SUPPORTED BOARD’S
DECISION TO DENY UNEMPLOYMENT BENEFITS – APPELLANT REPORTED TO WORK WITH
MARIJUANA IN HIS SYSTEM.– Substantial evidence supported the Arkansas Board of
Review’s decision that appellant’s failing the drug test for the Department of
Transportation qualification demonstrated deliberate disregard of the employer’s
interest; appellant was required by his employer to submit to a drug test prior to his
employment and signed a Drug Free Policy for the workplace; in addition, a specific
contractual requirement for him to maintain his job as shuttle bus driver was that he
continue to be licensed as commercial driver whose license is subject to the
Department of Transportation’s rules and regulations; appellant knew that his
employer’s interests would suffer from his reporting to work with marijuana in his
system when his job was to transport residents of the retirement center by driving a bus.
Appeal from the Arkansas State Board of Review; affirmed.
Appellee University of Central Arkansas discharged appellant Mike P. Cusack from his
position as a shuttle bus driver after it received notice that Mr. Cusack tested positive for
marijuana on a drug screening test performed pursuant to the Department of Transportation’s
regulation of individuals maintaining a commercial driver’s license. The Board of Review
found that the employee’s failing the drug test for the Department of Transportation
qualification demonstrated deliberate disregard of the employer’s interest. Whether Mr.
Cusack's actions constituted misconduct in connection with his work was a fact question for
the Board to answer. Terravista Landscape v. Williams, 88 Ark. App. 57, 64, 194 S.W.3d
800, 804 (2004). The question for this court is whether substantial evidence supports the
Board's decision. Id. We affirm.
Appellant was denied unemployment benefits upon the finding that he was discharged
for misconduct. The dissent posits that although appellant had signed the University’s Drug
Free Policy, UCA had no written policy separately addressing the drug testing and that off-
duty drug use cannot be the basis for misconduct because it impermissibly extends an
employer’s control of an employee’s actions outside the workplace.
The misconduct in this case was not the off-duty use of marijuana. The misconduct
-2-
The misconduct
was Mr. Cusack arriving at the workplace with marijuana in his system to drive the shuttle
bus and transport the residents of the retirement center. Unemployment benefits are intended
to benefit employees who lose their jobs through no fault or voluntary decision of their own.
They are not intended to penalize employers or reward employees, but to promote the general
welfare of the State.
Wacaster v. Daniels, 270 Ark. 190, 194, 603 S.W.2d 907, 910 (Ark.
App.1980). Mr. Cusack voluntarily arrived at the workplace with marijuana in his system to
drive the bus and transport the residents. However, even applying the misconduct test
purported to be applicable by the dissent in this case, we must affirm:
[I]n Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983) . . . we recognized
that misconduct in connection with the work can occur while an employee is off duty.
There, a teacher was fired after criminal charges had been filed against her for the
possession of a controlled substance the Board’s finding of misconduct, we adopted a three-part test for determining
whether an employee’s off-duty conduct will be considered misconduct in connection
with the work. First, there must exist a nexus between the employee’s work and his
or her off-duty activities. Second, it must be shown that the off-duty activities resulted
in harm to the employer’s interests. And third, the off-duty conduct must be violative
of some code of behavior contracted between the employer and employee, and the
employee’s conduct must be done with the intent or knowledge that the employer’s
interests would suffer.
-3-
Rucker v. Price, 52 Ark. App. 126, 130, 915 S.W.2d 315, 317 (1996).
[1] The discussions by the majority and dissent in the Rucker case provide a general
policy summary behind the prohibition of off-duty drug use and the relationship to our
unemployment determinations. In the case before us, appellant was required by UCA to
submit to a drug test prior to his employment and signed a Drug Free Policy for the
workplace. In addition, a specific contractual requirement for him to maintain his job as a
shuttle bus driver was that he continue to be licensed as a commercial driver. A driver with
a commercial driver’s license is subject to the Department of Transportation’s rules and
regulations that specifically require that he be subject to random drug testing with the results
being reported directly to his employer. See generally 49 C.F.R. pts. 350-399 (2008).
