ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

DIANA WILLIS

APPELLANT

V.

JON R. "RANDY" WILLIS

APPELLEE

CA 01-622

DECEMBER 19, 2001

APPEAL FROM THE GRANT

COUNTY CHANCERY COURT

[NO. E-98-15-2]

HONORABLE PHILLIP H. SHIRRON,

CHANCERY JUDGE

AFFIRMED

Appellant Diana Willis and appellee Randy Willis were divorced on March 3, 1998. The divorce decree ordered joint custody of their minor child, Cameron, now age four, with the majority of nights to be spent with Ms. Willis. On June 28, 2000, Mr. Willis filed a petition to modify custody, alleging that due to Ms. Willis's erratic, threatening, and unstable behavior, he was the proper person to have custody of Cameron. After a hearing, the chancery court found that there had been a material change in circumstances and awarded a change of custody to Mr. Willis. Ms. Willis now appeals.

For reversal, Ms. Willis raises two arguments. First, she argues that the chancery court abused its discretion in considering a tape recording of telephone messages and a conversation, because the recording was a reconstruction and not the original tape. Ms. Willis also contends that the chancery court abused its discretion in considering, as a

change of circumstances, an event that occurred twenty-one months prior to the hearing.

Appellee's father, Jim Willis, testified on appellee's behalf. He stated that he takes care of Cameron on Thursdays, and that when Ms. Willis drops Cameron off she displays poor behavior. He testified that she screams and hollers in front of the child, and on one occasion closed a storm door on him while he was holding Cameron. Jim Willis described Ms. Willis as "mean" and stated that he has seen her become physically violent.

Lauren Willis, Mr. Willis's current wife, testified that she dated Mr. Willis for a year and three months before they married in June 1999. She characterized appellant's behavior as abusive and testified, "There was a lot of verbal abuse and harassing phone calls all hours of the night." Lauren Willis also described an incident, which occurred twenty-one months prior to trial, where the appellant "stalked us at deer camp." In this regard, she testified:

We had been at deer camp on Sunday and when we came out of the woods, we saw Diana there in the camp yard with Cameron. I had never met her face to face, my contact had strictly been on the phone and it hadn't been good, so I knew this wasn't a good situation. She told me how fat and hideous I was and she couldn't stand me and caused a big scene. Randy told me to get our stuff, we were leaving. Diana was screaming at Randy that they had to talk and that he still loved her and why was he with me, that I was hideous. She wasn't watching Cameron, she was standing there with a package of Benadryl, so I took it from her and Diana came and shoved me and told me not to touch her daughter. When we got in the truck I told her not to touch me and if she would watch her daughter, I wouldn't have to watch her. We were about to leave when she jumped in the truck and wrapped her arms in the steering wheel. She was very emotional, crying and screaming one minute. This lasted about an hour and a half. Randy took Cameron and put her in the car seat in the car, so she would be somewhere. Diana finally got off the truck. She has threatened me before, telling me not to interfere with Randy and her and Cameron's relationship. She would leave the threats on the answering machine or voice mail.

Over objection, appellee was permitted to admit into evidence a tape recording of atelephone conversation between Diana Willis and Randy Willis, and messages left by Diana Willis on his answering machine. The tape recording was prepared by Lauren Willis and was not the original. Lauren Willis transferred what she deemed to be the relevant portions onto another tape, and referenced each with a time and date, along with her comments on background information. Some of the messages left by Diana Willis were omitted from the reconstructed tape.

The tape revealed that, in a telephone conversation with Randy Willis, Diana Willis represented that she wanted Cameron to have no contact with the appellee or his wife and that she would do anything it takes to accomplish that. In one of the messages, allegedly left on June 1, 2000, Diana Willis stated:

[I]f you want to fight, you've got a f***ing fight on your hands because I want my child. I want nothing to do with you, I want nothing to do with your fat ass wife, and believe me, she needs to learn the number to Jenny Craig and she needs to learn what the word exercise means and so do you, since [you've] gained 60 plus pounds, and everybody tells me about how you look. I want my child, I want her [sic] nothing to do with you, nothing to do with your wife. I don't care if I receive a f***ing penny from you. All I want is my child and her away from you, you know.

