ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-215

November 6, 2002

ROBIN PACK AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT,

FIFTEENTH DIVISION

[NO. 94-1034]

V. HON. ROBIN L. MAYS, JUDGE

RYAN W. GODDARD

APPELLEE AFFIRMED

This appeal arises from a change-of-custody proceeding in the Pulaski County Circuit Court. Robin Pack argues that the trial court erred in granting appellee Ryan Goddard's motion for a change of custody of their minor daughter, and that the trial court erred in allowing the testimony of two rebuttal witnesses who remained in the courtroom after their initial testimony notwithstanding Rule 615 of the Arkansas Rules of Evidence. Appellant withdraws her final point on appeal, namely that the trial court erred in not holding appellee in contempt for non-payment of a 1993 medical bill for the minor child. We hold that the trial court's decision to change custody was not clearly erroneous. We also hold that while the trial court erred in allowing the challenged testimony in violation of Rule 615, its errorwas harmless. Hence, we affirm.

However, we must first address an ever more recurring phenomenon concerning noncompliance with our appellate procedural rules. Appellant failed to abstract her notice of appeal or include it in the addendum, despite the plain requirements of Rule 4-2(a)(8) of the Arkansas Supreme Court and Court of Appeals (2002). The record shows that appellant filed the notice within the time period prescribed by Arkansas Rule of Appellate Procedure 4(a) (2002). We caution and remind counsel that although the rules no longer authorize us to dismiss a case for such noncompliance, we still have the option to order rebriefing. Rules of the Arkansas Supreme Court and Court of Appeals 4-2(b), (b)(3) (2002). We choose not to do so today, but in light of the recurring incidents of noncompliance we issue this warning so that counsel can exercise greater diligence in the future.

I. Factual and Procedural History

On June 7, 1994, in their divorce proceeding, appellee and appellant agreed that their minor daughter, Kaley Goddard, would remain in the custody of appellant, subject to reasonable visitation of appellee. This agreement was incorporated into their divorce decree that same year. Subsequently, appellant married Jerry Pack and gave birth to her second daughter, Ashley. However, appellant's second marriage also terminated in a divorce approximately two-and-one-half years before the hearing for change of custody now on appeal. Appellant had custody over both daughters from her marriages at the time of the hearing.

Appellant left her previous employment at the Western Hills Country Club for aposition at Best Foods, about one year prior to the hearing.1 Reasons for changing jobs included higher wages, health insurance, and a retirement plan. At the time of the hearing, appellant worked the third shift, which runs from 11 p.m. until 7 a.m. Appellant picked up the children from school at 4 p.m. Prior to August 2001, appellant relied on her mother, Florence Stone, to care for her children during the night. Ms. Stone typically kept the children from eighty to ninety-five percent of the time. However, a change in the relationship between appellant and her mother, based on an incident on August 10, 2001, ended this child-care arrangement. Instead, one of appellant's friends, Suzanne Mixon, kept the children during nighttime. As a result, appellant typically spent a little over four hours with her children each workday.

On August 10, 2001, appellant was asleep in her bed in her bedroom with the door closed. Notably, appellant asserted, contrary to her daughter Kaley's statement, that she fell asleep on the couch in the living room. It appears that her children had not eaten before she fell asleep. Kaley called her grandmother, Ms. Stone, because she was frightened and she was afraid to awaken her mother. Appellant did not notice that Mr. Stone, her father, removed the children from her house. Appellant claims that she awoke from a telemarketer's call at about 7:08 p.m., but her mother testified-at least on rebuttal-that Kaley did not call her until 7:30 p.m. and that appellant did not call about the children until 9:30 p.m. Duringdirect examination, Ms. Stone stated that appellant did not appear at their house until around 11:30 p.m. Ms. Stone initially refused to return the children to appellant, but eventually yielded to appellant's demands. The situation between appellant and her mother quickly deteriorated to the point of appellant's obtaining a protective order against her. Soon after the August 10 incident, appellee filed a motion for change of custody.

During the hearing, appellee cited a number of other incidents that contributed to his reconsideration of the custody arrangement with appellant. Sometime after her divorce from her second husband, appellant had allowed Kaley and Ashley to sleep in the same bed with a male friend of appellant in a hotel in Texas. Kaley also spent the night with Steve, one of appellant's boyfriends, when appellant was not present.

Appellee also directed the attention of the trial court to photos showing bruises and marks on Kaley's back and legs, allegedly caused by appellant. Kaley expressed that she is afraid of appellant, and according to Kaley, appellant "sometimes" told her that she would "slam her through the wall." Appellant used abusive and vulgar language in front of the children, and she was rude to Kaley. She also refused to cook for Kaley. There was repeated testimony to the extent that appellant expressed that the children were a burden to her and that she could not wait for them to grow up.