Appellant knew that his employer’s interests would suffer from his reporting to work with
marijuana in his system when his job was to transport residents of the retirement center by
driving a bus. We hold on these facts that substantial evidence supports the Board’s decision.
Affirmed.
PITTMAN, C.J., BIRD, and VAUGHT, JJ., agree.
HART and ROBBINS, JJ., dissent.
JOHN ROBBINS, Judge, dissenting. Mr. Cusack was informed that he was discharged
for testing positive for illegal drugs and that the drug screen was conducted in accordance with
the employer’s written drug policy. However, it is undisputed that the employer’s drug-free
workplace policy did not mention drug testing or contain a prohibition against a positive drug
screen. Had the policy contained such a provision, I would agree that Mr. Cusack’s conduct
would have constituted misconduct. Because it did not, I would reverse the Board’s decision
and award appropriate benefits.
-4-
In Grace Drilling Co. v. Director of Labor, 31 Ark. App. 81, 790 S.W.2d 907 (1990), we
held that where the claimant’s positive test result was sufficient to satisfy that portion of the
company’s safety policy prohibiting any detectable level of drugs in the body, this constituted
misconduct that disqualified him from benefits, as it represented a deliberate violation of the
employer’s rules and willful and wanton disregard of the standard of behavior that the
employer had a right to expect of its employee. In George’s Inc. v. Director, 50 Ark. App. 77,
900 S.W.2d 590 (1995), we reversed an award of unemployment benefits where the claimant
tested positive for illegal drugs, noting that negative drug test results were a condition of the
claimant’s employment to which he agreed. In that case, we held that the employer’s drug
policy, which was implemented to provide safety and production, was reasonable. And in
Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996), we affirmed the denial of
benefits where the claimant had agreed to be bound by his employer’s policy and thus was
aware of its terms and the ramifications for failing a test.
The distinguishing factor between the above cases is that University of Central
Arkansas did not have a written policy that covered drug testing. Such a provision would
doubtless have been reasonable in light of Mr. Cusack’s employment as a driver responsible
for the safety of others. But these simply are not the facts of this case. Furthermore, there is
nothing in the record indicating that Mr. Cusack lost his commercial driver’s license as a result
of the positive test, and there was no evidence that he was impaired during his employment
hours. In the absence of a written policy supporting the employer’s decision to terminate
appellant’s employment, I would hold that the Board erred in finding that appellant’s actions
constituted misconduct in connection with his work.
I respectfully dissent.
HART, J., joins.
Lets finish strong to elect Rhonda!
Just a little over a month to go before the election. The campaign is going so well, but lets make sure to finish strong for Rhonda! Please sign up for updates and consider contributing to elect Rhonda Wood to the Arkansas Court of Appeals!
Young Professionals for Rhonda Wood event.
Please join the young professionals in support of
Judge Rhonda Wood
Candidate for Arkansas Court of Appeals - District 2, Position 1
Wednesday, April 7, 2010, 5:00-6:30
Copper Grill in downtown Little Rock
Hosted by:
Sara Batcheller
Amber Bagley
Amy Clemmons
Nathan Green
Lauren Hamilton
Nicole Hartz
Lauren Huckabee
Crissy Monterrey Leo Monterrey
Carol Ricketts
Lorie Robinson
Arkansas Court of Appeals & T-Shirts!
Rhonda has the character and background needed to represent Arkansas on the Court of Appeals, but to win this race we need resources. So, we are asking for $25 donations to her campaign and in return she will win this election, make sure Arkansas law is being properly applied and we will send you a T-Shirt! Is that a good deal or what? Thank you all for your wonderful support and remember, we are less than 50 days away. Let's finish strong and win this race!
The Committee to elect Judge Rhonda Wood
Campaign Cookout
Come join us for a free burger at Luxury Pools and Spas in Russellville Friday from 11:30-1:00p.m. Thanks to Senator Michael Lamoureux, Centennial Bank and the Lawson family for hosting. See you there!