Poole v. Poole

2009 Ark. App. 860

372 S.W.3d 420

James W. POOLE, Jr., Appellant

v.Anna Michelle POOLE, Appellee.

No. CA 09–42.

Court of Appeals of Arkansas.

Dec. 16, 2009.

Boyd & Buie, DeWitt, by: Rufus T. Buie, III, and Mary Christina Boyd, for appellant.

Billy J. Hubbell, Crossett, for appellee.

JOHN B. ROBBINS, Judge.

Appellant [Ark. App. 1]James Poole appeals from the Ashley County Circuit Court's divorce decree. On June 16, 2008, the circuit court awarded a divorce to appellee Anna (Shelly) Poole, and gave her custody of the parties' daughters, B.P., born in 1992, and A.P., born in 1997. Appellant has a son, J.P., with Nicki Morgan, and has had custody of J.P. since he was a toddler. Appellant challenges the division of property, the award of attorney's fees to appellee, certain evidentiary rulings, and the custody award. We affirm the circuit court's decision in all respects.

The parties married in 1993 and separated in April 2005. Appellee filed for divorce in May 2005. With his answer, appellant counterclaimed for divorce. On June 17, 2005, appellant and Morgan were arrested and charged with possession of marijuana with intent [Ark. App. 2]to deliver and simultaneous possession of marijuana and firearms. The contraband was located at Morgan's residence.

The court held a temporary hearing on July 11, 2005, at which appellee testified that she did not want her children around Morgan. Appellant objected on the basis of hearsay. Appellee's attorney then produced a newspaper article about the arrests, to which appellant also objected on the basis of hearsay. The court admitted this evidence only to show the nature of the charges filed against appellant. Without objection, appellee testified that she wanted a restraining order because appellant had held a gun to her head more than once; that he had choked her; and that he had intimidated and threatened her in other ways. Appellant objected when appellee stated that she had found a note on the windshield of her van at Wal–Mart, where she worked. She stated, “There are security cameras at Wal–Mart and the person who put this on my van was filmed by the security cameras at Wal–Mart and I was given a description.... According to the description, Mr. Poole's nephew put it on my van.” The court overruled appellant's hearsay objection to this statement. Appellee also said that appellant had used marijuana in their home within the past five years.

Appellant testified, “Nicki Morgan Robertson has been arrested and charged just like I have.... Since my arrest on Father's Day I have been required to submit to drug testing because of my work. I passed.” He said that he would be willing to submit to a hair-follicle drug test. Appellant explained that he had nothing to do with the drugs involved in his arrest. He denied hitting, choking, or using a gun to threaten appellee, but admitted, “We just can't [Ark. App. 3]get along.” In the temporary order, the court gave appellee temporary custody of the children and stated: “Nicki Morgan is not to be present in the home of the defendant's parents, next door [where she was then living with appellant's sister], or in the vicinity of the visitation. She is not to be around the children or have contact with the children at any time.” The court gave appellant standard visitation and directed him to have no contact with appellee.

Appellant's drug test was positive for methamphetamine. Appellee filed a petition for contempt and to abate or restrict visitation on the basis of the drug test; appellant's having told B.P. that smoking marijuana was “okay”; forcing B.P. to talk with him about the family's situation; and permitting Morgan to call him while the children were visiting (when one of the children answered the phone). The court abated appellant's visitation until the hearing on the petition.

At the next hearing, appellee testified that appellant had placed the children in an unsafe environment. Appellant objected on the basis of hearsay. Appellee said that appellant had continued to harass her by sending letters with child-support checks; driving by her mother's house frequently; and cursing her at the snow-cone stand. Appellee stated that appellant had verbally threatened her every time he saw her, as recently as the past Monday, and introduced notes that appellant had written to her into evidence. When appellee testified that appellant had told the children that it was okay to smoke marijuana, appellant objected on the ground of hearsay. Appellee explained that she had filed the petition because of the [Ark. App. 4]children's contact with Morgan; appellant's failed drug test; and appellant's harassment. She said that the children had been seeing counselors.

