Self v. Dittmer

2022 Ark. App. 48

641 S.W.3d 4

Fred-Allen SELF, Appellant

v.Jennifer DITTMER, Appellee

No. CV-21-99

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 2, 2022

Elizabeth J. Finocchi, for appellant.

Andrea D. McCurdy, Fayetteville, for appellee.

RITA W. GRUBER, Judge

Fred-Allen Self appeals the Washington County Circuit Court's modification of the parties’ custody arrangement from joint custody to primary custody with appellee Jennifer Dittmer, the children's mother. He argues that the circuit court erred in (1) allowing evidence of a text sent before a previous custody order; (2) misstating facts in its ruling; (3) finding it was in the best interest of the children to grant primary custody to Dittmer; and (4) denying his motion to reconsider. We affirm the circuit court's order.

Dittmer and Self were divorced in 2012 in Wisconsin and entered into a marital settlement agreement that, among other things, provided for joint legal and physical custody of their three daughters.¹ Sometime after the divorce, the parties moved to Northwest Arkansas and continued to exercise alternate-week custody of the children. On August 8, 2019, Dittmer filed in the Washington County Circuit Court both a petition to register the Wisconsin divorce decree and a motion to modify the decree and award primary custody to her, contending that communication between the parties had broken down to the extent that joint custody was no longer feasible. Self countered and asked the court to award primary custody to him. The parties have been in continuous litigation since then.

The court held a hearing in February 2020 and entered an order on March 12, finding that there had been a material change in circumstances due to the parties’ inability to communicate but continuing the joint-custody arrangement. The court reasoned from the bench that both parties love the children and that joint custody had worked well until recently. The court stated specifically that it could not see "that changing custody is going to make any difference in this equation at all. And, in fact, it might upset things in a way that we can't even predict. And if I can't see a clear reason for change then I am not going to order change." Self v. Dittmer , 2021 Ark. App. 85, at 6, 619 S.W.3d 43, 46–47. Self appealed that decision, which we affirmed on February 24, 2021.

The case now on appeal was initiated on March 10, 2020, two days before the written order was entered in the above-mentioned case, when Self filed a motion for contempt, alleging that Dittmer had failed to follow medical recommendations from the children's medical providers regarding LS's inhaler, ES's nasal spray, and LS's HPV vaccine. He also alleged that Dittmer continued to "disregard the possibility" that LS and ES have inherited Ehlers-Danlos syndrome from him and that she failed to follow the recommendations in their diagnoses. All of these issues were litigated throughout the first case. On August 10, before the hearing on the contempt motion, Self filed a motion for medical authority. On September 14, Dittmer filed a motion for contempt and for emergency modification of custody requesting primary custody with Self having supervised visitation. Self responded and requested a modification of custody with primary custody in him; he also asked that the court order Dittmer to submit to a psychological examination.²

A hearing was held over two days—October 23 and November 10. The children testified outside the presence of the parties and each other, and their testimony was not made available to the parties. Both parties and Healey Ikerd, counselor for Dittmer and LS, also testified. At the conclusion of the hearing, the ad litem summarized her opinion for the court.

The ad litem had served in the first case and was reappointed to serve in this case. She informed the court that after the February 2020 hearing, LS and Dittmer had made a lot of progress in joint counseling with Ikerd. She said Ikerd told her there had been a breakthrough, and the ad litem said that she could see the difference between LS and her mother when she reentered the case. She said Ikerd noticed that LS had stopped participating in therapy as the court date in this case got closer and after Dittmer filed her motion for emergency custody. The ad litem told the court that LS indicated Self had informed her how to go online to see court documents. She said there was "no doubt in [her] mind that dad is sharing very adult matters with these children." The ad litem was concerned that the relationship between Dittmer and BS had broken down in a manner similar to the breakdown in Dittmer and LS's relationship that was a subject of the previous case. She said she did not believe the girls were abused or neglected at Dittmer's home but that they would "run to dad" whenever something did not go their way at Dittmer's. The ad litem was concerned that this left Dittmer on "damage control" for several days each time the girls visited Self. She informed the court that the girls told her they wanted to "live with dad," but they were unable to articulate what schedule they wanted or how this might be different. They told her that Self would let them see Dittmer whenever they wanted. She was concerned with Self's ability to have appropriate boundaries with the children and refrain from discussing certain issues. She opined that joint custody simply was too "volatile" given the lack of communication and that Dittmer should have primary custody.

