Ricky Hopper v. Joyce E. Roof

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

DIVISION I

CA00-71

SEPTEMBER 13, 2000

RICKY HOPPER

APPELLANT APPEAL FROM THE BAXTER

COUNTY CHANCERY COURT

[E93-144-2]

v.

JOYCE E. ROOF HONORABLE GARY ISBELL

APPELLEE CHANCERY JUDGE

REVERSED AND REMANDED

Appellant Ricky Hopper appeals from a decision of the Baxter County Chancery Court denying his petition for change of custody. On appeal, appellant argues that the chancery court erred in finding that he failed to prove a material change in circumstances sufficient to allow the court to reach the issue of whether a change of custody was in the best interest of the child. We agree with appellant.

Appellant and appellee, Joyce Roof, were divorced on October 4, 1993. Pursuant to the divorce decree, appellee was awarded custody of the parties' minor daughter, Megan, and appellant was given visitation and ordered to pay child support. On March 25, 1999, appellant filed a petition to change custody alleging the following changes in circumstance to warrant placement of Megan with him:

1. Appellee failed to provide an appropriate home and environment for the child.

2. Appellee lived with an abusive man.

3. Appellee used illegal drugs.

4. Appellee was under investigation by the Department of Human

Services.

5. Appellee had two other children removed from her home.

6. Appellee was allowing a convicted felon to reside in her home.

On August 12, 1999, a hearing was held on appellant's petition to change custody. Jimmy Roof, appellee's husband, testified that he and appellee have been married for four years, and that his two daughters from a previous marriage reside with him, appellee, Megan, and his three-year-old daughter born into his marriage with appellee. He also testified that appellee has two older children, Josh and Lacy, from her first marriage and that both of these children once lived with him and appellee.

Mr. Roof testified that until two days before the hearing, his brother, Jamie Roof, had resided in his family's home as a condition of Jamie's parole from the Arkansas Department of Correction. He stated that Jamie now resides at the Ozark Mountain Alcohol and Rehabilitation Treatment Center. At the beginning of his marriage to appellee, Mr. Roof testified that he was charged with domestic abuse, which involved appellee as the victim. He admitted that he had three DWI convictions and that he was convicted of assaulting Josh when Josh was thirteen years of age. He stated that Josh was seventeen years old at the time of the hearing. Mr. Roof testified, however, that the state child protection services never removed any child from his home and that his former DWI convictions occurred prior to hisrelationship with appellee. He further admitted that he occasionally drinks alcohol in front of the children and that he smokes cigarettes regularly.

Jamie Roof testified that he had been living with his brother and appellee since February 23, 1999, and that he had been convicted of several offenses. Jamie admitted that he had previously been convicted of growing marijuana and that he has been charged with more than one DWI over the past three years. Jamie testified that he had not committed any crime while he resided with his brother's family.

James Reeves, appellee's father, testified that he and his wife have guardianship of appellee's oldest daughter, Lacy. He testified that Lacy was currently in a residential mental treatment facility and that appellee consented to the guardianship of Lacy for the betterment of Lacy. He testified that he has witnessed Jimmy Roof's "borderline violent temper" in the presence of Megan and that he was concerned with Megan's repetitive problem with head lice. He testified that Megan's dental health has been neglected and that Megan is often dirty when he and his wife pick her up.

Appellant testified that he could provide a more suitable home for Megan than appellee. He testified that he was concerned with Megan's head lice problem and that he was concerned about the environment in which Megan lived. He testified that he remarried four years ago and that he and his wife work for a ministry group at their church. He testified that he paid for Megan to have oral surgery, but admitted that he was behind on child support payments. Appellant testified that he did not petition for custody after the incident involving Mr. Roof and Josh because he felt that Megan was younger at that timeand needed to be with her mother.

Appellee testified that she married Mr. Roof in 1995 and that she works as an LPN. She testified that she consented to her parents having guardianship of Lacy and that she agreed to allow Josh to live with his father. She testified that Megan, as well as Mr. Roof's daughters, had been having problems with head lice two or three times a year and that she checks the girls' heads on a nightly basis. She testified that Megan has a slight speech problem and that Megan has had speech therapists working with her since preschool. Appellee testified that Megan has a high self-esteem and that Megan has improved in her grades. She further testified that she cleans her house every day and that her father has not liked Mr. Roof since the incident with Josh. Appellee stated that the Department of Human Services has investigated her home and found that no problems exist. She also testified that she has dental insurance and that Megan has received regular dental care. Appellee testified that since the incident with Josh, there has been no corporal punishment in her home.

Following the hearing, the chancellor found that there was not a material change of circumstances sufficient to warrant a change of custody. He found that although appellant was cognizant of the circumstances under which Lacy and Josh were removed from the home, and the allegations of domestic abuse involving the appellee, he sat on his rights and tolerated the situation for such a period of time that the court could not find that there was a change in circumstances. The chancellor also found that there was no reasonable nexus proven to indicate that Jamie Roof posed a danger or risk to any child in the Roof household, and that the Department of Human Services did not find any problems following aninvestigation of the Roofs.

Appellant now argues that the chancery court erred in finding that he failed to prove a material change in circumstances sufficient to allow the court to reach the issue of whether a change of custody was in the best interest of the child.

In chancery cases, the appellate court reviews the evidence de novo but does not reverse the findings of the chancellor unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The appellate court gives due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 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. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999).

A material change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody. Thompson v. Thompson, supra. The party seeking modification has the burden of showing such a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). While the primary consideration in a change of custody suit is the welfare and best interest of the child, an order changing custody cannot be made without proof showing a change in circumstances from those existing at the time the original order was made. Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998).

From our de novo review, the record reveals testimony that appellee's husband drank alcohol and smoked cigarettes in front of Megan as well as testimony that Megan was present during a domestic abuse incident involving Jimmy Roof and appellee, as the victim. Jimmy Roof was also convicted of assaulting appellee's son, Josh, when Josh was thirteen years old. There was evidence that Megan was dirty when her grandparents picked her up and that Megan has had frequent problems with head lice. The record further includes testimony that appellee and her husband allowed a convicted felon to reside in their home with Megan and their other children prior to the hearing in this matter. Jamie Roof admitted that he has had drug and alcohol problems and that he is now seeking treatment for the second time at a drug rehabilitation and treatment facility. Similarly, in Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), our supreme court stated:

[O]ur de novo review of the record reveals that there was sufficient evidence from which the chancellor could have found a change in circumstances after the initial decree. It includes testimony that the appellant screamed and yelled at the appellee in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant's use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to live with appellee, and when told she had to go home with appellant, she suffered stomach problems.

Based on the foregoing, we find that the chancellor's finding that no material change in circumstances had occurred was clearly against the preponderance of the evidence, and remand for the trial court to consider whether a change of custody is in the best interest ofthe parties' child.

Reversed and remanded.

Bird and Griffen, JJ., agree.