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Mossholder v. Coker

Court of Appeals of Arkansas, Division IV

May 3, 2017



          Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson, for appellant.

          McKinney & McKinney, PLLC, by: Quincy W. McKinney, for appellee Martha Coker.

          LARRY D. VAUGHT, Judge

         Appellant Ardith Laray Mossholder ("Laray") appeals the July 7, 2015 order entered by the Faulkner County Circuit Court awarding appellee Martha Coker permanent guardianship of Laray's children, H.C. (born July 7, 2004), and D.C. (born August 13, 2005). On appeal, Laray argues that the circuit court erred in awarding guardianship to Martha because she did not properly intervene; she was an unsuitable guardian; and she failed to prove that Laray was unfit. We affirm.

         This case has a long history.[1] Laray and appellee Daniel Coker (Martha's son) were married on August 18, 2003. H.C. and D.C. were born of the marriage. Laray and Daniel separated on or about July 1, 2006, and Daniel filed for divorce on January 7, 2007. A divorce decree with an integrated property settlement was entered on February 20, 2008, wherein, among other things, Daniel was granted a divorce, and the parties were awarded joint legal and physical custody of the children.

         Daniel married Kathleen Coker ("Kathy") in August 2008. Laray married Joshua Mossholder in 2008.[2]

         The record reflects that in March 2008, Laray began making reports to the Arkansas Department of Human Services ("DHS") and the Faulkner County Sheriff's Office that Daniel was sexually abusing H.C. and D.C.[3] On September 30, 2008, Daniel filed a petition for change of custody, alleging that a material change in circumstances had occurred. He claimed that Laray had made "numerous complaints" that he had sexually abused H.C. and D.C. that were unfounded and were detrimental to the parties' children. Laray responded and counterclaimed for custody, claiming that the allegations of sexual abuse were true and supported by physical evidence. An attorney ad litem was appointed for the children on January 28, 2009.

         Between 2009 and 2012, Laray and Daniel filed multiple motions (i.e., change of custody, modify visitation, contempt) against each other, and temporary custody of the children was transferred back and forth between them. In June 2012, an emergency hearing was held wherein the attorney ad litem reported to the circuit court that there had been numerous allegations of abuse, that she believed Laray was exacerbating the children's fear and negativity about Daniel by calling him a pedophile and a rapist, that what the children were reporting was unbelievable, that the children's counselors were not trained to determine whether the children were telling the truth, that the children had been forced to undergo multiple examinations and no physical evidence of abuse had been found, and that the parties and their children needed to be evaluated by a forensic psychologist, which had been previously ordered by the court. The ad litem stated that Daniel had submitted to the evaluation but that the psychologist could not conclude the evaluation until Laray submitted to the testing. The attorney ad litem stated that Laray would not follow court orders.

         At the conclusion of the emergency hearing, the circuit court found that the children were suffering emotionally due to the "long extensive history with repeated investigations of allegations made by [Laray] . . . against the father . . . resulting in repeated interviewing, questioning and examinations of the children, that were ultimately unfounded." The court ordered the parents and children to undergo an evaluation by forensic psychologist Dr. Paul Deyoub. The court further ordered that H.C. be placed in Daniel's temporary custody because Laray continued to make unfounded allegations of abuse against Daniel.[4] Laray was denied visitation with the children until she and the children submitted to Dr. Deyoub's evaluations.

         Dr. Deyoub performed forensic psychological evaluations of the parties and their children in December 2012. In sum, Dr. Deyoub found that Daniel had no diagnoses. In great detail, he documented his evaluation of Laray and diagnosed her with cyclothymic (a mood disorder) and borderline personality disorder. He found that both H.C. and D.C. denied any sexual abuse by their father and indicated that Laray told them that their father sexually abused them. Dr. Deyoub stated that he was unable to find that Daniel abused his children and that the children "are being harmed by these constant allegations and unending examinations." Dr. Deyoub recommended that Daniel be awarded primary physical and legal custody of the children and that Laray have supervised visitation with the possibility of unsupervised visitation at a later date upon approval by the court.

         A hearing was held on August 26-31, 2013, wherein twenty-four witnesses testified. The circuit court held another hearing on September 5, 2013, to announce its ruling. The circuit court noted that Martha testified that she stood ready to accept custody of H.C. and D.C. and that she orally moved to intervene in the case. The court granted her oral motion to intervene. The court found that the children had been abused; however, it stopped short of identifying who subjected the children to the abuse. The court stated that there was evidence presented that Daniel sexually abused H.C. and D.C. and evidence that Laray abused them by manipulating and coaching the children to lie and say he did. As such, the court found that neither parent was fit to have custody and placed the children in the temporary custody of Martha. The court noted that Daniel and Kathy were living with Martha and would "be around the children a lot." The court also awarded Laray three-day-a-month visitation to be supervised by Martha.[5]

         On January 21, 2014, Martha filed a petition for guardianship of H.C. and D.C.[6] A hearing on her petition was held January 21, 2015. Martha, Laray, and the children's counselor, Lena Hancock, testified. In an order filed on July 7, 2015, the circuit court found that Martha was suitable and qualified to be the permanent guardian of H.C. and D.C. and that the guardianship was in their best interest. The court therefore granted Martha's petition for guardianship.[7] The court further found that Laray was unsuitable, stating that (1) she "engaged in conduct that constitutes poisoning the minds of the children, " (2) she coached the minor children to make untrue statements, and (3) the allegations of sexual abuse lodged against Daniel were unfounded. In making this finding, the court found that Laray was not a credible witness based on "days and days" of testimony. The court suspended Laray's visitation until such time that she received counseling for the diagnoses made by Dr. Deyoub and she petitioned the court to have visitation reinstated. Laray filed a timely appeal.

         Laray's first point on appeal is that the circuit court erred in granting Martha's petition for guardianship because she did not properly intervene. Specifically, Laray contends that Martha violated Arkansas Rule of Civil Procedure 24(c) because she "has still not filed a motion to intervene."

         Rule 24(c) provides that a "person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Ark. R. Civ. P. 24(c) (2016). In Bradford v. Bradford, 52 Ark.App. 81, 88, 915 S.W.2d 723, 727 (1996), we held that although Rule 24(c) requires a party seeking intervention to state in a separate pleading the claim or defense to be advanced, when there is no surprise or substantial prejudice, the court can, and often does, treat the pleadings as amended to conform to the proof. See also Winn v. Bonds, 2013 Ark.App. 147, at 7-8, 426 S.W.3d 533, 537-38 (affirming the circuit court's grant of a grandparent's oral motion to intervene in a divorce action where it was clear ...

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