Appellant vaguely denied telling B.P. that it was okay to smoke marijuana. He explained, “I really didn't tell her it was okay to smoke marijuana. I just feel like it ain't really nothing really wrong with it. It's not as bad as people really say it is. Well, it says in the Bible all herbs and seed-bearing plants are good.” Appellant denied using methamphetamine and said that the test must have been affected by his sinus medication. He also denied threatening appellee but admitted showing his diary to B.P. Without objecting to the question, appellant admitted having been arrested in June with Morgan and charged with possession of marijuana with intent to deliver and simultaneous possession of marijuana and firearms.

B.P. testified that she had told her mother that she did not want to visit her father because of the way he had treated appellee; that A.P. had answered the phone when Morgan called appellant; and that appellant had told her “that God put [marijuana] on this earth for a reason and that it says in the Bible that marijuana is a [sic] herb ... and that it's got to be used for something.” She said that appellant had insisted on talking to her about her mother. She denied having smoked marijuana and said that appellant had not tried to give her any. From the bench, the trial judge told appellant that his sinus-medication explanation insulted his intelligence and gave appellant “one more chance” with visitation.

Appellee filed a petition for contempt on February 2, 2006, stating that appellant had continued to harass and threaten her, even calling Wal–Mart's main office to complain about [Ark. App. 5]her. She alleged that appellant had accused her of being the informant for his drug charges and had warned her “that she had better watch her back, that he would get her for this.” She also alleged that he was behind in child support.

On March 24, 2006, appellee filed a motion to abate visitation, stating that appellant had smoked marijuana with B.P. on more than one occasion. Appellant agreed to suspend visitation until a hearing was held. Appellant filed a motion to reinstate visitation on September 12, 2006, and a copy of a negative drug-test report for July 5, 2006. Appellant also passed a drug test in October 2006. The court held another hearing about visitation on November 7, 2006. Appellant testified that he and B.P. had passed drug tests soon after appellee had filed her petition to suspend visitation. The court admitted the drug-test reports into evidence. Appellant denied using marijuana, or even discussing it, with B.P. He admitted permitting her to have her navel pierced for her fourteenth birthday. He said that the jury had acquitted him of the drug charges.

Appellee testified that she had filed the petition to abate visitation because she had found a note from a friend to B.P. discussing B.P.'s doing drugs; that she had asked B.P. about it; and that she had performed a home drug test on B.P., which showed the presence of THC. Over appellant's hearsay objection, the trial court admitted this testimony to explain why appellee had filed the pleading. Appellee said that appellant had accused B.P. of lying; after the hearing, he had walked up to her and said, “I'll make you look like the biggest liar [Ark. App. 6]in Crossett.” Appellee said that B.P. was intimidated and worried about how her father would treat her during visitation.

Stacey Stitch, B.P.'s therapist, testified that B.P. had told her that she had smoked marijuana and drunk alcohol with her father. She said that B.P. felt guilty about what she had done but also felt victimized, because her father and his family had called her a liar. Ms. Stitch recommended supervised visitation. Over appellant's hearsay objection, the court admitted this testimony because, as an expert, Ms. Stitch was entitled to base her opinion on what B.P. had told her. In rebuttal, appellant denied the substance of B.P's and Ms. Stitch's testimony but admitted telling B.P. that she had not told the truth.

Noting that B.P. had “some issues,” the court granted appellant visitation with her once a week, in conjunction with Ms. Stitch's counseling, and gave him supervised visitation with A.P. After a hearing on February 27, 2007, the court granted appellant standard visitation.

The court held the final hearing on March 19, 2008. Appellee testified that she did not want to share custody of the children with appellant because she did not believe that he was capable of taking care of them. She said that, even when appellant had the children for visitation, she had to bring them food. She said that the children wanted to live with her and that she was worried the whole time they were with appellant. She stated that appellant owed her $7318 in child support. She said that, as a department manager in the photo lab, her net salary was $476 every two weeks; that the balance due on the house was about [Ark. App. 7]$45,000; that the deed to the land on which the parties built the house was in her name and was a gift from her grandmother; that the parties refinanced the house in December 2003, borrowing $56,000, and receiving $11,000 in cash; and that, when the parties separated, appellant had $7000 of that money in his checking...