Hanson v. Hanson

2023 Ark. App. 363

676 S.W.3d 8

Amanda HANSON (Now Jetton), Appellant

v.Ernie HANSON, Appellee

No. CV-22-328

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered September 6, 2023

Crane, Phillips & Rainwater, PLLC, by: Steve R. Crain, for appellant.

Robert S. Tschiemer, Mayflower, for appellee.

ROBERT J. GLADWIN, Judge

Amanda Jetton, formerly Hanson, appeals from a March 1, 2022 order of the Columbia County Circuit Court. She argues that the trial court committed reversible error by (1) placing Ernie Hanson in charge of medical decisions for the parties’ children; (2) relying on personal information not in evidence; (3) basing the joint-custody decision on an unfounded belief that the family-in-need-of services (FINS) proceeding was a criminal proceeding against MC1, the oldest of the parties’ children; and (4) ordering a change to joint custody of the parties’ three children, MC1, MC2, and MC3. We affirm.

I. Facts and Procedural History

After seven years of marriage, during which three children were born, Amanda sought and obtained a divorce from Ernie. The divorce decree, to the extent relevant to this appeal, provides that Amanda would have custody of the children subject to reasonable and

seasonable visitation with Ernie. Ernie was ordered to pay child support that included a portion of his bonuses.

Amanda began having concerns that Ernie was not giving the children their prescribed attention-deficit-hyperactivity disorder (ADHD) medication during his visitation, as well as missing therapy sessions, so she filed a petition on July 22, 2020, asking the trial court to order him to do so; to award back child support; and to order Ernie to pay a portion of the cost of the children's medical insurance and out-of-pocket expenses. Amanda also requested that visitation be suspended until Ernie agreed to both give the prescribed ADHD medication and take the children to all therapy sessions and appointments during the times they would be with him.

Ernie filed a response on August 14 in which he asserted that medical providers had informed him that the prescribed ADHD medication was unnecessary on weekends and claimed that the children were in a "zombie-like" lethargic state when taking it. Ernie alleged that he had not been able to obtain the children's medical information from Amanda but that he had resumed giving the ADHD medication as prescribed on his weekends.

Several months later, on February 2, 2021, Ernie filed a motion for the appointment of an attorney ad litem and for a change of custody. He requested that an attorney ad litem investigate both homes and the needs and best interest of the children. Amanda responded on March 1, and on April 6, the trial court appointed Amy Freedman as attorney ad litem.

On December 28, 2021, Ms. Freedman issued her written report that includes the following:

BACKGROUND:

This case presents as three children [(MC1 and twins MC2 and MC3)] from a divorced couple. The mother has remarried and has a younger child with the stepfather. The father of the children has not remarried but is in a committed relationship and plans to marry soon.

....

The twins [MC2 and MC3] have consistently stated that they would like to have equal time with both parents. [MC1], the elder brother, has stated that he wants to live with his father, Ernie Hanson.

....

CONCERNS:

The parties distrust each other.

The parties are not co-parenting.

A FINS case was filed by the mother against [MC1], due to his "being habitually disobedient to ... parents" and "being habitually physically rough and abusive to younger siblings." (See EXHIBIT A attached with FINS records.)

[MC2] has exhibited anxiety and is being treated for it in counseling.

[MC3] is not currently in counseling but may need it, as well.

Family counseling is needed.

Medication for ADHD is a major issue in this case. Dr. Cindy Porter was deposed and strongly recommends that the children stay on their meds and not have "drug holidays." The father, Ernie Hanson, has in the past, not given the meds when the children were in his care....

....

RECOMMENDATIONS:

[MC1] shall be in the primary custody of his father, Ernie Hanson, and stay in the same school district and counseling. This recommendation is based primarily due to the stated FINS petition allegations (that [MC1] is "being habitually disobedient to ... parents" and "being habitually physically rough and abusive to younger siblings.")The twins ([MC2 and MC3]) shall remain in the custody of their mother and have visitation with their father and older brother, [MC1]. All visitation between the twins and [MC1] should be supervised by a parent.

