Melissa Perrin-Reed v. William Reed

Cite as 2022 Ark. App. 24
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and DIVISION I
integrity of this document No. CV-20-720
2023.08.15 11:19:55 -05'00'
2023.003.20269 Opinion Delivered January 19, 2022

APPEAL FROM THE CRAIGHEAD
MELISSA PERRIN-REED COUNTY CIRCUIT COURT,
APPELLANT/CROSS-APPELLEE WESTERN DISTRICT
[NO. 16JDR-12-1052]
V.
HONORABLE TONYA M.
WILLIAM REED ALEXANDER, JUDGE
APPELLEE/CROSS-APPELLANT
AFFIRMED ON DIRECT APPEAL;
REMANDED ON CROSS-APPEAL

PHILLIP T. WHITEAKER, Judge

Melissa Perrin-Reed appeals an order from the Craighead County Circuit Court

granting primary custody of her son, JR, to his father and her ex-husband, William Reed,

and awarding her expanded visitation. Melissa contends that the trial court erred in

abandoning the “material change in circumstances” analysis required in change-of-custody

proceedings. She further argues that the trial court impermissibly placed her mental

condition into controversy without good cause shown, erroneously ordered her to produce

her therapist’s records, and improperly required her to submit to a psychological evaluation.

William cross-appeals, arguing that the trial court erred in failing to award child support.

We affirm on direct appeal and remand on cross-appeal for a determination of support.
I. Facts and Procedural History

We set forth the following facts pertinent to this appeal. William and Melissa are the

parents of JR. They were divorced in August 2013. Melissa was awarded custody of then

two-year-old JR. William was awarded visitation and was ordered to pay child support.

William and Melissa’s relationship grew remarkably contentious after the divorce. From

2017 into 2020, the parties had seven hearings, and the court entered twelve orders

pertaining to custody and visitation. Melissa made numerous unsubstantiated assertions that

William perpetrated physical and sexual abuse on JR. William responded by alleging that

Melissa exhibited signs and symptoms of Munchausen syndrome by proxy. 1 Both parties

argued that the actions of the other created negative effects on JR.

The legal proceedings that formulate the basis for this appeal began in May 2017

when William filed a petition for contempt and emergency change of custody. He alleged

that Melissa engaged in parental alienation. 2 He also alleged that JR experienced physical,

nutritional, and educational neglect under Mellissa’s custody. 3 In addition, William filed a

1
Munchausen syndrome by proxy—or as it is designated in the DSM-5, factitious
disorder imposed on another—is a psychiatric disorder that describes individuals who
persistently falsify illness in another.
2
The claim of parental alienation was based, in part, on Melissa’s attempts to
discourage the father/son relationship by causing six unsubstantiated claims of physical abuse
to be filed against William with the Arkansas Department of Human Services (DHS) and
the Arkansas State Police with respect to JR.
3
The claim of educational neglect was based on the fact that JR had missed over
thirty-six days of school during the past school year and had been tardy twenty-four times.
The claim of physical neglect related to allegations that Melissa had not trained JR in proper
hygiene, which had resulted in yeast infections and the need for medical treatment. The
claim of nutritional neglect was based on Melissa’s permitting JR to engage in unhealthy

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motion for a psychological evaluation and for appointment of an attorney ad litem (AAL).

The court granted an emergency change of custody to William pending a subsequent

hearing. Melissa contested the allegations in the petition but did not object, either verbally

or in writing, to William’s request for a psychological evaluation or for the appointment of

an AAL. After the hearing, the court entered an order returning JR to Melissa’s custody,

finding that William had failed to prove an emergency existed. 4

In October 2017, Melissa and the AAL filed a joint ex parte petition to limit

William’s visitation, alleging that DHS was investigating a new allegation of possible sexual

and physical abuse perpetrated by William against JR. William agreed to forfeit his visitation

until the investigation could be completed, and the court granted the request to limit

visitation. On November 8, 2017, Melissa and the AAL filed a motion requesting that

William’s visitation be suspended for an additional ninety days because JR had made some

“alarming” disclosures to his therapist, Leah Everett, and Everett needed additional time to

evaluate JR’s claims. 5 The court held a hearing and heard evidence that the allegations

against William were again unsubstantiated by DHS. As a result, the court restored William’s

visitation.

