DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA00-874

May 16, 2001

CASSIE CHAMBERS AN APPEAL FROM WHITE

APPELLANT COUNTY CHANCERY COURT

[E99-866-1]

V. HON. JIM R. HANNAH, CHANCELLOR

GARY LEE CHAMBERS

APPELLEE AFFIRMED

Following a final divorce hearing, a White County chancellor awarded Gary Lee Chambers custody of L.C., and divided the property interest between Mr. Chambers and appellant Cassie Chambers. The chancellor found that although both parties could provide a good home to L.C., credibility did not lie with Mrs. Chambers and concluded that as a result, it was in the best interest of L.C. for custody to be placed with Mr. Chambers. We hold that the ruling regarding custody was not clearly erroneous and the chancellor did not abuse his discretion in denying appellant's motion for new trial. Therefore, we affirm.

Factual and Procedural History

The parties married on October 21, 1995. On September 16, 1999, appellant filed apetition for divorce and requested temporary and permanent custody of the parties' then two-year old son, L.C. Appellee filed a counterclaim in which he requested that the parties share joint custody of L.C. and that the court grant him physical custody. On December 17, 1999, the court entered a temporary order that provided for temporary joint custody and gave appellant primary physical custody.

A one-day hearing was held on February 1, 2000, to litigate the grounds for divorce, property and debt issues, child custody, support, and visitation. Appellant alleged that appellee was physically abusive towards her, that appellee was an admitted alcoholic, and that she was L.C.'s primary caretaker. Appellee testified that appellant had engaged in extramarital affairs during her first marriage, that appellant had allowed a male visitor to spend the night on at least two occasions after the parties separated and in the presence of the children,1 that appellant changed jobs frequently, that he took care of L.C. throughout the marriage, and that appellant had not been truthful to the court on numerous occasions.

At the close of the evidence, the chancellor found that both parties could provide a good home for L.C., but that appellant had a credibility problem and would not be a good role model. The chancellor also found that because appellee had more stability in his life and could provide a better role model for L.C., it was in L.C.'s best interest to place custody with appellee. He then entered an order to that effect.

Appellant filed a motion for new trial pursuant to Rule 59 of the Arkansas Rules ofCivil Procedure alleging irregularity and surprise in the trial proceedings. Following a hearing, the chancellor found that because appellant failed to submit any further testimony or evidence, she did not meet her burden of proving her entitlement to a new trial. The chancellor also found that all witnesses were known to appellant prior to the hearing and could have been produced with reasonable diligence. Further, he found that appellant failed to preserve the issue of surprise. The chancellor noted that although appellant was provided the name of a witness for appellee ten days before trial, appellant failed to request an extension of time or continuance and failed to object to the appearance of the witness, his testimony, or the introduction of a videotape as rebuttal evidence. Lastly, he found that even without the testimony in question, there was overwhelming evidence that credibility did not lie with appellant and that it was in the best interest of L.C. for custody to be with appellee. Best Interests of L.C.

Appellant initially challenges the chancellor's ruling that it was in L.C.'s best interests

to award physical custody to appellee. She asserts that the chancellor should have based his determination as to which custodial relationship was in the best interest of L.C. by reviewing the situation as it existed at the time of the divorce instead of considering evidence introduced about a prior marriage and her sexual encounters with men while she was single. When awarding custody, the trial court should consider the best interest of the child, without regard to the gender of the parent. See Ark. Code Ann. § 9-13-101(a) (Supp. 1999). Custody awards are not made to gratify, punish, or reward one parent or either parent. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). Rather, the mainemphasis is on the welfare and best interest of the child; all other matters are ancillary. See Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998).

Credibility determinations rest with the chancellor as the trier of fact, and it is within the chancellor's province to resolve conflicting testimony. See First State Bank v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984). With regard to determining child custody, the chancellor's personal observation of the demeanor of the parents is vital and of utmost concern. See Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997). Child custody cases are unique because there are no other cases in which the superior position of the chancellor to assess witness credibility carries as much weight. See Hepp, supra. As a result, even though we review chancery decisions de novo, we will not reverse a chancellor's findings regarding custody unless, after we defer to the superior position of the chancellor, we determine that the chancellor's findings are clearly against the preponderance of the evidence. See id. Findings are clearly against the preponderance of the evidence when we are left with an irrefutable and express belief that a mistake has occurred. See Hollinger, supra.

