ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA01-12

December 5, 2001

MARIBETH PLESS AN APPEAL FROM PULASKI COUNTY

APPELLANT CHANCERY COURT, FIFTH DIVISION

[NO. 90-7123]

V. HON. ELLEN B. BRANTLEY,

CHANCERY JUDGE

ROBERT G. HUDSPETH, JR.

APPELLEE AFFIRMED

Maribeth Pless, acting pro se, appeals a Pulaski County chancellor's post-divorce ruling to change custody of ten-year old A.H. from appellant to appellee, Robert Hudspeth, Jr. On appeal, Pless contends that the chancellor erred in transferring custody because (1) the service upon her was insufficient, and (2) there were unilateral acts that resulted in Rule 11 violations. We hold that appellant's arguments are not preserved for appellate review. Moreover, the record demonstrates that a material change in circumstances existed such as to warrant the chancellor's decision to transfer custody.

On September 21, 2000, appellee filed a motion to change custody, a motion for anorder to show cause, a motion for default, and a subsequent motion for default. Mike Tschiemer, a duly authorized process server for Pulaski County, testified that he personally served appellant at her residence, 5 Pin Oak Lane in Maumelle, Arkansas, on September 25, 2000, with a motion to change custody, a motion for an order to show cause, and an order to show cause. The order to show cause commanded appellant to appear before the chancellor on November 16, 2000. A copy of Mr. Tschiemer's affidavit of service was introduced as Defendant's Exhibit 2.

Mr. Tschiemer testified that he also personally served appellant on October 13, 2000, at The Hop, located at 7706 Cantrell Road, with a notice to take deposition, as well as interrogatories and requests for production. Although the deposition notice commanded appellant to appear for deposition on November 2, 2000, appellant failed to appear at her deposition. Nor did she take any action seeking to postpone or reschedule the deposition. Additionally, appellant failed to respond to the interrogatories and requests for production of documents.

The matter came for hearing on November 16, 2000. Although appellee appeared with his lawyer, appellant did not appear, nor did counsel appear on her behalf. In support of his motion, appellee presented testimony from a school teacher, school administrator, a psychologist, and the mother of A.H.'s friend. He also testified on his own behalf.

Joy Thomas, a fifth-grade elementary teacher, relayed various incidents that occurred during the year she taught A.H. These incidents included appellant sending Thomas a letter forbidding Thomas to discipline A.H. in any manner; telling Thomas that someone had filledher house with smoke on two occasions; becoming hostile and extremely angry over seemingly trivial matters; calling Thomas a liar; and telling Thomas she had no business being a teacher. Thomas testified that she was terrified of appellant, and that she wanted what was best for A.H.

Next, the court heard testimony from Ryan Burgess, an assistant principal with Dunbar Middle School. Burgess testified that he knew appellant and A.H. He also described how appellant complained that her daughter was having a chemical reaction from the basement, and how appellant complained about a smell emitting from A.H.'s orchestra class. Burgess also testified that he witnessed two occasions when appellant confronted A.H.'s teachers in an inappropriate manner while A.H. was present.

Tina Eoff, the mother of A.H.'s friend, testified that appellant told different people that someone was entering her home and removing clothes from her drawers, and that someone was going into her attic and spreading feces. Appellant relayed that these incidents happened several times, and that the intruder must have had a key. Eoff also told the chancellor about an event that occurred when she allowed her daughter to attend A.H.'s birthday party. She testified that appellant telephoned her, telling her to pick up her daughter immediately because her daughter had gone into the bathroom and put some goo on herself. Appellant told Eoff that the `hazardous goo,' which was bubble-gum toothpaste, was detrimental to A.H.'s health and to appellant's health. When Eoff arrived, her daughter was terrified and told Eoff that appellant had forced her to go and stand in the shower. A.H. apologized.

In addition, appellee testified that appellant's mental condition had deteriorated and that his daughter had to call him from pay phones. He testified that appellant's erratic behavior affected his relationship with his daughter and caused his daughter to be in the middle of her mother's disputes. Appellee further testified that his daughter's performance at school and in extra-curricular activities had been affected.

Dr. Glenn Lowitz, a court-appointed psychologist, testified that during his interview with A.H., she relayed that someone had shaved their cat's stomach, put oil on the walls, and taken dust out of the vacuum and sprayed it around the house. Lowitz testified that in his professional opinion, it would be in A.H.'s best interest for the court to change custody.

After the chancellor received testimony and evidence from witnesses, she found that significant changes in circumstances had occurred such that it was in A.H.'s best interest to change primary custody from appellant to appellee. The chancellor ordered that the change in custody take effect immediately. However, the chancellor reserved a ruling regarding visitation, punishment for appellant's contempt, the amount in which to award attorney's fees, and the amount of child support to award appellee until such time as appellant presented evidence to the court.

