Geren Williams v. Geren

Cite as 2015 Ark. App. 197

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-776

Opinion Delivered March 18, 2015

LADONNA S. GEREN WILLIAMS APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[No. DR-2008-303]
V.
HONORABLE ANNIE POWELL
HENDRICKS, JUDGE
PATRICK B. GEREN
APPELLEE REVERSED

LARRY D. VAUGHT, Judge

Appellant LaDonna Geren Williams (LaDonna) appeals the Sebastian County Circuit

Court’s order modifying custody of her two minor children, E.G.1 and E.G.2. The court

removed the two girls from LaDonna’s custody and placed them in the custody of their father,

appellee Patrick Geren (Patrick). LaDonna argues that the circuit court erred in finding changed

circumstances and erred in determining that a transfer of custody was in the children’s best

interest. We agree that there was no material change in circumstances sufficient to warrant

modification of custody and therefore reverse. We do not reach LaDonna’s second point as to

best interest.

LaDonna and Patrick were married on February 16, 1997. They divorced on May 9, 2008.

There were three children born of the marriage: a son, Tyler, who is now an adult, and two

daughters, E.G.1, born in 2003, and E.G.2, born in 2005. The divorce decree awarded custody

of all three children to LaDonna. The divorce decree anticipated that both parents would spend
Cite as 2015 Ark. App. 197

equal amounts of time with the children and ordered that Patrick pay all daycare expenses in lieu

of child support. In January 2013, Patrick married Sue Geren. Sue and her two minor sons began

living with Patrick. In August 2013, LaDonna transferred the girls from the Greenwood School

District to the Fort Smith School District, in which she was residing. In 2013, LaDonna filed a

motion to set child support, alleging that the children were not spending equal time with each

parent and that Patrick was not paying daycare expenses. Patrick filed a response and motion

for modification of custody alleging the following material changes in circumstances: (1)

LaDonna had driven with the minor children in her car after drinking, (2) LaDonna had picked

up the children from visitation while intoxicated by alcohol, (3) LaDonna had left the minor

children home alone for extended periods of time while she went out drinking, (4) LaDonna was

cohabiting with a man to whom she was not married, and (5) there were other factors that

impacted the welfare of the children that would “be shown at a hearing of this matter.”

LaDonna filed a response denying the allegations. In December 2013, LaDonna married Tony

Williams, the man with whom Patrick alleged she had been cohabiting.

A hearing was held on May 14, 2014. E.G.1, age ten, testified that she lived with her

mother, sister, and stepfather, Tony Williams, and visited her dad. She testified that she was

going to a new school but preferred her old school and that she was an A and B student but had

recently gotten two C grades. E.G.1 testified that during visitation at her father’s house she was

allowed to call her mother, that the younger children were sometimes left in the care of Sue’s

fourteen-year-old son, and that she got along with both of her stepbrothers. She also testified

that she and her sister were sometimes left alone at her mother’s house. E.G.1 testified that her

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father’s wife, Sue Geren, did not drink alcohol, but that her mother’s husband, Tony Williams,

drank beer at the house. E.G.2, age eight, testified that she liked being at both her mother’s and

father’s houses, was happy living with her mother, liked her stepfather, was doing well in school,

had friends, and maintained good grades.

LaDonna testified that Patrick had not paid child-care expenses as ordered in the divorce

decree. She testified that the children had spent approximately equal amounts of time with both

parents until recently and that she was asking for child support because she was caring for the

children more than originally anticipated. LaDonna testified that the girls attended an after-

school care program called Girls, Inc., which provided activities that they enjoyed. She testified

that Patrick refused to help pay for Girls, Inc. She introduced a letter from Patrick in which he

refused to pay for $5 school t-shirts for the girls, and she testified that the letter was actually

written by Sue.

LaDonna described an acrimonious relationship between herself and Sue. She stated that

she could not communicate with Patrick because Sue was the “gatekeeper,” that Sue had soured

her co-parenting relationship with Patrick, and that Sue had called her a “fucking bitch” in the

children’s presence.