All children shall continue to take ADHD meds, including [MC1], without "drug holidays." Should [MC1] not take his meds for any reason other than as directed by a medical doctor, this would be ground[s] to return him to the custody of his mother.

Counseling for all children, as therapeutically recommended to continue.

Family counseling with both parents and stepparents as therapeutically recommended.

Ms. Freedman did modify her recommendation based on the testimony at the hearing, advocating that custody stay the same until everyone became seriously involved in counseling to learn how to coparent.

The parties, [MC1], and a couple of other persons testified at the final hearing held on February 17, 2022. Dr. Porter, pediatrician to all three children, testified by deposition. On February 24, the trial court issued a letter opinion, stating the following:

Change in Circumstances

....

[Amanda's] filing of a FINS Petition clearly identifies her need for services due to the inability to deal with one of her children.

Also, the allegations of abuse that were reported to [Ernie] by the children are a change in circumstances. This would be a change in spite of the fact that Deputy Leroy Martin testified that when he questioned the daughter, she denied the abuse.

Deputy Martin stated that [Amanda] and step-father were aware he was going to question the daughter at the school prior to him doing so. The behavior of the stepfather towards the children and his scare tactics are a change of circumstances. [Amanda's] characterization of her husband as a big "teddy bear" was not borne out by the testimony.

Custody

It is in the best interest of the minor children that the parties be awarded joint custody of the three minor children with [Ernie] to make all medical decisions.

....

[Amanda's] husband is not to discipline the minor children or be left alone with the children.

The "scare" tactic chosen by [Amanda] of using the juvenile authorities through a FINS Petition shall immediately stop.

....

Attorney Ad Litem

... At the end of the hearing the Attorney Ad Litem changed her recommendation to leave custody as is subject to a review. The Court does not feel that to leave custody as it currently is would be in any way in the best interest of the children and only exposes the children to more stress and uncertainty.

The letter opinion from the trial court specifically stated that Amanda's testimony was not credible. It noted the trial court's observation of MC1 as he cried in the courtroom and explained that he would never hurt his siblings and referenced Amanda giving him a "stern" look as he testified. The trial court found that Amanda's new husband was disciplining the parties’ children and was in control of them. The trial court further stated that it did not believe the parties would ever agree on medical decisions and that Ernie was

to be the one to make them and appears to have a more open mind and would look only to the children's best interest.

On March 1, the order establishing joint custody and visitation, which mirrored the previous letter opinion, was entered followed by a March 28 order modifying Ernie's child-support obligation, which included a provision requiring him to pay half of the children's monthly medical insurance premiums. Amanda timely filed her notice of appeal from both orders on March 29, but she has abandoned her appeal of the order modifying support because her brief did not address it.

II. Standard of Review

In a recent case, Kinder v. Kinder , 2022 Ark. App. 476, at 4, 655 S.W.3d 880, 883–84, this court reiterated our standard of review in custody cases:

In reviewing domestic-relations cases, appellate courts consider the evidence de novo. We will not reverse the trial court's findings unless they are clearly erroneous. A trial court's finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. In reviewing a trial court's findings, we defer to the trial court's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony.

(Internal citations omitted.); see also Ryan v. White , 2015 Ark. App. 494, 471 S.W.3d 243. As was noted in Pace v. Pace , 2020 Ark. 108, at 9, 595 S.W.3d 347, 352, in matters involving custody, the best interest of the children is the paramount consideration.

III. Discussion

A. Placing Ernie in Charge of Children's Medical Decisions

On this issue, the trial court ruled in relevant part:

[Ernie] cannot stop any ADHD medication unless it is recommended by a medical doctor. If that occurs, he shall only discontinue the medication under the directions of the doctor.

....

[Ernie] will make the medical decisions because the Court does not believe the parties will ever agree on medical decisions regarding the children. [Ernie] appears to have a more open mind and will look only to the children's best interest.

Amanda argues there is no basis for the trial court's findings, noting that he testified more than once that he did not believe the medical science that supports medication helping children with ADHD.

Ernie had never taken any of the children to the pediatrician until June 25, 2021. Evidence indicates that on that occasion, he insulted Dr. Porter and called her support of ADHD medication for the...