De novo review does not mean that our court will address new issues on appeal that were not raised below. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Thus, when an appellant fails to raise an issue at trial that she had an opportunity to present and had knowledge of, she is precluded from seizing the occasion to address that issue on appeal. See Jones, supra.

In this case, appellant uses a potpourri of assertions to support her contention that thechancellor failed to correctly determine the best interests of L.C. First, she contends that the chancellor was prejudiced by the introduction of evidence concerning incidents that occurred before her marriage to appellant and before the birth of L.C. Next, she argues that she was L.C.'s primary caretaker. Appellant also asserts that the chancellor failed to properly weigh testimony that appellee had married three times, was physically abusive to appellant, and was an alcoholic. Lastly, she contends that the chancellor failed to consider the relationship between L.C. and his half-sister.

During his cross-examination of appellant, counsel for appellee moved to introduce three exhibits that represented letters that discussed appellant's relationship with another man while she was married to her first husband. Counsel for appellant objected, suggesting that the chancellor allow the introduction of the exhibits for the limited purpose of credibility, and the chancellor agreed. Although appellant now attempts to argue on appeal that our rules of evidence prevent the impeachment of a witness through extrinsic evidence, or alternatively that the letters were introduced as circumstantial evidence of an adulterous relationship, she is limited by the scope and nature of the objection she raised below. See Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998).

Appellant also asserts that the chancellor erroneously allowed Ritchie Mahoney to testify about incidents of infidelity that occurred during appellant's marriage to Mahoney. However, a de novo review of the record indicates that Mahoney testified that appellant lied during their divorce proceeding and that defendant's exhibits 1 and 2 were stolen from his home the day before he and appellant were scheduled to go to court. Because the abstractfails to support appellant's allegation that Mahoney provided testimony concerning affairs appellant had while married to Mahoney, we do not address this argument on appeal.

During her cross-examination, appellant was asked about various sexual encounters she had with different men between the time she divorced Mahoney and married appellee as well as during her post-separation from appellee. The chancellor allowed the questioning, despite a relevance objection. He noted, "well, I have real problems with this, Mr. Hudgins, obviously, as to the relevance. But a person's stability in their life, the role model that they are to their child is always important. This can be a very prejudicial matter, so I think you need to be careful. I'm going to note your objections to this ruling and let you inquire."

A trial court has broad discretion when considering whether to admit evidence, and we will not reverse a trial court's evidentiary rulings absent a clear abuse of discretion. See Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). Evidence is considered relevant when it has any tendency to make a fact that is determinative to the outcome of the litigation more or less probable. See Ark. R. Evid. 401. Once a trial court determines that evidence is relevant, it will conduct a Rule 403 analysis to consider whether the probative value of the evidence is substantially outweighed by unfair prejudice. See Arthur, supra.

Here, the chancellor correctly questioned whether the testimony about appellant's previous sexual relationships was relevant. However, the chancellor conducted a Rule 403 analysis and concluded that the testimony demonstrated appellant's stability and her ability to serve as a role model to L.C., which the court noted was always important. While we agree that the role model question was germane to determining custody, we hold that thechancellor erred in permitting counsel for appellee to cross-examine appellant about her sexual relationships and that this constituted an abuse of discretion. When the alleged relationships occurred, the parties to this appeal were not married, and L.C., the child whose custody was in dispute, had not been born. Hence, appellant's conduct had no bearing on his development whatsoever.

Nevertheless, we hold that the abuse of discretion amounted to harmless error. Our de novo review reveals that the chancellor expressed concerns about the fact that appellant repeatedly made false statements in answers to interrogatories. On at least two instances, appellant spent the night in an apartment with another man while the parties were separated. Both instances occurred in the presence of L.C. and his half-sister. Appellant was untruthful when she denied these instances in discovery documents, and the chancellor was certainly entitled to consider the effect of her untruthfulness as well as her conduct in evaluating which of the parties would be the better role model for L.C.

