Andrea Rychel v. Randy Williams

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

ANDREA RYCHEL,

APPELLANT

V.

RANDY WILLIAMS,

APPELLEE

CA00-108

SEPTEMBER 6, 2000

APPEAL FROM THE SEBASTIAN COUNTY CHANCERY COURT,

NO. E93-759,

HON. JIM D. SPEARS,

CHANCERY JUDGE

AFFIRMED

Appellant Andrea Young Rychel brings this appeal from the Sebastian County Chancery Court contending that the court erred in not granting her custody of her daughter because there was no evidence that Rychel is an unfit mother. She also contends that because the chancellor erred in engaging in improper ex parte communications with appellees Rosemary and Randy Williams, the case should be transferred to Crawford County Chancery Court.

Katrina Nicole "Nikki" Williams is the six-year-old daughter of Rychel and Randy Williams. Rosemary Williams, Randy's mother and Nikki's grandmother, has custody of Nikki. Randy Williams and Rychel were never married.

The case has its origins in a paternity action, in which Randy Williams acknowledged that he is the father of Nikki. The order establishing paternity, dated January 28, 1994, also

stated that custody of Nikki shall remain with Rychel. On February 17, the court entered an ex parte order awarding temporary custody of Nikki to Randy Williams and set a hearing date. In a motion filed March 1994, Rychel asked the court to dismiss Randy's petition and return custody of the child to her. The record does not reflect that the hearing set by the February 17 order ever took place. On January 19, 1995, the court entered another temporary ex parte order, which stated, "Temporary custody of Katrina Young Williams, is placed with the grandmother, Rosemary Williams, until such time as this Court can schedule the matter for a hearing with all parties being properly notified. All previous Orders of custody and support are modified by this Ex-Parte order which takes precedence." Rychel was ordered to pay child support to Rosemary.

In November 1995, Rychel was ordered to appear to show cause why she should not be held in contempt for not paying child support. An order was filed January 18, 1996, stating that she had failed to pay child support, but no determination was made as to the amount owed because Rosemary Williams had requested that the Office of Child Support Enforcement not collect any child support at that time.

On June 28, 1998, Randy filed a petition stating that Nikki had been in the full-time care, custody, and control of Rosemary for approximately three years, and asking that Nikki's surname be changed from Young to Williams. Rychel filed a motion objecting to the change of Nikki's name and stating that there had been a change of circumstances and that custody of Nikki should be awarded to her. Rosemary filed a petition for intervention and stated that custody should remain with her.

At a hearing on October 19, 1999, Rychel testified that she and Randy were never married and that Nikki was born March 5, 1993. She stated that she moved in with Rosemary in January 1995, but that Randy did not live there. She stated that Randy visited Nikki occasionally. She lived with Rosemary until March 1995, when she moved in with John O'Connor, whom she married in May 1997. A child, Londyn, was born to that marriage, which eventually ended in divorce. Rychel has custody of Londyn, who is now three. When she moved out of Rosemary's home, Rychel stated that she did not take Nikki with her because Rosemary had an ex parte order granting her custody.

Rychel married her present husband, Adam, in March 1999. Adam works at Fort Smith Glass and Mirror, and Rychel works at the Sonic in Alma, where she has been employed for approximately seven months. Rychel admitted using drugs in the past, but stated that she had not used any drugs since January 1995. She stated that she waited a long time before attempting to gain custody of Nikki because she had a lot of financial problems and problems with her first marriage.

Martha Wells, a licensed social worker for the State, testified that she did an investigation of Rychel's home at the request of Rychel's attorney. She stated that she called and made an appointment with Rychel to visit her home. Wells also testified that she returned a second time unannounced. She said that Rychel and her husband lived in an older mobile home and that Rychel's housekeeping was good. She stated that Rychel was very attentive to her child Londyn and that the child responded to both her and her husband. She stated that as a result of her visit the "impressions that I formed of Andrea and Adam are thatI feel that Andrea realizes that she had made a lot of mistakes in her life and that she is trying to resolve some [of] them and rectify them."

Rosemary Williams testified that she has had physical custody of Nikki since approximately February 1994. In January 1995, she obtained legal custody, when "Judge Spears gave me custody of Nikki over the telephone." Rosemary testified that Nikki is a first-grader at J.J. Izard Elementary School in Van Buren, and that she had been involved in all of Nikki's school activities. Rosemary testified that she allowed Rychel to visit with Nikki as long as the visitation occurred at Rychel's father's home.

Thelma Young testified that she is married to James Young, Rychel's father. