Cowell v. Cowell, CA 08-360 (Ark. App. 10/22/2008)

Page 1

Eric COWELL, Appellant v. Christina COWELL, Appellee

CA 08-360

Court of Appeals of Arkansas, Division II.

Opinion Delivered October 22, 2008

Appeal from the Johnson County Circuit Court; CR-2004-90; Honorable Dennis Charles Sutterfield, Judge, Affirmed.

DAVID M. GLOVER, Judge.

Appellant, Eric Cowell, and appellee, Christina Cowell Lloyd, were divorced by decree entered on December 16, 2004. At the time of the divorce, the parties agreed to joint custody of their two daughters, Khamree (D.O.B. 7-11-98) and Kyerra (D.O.B. 8-18-2000). In June 2006, custody disputes arose between the parties based upon the presence of bruises on the older child's back and bottom. Appellant sought "ex parte" custody of the children. Each party soon thereafter filed petitions seeking sole custody of the children. While those disputes were underway in the domestic-relations division, appellant's counsel initiated a FINS case in the juvenile division. The two cases were consolidated in domestic-relations division. The trial court awarded custody of the children to appellee and also awarded her attorney's fees. This appeal followed. We affirm.

October 9, 2007 Order Changing Custody

In its order of October 9, 2007, awarding custody of the children to appellee, the trial court found:

The court finds that Eric Cowell's request for an award of full legal custody should be denied. While the court finds that there have been substantial and material changes in circumstances since the last permanent order of custody, the court finds that, viewed in their totality, these changed circumstances do not favor Mr. Cowell. Indeed, the evidence establishes that Eric Cowell has engaged in a malicious course of conduct designed to harass, intimidate and wrongfully interfere with Christina Lloyd's duties as primary custodian. This course of conduct includes, but is not limited to, filing or causing to be filed numerous false reports and allegations of child abuse against the defendant, or her spouse; threats to vilify the defendant in court should she oppose his attempts to obtain custody; initiating a Family in Need of Services case against the defendant when he well knew this court already had a custody case scheduled on this matter and he could have sought emergency relief from the court where the case was already pending; making derogatory remarks about the defendant; coming to the defendant's residence uninvited and entering her residence without permission; and describing her modeling career as pornographic when it clearly is not.

THE COURT FINDS THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILDREN FOR THE DEFENDANT, CHRISTINA COWELL LLOYD, TO HAVE SOLE LEGAL PRIMARY CARE AND CUSTODY OF THE PARTIES' MINOR CHILDREN. UPON PRESENTATION OF THIS ORDER TO ANY LAW ENFORCEMENT OFFICE IN THE STATE OF ARKANSAS THAT SHALL ASSIST THE DEFENDANT IN ENFORCING THIS ORDER OF CUSTODY.

The court found the testimony of the defendant more credible and convincing than that of the plaintiff upon those facts on which they were opposed. In making this decision, the court has carefully observed the witnesses and considered their credibility.

The trial court made additional findings of fact, which can be summarized as follows: 1) that appellee is fit and proper to have custody, 2) that neither appellee nor her spouse has committed child abuse, 3) that appellee is of good moral character and has no debilitating medical problems, 4) that appellee's schedule works better to be with the children than appellant's, 5) that appellee's spouse is fit and proper for the children to be around, 6) that appellee demonstrates a more cooperative spirit in facilitating visitation, 7) that while both parties have shown an interest in the children's educational needs, the appellee has been more involved, and 8) that appellant wrongfully withheld child-support payments for a period of time prior to the hearing.

Standard of Review

As we explained in Coffee v. Zolliecoffer, 93 Ark. App. 61, 67, 216 S.W.3d 636, 641 (2005):

The standard of review in child-custody appeals is well settled. We review the evidence de novo, but we will not reverse the findings of fact unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). 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. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 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. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). See also Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). With regard to errors of law, however, no deference is given to the trial court's decision. See Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003).

For his first point of appeal, appellant contends that the trial court's finding that he "engaged in a malicious course of conduct designed to harass, intimidate and wrongfully interfere with the appellee, Christina Lloyd's duties as primary custodian" was clearly against the preponderance of the evidence. We disagree.

In making this finding, the trial court explained that appellant's malicious course of conduct included, but was not limited to: 1) filing false reports/allegations of child abuse, 2) threats of vilification, 3) filing a FINS case, 4) making derogatory remarks, 5) entering appellee's residence without permission, and 6) mischaracterizing appellee's actions as pornographic. Appellant contends that the trial court clearly erred in the listed examples. We find no clear error. First, before briefly addressing each example, we note with respect to the trial court's overall findings that the trial court specifically found that appellee's testimony was more credible than that of appellant.

1) Filing false reports/allegations of child abuse. In determining that appellant filed or caused to be filed numerous false reports of child abuse against appellee and or her spouse, the trial court had appellant's own testimony supporting that conclusion. When asked about his involvement in making these reports, appellant responded that he was "not sure how many DHS claims he had made against Christina and Roger," and that he had reported "bruises and anything physical" on his daughters. He also stated that his mother might have called in a report to DHS.

2) Threats of vilification. Appellee testified that appellant told her that if she did not agree to stop the custody action that "it's gonna be a bloodbath in court." Appellee's testimony was supported by Amanda Shelton, a family counselor. Shelton testified...