Approximately three weeks later, in an unexpected turn of events, the AAL joined

William in a petition for emergency change of custody based on concerns expressed by JR’s

eating habits that resulted in his being extremely overweight. At six years old, JR weighed
108.5 pounds.
4
Even though the court denied emergency custody, William’s request for a
permanent change of custody was unresolved by these orders.
5
JR reported that William had used a vacuum cleaner on his genitals.

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therapist, Everett. Everett expressed concerns that Melissa might suffer from Munchausen

syndrome by proxy based on both her conversations and interactions with JR and Melissa’s

apparent fostering of the numerous unsubstantiated reports that William had physically and

sexually abused JR. The court held a hearing on the petition and once again temporarily

placed JR in William’s custody. The court also ordered both William and Melissa to

undergo psychological evaluations and granted Melissa only limited supervised visitation

with JR. 6 Again, Melissa failed to object or challenge the court’s requirement that she submit

to a psychological evaluation.

By order of the court, Dr. Glen Adams, a licensed psychologist, conducted

psychological evaluations of Melissa, William, and JR and submitted his report to the court.

Dr. Adams opined that Melissa had fostered an unhealthy dependency on and loyalty with

JR by showering him with gifts and attention and by subtly and overtly alienating William

from JR. He, however, did not offer any opinion or diagnosis as to Munchausen syndrome

by proxy, but he did recommend that Melissa receive therapy.

Subsequently, the court held two hearings in 2018 to revisit the custody and

visitation issues. At the first hearing, 7 the court received evidence discussing Dr. Adams’s

findings, and his evaluation was introduced into evidence. Melissa raised no objection to

the requirement that she undergo a psychological evaluation or to the admission or

discussion of the report at the hearing. She did offer the testimony of her therapist, Dr.

6
The hearing was held on December 20, 2017, but the order was not entered until
February 2018. The court also entered an order retroactively abating William’s obligation
to pay child support.
7
The first hearing was held in May 2018.

4
Hope Gilchrist. During the testimony of Dr. Gilchrist, Melissa’s counsel objected to the use

of therapy notes during cross-examination, noting that he had objected to providing the

notes to opposing counsel during discovery. Later, when William’s counsel sought

introduction of the therapy notes into evidence, counsel for Melissa lodged a continuing

“objection” to their release and introduction. At the conclusion of the first hearing, the

court noted Melissa’s marked improvement in therapy but denied her request for additional

visitation until she showed further progress on the issues raised by Dr. Adams. Four months

later, the court held the second hearing wherein it expanded Melissa’s supervised visitation

after evidence was presented that she was progressing with her individual therapy. 8

The parties proceeded to a final hearing in June 2020. The court heard testimony

from both William and Melissa as well as Everett (JR and William’s therapist), Tonya Wilson

(the visitation supervisor), and Katherine Mixon (the family therapist). Given all the

evidence, including Dr. Adams’s evaluations and the notes of Melissa’s psychotherapist, the

court found that the issue of Melissa’s alienation played a major role in determining that a

change or modification of custody was necessary. The court further found that the best

interest of JR dictated an award of primary custody to William with Melissa being entitled

to visitation in an amount above the minimum standard visitation, even though the AAL

had recommended joint custody and the State of Arkansas favors joint custody.

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The second hearing was held in September 2018.

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II. Direct Appeal

A. Standard of Review

Melissa’s first argument on appeal challenges an evidentiary ruling by the court. She

contends that the trial court erroneously ordered her to produce her therapist’s records in

violation of the psychologist-patient privilege, HIPAA, and Arkansas Rule of Civil

Procedure 35 and improperly required her to submit to a psychological evaluation. In

reviewing child-custody cases, we consider the evidence de novo but will not reverse the

trial court’s findings unless they are clearly erroneous or clearly against the preponderance

of the evidence. Lowder v. Gregory, 2014 Ark. App. 704, 451 S.W.3d 220. However, our

appellate courts have long held that the trial court has wide discretion in matters pertaining

to discovery and that we will not reverse its decision absent an abuse of discretion. Hardy v.

Hardy, 2011 Ark. 82, 380 S.W.3d 354; Friedly v. Friedly, 2020 Ark. App. 167, 597 S.W.3d

135.

Melissa next argues that the trial court improperly abandoned the material-change-

of-circumstances and best-interest considerations used to analyze change-of-custody cases

by changing custody after incorrectly placing her mental condition into controversy without

good cause shown. As previously stated, we consider the evidence de novo in reviewing

child-custody cases but will not reverse the trial court’s findings unless they are clearly

erroneous or against the preponderance of the evidence. Lowder, supra. In doing so, we give

due deference to the superior position of the trial court to view and judge the credibility of

the witnesses. Id. This deference is even greater in cases involving child custody as a heavier

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burden is placed on the trial court to use the fullest extent of its powers of perception in

evaluating the witnesses, their testimony, and the best interest of the children. Id.