LaDonna testified that, while under Patrick’s care, E.G.2 had fallen into his swimming

pool and nearly drowned. LaDonna, a former nurse, testified that Patrick had not been truthful

about the extent of E.G.2’s injuries and the seriousness of her condition when he initially called

her and that he had not immediately sought emergency medical care. LaDonna testified that

E.G.1 had special medical needs due to kidney problems and required vigilant monitoring and

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care. LaDonna testified that she and both girls had a latent type of antibiotic-resistant staph

infection known as MRSA, which can cause severe complications. She testified that, as a trained

nurse, she knew how to care for the girls’ health needs, including preventing and detecting

MRSA outbreaks.

LaDonna stated that she had recently married Tony Williams, whom she had dated for

five years before the marriage. She denied that, prior to their marriage, Tony had lived with her

or stayed overnight with her while the children were present. She described Williams’s

relationship with her children as very good. She stated that he sometimes took care of the girls

when she was at work.

LaDonna testified that she worked two full-time jobs: the resident manager at the

apartment complex where she lived and a cereal packaging operator with Nestle. She stated that,

as manager of the apartment complex, she was provided a large apartment directly above (and

connected to) the office. She testified that she had to be available from 9:00 a.m. to 6:00 p.m.,

but she did not have to be in the office the entire time and she had assistants who could help

if needed. LaDonna’s duties as residential manager sometimes required her to leave the girls in

the apartment while she was downstairs in the office or somewhere else in the complex. She

testified that she left the girls with the office phone in case they needed anything and also had

her assistants watch them. LaDonna’s second job at the Nestle plant was a swing-shift position,

meaning that she worked every other weekend and two variable days per week. Those shifts

were night shifts, starting at 6:00 p.m. and ending at 6:30 a.m., during which the girls were

usually either at Patrick’s house for scheduled visitation or in the care of LaDonna’s husband.

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She testified that, when she got off work at 6:30 a.m., she would then get the girls ready for

school and take them to school before coming home and sleeping from approximately 9:30 a.m.

to 3:00 p.m. The girls would usually be at school while she slept, or Tony, her assistants, and

other family members would help care for them.

LaDonna testified that she drank alcohol approximately once or twice per week, but not

to the point of intoxication. She estimated that she normally had two to four bottles of beer over

a period of three or four hours. She stated that she drank when the girls were not present. She

testified that Tony had a couple of beers approximately three to four times per week. Tony was

convicted of DWI two years prior to the custody hearing.

LaDonna testified that Patrick had picked the girls up several times while smelling of

alcohol. However, she stated that this did not worry her because she knew he was still able to

drive and that if he had been intoxicated she wouldn’t have allowed the girls to go with him.

LaDonna testified that she had driven the children after drinking alcohol on approximately three

occasions but denied that she had been intoxicated. She denied picking up the children from

Patrick after drinking, but then admitted that she might have had “a beer or two.”

LaDonna’s mother, Jackie Copeland, testified that she had observed Patrick pick up the

children for visitation while smelling of alcohol. She stated that Patrick had given her money for

clothes for the children on more than one occasion.

Tony Williams testified that he was married to LaDonna, that he had a separate residence

at the apartment complex and a house in Pocola, and that he had a good relationship with

LaDonna’s daughters. He testified that LaDonna’s work schedule, working two jobs, gave him

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an opportunity to spend extra time with the girls. He stated that he wanted the girls to remain

in their home.

Patrick presented several witnesses who were acquaintances of his and LaDonna’s.

Latricia Miller testified that she saw LaDonna out at bars approximately every six weeks. She

stated that, on these occasions, she thought they were all “drinking for an extended period of

time.” She never saw LaDonna drink anything other than beer. Miller testified that she had seen

LaDonna at a bar the previous weekend, at a poker event, and that it was her understanding

from Patrick and Sue that LaDonna was supposed to have the girls that weekend. She had seen

LaDonna three or four weeks before the hearing at a pool tournament where Miller stated that

LaDonna was drinking but wasn’t intoxicated.

Mary Williamson testified that Patrick was a caring and attentive father who placed the

girls’ needs before his own and Sue was the same way. She stated that Sue used profanity and

it would not surprise her if Sue had called LaDonna a “fucking bitch,” although she testified that

it was not like Sue to use that language in front of the children.

