Kellie Elliot v. Eli Hale

Cite as 2021 Ark. App. 503
Elizabeth Perry
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integrity of this document
2023.08.01 13:20:11 -05'00' DIVISION IV
2023.003.20244 No. CV-21-83

Opinion Delivered December 8, 2021
KELLIE ELLIOT

APPELLANT APPEAL FROM THE SHARP
COUNTY CIRCUIT COURT
V. [NO. 68DR-19-59 ]

ELI HALE HONORABLE, MICHELLE C. HUFF
APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Kellie Elliot appeals from the Sharp County Circuit Court’s order

establishing paternity, custody, and child support for her minor child, H.R.E. (DOB: 03-

19-2019). In its December 29, 2020 order, the court found appellee Eli Hale to be the father

and awarded him custody of H.R.E. subject to Elliot’s supervised visitation. The order also

established that Elliot pay $292 a month in child support. On appeal, Elliot argues that the

hearing should have been continued, the limited supervision schedule is unsupported by the

facts, and the child-support calculation is not supported by sufficient evidence. We affirm.

I. Background

On April 17, 2019, Hale filed a petition to establish paternity of H.R.E. born out of

wedlock to then seventeen-year-old Elliot. On July 26, the court entered a temporary order

granting Hale visitation every other Saturday. On December 2, the Arkansas Department
of Human Services (DHS) removed H.R.E. from Elliot’s custody and placed her with Hale’s

mother, Dawn Hale, as a provisional foster parent. That same day Hale moved for

emergency custody in response to the DHS case. On July 9, 2020, Elliot’s attorney

withdrew. On December 8, the court conducted a final hearing.

Before the proceeding, Hale’s counsel announced to the court that the DHS case

had been closed and that DHS had found Hale to be a fit parent and placed H.R.E. in his

custody subject to Elliot’s supervised visitation. Elliot’s counsel then moved for a

continuance. He explained that he had been hired only the night before and was not

prepared to proceed. The court denied the motion finding no good reason to grant the

continuance and noting that Elliot’s original attorney had withdrawn seven months earlier,

Elliot had been contacting the court, she knew about the hearing set for that day, and it was

her fault for waiting until the eleventh hour to hire a new attorney.

Hale testified first. He testified that the DHS case was closed, and he had been

awarded custody subject to Elliot’s supervised visitation. He said he tries to be

accommodating to Elliot and give her visitation whenever she asks. He said he lives with

his parents, so whoever is home can supervise Elliot’s visits. Hale addressed some of the

concerns he had before the DHS case began when he had only limited visitation. For

example, he noticed bug bites and bruises that seemed to be getting more severe; and right

before DHS became involved, H.R.E. had a bloodshot vessel in her eye. Hale testified that

Elliot would say H.R.E. had either fallen in the pack and play, or she tripped and fell on

something in the house. Hale then testified about the DHS investigation that revealed

H.R.E. had been sexually abused by Joey Penix, Elliot’s husband at the time, and that Penix

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has been charged with rape of an eight-month-old child. He testified that he believed he is

better suited to care for H.R.E. because he has a better paying job, has a support system,

and can provide H.R.E. with health insurance and day care. Hale testified that he never

paid child support to Elliot while H.R.E. was in her care because he thought she had a good

support system.

Kim Lavespere, the DHS caseworker, testified that on December 2, 2019, she

responded to a call from the crimes-against-children division at Arkansas Children’s

Hospital. She explained that a hold was placed on H.R.E. due to the fact that H.R.E. was

brought to the hospital with a vaginal tear that was bleeding. She testified that the ultimate

recommendation from DHS was to grant custody to Hale because DHS had specific

concerns about Elliot—she had declined counseling and did not have stable housing. She

testified that Penix eventually admitted the abuse.

Dawn Hale’s testimony mirrored her son’s that H.R.E. was always covered in bug

bites and bruises while she was in Elliot’s custody. Dawn was likewise told by Elliot that

H.R.E. fell in the pack and play. Dawn testified that while she never offered Elliot financial

help, she offered her a support system.

Elliot testified that she was currently nineteen years old. She testified that she was no

longer married to Penix and that the marriage had been annulled, but she also testified that

the marriage license was never filed. She testified that she has been in a relationship for the

past two months and is now currently engaged to Jimmy James. Elliot said she has lived in

five to six places since H.R.E.’s birth. Elliot was not certain that Hale is H.R.E.’s father and

appeared to dispute the DNA results that had been filed. She testified that until two and a

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half years ago, she had a problem with inflicting self-harm by cutting. Elliot explained that

this problem began when she was eleven years old and that she did it while pregnant. She

said she had been on medication but is not any longer. When asked about bruising around

H.R.E.’s ribs, Elliot testified that other children were in her house that could have picked

H.R.E. up roughly. She said that when the bruising occurred, they were living with a family

member of Penix who has since been charged with inflicting pain on a child.

Elliot testified about an incident that occurred Halloween night. She explained that

an officer pulled over the car she was in. H.R.E. was seven months old and was in a forward-

facing car seat; the driver had an open container of alcohol, a loaded handgun, and brass

knuckles; and he was a convicted felon. Elliot claimed that she did not know these things

at the time. Elliot testified that she believes Penix was coerced into confessing to the rape

of H.R.E. She testified that she does not mind Hale having custody but that she wants joint

time with H.R.E. She testified that her hourly wage is eleven dollars an hour and that she

is working at least forty hours a week.