B. Analysis

Melissa first argues that the trial court abused its discretion in ordering her therapist,

Dr. Gilchrist, to provide her psychotherapy notes to William. Before the trial court, Melissa

asserted a general “objection” to the discovery of these records pursuant to Rule 35 of the

Arkansas Rules of Civil Procedure. On appeal, she argues specifically that the trial court

erred in violation of the psychologist-patient privilege 9 and of HIPAA. 10 We have

conducted an extensive review of the record, and it does not appear that Melissa ever

objected to the records’ release on these grounds at the trial level. As such, her arguments

are not properly before this court. It is well settled that this court does not consider

arguments raised for the first time on appeal, and a party cannot change the grounds for an

objection or motion on appeal but is bound by the scope and nature of the arguments made

at trial. Nicholas v. Jones, 2021 Ark. App. 489, at 9–10; Merica v. S&S Home Improvements,

Inc., 2021 Ark. App. 197, 625 S.W.3d 356. Because she failed to apprise the trial court of

the specific nature of her objections, her arguments are not properly before us for review.

9
Arkansas Code Annotated section 17-97-105 (Repl. 2018) provides that “the
confidential relations and communications between a licensed psychologist or a
psychological examiner and a client are placed upon the same basis as those provided by law
between an attorney and a client” and that “[n]othing in this chapter shall be construed to
require any such privileged communication to be disclosed.
10
Health Insurance Portability and Accountability Act of 1996.

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She next argues that the trial court erred in granting William’s motion for a

psychological evaluation, asserting that the trial court’s order was not authorized by Rule

35 because her mental condition was not in controversy and good cause was not shown. 11

Melissa specifically argues that the trial court did not make the appropriate findings required

by Rule 35 to warrant her psychological examination and that the evidence presented did

not support such findings. We disagree.

Rule 35(a) provides:

When the mental or physical condition (including the blood group) of a party,
or a person in the custody or under the legal control of a party, is in controversy, the
court in which the action is pending may order the party to submit to a physical
examination by a physician or a mental examination by a physician or a psychologist
or to produce for the examination the person in his custody or legal control. The
order may be made only on motion for good cause shown and upon notice to the
person to be examined and to all parties and shall specify the time, place, manner,
conditions and scope of the examination and the person or persons by whom it is to
be made.

Here, the trial court heard evidence that JR had numerous visits to the pediatrician

while in Melissa’s custody and that multiple unsubstantiated allegations of physical and sexual

abuse of JR by William had been lodged. In addition, JR made comments to his therapist

suggesting that Melissa had coached him in making the allegations, which Melissa

categorically denied. When JR’s therapist became concerned that Melissa might be suffering

from Munchausen syndrome by proxy, the court ordered Melissa’s psychological evaluation.

Citing Troeskyn v. Herrington, 2012 Ark. 245, 409 S.W.3d 3017, overruled on other grounds by

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To the extent that Melissa argues that the trial court erred by failing to make specific
findings as to whether her mental condition was at issue or whether good cause was shown,
in the absence of a showing to the contrary, we presume that the trial court acted properly
and made such findings of fact as were necessary to support its decision. Chekuri v.
Nekkalapudi, 2020 Ark. 74, at 13–14, 593 S.W.3d 467, 475–76.

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Lineham v. Hyde, 2015 Ark. 289, 467 S.W.3d 129, Melissa argues the trial court ordered the

psychological evaluation solely because it would assist in determining the best interest of JR.

We disagree; Melissa’s mental condition had clearly been placed at issue.

In any event, Melissa’s claim must ultimately fail because the record reflects that she

consistently failed to timely object to the trial court’s requirement that she submit to a

psychological evaluation. William requested a psychological evaluation in May 2017, and

Melissa filed no written response to this motion. At a May 16, 2017 hearing, the court stated

that it was going to order a psychological evaluation of both parents, again without any

response or objection from Melissa. In order to preserve an issue for appeal, a party must

object at the first opportunity and obtain a ruling from the trial court. Elliot v. Hale, 2021

Ark. App. 503, at 8; Vaughn v. State, 338 Ark. 220, 223, 992 S.W.2d 785, 787 (1999). Here,

Melissa failed to do so.