James Womack testified that Patrick was a very involved father. Womack stated that he

had never seen Sue act mean or inappropriate to the girls and that he had observed the girls

crying on multiple occasions because they did not want to go home to their mother.

Patrick’s wife, Sue Geren, testified that Patrick was a devoted and loving father, she loved

the girls as if they were her own, and she had a good relationship with the girls. Sue testified that,

when they first started dating, approximately five years before the hearing, Patrick kept the girls

more than LaDonna, approximately three to five nights per week. That changed, according to

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Sue, when LaDonna transferred the girls to a different school district the previous August. Sue

testified that she had never observed Patrick drink alcohol on the way to or from picking up the

girls. She stated that Patrick had an alcohol problem four years before the hearing, but that he

had gotten help and no longer had a drinking problem. She said that Patrick rarely drank, having

maybe two to three drinks occasionally on Friday or Saturday nights. Sue stated that she had

smelled alcohol on LaDonna and had seen her staggering during visitation exchanges.

Sue testified that, in 2009, LaDonna punched her in the back of the head. She denied

calling LaDonna a “fucking bitch.” Sue testified that LaDonna had insulted her in front of the

girls by making a derogatory comment that Sue needed to wear a bra.

Sue testified that she and Patrick occasionally left the girls and her younger son in the

care of her fourteen-year-old son. Sue explained that, when the girls had attended Greenwood

schools, they could catch the school bus just down the street from Patrick’s house and ride to

school with her sons. They could then ride the bus home again. Patrick’s work schedule allowed

him to be home before the bus arrived every day, and Sue arrived shortly after. Sue testified that

their evenings involved dinner together and homework, with which Patrick helped. She testified

that, when in LaDonna’s care, the girls were usually at Girls, Inc., from the time they got out of

school at approximately 3:15 p.m. until about 7:00 p.m. She stated that Patrick had paid his half

of the costs for Girls, Inc.

Patrick’s mother, Beverly Geren, testified that she and Patrick’s father occasionally took

care of the girls. She testified that the girls were afraid to switch schools. She testified that,

before the girls switched schools, they spent nearly every day at Patrick’s house and that he had

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them during the summers. Beverly testified that LaDonna did not seem interested in the girls

like a mother should be. She said that, before August, Patrick was the primary caregiver. She

described Patrick as a close, caring father. She described Sue as caring and loving and stated that

Sue treated the girls as if they were her own. She stated that, since the girls started living at

LaDonna’s most of the time, she had observed a change in their demeanor. They would get

upset when it was time to go back to their mother’s house. She testified that Sue and Patrick

took the girls to church, Sunday school, and church camp. She observed Patrick buying clothes

and shoes for the girls more than once. She stated that two of her sons, one of whom was

Patrick, had experienced problems with alcohol. She testified that Patrick had two DWI

convictions.

Patrick testified that he worked from 7:00 a.m. until 3:30 p.m. at Exide Technologies and

was also in the Army National Guard. He stated that, prior to August, the girls had lived with

him a majority of the time. He testified that, instead of spending time with the girls, LaDonna

would sometimes ask him to take them to her parents’ house or ask him to keep them overnight.

He said the girls sometimes spent five or six days in a row at his house between visits to see

LaDonna and on at least one occasion they stayed with him for nine days without seeing her.

He stated that this was the pattern of their custody arrangement from the time of the divorce

until the previous August, when LaDonna informed him that she was transferring the girls from

the Greenwood School District to the Fort Smith School District. He objected to the transfer.

Patrick testified that the school transfer made it impossible for him to keep them on week nights

because he could not drive them to their new school and still make it to work on time. Patrick

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stated that he would change the children’s school back to Greenwood if he was awarded

custody.

