Hollinger v. Hollinger , 65 Ark. App. 110 ( 1999 )

John B. Robbins, Chief Judge.

Appellant Teresa Lynn Hollinger appeals the decision of the Drew County chancellor changing the custody of their four daughters to their father, appellee Walter Henry “Hank” Hollinger. Her points on appeal are that (1) the chancellor erred in determining that a material change in circumstances had occurred, and (2) the chancellor erred in finding that the best interest of the children was to be in the custody of their father. We disagree and affirm.

Chancery cases are tried de novo on appeal. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). We will not disturb a chancellor’s findings unless they are clearly against the preponderance of the evidence. Stone v. Sneed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving children. Id. A finding is clearly erroneous or clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). We have no such firm conviction in this case.

Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). The original decree is a final adjudication that one parent or the other was the proper person to have care and custody of the children. Id. Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. White v. Taylor, 19 Ark. App. 104, 717 S.W.2d 497 (1986). For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the children. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). We find that there were material changes in circumstances, and the subsequent redetermination of the best interest of the children was not clearly erroneous.

A recitation of the proceedings and facts is necessary for a full understanding of this case. The parties resided in Monticello prior to their divorce. Their children had never lived anywhere but Monticello. After the parties’ divorce on December 20, 1990, appellant had custody of their children and the parties and girls continued to live in Monticello. The girls’ ages ranged from two to eight years at that time. After she completed college, appellant took a job at Axciom in Conway and moved her four girls there in 1994. Appellee acquiesced in this move because he felt the mother continued to be the better custodian at that time. Contemporaneously with the move to Conway, appellee was going through a second divorce and was severely depressed.

In Conway, the girls were active in school, the older girls assisted their mother in caring for younger siblings, and they all had household chores. Beginning around January 1997, the eldest daughter complained to her father that her mother was abusive to the girls. She wanted to move back to Monticello and did not like Conway. Appellee was informed by a neighbor of appellant that the girls might be abused by their mother, physically or verbally, and DHS had been contacted by the neighbor due to this suspected abuse.¹

Fearing for the safety of his children, appellee filed an emergency motion for custody in February 1997; it was granted by an ex parte order. The girls moved back to Monticello with their father, his new wife, and her two children. In March 1997, a return hearing was held on the matter, and the chancellor ordered that temporary custody remain with the father until the final decision, and he ordered the parties to undergo mental evaluations. Following a final hearing on July 29, 1997, the chancellor issued a letter opinion setting forth his conclusions. The chancellor noted two changes in circumstances: appellant’s move to Conway in 1994, and appellee’s subsequent remarriage and establishing a home in Monticello. He made no mention of any other material change of circumstances. Based upon the two enumerated changes in circumstances since the 1990 divorce, he determined that due to the girls’ relocation to Monticello and their “well rounded happiness” there since the return, in addition to the particularly acrimonious relationship of the eldest daughter and the mother, it would be in their best interest to switch custody to the father. This appeal resulted. We find that the chancellor was not clearly erroneous.

We begin with the statement that on appeal of a chancery decision we review the case de novo, and if the chancellor’s decision can be sustained on grounds other than those he made, we will affirm. O’Neal v. Ellison, 266 Ark. 702, 587 S.W.2d 580 (1979); Pharris v. Vanderpool, 230 Ark. 233, 266 S.W.2d 702 (1959); Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (Ark. App. 1980). With that said, we find that the chancellor may have misapplied what may constitute a material change in circumstances in this case — the marriage of the father and the move of the mother. However, upon de novo review, we find that there was a material change in circumstances when each of those facts are combined with (1) the substantial passage of time between the original decree and the modification, (2) the decidedly strained relationship existing between the daughters, especially the eldest, and the mother, and (3) the clear preference of the girls to five with their father in their hometown. This permitted a reopening of a best-interests inquiry.

