FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26DR-12-834]
HONORABLE DAVID RAY GOODSON, JUDGE
Brad Hendricks Law Firm, by: Lloyd W. Kitchens, for
Churchwell Law Offices, by: Joseph Churchwell, for appellee.
Katherine Sipes appeals the September 19, 2016 order of the
Garland County Circuit Court denying her motion to modify
visitation. She argues the court erred by improperly
considering evidence not before it and in making its
material-change and best-interest findings. We affirm.
Sipes and Dustin Brantley were married in December 2007 and
divorced in September 2012. One child was born of the
marriage, D.B., who is now nine years old. The parties shared
joint custody at the time of the divorce. Custody was granted
to Sipes on December 26, 2013, after she made allegations
that D.B. (then six) was molested at Brantley's house by
Brantley's then six-year-old stepdaughter. Brantley was
still to enjoy standard visitation, but it was subject to a
"protection plan" put in place by the Department of
Human Services (DHS). Less than two weeks later, and in a
different county, Sipes obtained an ex-parte order of
protection against Brantley on behalf of D.B., alleging
Brantley was abusing the child. The order of protection was
transferred to Garland County and consolidated with the
existing case. The Garland County Circuit Court then ordered
that the order of protection remain in place and allowed
Brantley only supervised visitation with the child.
allegations of sexual and physical abuse that were the bases
for the order of protection and the DHS protection plan were
eventually ruled as unsubstantiated by an administrative law
judge on May 5, 2014. A hearing was held and the court set
aside the order of protection. In the same order, it further
found that Sipes had falsely testified before the court in a
previous contempt hearing and ordered her to submit to a
psychological evaluation. Upon receipt of the evaluation,
Brantley moved for custody of the minor child. The
psychological evaluation was never made part of the record,
but the pleadings indicate that Sipes displayed symptoms of
"mixed-personality disorder." The court changed
custody to Brantley in an order dated October 2, 2014. Sipes
was to have only supervised visitation.
11, 2016, Sipes moved to change visitation and modify
custody. A hearing was held on the motion on August 25, 2016.
At the hearing, Sipes withdrew her request for joint custody
but asked to proceed on the issue of modifying visitation to
have the supervision requirement removed. Sipes presented
testimony from her therapist, Don Heard, as to how well she
was progressing in therapy and that, in his opinion,
supervised visitation was unnecessary. Sipes also testified
on her own behalf.
court took the issue under advisement and rendered its
decision in a written order on September 19, 2016, finding
that there was not "such a significant and material
change of circumstances" to warrant lifting the
supervision requirement or that it was in the child's
best interest to do so. Even so, it expanded the visitation
to allow Sipes to attend the child's school and sporting
events and practices, have access to her son's school
records, and attend parent-teacher conferences. It also
lifted the supervision restriction in those instances.
timely appealed, arguing that the court improperly considered
the psychiatric evaluation at the August 25, 2016 hearing and
that it erred in finding a lack of material change or that a
modification of visitation is in the child's best
is always modifiable; however, courts require more rigid
standards for modification than for initial determinations to
promote stability and continuity for the children and in
order to discourage repeated litigation of the same issues.
Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366
(2005). The party seeking a change in the visitation schedule
has the burden to demonstrate a material change in
circumstances that warrants a change in visitation.
Id. The best interest of the child is the main
consideration, id., but whether a material change of
circumstances has occurred is a threshold issue. Baker v.
Murray, 2014 Ark.App. 243, at 7, 434 S.W.3d 409, 415. In
child-custody matters, we perform a de novo review, but we
will not reverse the trial court's findings unless they
are clearly erroneous. Hoover v. Hoover, 2016
Ark.App. 322, at 2-3, 498 S.W.3d 297, 299.
the circuit court changed custody of the child to Brantley
and ordered Sipes to have only supervised visitation, it did
so based on a psychological evaluation performed in 2014. The
evaluation was not made part of the record in that proceeding
and Sipes did not appeal from that determination. At the
hearing from which this appeal stems, Brantley's counsel
repeatedly referred to the psychological evaluation
throughout his examination of the witnesses. Counsel for
Sipes vigorously objected to having the document admitted or
referred to in any way, contending that to do so would be to
relitigate the circumstances from which the prior custody
order arose. The court took Sipes's objection under
advisement and eventually overruled the objection, allowing
counsel to refer to the report during questioning.
appeal, Sipes argues that counsel improperly introduced prior
evidence into the visitation proceeding and that the court
improperly considered the psychological evaluation in making
its ruling. It is true that, in order to avoid the
relitigation of factual issues already decided, courts will
restrict evidence on a custodial change to facts that have
arisen since the issuance of the prior order. Myers v.
McCall, 2009 Ark.App. 541, at 5, 334 S.W.3d 878, at 881.
This limitation of the court's review, however, stems
from the fact that the last order contemplates that the court
was aware of those circumstances when the order was entered.
Id. In order to determine whether there has been a
change of circumstances that materially affects the
child's best interest, a full consideration of the
circumstances that existed when the last order was entered is
necessary. See id. The appellant first argues that
it was error for the court to allow the introduction of the
prior psychological evaluation. Here, there can be no error
that the psychological evaluation was improperly introduced,
because it was not admitted into evidence at this hearing.
appellant's second argument is that the court erred in
allowing counsel to refer to the prior psychological report
during cross-examination of the mental-health counselor.
Because the court went on to make best-interest findings and
modify the visitation order, we will assume for the sake of
argument that a material change occurred, which renders the
appropriateness of referring to the psychological report
moot. Regarding material change, the court found that there
was neither "such a significant and material change of
circumstances which would warrant modification of the
Court's Order that [Sipes's] visitation be
supervised" nor that it would be in the best interest of
the child to do so. It did, ...