Patrick denied ever picking the girls up while drunk but admitted that a few years ago he

may have driven to pick them up after drinking a few beers. He described the treatment he had

received for problems related to alcohol and testified that he was released from care almost two

years prior to the hearing. Patrick testified that he did not drink on weekdays because he

sometimes had to go to work very early. He said that he sometimes drank two or three beers on

Friday or Saturday night after the kids had gone to bed. He testified that he hadn’t driven under

the influence of alcohol since his last DWI. He testified that his anxiety and mental-health issues

had greatly improved since coming home from Iraq. He stated that he had never smelled alcohol

on LaDonna when she picked up the girls but explained that she never got out of the car and

usually just honked for them to come out.

Patrick disputed LaDonna’s account of E.G.2’s near-drowning incident. He stated that

he was mowing the grass near his pool and took his eyes off of her for less than thirty seconds.

He stated that he immediately performed CPR and drove E.G.2 to get help. He stated that he

had truthfully conveyed the situation to LaDonna.

After the hearing, the court entered an order transferring custody to Patrick. LaDonna

filed a timely notice of appeal.

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

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

the evidence. Lowder v. Gregory, 2014 Ark. App. 704, at 14, 451 S.W.3d 220, 229. We give due

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deference to the superior position of the circuit court to view and judge the credibility of the

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

is placed on the trial judge to utilize to the fullest extent his or her powers of perception in

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

circuit court fails to make findings of fact about a change in circumstances, this court, under its

de novo review, may nonetheless conclude that there was sufficient evidence from which the

circuit court could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379,

384, 985 S.W.2d 724, 727 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

LaDonna first argues that there was insufficient evidence to find a material change in

circumstances warranting modification of custody. Arkansas law is well settled that the primary

consideration in child-custody cases is the welfare and best interest of the children; all other

considerations are secondary. Harris v. Harris, 2010 Ark. App. 160, 379 S.W.3d 8. Generally,

courts impose more stringent standards for modifications in custody than they do for initial

determinations of custody in order to promote stability and continuity in the life of the child and

to discourage repeated litigation of the same issues. Grisham v. Grisham, 2009 Ark. App. 260. The

party seeking modification of the custody order has the burden of showing a material change in

circumstances. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). In order to change

custody, the trial court must first determine that a material change in circumstances has occurred

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

should have custody, with the sole consideration being the best interest of the children. Tipton

v. Aaron, 87 Ark. App. 1, 6, 185 S.W.3d 142, 145 (2004). Determining whether there has been

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a change of circumstances requires a full consideration of the circumstances that existed when

the last custody order was entered in comparison to the circumstances at the time the change

of custody is considered. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). The trial

court’s findings on whether a material change in circumstances warrants a change in child

custody will not be reversed on appeal unless they are clearly erroneous. Shannon v. McJunkins,

2010 Ark. App. 440, 376 S.W.3d 489.

In its order, dated May 20, 2014, the circuit court found the following material changes

in circumstances:

(1) the aggressive behavior, testimony, and demeanor of [LaDonna] toward [Patrick],
[Sue], and in general;

(2) the testimony regarding [LaDonna’s] abuse and use of alcohol, while [LaDonna]
repeatedly accused [Patrick] of abusing and using alcohol; and

(3) the testimony and demeanor of [LaDonna’s] current husband and the sincere and
credible testimony of [Patrick] and his current wife.

We will analyze each of these findings separately.

I. The Aggressive Behavior, Testimony, and Demeanor
of [LaDonna] Toward [Patrick], [Sue], and in General

LaDonna testified that she and Sue did not get along, that she preferred not to

communicate with Sue, and that Sue was the “gatekeeper” for Patrick. LaDonna described her

relationship with Sue as acrimonious. Sue testified that LaDonna hit her in the back of the head,

argued with her, made a derogatory comment about Sue’s need to wear a bra, and refused to

communicate with her. From the language of the order, it appears that the court was also

considering LaDonna’s demeanor at trial and her allegations against Patrick and Sue.