During the testimony of various witnesses, attention also rested on appellant's alleged drug use. As late as the summer of 2001, appellant was seen smoking a marijuana cigarette. Testimony existed that appellant spoke of a summer float trip where her bag of marijuana got wet and how that ruined her trip. This float trip occurred on Mother's Day, which appellantspent with her boyfriend, not with her children.

Some of the available testimony appeared to directly question appellant's credibility, not just by way of contradictory testimony. Two witnesses stated that appellant once admitted to them that she had lied before the same court in an earlier hearing about not receiving child support from appellee.

There was also testimony that appellant left the children alone in front of her house for 30-45 minutes after school. Appellant explained that one of the reasons for that specific delay was a flat tire. Additionally, witnesses stated that appellant had several different boyfriends in and out of her house. Family members stated that there was not much interaction between appellant and her children, and that appellant is like a "time bomb," ready to scream at the children or pull their arms at any time. To that extent, appellant's second ex-spouse, Jerry Pack, testified that he had violent altercations with appellant and that he observed her slapping their daughter Ashley.

In contrast, the testimony portrayed appellee as a very calm, soothing, soft-spoken, and loving father who is very attentive to his daughter Kaley and has a very good relationship with her. Appellee has kept the same job for thirteen years and works daytime hours, with occasional overtime primarily on Saturdays. Appellant, in her brief, points to testimony that appellee does not do any cooking, laundry, or other household work for his child. However, there was also testimony stating that appellee's sole reason for not doing any of that work is that he lived at his parents' home at that time, pending another divorce. He stated that his parents always take care of household matters at their own home. He also stated that he hascontributed to such chores, particularly when he was not living with his parents. Three separate witnesses testified that it was in the best interest of Kaley to be in the custody of appellee. One of those, appellant's half-sister Diana Roehrenbeck, testified that Kaley is "100 percent the focus of [appellee's] attention." She also testified that she hated being at the trial and that she was there because of a subpoena.2

Procedurally, counsel for appellant invoked Rule 615 regarding all non-party witnesses at the beginning of the hearing. The court granted the motion. However, after each witness testified, the trial judge did not exclude any of the witnesses. When appellee called the rebuttal witnesses back to the witness stand-namely Diana Roehrenbeck (appellant's half-sister) and Florence Stone (appellant's mother)-counsel for appellant objected in each instance, but the trial judge overruled her. The judge's final disposition does not refer to the rebuttal testimony. The judge changed custody to appellee. This appeal followed.

II. Material Change to Justify Change in Custody

For her first assignment of error, appellant argues that the trial court erred in granting appellee's motion for a change in custody of their minor daughter. She argues that appellee failed to present evidence of a material change of circumstances sufficient to warrant a change. We review de novo a trial judge's determination of whether a change of custody iswarranted and will reverse only if the finding is clearly against the preponderance of the evidence. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Preponderance of the evidence depends largely upon the credibility of the witnesses and requires us to defer to the superior position of the trial judge to evaluate such credibility. Id. Particularly in cases involving change of child custody, a trial judge "must utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest." Id. Therefore, our deference to the trial judge is even greater in such cases. Id.

As a general matter, a court should not change child custody unless conditions have altered since the divorce decree was rendered or material facts existed at the time of the decree that were unknown to the court; in any event, a change should occur only for the welfare of the child. Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001). Therefore, before changing custody, the trial judge must first determine that a material change in circumstances has occurred since the last order of custody. Id. As a second step, the trial judge must also determine who should have custody, solely considering the best interest of the child. Id. The party seeking a modification of child custody bears the burden to prove a material change. Id.

We hold that the trial judge's decision to change custody was not clearly against the preponderance of the evidence. Notwithstanding appellant's numerous denials of the testimony about her drug use, her abusive behavior toward her children, or how much she complained that they are a burden to her, the trial judge was not required to believe appellant. Instead, the judge had to weigh appellant's credibility against the other witnesses' credibility. Word v. Remick, supra. We are in no position to question her assessment of credibility. Even on the record, appellant's credibility appears unconvincing, given her previous false statement to the same court and numerous contradictions with the other witnesses, notably Kaley, her own daughter.

Therefore, we cannot agree with appellant's argument that the decision to change custody was clearly against the preponderance of the evidence. The record shows that appellant changed jobs after the initial custody agreement and was at work at night, requiring her to put her children into night care on a constant basis and restricting the time appellant could still spend with her children. Additionally, there was disturbing testimony concerning child abuse, verbal abuse, lack of judgment concerning male friends, drug abuse, violent propensities, and negative attitudes toward her children. Importantly, Kaley testified that she was afraid of her mother. These events happened after the child-custody agreement concerning Kaley had been reached and had been incorporated into the divorce decree between appellant and appellee.

