# Hicks v. Cook > Court of Appeals of Arkansas · November 19, 2008 · 103 Ark. App. 207 URL: https://www.frixlaw.com/law-library/cases/9661831 ## Case - **Full name:** Andrea HICKS v. Joshua A. COOK - **Court:** Court of Appeals of Arkansas - **Decided:** November 19, 2008 - **Citations:** 103 Ark. App. 207; 288 S.W.3d 244; 2008 Ark. App. LEXIS 905 - **Precedential status:** Published - **Opinion:** Dissent by Hart - **Judges:** Robert J. Gladwin - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9661831 ## Opinion text Josephine Linker Hart, Judge, dissenting. For the third time in a month I find myself dissenting in a child-custody case in which the same four judges have cast the deciding votes. 1 Though remarkable enough, it is even more noteworthy because for the second time in a week I find myself compelled to once again call attention to how this majority has tortured the law and mishandled the judicial-review process to reach their result. Regarding Hicks’s first point, that the trial judge erred in basing his change-of-custody decision on Hicks’s alleged practice of Wicca, I am glad that there is unanimous agreement on this court that basing a custody decision on a parent’s religious beliefs is unequivocally wrong. Nonetheless, the majority in one way or another excuses this obvious trial court error. I believe Judge Griffen is simply wrong when he asserts that “the trial judge made no disparaging or otherwise unfavorable comments about Wicca.” In his written findings, the trial judge referred to Wicca as a “cult.” 2 The American Heritage Dictionary defines “cult” as “a religion or religious sect generally considered to be extremist or bogus.” There are none that are so blind who will not see. The remaining Judges handle this inconvenient fact with no greater acumen. The main opinion simply “sets aside” the trial judge’s comments regarding Wicca. Along the way, however, they twist the words in the finding regarding Hicks’s alleged practice of Wicca to be a finding regarding Hicks’s credibility, notwithstanding the fact that this case does not turn on the credibility of any witness! While our convention of deferring to the finders of fact on issues of credibility is well established, it is troubling to discover that this opinion seems to betray the beliefby the majority that this deference is somehow the way to resolve every case. 3 The treatment of Hicks’s second point by the majority is no more satisfactory. Hicks argues that the trial court “impermissibly” based its decision on a conclusion about her mental health that was unsupported by substantial evidence. She asserts that there is “absolutely no evidence that [she] had continuing medical problems” or that an episode of “situational depression and anxiety” cannot be cured “overnight.” Moreover, she contends that there was absolutely no suggestion that she engaged in “even the slightest bizarre behavior or behavior in any way inconsistent with the best interest of her child.” In rejecting Hicks’s argument, to the extent that the majority addresses it at all, the main opinion betrays a lack of understanding of how our deference to the trial judge on issues of credibility affects this case. Aside from the evidence that medication had been prescribed for Hicks to treat anxiety and depression, there was no evidence that she currently suffered from either of these maladies. The prescriptions were, at best, circumstantial evidence that the conditions existed at the time the medication was prescribed. The trial judge was not competent to make a medical diagnosis, nor was the factual basis for his finding susceptible to being proved by judicial notice. 4 If a court takes judicial notice of any fact, it must be so notoriously true as not to be subject to reasonable dispute or must be capable of immediate accurate demonstration. Collier-Dunlap Coal Co. v. Dickerson, 218 Ark. 885 , 239 S.W.2d 9 (1951). Whether or not a person suffers from depression and the efficacy of treatment are facts that are subject to dispute. Furthermore, the personal knowledge of the judge is not judicial knowledge of the court, for there is no way of testing the accuracy of knowledge that rests entirely within the breast of the court. Walker v. Eldridge, 219 Ark. 594 , 243 S.W.2d 638 (1951). Therefore the finding concerning Hicks’s continuing need for medication is based on mere speculation and conjecture and cannot be a reason for changing custody. In finding that Hicks still suffered from depression and anxiety, the trial judge was actually practicing medicine without a license, not making a credibility determination. Even more chilling is the fact that in Judge Griffen’s concurrence, he states that a trial judge’s “concerns about appellant’s mental health” are an appropriate basis to change custody. Finally, I note with appropriate irony that the majority’s failure to effectively address Hicks’s argument that evidence of J.O.C. “being dirty and having rashes and a dog bite wound” is not adequate to support a change of custody, is the soundest aspect of their opinion. We had before us the same photographs that the trial judge found “quite revealing,” and apparently the entire panel did not share the trial judge’s “concern.” While there was clearly some dirt under J.O.C.’s nails, the child was not unkempt, and while it was certainly true that J.O.C. had diaper rash, Cook himself testified that it was not an unusual for a child of that age to be so afflicted. Furthermore, the photos revealed that Hicks was treating the rash with a topical ointment, which was not a markedly different treatment than Cook prescribed. Finally, I believe that the so-called “wound” onJ.O.C.’s shoulder was likely just a bug bite, as Cook hypothesized. By all indications, J.O.C. was a happy, active, and thriving young child — flourishing in his mother’s care. There was no proof that J.O.C.’s residence was inappropriate and, aside from an apparently isolated incident in which J.O.C. went to a visit wearing ill-fitting shoes, that Hicks was not attending to her child’s material needs. By any standard, the trial court clearly erred in changing custody. There is a main opinion with two judges in complete agreement and two concurring opinions that diverge from the main opinion on key issues, but still suppport the main opinion’s disposition. Interestingly enough, the only description of Wicca as a “cult” came from a proffered hearsay definition that was properly excluded by Hicks’s timely objection, but nonetheless considered as evidence by the trial judge. Neither the testimony of Hicks nor Cook, which was the only properly admitted evidence, mentioned the word “cult.” The definition, from the American Heritage Dictionary, stated that Wicca is “the cult of witchcraft.” In Judge Marshall’s concurrence, he has betrayed his lack of understanding of the standard of review when he equates it to reviewing “the judgment for green redness.” I note that he has previously cited an incorrect standard of review in a domestic relations case. In Brandt v. Willhite, 98 Ark.App. 350, 353 , 255 S.W.3d 491 (2007), he stated that the standard of review was as follows: “In reviewing the circuit court’s decisions, we defer to that court’s superior position for measuring the witnesses’ credibility and evaluating what was in the child’s best interest.” This is not review; this is abdication. Arkansas Rule of Evidence 201(b) provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9661831. Public record. Not legal advice.