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First, we must consider whether LaDonna’s “aggressive behavior, testimony, and

demeanor” constituted a change since the previous custody order was entered. We have

previously held that, in order to avoid the relitigation of factual issues already decided, the courts

will restrict evidence on a custodial change to facts arising since the issuance of the prior custody

order. Myers v. McCall, 2009 Ark. App. 541, at 5, 334 S.W.3d 878, 881. “For a trial court to

change the custody of children, it must first determine that a material change in circumstances

has transpired from the time of the divorce decree and, then, determine that a change in custody is in

the best interest of the child.” Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002)

(emphasis added). The requirement that limits the circuit court’s review to changes that have

occurred since the last custody order contemplates that the circuit court was aware of the

relevant circumstances at the time the previous custody order was entered. As a result, a change

of circumstances can also be found where the facts existed at the time of the previous order, but

were unknown to the trial court. Myers, 2009 Ark. App. 541, at 5, 334 S.W.3d at 881.

The previous custody order in this case was the 2008 divorce decree granting LaDonna

custody. While there was no direct finding as to whether LaDonna’s behavior, testimony, and

demeanor was more aggressive at the time of the 2014 custody hearing than it had been when

the court entered the 2008 divorce decree, the evidence supports such a conclusion. It was

undisputed that the acrimony between the parties stemmed from LaDonna’s relationship with

Sue. Since Patrick’s relationship with and ultimate marriage to Sue occurred after the divorce

decree, the resultant animosity that developed between LaDonna and Sue can also be reasonably

assumed to have developed after the divorce decree.

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Next, we must consider whether the circuit court’s conclusion that LaDonna displayed

aggressive behavior and demeanor is enough to constitute a material change in circumstances.

In Word v. Remick, 75 Ark. App. 390, 393, 58 S.W.3d 422, 424 (2001), we described the standard

as “proof that the conditions have so materially changed as to warrant modification.” “Petty

complaints and parental gamesmanship may not rise to the level of a material change in

circumstances, especially if the child is left relatively unscathed.” Hart v. Hart, 2013 Ark. App.

714, at 3 (citing Dodd v. Gore, 2013 Ark. App. 547; Byrd v. Vanderpool, 104 Ark. App. 239, 244,

290 S.W.3d 610, 613 (2009)). Moreover, a custodial parent’s change in attitude is not necessarily

sufficient to constitute a material change. For example, in Stellpflug v. Stellpflug, we reversed the

circuit court’s modification of visitation because “the only change that occurred in this case was

appellee’s attitude regarding summer visitation.” 70 Ark. App. 88, 93, 14 S.W.3d 536, 539 (2000).

Here, the only change that occurred was LaDonna’s attitude regarding Sue. Finally, we note that

modification of custody is an extreme remedy for such a minor change. We have previously said

that, even where a custodial parent willfully violates court orders, modification is not necessarily

warranted because a court’s contempt powers should be used prior to the more drastic measure

of changing custody. Carver v. May, 81 Ark. App. 292, 297, 101 S.W.3d 256, 260 (2003); Carter

v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986).

Patrick urges us to find that LaDonna’s aggressive behavior and demeanor constitutes

a material change because it can be likened to the type of behavior addressed in Arkansas Code

Annotated section 9-13-101(b)(1)(a)(iii), which states that “[i]f, at any time, the circuit court finds

by a preponderance of the evidence that one (1) parent demonstrates a pattern of willfully

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creating conflict in an attempt to disrupt a current or pending joint-custody arrangement, the

circuit court may deem such behavior as a material change of circumstances . . . .” However,

section 9-13-101(b)(1)(a)(iii) clearly does not apply here because LaDonna and Patrick did not

share joint custody.

We cannot agree with the circuit court’s finding that LaDonna’s “aggressive behavior,

testimony, and demeanor” rose to the level of a material change. Even if taken as true, the

allegations regarding LaDonna’s aggressiveness were immaterial. The testimony showed that

LaDonna and Sue did not get along, did not communicate, and sometimes argued. These facts

did not, on their own, constitute a material change in circumstances sufficient to warrant

modification.1

II. The Testimony Regarding [LaDonna’s] Abuse and Use of Alcohol, While
[LaDonna] Repeatedly Accused [Patrick] of Abusing and Using Alcohol

The evidence supporting a finding that LaDonna abused alcohol included LaDonna’s

own admission that she may have driven the children after drinking a beer or two, Sue’s

testimony that she had observed LaDonna pick up the girls while smelling of alcohol and had

seen LaDonna stagger while apparently drunk, and Latricia Miller’s testimony that she had seen

LaDonna drinking at bars approximately every six weeks.