In other messages, Diana Willis made the statements, "I promise you from this day forward, I will turn Cameron against y'all," "I'm giving you a warning, you stay away from my daughter, my daughter doesn't need to be around a whore like you," and "[Y]ou damn bitch, if you ever ... not give Randy his messages, especially when they're pertaining to my daughter, you will pay for this."

Randy Willis testified on his own behalf, and stated that he believes the appellant "is poisoning [Cameron's] mind against me." He testified that Cameron told him that she can'tlove him because her mother told her that she can only love her. Mr. Willis stated that on one occasion, when the appellant was dropping Cameron off to visit, the appellant was cursing and struck him in the head, after which he filed an incident report with the police. Mr. Willis testified that, if given custody of Cameron, she would have other family support and could attend a nearby elementary school.

Diana Willis testified that she confronted Mr. Willis at deer camp "because I found out that he was not just hunting, he was down there with his girlfriend and my child was left with his parents." She maintained that she had slept with Mr. Willis on two occasions shortly before the deer camp incident, an allegation that Mr. Willis denied. As for the taped telephone messages, Diana Willis did not deny leaving them on Mr. Willis's answering machine. However, she explained that she was angry because Mr. Willis and his wife had taken Cameron on a float trip, which she deemed to be irresponsible and dangerous. Diana Willis stated, "The reason I said I was going to turn Cameron against them was because I was angry," but that "I didn't mean it."

Diana Willis's first argument on appeal is that the chancery court erred in considering the tape recording prepared by Lauren Willis because it was a reconstruction and not the original. She notes that the original tape was available, yet not brought to court, and that the reconstruction made by Lauren Willis did not include all of the conversations and messages on the original. Moreover, Diana Willis takes issue with the fact that the reconstructed tape included unsworn statements by Lauren Willis as to dates and times that events occurred.

Arkansas Rule of Evidence 901 provides that the requirement of authentication as acondition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Diana Willis submits that because the tape was significantly altered it was not authentic and thus inadmissible. She contends that the chancery court relied on her adverse behavior in making its decision to change custody, and that absent the tape the appellee would have had difficulty making his case.

A trial court's ruling on admission or exclusion of evidence will not be reversed absent an abuse of discretion. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). In the instant case, we hold that the trial court did not abuse its discretion in admitting the reconstructed tape recording.

Contrary to appellant's argument, the tape recordings were exactly what they were claimed to be; they were actual conversations and messages that were not altered. Indeed, Diana Willis did not deny making any of the comments on the tapes, but only explained that they were motivated by anger. The fact that Lauren Willis made comments on the reconstructed tape is of no moment. Nor is the fact that some of the messages left by the appellant were not included. It is undisputed that Diana Willis engaged in the conversation and messages at issue after the parties were divorced. The chancery court did not err in ruling that the tape was properly authenticated, or in considering it in making its custody determination.1

Appellant's remaining argument is that the trial court abused its discretion in permitting the appellee to introduce evidence about the confrontation at the deer camp. Specifically, she asserts that this incident was inadmissible because it occurred twenty-one months earlier and was too remote in time to be relevant. We disagree.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. In the case at bar the trial court did not abuse its discretion in considering the disputed evidence because it occurred after the original custody determination was made and was relevant to show a pattern of unstable and threatening behavior on the part of Diana Willis. The episode at the deer camp was not the only basis for the trial court's decision, but was properly considered along with the other evidence of a material change in circumstances.

Affirmed.

Griffen and Roaf, JJ., agree.

1 The appellant notes in her brief that she objected to introduction of the tape at trial in part because she did not have an opportunity to review it before it was played in the courtroom. We are unable to ascertain from the abstract whether or not the appellee provided a copy of the tape to the appellant before trial. However, in her brief appellantfails to raise or develop any argument for reversal on this basis. Her argument is based only on authenticity, and not a discovery violation.