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Wakefield v. Bell

Court of Appeals of Arkansas, Division III

February 14, 2018

NATHANIEL L. WAKEFIELD APPELLANT
v.
ANGELA LEE BELL APPELLEE

         APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05DR-15-169] HONORABLE JOHN R. PUTMAN, JUDGE

          Robert S. Tschiemer, for appellant.

          Davis Law Firm, by: Nancy L. Mathis, for appellee.

          DAVID M. GLOVER, Judge

         Nate Wakefield and Angela Bell are the parents of R.W., who was born on November 26, 2014. Nate and Angela lived together with R.W. and K.W., Nate's other child of whom he has custody, until around the end of March 2015 when Angela took R.W. and moved in with her mother. On April 10, 2015, Nate filed a verified petition for paternity testing and petition for custody. Angela did not challenge Nate's paternity. Temporary custody of R.W. was awarded to Angela following a hearing on May 29, 2015. On January 25, 2016, the full custody hearing began, and then resumed and concluded on July 26, 2016. Child-abuse allegations were raised in the proceedings. By order entered December 21, 2016, the trial court awarded custody of R.W. to Angela, finding it was in R.W.'s best interest to do so, and also specifically finding that Angela "has not been battering the minor child." Nate received fairly standard visitation and was ordered to pay child support of $268 a month. Nate appeals from the December 21 order, raising three basic points, which have several subpoints: 1) the trial court erred in allowing expert testimony; 2) the trial court erred "in excluding photographic evidence depicting injuries and included medical records"; and 3) the trial court erred in determining that it was in the best interest of R.W. to be placed in the physical custody of Angela. We affirm.

         For his first point of appeal, Nate contends the trial court erred in allowing the expert testimony of Carrie Rye. In making this argument, he asserts that the testimony should have been excluded because 1) it was not helpful to the fact-finder, 2) the proper foundation was not laid, 3) any probative value was substantially outweighed by unfair prejudice, and 4) Rye gave opinions outside of her qualifications as to how the court should rule. We find no abuse of discretion.

         Carrie Rye, the expert witness, has a bachelor's degree in psychology and a PhD in education. Briefly, the aspects of her testimony Nate found objectionable involved the fact that she had never met Nate or been to his house, she had a total of seven sessions with Angela, the only information she had was what Angela had described to her about the child's conduct upon returning from a visit with Nate, and she was not familiar with the best-interest standard in Arkansas. Rye gave her professional opinion that Angela was not being abusive to R.W.; that being away from Angela was stressful to the child and that "based on best practice, developmental issues, and temperament, I think one week at a time would be very distressful [sic] for [R.W.]"; that it was traumatic for a child of R.W.'s age to be placed in foster care with a stranger; and that she had no indication it would be in R.W.'s best interest to be taken from Angela and placed in foster care. As indicated by the trial court's response, "Is someone threatening to do that?, " a fear of foster-care proceedings, rather than the reality of same, prompted at least some of the testimony.

         In reviewing the trial court's handling of this witness's testimony, it is important to note the matter was being tried to the court. In responding to Nate's objections to many aspects of Rye's testimony, the trial court directed the witness to be specific to the case at hand, it noted that the objections would go to the weight of the testimony, and the trial court expressed its understanding that Rye had not interviewed Nate. We find no basis for reversal under this point. Arkansas Rule of Evidence 702 provides:

If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

         We note Nate raised no initial objections to Rye's qualifications as an expert. Rather, that type of challenge emerged when Rye offered her opinion about visitation, i.e., Nate argued that she could offer expertise as an educator but not about visitation, and, similarly, that she acknowledged she did not know the Arkansas best-interest standard. However, her initial recitation of her qualifications included a B.S. degree in psychology, and no objection was raised to that portion of her expertise.

         In evidentiary determinations, a trial court has wide discretion. Donley v. Donley, 2016 Ark. 243, 493 S.W.3d 762. On appeal, we will not reverse a trial court's ruling on the admissibility of evidence absent an abuse of discretion. Id. Neither will we reverse on an evidentiary ruling absent a showing of prejudice. Oliver v. State, 2016 Ark.App. 332, 498 S.W.3d 320.

         Here, throughout Rye's testimony, the trial court demonstrated a thorough understanding of the challenges to the testimony and how the trial court intended to assess the testimony in light of those challenges. For example, the trial court noted the objections would go to the weight of the evidence and recognized Rye had never met with Nate. If this had been a jury trial, Nate's challenges might have carried more weight, but this was a bench trial. The trial court made it abundantly clear it understood how to assess Rye's testimony and that it was not unduly influenced by it. We find no abuse of discretion in the trial court's overruling of Nate's objections. Moreover, even though joint custody was not granted, the trial court's decision to reject that custody arrangement was based more on the parties' inability to get along than any testimony from Carrie Rye, and Nate was awarded fairly standard visitation. Consequently, even if we had concluded there was an abuse of discretion, which we do not, we would find no resulting prejudice. Finally, we do not address Nate's arguments related to a Rule 403 balancing of prejudice versus probative value because it is being raised for the first time on appeal. A party is bound by the scope of his or her arguments made to the trial court, and we will not address arguments raised for the first time on appeal. Sills v. Arkansas Dep't of Human Servs., 2018 Ark.App. 9, ___ S.W.3d ___.

         For his second point of appeal, Nate contends the trial court "erred in excluding photographic evidence depicting injuries and its included medical records." To the extent this argument was preserved, we disagree.

         The following colloquy occurred at the beginning of the custody hearing ...


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