We are cognizant that in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the supreme court held that the remarriage of the father, standing alone, was not enough to support a change in circumstances because he was aware of his impending new marriage at the time of the divorce when he gave custody to his ex-wife. Such was not the case here. Appellee was not contemplating this current marriage at the time of the original decree when custody was given to the mother. Those particular facts are not the same as are before us today.

Further, we agree that appellant’s move to Conway from Monticello, seeking betterment of her employment, standing alone, cannot be the basis of a material change in circumstances. The Jones case states that a custodial parent’s move that is made in order to better his or her financial ability to provide for a child was not, in and of itself, a material change in circumstances to be used to the detriment of that parent. See Jones at 326 Ark. 488-489. Indeed we applaud this single mother for completing her college education and bettering her financial circumstances in order to support her children and herself. The custodial parent’s move here is not enough evidence alone to constitute a material change in circumstances.

However, we hold that the chancellor’s finding that there had been a material change in circumstances is not clearly against the preponderance of the evidence because when the events are considered together — the move, the remarriage, the strained relationships, and the clearly defined preference of the children — they constitute a change in circumstances. The chancellor stated his findings in a letter opinion dated and filed on August 12, 1997:

The Court does not doubt that both parents love the children very much. Obviously, their parenting practices are quite different, and this Court will not attempt to dictate the manner in which children should be raised. However, it must consider the feelings of the children, regardless of whether such feelings are justified. At various times, they have indicated their mother is too strict and unyielding. They believe she is too quick to mete out punishment. They do not feel they can talk with her about problems in their fives. They do not feel she spends enough time with them nor displays much affection. . . . The children were born in Monticello and remained there until three years ago. Since their return [after the ex parte order in February 1997], they have done well in school and are very active in outside activities. . . . The children are experiencing and enjoying well rounded happiness at this time, and their interests would best be served by changing custody to the father.

Although we do not have the testimony of either of the two younger girls, the chancellor spoke with them, individually, in chambers. It is evident that their testimonies were supportive of the change of custody. Indeed we must presume it to be so when those conversations do not appear as part of the record. Ark. R. App. P. — Civ. 6(d) and (e); Argo v. Buck, 59 Ark. App. 182, 954 S.W.2d 949 (1997); Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983). The girls aged six years between these custody orders, and substantial changes other than their parents’ moves and marriages were at play. Their ages ranged from two to eight when their parents divorced; their ages ranged from nine to fifteen at the time this motion was heard. There is a significant difference in the weight that should be given to the preference of an eight-year-old and that to which the preference of a fifteen-year-old is entitled. We find the combined, cumulative effect of these particular facts constitutes a material change in circumstances.

Having established that the chancellor was not clearly erroneous in finding that a material change in circumstances had occurred, we consider the best interest of the children. While a child’s preference is not binding, it is certainly a factor to be considered by the chancellor. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). Here, the eldest child, fifteen-year-old Tia, testified without hesitation that she preferred to five in Monticello with her father to get away from her mother’s put-downs. She testified that the mother was verbally very abusive to the girls, and she frequently hit them when she was displeased with them. The next oldest girl, thirteen-year-old Christy, testified that she preferred to live with her father for many of the same reasons that Tia did — that their father treats them better than their mother. Apparendy Tia was called a “slut” if her attire or makeup did not meet with her mother’s approval, and the others were called “dumb-ass” and “stupid” for performing poorly at a task or schoolwork. We do not believe that the name-calling and hitting by the mother are indicative of a healthy relationship. When the best interest inquiry is opened, then the method or style of parenting, as between the competing parents, is pertinent and the behaviors of these parents in rearing their children become highly relevant.

No citation is necessary for the following well-setded rule: a heavier burden is placed on a chancellor in child-custody cases to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child’s best interests. We cannot say that the chancellor clearly erred, and his decision is affirmed.

Jennings and Stroud, JJ., agree. Crabtree, J., concurs. Rogers and Meads, JJ., dissent.

1 DHS’s final determination was that there was no credible evidence of abuse.