The court entered its order, and this appeal followed.

II. Discussion

A. Continuance

Elliot first argues that the trial court erred in denying her request for a continuance.

She argues that denying the request resulted in a denial of a fair opportunity to protect “an

interest far more precious than any property right,” which was a denial of justice. She asserts

that there would have been no prejudice by continuing her case until the next available date

because H.R.E. was in the care of the Hales.

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A motion for continuance shall be granted only upon a showing of good cause.

Williams v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 194, at 6, 575 S.W.3d 415, 419. We

will not reverse the denial of a motion for continuance absent an abuse of discretion

amounting to a denial of justice. Id. A trial court abuses its discretion when it acts

improvidently and without due consideration. Id. The appellant bears the burden of

showing that the trial court’s denial of a continuance was an abuse of discretion, and in order

to show an abuse of discretion, the appellant must show that she was prejudiced by the

denial. Id.

We hold that Elliot has failed to show an abuse of discretion. This case was initiated

on April 17, 2019, and her attorney withdrew from the case seven months prior to the final

hearing. As the court noted, Elliot knew about the hearing date because she had been

contacting the court. She waited until the night before the hearing to hire counsel. When

deciding whether to grant a continuance, the trial court should consider the diligence of the

movant, and we have held that a lack of diligence alone is sufficient to deny a continuance.

Hill v. Ark. Dep’t of Hum. Servs., 2013 Ark. App. 760. Considering the circumstances and

evidence before the trial court, we can conclude it did not abuse its discretion in denying

Elliot’s motion for continuance.

We further conclude that Elliot has also failed in her burden of demonstrating

prejudice. She cites Williams, 2019 Ark. App. 194, 575 S.W.3d 415, as a suggestion that a

similar denial of justice had occurred in that case. However, in Williams, we affirmed the

trial court’s denial of a continuance where the motion for a continuance was not made until

the beginning of the termination hearing, and the motion would not have been made but

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for the appellant’s decision to leave the courthouse despite her knowledge that the hearing

would be held that day. Other than her reliance on Williams, which is inapplicable, Elliot

offers no explanation of how her case may have proceeded differently had the continuance

been granted. On this record, we hold that the trial court did not abuse its discretion in

denying Elliot’s motion to continue the case.

B. Visitation

Next, Elliot challenges the court’s visitation finding and characterizes it as a

punishment for “two or three indiscretions” made before she was eighteen and not because

she poses some sort of danger to H.R.E.

In domestic-relations cases, our review is de novo, but we will not reverse the trial

court’s findings of fact unless they are clearly erroneous. Hardisty v. Hardisty, 2021 Ark. App.

396. A finding is clearly erroneous when, although there is evidence to support it, the

reviewing court is left with the definite and firm conviction that a mistake has been made.

Brand v. Brand, 2020 Ark. App. 505, 612 S.W.3d 765. Whether a trial court’s findings are

clearly erroneous turns in large part on the credibility of the witnesses, and special deference

is given to the trial court’s superior position to evaluate the witnesses, their testimony, and

the child’s best interest. Id. There are no cases in which the circuit court’s superior position,

ability, and opportunity to observe the parties carry as great a weight as those involving

minor children. Id. The primary consideration regarding visitation is the best interest of the

child, and fixing visitation rights is a matter that lies within the sound discretion of the circuit

court. Hardisty, 2021 Ark. App. at 7.

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Upon review of the trial court’s findings, we are not persuaded by Elliot’s assertion

that the court modified visitation for the sole purpose of “punishing” her. Elliot has not

established that she has H.R.E.’s best interest in mind. She still denies that Penix sexually

abused H.R.E. despite his admission, and she has a pending criminal charge for child

endangerment. The testimony established that she surrounds herself with people who also

have criminal histories. She also refuses counseling despite her history of self-harm and

DHS’s strong recommendation.

Elliot asks us to reweigh the conflicting evidence given at trial and find differently

than the trial court, but credibility determinations and the weight of the evidence are

decisions left to the trial court. Brand, supra. The trial court determined that Elliot had

credibility issues, and to adequately protect the child, supervised visits were necessary until

she shows maturity and good judgment. Given these circumstances, we cannot say that the

circuit court erred.

C. Child Support

Last, Elliot contends the trial court erred in its child-support calculation. She

contends that the court had no evidence to determine Hale’s income and failed to consider

“the perks he receives by virtue of living at home rent free.”

At the end of the hearing, concerning child support the court stated,

Support will be according to the chart, and we’ve heard testimony about her income.
I didn’t get any Affidavits of Financial Means, so as y’all know with the new Admin
10, you’ve got to have the gross earnings of both parties in there. So and that chart’s
going to need to be attached. If there’s any dispute about that, if we need to have a
Zoom hearing to get that amount in place or come back later, I’ll be happy to do
that.

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Neither party requested a hearing, and the final order was entered December 29 with

the child-support worksheet. Elliot did not raise any issue regarding child support until now.

To preserve an issue for appeal, a party must object at the first opportunity and obtain a

ruling from the trial court. Vaughn v. State, 338 Ark. 220, 223, 992 S.W.2d 785, 787 (1999).

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 unpreserved.

Affirmed.

GRUBER and BARRETT, JJ., agree.

Chet Dunlap, for appellant.

Johnathon D. Burgess, for appellee.

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