Following the chancellor's transfer of custody, appellant filed a motion for an emergency hearing, alleging that appellee had not sent A.H. to school since the November 16, 2000, hearing. Appellant requested that the court allow A.H. to testify in order to tell the court what she wanted. Appellant also requested that the court immediately change custody to her because of appellee's reckless disregard for A.H.'s best interest.

The court held a hearing on appellant's motion on December 6, 2000. Appellant testified that she changed her name from Maribeth Hudspeth to Maribeth Pless on September 22, 2000. She queried how the service was good service when she notified appellee's counsel that her name was legally Maribeth Pless and not Maribeth Hudspeth. Appellant also told the court that some of the information in the court file was slanderous and libelous.

Upon hearing appellant's testimony, the chancellor stated that change of custody was granted after a hearing in which appellant did not appear nor request a delay. The chancellor told appellant that her ruling regarding transfer of custody was final and that appellant failed to present a basis for the court to grant the relief sought in her motion. The chancellor then entered an order denying appellant's motion for emergency relief. Afterwards, appellant filed a notice of appeal, challenging the November 16, 2000 order.

Improper Service

Rule 5 of our Rules of Civil Procedure provides that "every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties." Chancery courts have continuing personal jurisdiction over parties to a divorce concerning certain matters such that service is required to be made upon the party, either by delivering a copy to the party or by sending it to the party at her last known address. See Office of Child Support Enforcem't v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997). See also Ark. R. Civ. P. 5(b)(1)-(2) (2001). Rule 5 also reads in part: "[d]elivery of a copy for purposes of this paragraph means handing it to the attorney or to the party; [or] by leavingit... at [her] dwelling house or usual place of abode with some person residing therein who is at least 14 years of age." (Emphasis added).

In the present case, after the court advised appellant that it was denying her motion, appellant stated, "I'm sorry, this service, the subpoena and documentation was a part of the legal process." When the court responded, "it certainly is," appellant asked the court, "if my name is not legally Maribeth Hudspeth, how do we consider the documentation is good service?" The chancellor responded that she heard testimony from a process server, who testified that he personally handed appellant a copy of materials notifying her to appear at the November 16, 2000 hearing. She then told appellant that if she believed that her change of name invalidated the service, appellant needed to take the legal steps required to put the issue before the court. Appellant then asked, "does it matter if I called [appellee's counsel] and told him of the name change?" However, appellant did not object to the November 16 order on the grounds that service was improper or ask for relief; nor did the court rule on this issue. Accordingly, the issue is not preserved for appellate review.

Moreover, appellant does not deny that she actually had notice of the November 16, 2000 proceeding or that she was personally served by Mike Tschiemer.1 Instead, she argues that because her name had changed from Hudspeth to Pless at the time she was personally served, the service was improper. Appellant points this court to no authority in support ofher position. Indeed, the clear language of Rule 5, which states that a delivery occurs when a copy of the documentation is "handed" to the person, nullifies appellant's contention.

Rule 11 Violation

Next, appellant argues that the court consistently ruled in favor of appellee "in such a biased manner as to justify the allegation of unilateral acts." However, a perusal of the December 6, 2000 emergency hearing does not indicate that appellant made a Rule 11 objection or moved that the trial court impose sanctions on appellee pursuant to Rule 11 of the Arkansas Rules of Civil Procedure. Nor does the record demonstrate that the trial court entered a ruling regarding an alleged Rule 11 violation. Again, appellant's failure to properly preserve this matter precludes this court from considering it on appeal.

Transfer of Custody

Chancery cases are reviewed de novo on appeal, and we do not reverse a chancellor's finding unless the finding is clearly erroneous. See Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Although appellant does not challenge the chancellor's finding that it was in A.H.'s best interest to transfer custody to appellee, we note that the chancellor's decision was supported by the record. Appellant's bizarre behavior before her daughter's teachers, school administrators, and the parents of other children, persons who had no vested interest in the outcome of the custody proceeding, was chronicled in clear testimony. The record demonstrates that appellant's behavior has affected her daughter's academic performance, social behavior, and relationship with her father such as to warrant transfer of custody toappellee.

Affirmed.

Stroud, C.J., agrees.

Pittman, J., concurs

1 In the argument section of her brief, appellant even contends that she phoned [counsel's] office to advise him of such after the one personal service on October 13, 2000. At another section of her brief, she contends that "the process server, Mike Tschiemer, and . . . the opposing attorney were notified of the name change." She also asserts "the appellant also admonishes the manner of service. . . at a public place and at a public school." Undoubtedly, appellant received delivery of the documents.