Self v. Dittmer

2021 Ark. App. 85

619 S.W.3d 43

Fred-Allen SELF, Appellant

v.Jennifer DITTMER, Appellee

No. CV-20-323

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: February 24, 2021

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 denial of his request to modify custody from joint custody to primary custody with him. On appeal, he argues that the court clearly erred when, after finding a material change in circumstances based on the parties’ inability to cooperate and communicate, it failed to find that the best interest of the children warranted termination of joint custody. We affirm.

Jennifer Dittmer and Fred-Allen Self were divorced in 2012 in Wisconsin and entered into a marital settlement agreement, which, 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 a petition to register the Wisconsin divorce decree and a motion to modify the decree and award primary custody to her. She contended that communication between the parties had broken down to the extent that joint custody was no longer feasible. Self responded and also filed a countermotion to modify the decree, alleging that there had been a material change in circumstances warranting modification concerning the children's health and well-being and that it was in the best interest of the children for him to be awarded primary custody.

The circuit court appointed an attorney ad litem for the children and held a temporary hearing on October 28, 2019. In an agreed temporary order, the court continued joint custody; instituted various rules regarding bedtimes, medical treatment, and a few other items; forbade either party from making derogatory comments about the other parent to the children; ordered coparenting counseling; and ordered the parties or the ad litem to find a separate therapist for LS. The temporary order was entered on January 3, 2020.

The circuit court held a final hearing on February 3, 2020. Testimony at the final hearing demonstrated that LS had been diagnosed with anxiety and depression; had, at times, engaged in self-harming behavior; and had often acted out when in Dittmer's custody. The evidence was clear that LS and Dittmer had a strained relationship, but it was less clear what or who was responsible for the disharmony. Examples of the disharmony included LS's throwing a potato and hitting Dittmer in the head with it when she was angry with her, LS's written "escape plan" in the event things got so bad at Dittmer's house that she had to leave, and LS's repeated outbursts at Dittmer's home. In addition, the parties testified that they had been unable to agree about medical decisions, including vaccinations, medications prescribed for the children, and recommended medical treatment for aches and pains. Evidence indicated that the two younger children related well with both parents. In addition, testimony indicated that all three children were involved in extracurricular activities, earned good grades, and were well-behaved at school.

Self testified that there had been a major breakdown in communication between the parties in the previous two years and that coparenting counseling had not gone well. He testified that he has a degenerative medical condition—Ehlers-Danlos syndrome (EDS)—that causes the connective tissue in his body to break down, resulting in chronic pain and daily dislocations. LS and ES had been tested by a geneticist, and both suffer from the same condition, which requires them to pay more attention to aches and pains than a typical person. Self said people with this disorder cannot safely do many simple things that most kids do, like jumping jacks, because it breaks down their joints. He said that ES constantly complains of back, neck, and knee pain and that LS's knee randomly dislocates and causes her constant pain. Self opined that Dittmer did not believe the girls suffer from this condition. He expressed concern that she had taken the girls to a chiropractor, which he said is "strongly contraindicated" for people with EDS. He also said that Dittmer was not consistent about giving the girls their prescribed medications for allergies, reflux, and pain management. Self said he has a great relationship with all three children and that they regularly confided in him when things were difficult. He also said that he had remarried and that the children have an excellent relationship with his husband.

Dittmer said that in addition to the three girls, both her parents and her three-year-old daughter, LMS, live with her. She agreed with Self they had made no progress in coparenting counseling and that the parties had serious difficulty communicating. She testified that she and Self had different ideas regarding bedtimes, medical issues, and screen time. She did not dispute that LS and ES suffer from EDS, and she agreed with Self on their treatment plan.

LS testified that her mom told her she had "filed against" her dad and requested full custody. She told LS "something about maybe never seeing [Self] again if the judge decided." LS said this caused her anxiety to get a little worse but that her dad reassured her that things would be okay "no matter what." She said living with her dad was more "laid back" than living with her mom, giving bedtime and screen-time limits as examples. She said there is a lot of yelling at her mom's house. She also said that her mom had put cameras in the house—one facing directly at LS's door—which made her uncomfortable. She testified that she feels more welcome and safer at her dad's house and would prefer to spend more time with him.

Carrie Nichols testified that she had been LS's counselor off and on since November 2016, sometimes as her primary therapist and sometimes in family sessions. She said that she had seen Dittmer and LS together since August 2019, that she was also seeing Dittmer individually, and that LS was seeing another therapist individually. She said that there was a lot of arguing, disrespect, defiance, misunderstandings, and poor communication between Dittmer and LS. She expressed concern that LS's relationship with Self might be "negative or interfering with her relationship with [Dittmer]" and that he might be causing parental alienation. However, her opinion was that regardless of where or with whom the children lived, they were at risk because the problem was systemic: the parents cannot get along and have prioritized fighting and blaming over parenting. She opined that "whether we change it and have the children with one parent, both parents, leave it the same, there's the risk no matter what."

In her closing argument to the court, the ad litem recognized that LS did not see her mother as an ally and that it was imperative to address this issue and improve LS's willingness to engage and change this dynamic. She advised, however, that the parties continue to share custody and explained, "I don't think the schedule is the problem. The girls have been doing week-on/week-off for years. It hasn't affected their grades. It hasn't affected their behavior at school." She also told the court that all three children had said that they preferred to spend more time with dad.

At the close of the hearing, the circuit court found that there had been a material change in circumstances but did not change joint custody. The court identified the problem as a "failure to communicate." It recognized that both parents love the children, the children love both parents, the parents are both "capable of being good parents," joint custody had worked from 2012 until recently, and the issues "basically" concerned LS. The court also stated that it had heard no testimony that either parent mistreated LS. The court was less concerned that LS, as a teenager, was capable of "drum[ming] up ... drama" and more concerned about the parties’ inability to communicate and work together to address these issues.

So, in not communicating with each other, you have given away your power as parents. Because you get frustrated with LS or you get angry with LS or you're scared of what LS is going to do. That is a powerful position for a child to be in with her parents. So, you all have got to change the balance of power.

I find that there has been a material change in circumstances for all of the reasons that I just laid out with regard to LS, and the lack of ability to communicate with each other.

And as a result of your inability to communicate with each other, you are unable to act collectively in LS's best interest.

....

So, there has been a material change in circumstances. So, what is this Court to do to make it better? What is best for these three little girls as far as their parents are concerned? Well, you all are doing some things absolutely right.

...