Moreover, the trial judge had available for consideration testimony concerning appellee's positive attitude toward his daughter, his love, affection, and how he would focus on her and spend more time with her. While it is true that appellee also had some factors of potential instability in his life, such as another divorce, the trial judge could find a material change in circumstances. She also could find that appellee was a more suitable custodial parent, and, thus could properly change custody to appellee. Particularly, the trial judge acknowledged in her findings that there are cases where the vindictiveness of family members becomes a factor to consider when weighing credibility, but that her assessment in the present case was that the witnesses before her were indeed concerned with the welfare and safety of the child. This point goes to the heart of appellant's concerns in her brief that the witnesses for appellee were somehow biased and less credible.

III. Rule 615 and Rebuttal Witnesses

Appellant contends in her second point on appeal that the trial court erred in allowing two rebuttal witnesses to testify for appellee and that such error was prejudicial. Rule 615 of the Arkansas Rules of Evidence requires a court to exclude witnesses upon the request of a party so that they cannot hear the testimony of other witnesses, unless the witnesses are a party in the case, or in some other way closely affiliated with a party. Distinctly not a matter of discretion, the trial judge must grant the rule if a party requests the rule and no exceptions apply. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). However, the rule does not mention the consequences of noncompliance when a witness was ordered sequestered but does not comply. Id. The Blaylock court summarized from existing case law three possible consequences: (1) citing the witness for contempt; (2) permitting comment on the witness's noncompliance in order to reflect on his or her credibility; and (3) refusing to let the witness testify. Id. Arkansas courts favor the second option. Id. In fact, the standard for the exclusion of a witness's testimony remains one of narrow discretion. Id. However, narrow discretion arises only when the noncompliance occurred with the consent, connivance, or procurement of a party or his attorney. Id. On appeal, we also determinewhether the error of the trial judge concerning a Rule 615 challenge was harmless or prejudicial. Id.; McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980).

Here, appellant contends that the trial judge erred in allowing the rebuttal witnesses to testify. Appellant attempts to show prejudice by pointing out how many times appellee cited to testimony given on rebuttal in his reply brief and by asserting generally that the trial judge surely was influenced by the content of the rebuttal testimony.

Upon review, we hold that the trial judge should have excluded the witnesses because appellant's counsel invoked the rule at the beginning of the trial. Therefore, contrary to appellee's contention, the trial judge did not have discretion to deny application of the rule concerning non-parties. In passing, it bears noting that counsel for appellant remained silent when witnesses of appellee left the witness stand, but not the court room.

Given the circumstances, the trial judge's error does not lie in denying witness exclusion when the rule was first invoked because she granted the request at the beginning of the hearing. Her error, however, lies in not enforcing the witness sequestration, respectively in her failure to implement any of the available tools upon noncompliance. While, based on Arkansas case law, commenting on the witnesses' noncompliance to reflect on their credibility would have been appropriate, the trial judge was the trier of fact, not a jury. Whatever formal benefit appellant might have received from the trial judge's official commenting on the rebuttal witnesses' noncompliance, there was no other fact finder than the trial judge herself who could have taken into consideration that noncompliance. Counsel for appellant duly objected before the rebuttal witnesses took the stand, and the trial judgehad the opportunity to reflect on the fact that she failed to properly sequester the witnesses. It stands to reason that the trial judge was capable of taking these facts into account when she weighed the credibility of all the testimony.

Although it was error not to sequester the witnesses, we hold that the error was harmless. It does not appear that the trial judge mentioned any of the rebuttal testimony in her ruling or used the rebuttal testimony to arrive at her decision. Indeed, Ms. Roehrenbeck only answered substantive questions concerning appellant's drug use, appellant's alternate job offer, the protective order appellant obtained against her mother, and appellant's abusive language. These disputed matters had already been established before the rebuttal testimony was given, notwithstanding any Rule 615 implications. Likewise, Ms. Stone only addressed a factual dispute concerning when appellant called her on August 10, 2001.

Affirmed.

Neal, J., agrees.

Pittman, J., concurs.

1 Appellee asserts on appeal that appellant had another job opportunity available, at day times, with the same benefits. However, appellant correctly points out that the record does not support this assertion. Instead, the statement given in trial merely reports that appellant had another opportunity, not that it had the same benefits.

2 The record shows the following dialogue:

A: I hate being here. I hate the fact that I'm having to be here.

Q: I understand. But I did send you a subpoena.

A: Exactly.