Tina Henson v. Wally D. Henson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

TINA HENSON

APPELLANT

V.

WALLY D. HENSON

APPELLEE

CA 00-68

SEPTEMBER 27, 2000

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

[NO. DV97-2104]

HONORABLE ROBIN MAYS,

CHANCELLOR

AFFIRMED

This appeal arose out of the Pulaski County Chancery Court's decision to change custody of the parties' two minor children from the appellant, Tina Henson, to the appellee, Wally Henson. The parties were divorced by decree on October 13, 1997. By agreement, appellant was awarded custody of the two minor children. On December 11, 1998, appellee filed a Motion for Change of Custody. A two-day trial was held regarding this Motion, after which the trial court found that there had been a material change of circumstances justifying a change of custody. The trial court based its decision on the following: that appellant had alienated the children from the appellee; that appellant had an alleged relationship with British rock star George Michael; and that appellant had severe financial problems including the fact that her utilities were shut off on two occasions, and she was behind on her mortgage payments. We find no error and affirm.

In chancery cases we review the case de novo, but we do not reverse the findings of the chancellor unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In child-custody cases we give special deference to the chancellor's position to evaluate what is in the best interests of the child. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). A material change of circumstances affecting the best interests of the child must be shown before a court can modify an order regarding child-custody, and the burden is on the party seeking modification to prove such a material change in circumstances. Id. The primary consideration in awarding the custody of a child is the best interests of the child; everything else is secondary. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000).

In the present case the chancellor found that a material change in circumstances had been proven, and that it was in the best interests of the children to change custody to appellee. This decision was based in large part on the testimony of Dr. Paul Lewis Deyoub, a clinical psychologist. Dr. Deyoub interviewed appellant, appellee, and the two children. He testified that appellant created anxieties for the two children concerning visitation with the appellee. The evidence showed that appellant withheld two weeks visitation in August 1998, and she interfered with appellee's visitation on at least two occasions.

At trial appellant testified that she had an ongoing relationship with British rock starGeorge Michael, whom she allegedly met on the Internet. The trial court expressed no opinion as to the reality of this relationship, but held that if it was true it was bizarre, and if it was not true then appellant was delusional. The chancellor held that the "George Michael thing" was not healthy for the mother, and whether or not it was true, it was unstable behavior.

The trial court also relied on the fact that appellant's utilities had been previously shut off. Her telephone had been cut off several times, gas had been shut off twice, and electricity had been shut off once. The court found that appellant had telephone bills over $4,000, that she bounced checks, and that she had been behind in her mortgage payments causing foreclosure proceedings to begin.

Based on these findings the trial court found that there had been a material change in circumstances, and it was in the best interests of the children to change custody to appellee. Reviewing this case de novo, we cannot find that the chancellor was clearly erroneous. We find that the trial court's findings that appellant was instilling in the children a desire for them not to have a relationship with appellee, along with the financial difficulties, and a bizarre alleged relationship with Mr. Michael was sufficient to show a material change in circumstances.

Affirmed.

Robbins, C.J., and Meads, J., agree.