As discussed above, we must first address whether there was any change in LaDonna’s

use of alcohol since the previous divorce decree. Lewellyn, 351 Ark. at 355, 93 S.W.3d at 686.

1
We have previously held that certain factors, when examined in the aggregate, may
support a custody modification even where each factor, if examined in isolation, would not.
Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664; Davis v. Sheriff, 2009 Ark. App. 347, 308
S.W.3d 169. However, as we discuss below, there are no other changes with which to combine
the circuit court’s finding that LaDonna had developed aggressive behavior and demeanor.

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However, unlike the evidence related to LaDonna’s discord with Sue, there is no rational basis

for determining that LaDonna’s drinking was a new phenomenon. The record contains neither

any evidence of nor any finding that LaDonna’s drinking was different at the time of the hearing

than it had been at the time of the divorce decree or that the court had previously been unaware

of it. As a result, any finding of changed circumstances based upon her drinking habits is barred

by our precedents prohibiting the relitigation of issues that were reasonably before the circuit

court at the time of the previous custody order. Myers, 2009 Ark. App. 541, at 5, 334 S.W.3d at

881.

The court also considered, as a part of this finding, LaDonna’s repeated accusations that

Patrick used and abused alcohol. First, we note that the language indicates that the court did not

find those accusations credible. This point appears to relate to the court’s finding that LaDonna

displayed a hostile or aggressive attitude toward Patrick and Sue, which is discussed above. Even

if unfounded, we do not believe that LaDonna’s allegations against Patrick amount to a material

change in circumstances. Additionally, even if the court found that Patrick had remedied his

previous drinking problem, based upon testimony that he successfully completed an alcohol

treatment program and now rarely drank, it is well settled that a non-custodial parent may not

create the change in circumstances upon which modification is based. Lloyd, 343 Ark. 620, 37

S.W.3d 603.

III. The Testimony and Demeanor of [LaDonna’s] Current Husband and
the Sincere and Credible Testimony of [Patrick] and His Current Wife

The court’s third finding as to changed circumstances was the testimony and demeanor

of Tony Williams, LaDonna’s current husband, and the “sincere and credible” testimony of

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Patrick and Sue. This finding fails to articulate any facts or circumstances upon which a change

could be found. Instead, it appears to be a credibility finding as to Tony, Patrick, and Sue. It is

well settled that we give significant deference to the circuit court’s credibility determinations in

custody cases because a heavier burden is placed on the trial judge to utilize to the fullest extent

his or her powers of perception in evaluating the witnesses, their testimony, and the best interest

of the children. Lowder, 2014 Ark. App. 704, at 14. However, a credibility determination, on its

own, does not create a material change in circumstances. Credibility describes a quality of the

witness (the quality of being believable or trustworthy), not an independent fact or circumstance.

We know of no precedent indicating that a circuit court may find a material change in

circumstances sufficient to warrant custody modification based solely upon a determination that

some witnesses were more credible than others. Stated more plainly, we defer to a circuit court’s

credibility determinations, but those determinations must relate to testimony regarding material

facts in order to support a finding of changed circumstances.

As discussed above, we cannot affirm any of the circuit court’s three findings as to

changed circumstances. While our case law permits us to review the record and determine

whether there was sufficient evidence from which the circuit court could have found a change

in circumstances, Campbell, 336 Ark. at 384, 985 S.W.2d at 727, after a thorough review of the

record, we find no independent basis for concluding that a material change in circumstances

occurred. Therefore, we reverse on this point.

LaDonna’s second argument on appeal is that the circuit court erred in determining that

a modification of custody was in the children’s best interest. However, based on our holding that

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the circuit court’s finding that a material change in circumstances occurred was clearly erroneous,

any inquiry into the best interest of the children is inappropriate. Tipton, 87 Ark. App. at 6, 185

S.W.3d at 145.

Reversed.

ABRAMSON and KINARD, JJ., agree.

Edwin G. Dooley, Jr., for appellant.

Byars, Hickey, and Hall, PLLC, by: Kevin L. Hickey, for appellee.

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