While appellant asserts that the chancellor did not consider the relationship between L.C. and his half-sister, the fact that she was L.C.'s primary caretaker, or appellee's alleged drinking problem and abusiveness, the chancellor specifically found that both parents had proper parenting skills, could provide a good home for L.C. and had a lot to offer L.C. As noted in Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981), child custody cases place a tremendous burden on a chancellor to weigh the credibility of witnesses, to evaluate witness demeanor, and to determine the child's best interest. Because we review a cold record, we lack the opportunity to assess credibility or demeanor. See Calhoun, supra. Afterhearing all the evidence in the instant case, the chancellor specifically found that appellant's lack of honesty set an improper role model for L.C. and based his custody award on this issue. We cannot hold the chancellor's decision to award custody to appellee was clearly erroneous.

Failure to Grant New Trial or Partial Trial

Next, appellant asserts that the trial court abused its discretion when it failed to order a new trial or partial trial after appellant presented the court with five affidavits attached to her motion for new trial to substantiate her allegation of newly discovered evidence. Rule 59 of the Arkansas Rules of Civil Procedure provides eight reasons that a trial court may grant a motion for new trial including 1) when it determines that an irregularity in the proceedings prevented a party from receiving a fair trial, 2) when the court determines that a surprise occurred that ordinary prudence could not have prevented, or 3) when there is newly discovered evidence that the party could not have, with reasonable diligence, discovered and produced at trial. A motion for new trial must be in written form and must be supported by affidavits. See Ark. R. Civ. P. 59(c).

Newly discovered evidence is one of the least favored grounds to justify a new trial, and the decision to grant or deny a motion for newly discovered evidence lies within the chancellor's sound discretion. See Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). Consequently, we will not reverse a chancellor's decision regarding a motion for new trial absent a determination that the chancellor abused his discretion. See id. A party seeking a new trial must demonstrate 1) that she could not with reasonablediligence have discovered and produced the evidence at the time of trial, 2) that the evidence is not merely impeaching or cumulative, and 3) that the additional testimony would probably have changed the result of the trial. See id.

Arkansas has a contemporaneous objection rule that requires a party to raise an objection at the trial level before the matter is preserved for appellate review. See Calnan v. State, 310 Ark. 744, 844 S.W.2d 593 (1992). There are four recognized exceptions to this rule including 1) when a trial fails to alert the jury in a death penalty case to a matter necessary to its determination of the death penalty itself, 2) when a trial court errs at a time when defense counsel has no knowledge of the error and no opportunity to object, 3) when a trial court should intervene on its own motion to correct a serious error, and 4) when the admission or exclusion of evidence affects a defendant's substantial rights. See Calnan, supra.

Appellant initially submitted responses to interrogatories that denied her sexual relationship with another man after her separation from appellee. At trial, appellant admitted that she lied under oath and stated that she was sexually involved with another man during her separation from appellee. She testified that the man was around her children in public places on two occasions before Christmas. Appellee presented the testimony of Keith Rounsavall, an investigator who testified that on January 5, 2000, Barry Ralston spent the night at appellant's apartment and that Ralston was seen the following day leaving the apartment and locking the door with his own key. Later that day, appellant and her children entered the apartment and Ralston returned, using his key and remaining for the rest of thenight. Appellant and her children left the apartment at approximately seven o'clock the next morning and Ralston left approximately one hour later. Rounsavall also testified that Ralston returned to appellant's apartment on January 10, 2000, while appellant and her children were in the apartment and the four of them stayed the night.

After Rounsavall completed his testimony, appellant took the stand and denied that Rounsavall was telling the truth and that her children were around Ralston after Christmas. In rebuttal, appellee presented a videotape to support Rounsavall's testimony, which was introduced into evidence without objection.

As noted by the chancellor, appellant had the burden of proving that she could not have with reasonable diligence discovered and produced newly discovered evidence at the time of trial. Here, appellant failed to submit any further testimony or evidence. Although she attached five affidavits to her motion for a new trial, these affidavits simply attack the credibility of Rounsavall or support appellant's contention that Ralston did not spend the night in her apartment on the dates in question. However, appellant knew Rounsavall was scheduled to testify ten days prior to trial. She failed to request an extension of time or a continuance, object to Rounsavall's appearance, object to his testimony, or object to the introduction of the videotape as rebuttal evidence. Because appellant clearly did not preserve her argument at trial, she is procedurally barred from presenting it on appeal.

Affirmed.

Vaught, J., agrees.

Roaf, J., concurs.

1 Appellant also has a minor child through a previous marriage, M.M., who lived with the parties.