TOMMY L. SIMPSON,
Plaintiff,
v
.
ROSEMARY RUFFO SIMPSON, a/k/a ROSEMARY LITKA,
Defendant.
Helms, Henderson & Porter, P.A., by Christian R. Troy, for
plaintiff-appellant.
Currie Law Office, by Lisa W. Currie, for defendant-appellee.
GREENE, Judge.
Tommy L. Simpson (Plaintiff) appeals a custody modification
order filed 20 October 2000 awarding custody of his daughter Shelby
Lynn Simpson (Shelby) to her mother, Rosemary Ruffo Simpson a/k/a
Rosemary Litka (Defendant).
On 25 January 1996, the parties, who had been married since 25
January 1992, were granted a divorce and Plaintiff was awarded
custody of their two-year-old daughter Shelby. An order dated 25
January 1996 provided that Defendant is neither an unfit parent
nor is she a bad person and determined that Plaintiff and
Defendant shall have shared parental responsibility of [Shelby].
The trial court further ordered that Defendant would be allowed
visitation only if [she] undert[ook] monthly drug screening tests
for 'all drugs.' On 12 August 1999, Defendant filed a motion for an immediate
ex parte custody order and for a change of custody based on a
substantial change of circumstances in her lifestyle. The matter
was reviewed by the trial court on 19 August 1999. The trial court
ordered that Shelby be placed in the temporary custody of her
paternal grandmother and that Plaintiff submit to a psychological
evaluation. Upon completion of the psychological evaluation,
Defendant's motion to modify custody was tried on 25 and 26
September 2000. In a custody modification order filed 20 October
2000, the trial court found in pertinent part that:
10. [A]t the time [the initial] custody order
awarded primary custody [of Shelby] to
Plaintiff, [the trial court] perceived and
contemplated that Defendant suffered from a
dependency upon illegal drugs[] and
accordingly made Defendant's visitation rights
contingent upon refraining from the use of all
drugs.
11. [F]rom the testimony presented, Defendant
has refrained from the use of all drugs for at
least five (5) years prior to seeking a
modification of custody, and that as a
result[,] the quality of Defendant's life and
those around her has improved significantly.
12. Defendant re[]married on September 14,
1996; . . . her husband, Rick Litka[,] is a
person she has known for fifteen (15) years
previously; . . . together Defendant and her
husband have a three[-]year[-]old son,
Kolby.
13. [N]ow drug[-]free, re[]married, and the
mother of a second child, Defendant has
re[]connected with her parents and the other
members of her family, visiting in her
parents['] home one to three times a week.
14. Defendant and her husband now live in a
two-bedroom home with a carport, living room,
kitchen, and yard for children to play in. Their home is within walking distance of
nearby schools . . . . Defendant and her
husband . . . are current on their rent.
15. Defendant presently enjoys a stable work
history . . . . Defendant earns $9.00 an
hour[] and has held this same job for several
years.
. . . .
17. [W]hile Defendant had visitation with
[Shelby] from May 27, 2000 till July 29, 2000,
Defendant and her husband established a daily
routine for Shelby that consisted of her
brushing her teeth and hair in the morning,
spending time with her maternal grandparents,
setting the dinner table, eating together as a
family, doing the dishes, playing outdoors,
bathing afterwards, watching television,
saying her prayers, [and] then going to bed.
While with Defendant and Defendant's husband
over the summer, Shelby was made to follow
rules of the house.
18. Shelby grew attached to her
three[-]year[-]old [half] brother Kolby over
her summer's visitation . . . .
19. Defendant's neighborhood offers Shelby an
opportunity of playing and interacting with
other children her age.
20. [W]hile with Defendant, Defendant's
husband and Shelby developed a close
relationship.
21. [W]hile with Defendant, Shelby was
included in a number of family activities,
including coloring, bicycling and playing on
swings together.
22. Defendant and her husband . . . included
Shelby in church activities . . . this past
summer.
23. [B]y virtue of her re[]marrying,
Defendant now has the benefit of having
another adult in the home to help in the
running of the house and the raising of a
family, whereas before she was by herself.
24. [F]rom the testimony presented, Defendant
is now more self-reliant and more financially
responsible than before . . . .
25. Defendant has invested in and involved
herself in community and neighborhood
activities.
26. Defendant keeps and makes available to
her children a variety of educational
materials in her home. While her child
visited with her over the summer, Defendant
read to Shelby from these educational
materials often.
. . . .
28. [W]hen [Shelby] arrived . . . for her
visitation with Defendant this past summer,
Shelby was clothed in toddler[-]sized
clothes despite being seven (7) years of age;
also . . . when she arrived she did not yet
know how to wipe herself after using the
bathroom in a manner appropriate for young
girls so as to not have her underwear soiled.
29. [A]t the hearing of this action[,]
Defendant called as a witness Dr. Jonathan
Gould, Ph.D. [(Dr. Gould)], a child
psychologist and certified custody
evaluator. . . . [T]he [C]ourt received Dr.
Gould without objection by . . . Plaintiff as
an expert in the field of forensic and
clinical psychology. . . . Dr. Gould
testified and the Court finds . . . as
follows:
a. Dr. Gould interviewed Defendant in
October 1990 [sic] for a total of five
hours. . . . [D]uring his interview of
Defendant[,] he observed the interactions
of Defendant and her daughter Shelby
through a one-way mirror unbeknownst to
Defendant and [Shelby]. . . . [A]s he
did so, Dr. Gould observed a high level
of energy between Defendant and Shelby,
a playfulness, ease, and flexibility that
were impressive to Dr. Gould. . . . Dr.
Gould conducted a similar observation of
Plaintiff and Shelby[] and did not note
the high degree of interaction between
Plaintiff and Shelby as he did betweenDefendant and Shelby. . . . [I]nstead
Plaintiff appeared tired, and Shelby
played by herself rather than with her
father.
b. [A]ccording to the most recent IQ
testing of Plaintiff, [he] has an IQ of
78, which shows borderline intellectual
functioning according to Dr. Gould. . . .
[T]his level of intellectual functioning
adversely impacts Plaintiff's abilities
as a parent in terms of his
planfulness[,] being able to
anticipate, and being able to provide
educational opportunities for Shelby to
grow beyond his own level of intellectual
functioning, according to Dr. Gould.
c. [Shelby] has experienced some
difficulties in progressing past
kindergarten. . . . [S]he has in the past
been prescribed Ritalin while in
school. . . . Dr. Gould recommended a
Pediatric Neurologist be consulted to
determine whether Shelby suffers from
Attention Deficit Disorder[] or is simply
showing symptoms of the underlying
stresses of separation and divorce
conflict.
d. [B]ased on his findings, Dr. Gould
could not and did not offer an opinion as
to which parent, Plaintiff or
Defendant, would be absolutely best for
Shelby to live with. Dr. Gould did[,]
however[,] testify that based on the
relative emotional, social and
intellectual functioning of the parties[]
and the quality of interaction between
parents, that placement with Defendant
would be relatively better for Shelby's
growth and well-being.
The trial court then concluded that:
4. [T]here have been substantial changes of
circumstances in the life of Defendant since
custody was first litigated, in that Defendant
has become drug[-]free for over five years,
has remarried, has had a second child, has
re[]connected herself to her family and
community, and now has a stable home and worklife.
5. [T]hese changes . . . benefit [Shelby's]
well-being emotionally, physically,
intellectually and medically, as well as in
other ways.
As a result, the trial court modified the original custody order by
awarding custody of Shelby to Defendant.
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