Moreover, from our de novo review of the record, Melissa never raised an objection

to her psychological evaluation before the trial court. During a hearing on December 20,

2017, the court stated that it wanted Melissa to undergo a psychological evaluation as quickly

as possible. Again, Melissa raised no objection. On February 2, 2018, the trial court ordered

the psychological evaluations of both parties, and Melissa filed no objection to the entry of

this order. We will not review a matter on which the trial court has not ruled, and the

burden of obtaining a ruling is on the movant; matters left unresolved are waived and may

not be raised on appeal. Id. This issue is therefore unpreserved.

Finally, although not clearly designated as such, Melissa argues that the trial court

erred in placing primary custody of JR with William. In order to change child custody, the

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trial court must first determine that a material change of circumstances has occurred since

the last order of custody; if that threshold requirement is met, the court must then determine

who should have custody with the sole consideration being the best interest of the child.

Lowder, supra. She claims that the trial court failed to consider whether there was a material

change of circumstances and whether a change of custody was in JR’s best interest. We

disagree.

As to the material change of circumstances, Melissa contends that much of the

evidence presented had already been considered by the court when the first petition for

change of custody was filed, and that petition was ultimately denied by the court. She is

correct that the court denied William’s first request for an emergency change of custody.

However, this denial of emergency custody did not resolve William’s request for permanent

change of custody, which remained pending before the court.

Subsequent to the initial denial of William’s emergency custody request, the parties

vigorously litigated custody and visitation. Melissa (and the AAL) requested subsequent

suspension of William’s visitation based on new allegations of abuse against William, and

William then requested a change of custody, claiming that Melissa was continually asserting

unfounded abuse allegations against him. The court found that it was Melissa’s continued

pattern of alienating behavior since the divorce and since the last order of custody, and it

was the negative effect of that alienating behavior on JR that created the need for a change

in custody. Admittedly, the trial court did not make a specific and express finding of a

“material change in circumstances.” However, in the absence of a showing to the contrary,

we presume that the trial court acted properly and made such findings of fact as were

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necessary to support its decision. Pelayo v. Sims, 2020 Ark. App. 258, 600 S.W.3d 114;

Chekuri, supra.

Finally, the court found that a change of custody was in JR’s best interest. The

primary consideration in child-custody and visitation cases is the welfare and best interest of

the child involved. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243. All other

considerations are secondary. Id. We give special deference to the superior position of the

trial court to evaluate the witnesses, their testimony, and the child’s best interest. Id. There

are no cases in which the superior position, ability, and opportunity of the trial court to

observe the parties carry as great a weight as those involving children. Id. We do not reverse

unless there is clear error, meaning that after conducting a de novo review, we are left with

a definite and firm conviction that a mistake was made. Id.

Here, the court relied, in part, on the psychological evaluations of the parties and

JR, the notes of Melissa’s therapist, evidence of the parties’ inability to cooperate and

communicate, and its observations of the parties over the preceding three years. The court,

in awarding primary custody to William as opposed to joint custody, cited specific evidence

presented at trial that persuaded it that joint custody was not appropriate and that primary

custody should be placed with William.

Essentially, Melissa asks this court to reweigh the evidence in her favor and to

discredit the opinions of several of the witnesses; we will not reweigh the evidence because

credibility determinations are left to the trial court. See Williams v. Williams, 2019 Ark. App.

186, 575 S.W.3d 156. Given our standard of review and the special deference we give trial

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courts to evaluate the witnesses, their testimony, and the children’s best interest, we cannot

say that the trial court clearly erred.

III. Cross-Appeal

William cross-appeals, arguing that the trial court erred in failing to address the issue

of child support. We agree. William specifically pled for an award of child support upon a

change of custody. Although the issue of child support was raised, the trial court made no

such finding. Arkansas Code Annotated section 9-12-312 (Repl. 2020) states that a trial

court “shall” enter an order on the care of the children, including child support, when a

decree is entered. Thus, we remand to the trial court for a determination of the amount of

child support, if any, that should be awarded to William.

Affirmed on direct appeal; remanded on cross-appeal.

VIRDEN and GLADWIN, JJ., agree.

The Ballard Firm, P.A., by: Andrew D. Ballard, for appellant/cross-appellee.

Owens, Mixon, Heller & Smith, P.A., by: Aaron D. Heller, for appellee/cross-appellant.

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