On November 12, 2020, the court presented its extensive oral ruling comprising over thirty pages of the record on appeal. The court prefaced its findings by reminding the parties that it had implored them in the previous trial to make every decision with "an eye for their children's best interest" and to stop "battling each other." The court reminded them that it had found a material change in circumstances but had determined it to be in the children's best interest at that time to continue joint custody. The court said it had never seen the interaction between parents devolve to such "an abyss" as had the communications between these parties. It then presented a detailed review of the evidence.

The court referred to the previous order's requirement that the parties engage in coparenting with Mary Jeppson and follow her recommendations. It then reviewed Jeppson's emails indicating that Dittmer had participated in coparenting and that Self had failed to communicate or meet with Jeppson since the coparenting plan was put in place. The court recalled Self's testimony that he was advised by his lawyer not to continue in coparenting in clear violation of the court's March 2020 order.

The court then referred to its previous order's requirement for the parties to talk on the phone three evenings a week to discuss the children, their behavior, their health, and upcoming appointments. The court went through email exchanges between the parties making it clear that "neither party trusts the other's interactions with the children's doctor" and that it was clear that "there needs to be one parent handling all of the children's medical decisions without any input or involvement from the other parent." The court then detailed numerous emails between the parties—seven pages—demonstrating Self's continuing argument about medical and school issues in spite of what it considered reasonable conduct on Dittmer's part. Because so much of this case and the court's ultimate decision involves the court's determinations of weight and credibility, we find it necessary to include a few examples of the court's review of the evidence:

May 1st, here we go, there's more communication that just goes bad before it's good. On May 1st at 1:55 p.m. mom sends what I would call a comprehensive email to dad that says, "All the girls had a good week," and it goes on to say, "[LS] got a refill on her meds, [ES] got the right nose spray. She will need a refill on it in the next few days." There's more report on [LS] and some appointments. There's more report on [BS] "having some minor issues today with attitude and she's grounded from her tablet for the rest of the day for slamming it on the table." There's more information about schoolwork. Everything that I see [in] that May first exchange at 1:55 p.m. from mom to dad is reasonable and appropriate for joint custodians, who are coparenting their children to share with each other.

Dad responds at 1:58, 3 minutes later, "In the future please only include relative things not passive aggressive digs like the nose spray and [LS] having to catch up. If you have a problem with something here, address it directly not this ridiculousness. If there is something you should know I will tell you."

Then, at 2:01, 3 more minutes later he responds again and says, "For your information, [LS] knew there were some things not yet complete she was planning to do it the next week as it wasn't actually sure yet" — I think it was supposed to be due please just go ahead and assume that I know what is going on with her schooling and leave it at that."

Well, coparents do not assume that the other parent knows everything. That is me talking.

One minute later, mom responds, "What she had to complete last Saturday was due last Friday."

And dad responds, "No, I looked over things with her on Friday and she was caught up with everything at that point. Again, assume I know what's happening and don't passive aggressively call me out with comments like this which you do" — in all caps, "ALL THE TIME."

Mom responds, "Assuming is dangerous and causes misinformation. That is why I have updated with what is complete and not and [LS]’s agreement." I'm not sure but that should have said, and yours and [LS]’s agreement, but I'm not positive about that.

"No, science doesn't have a specific date due, but teaching responsibility so she doesn't procrastinate until the last minute is a good skill." That is a reasonable response.

And then dad

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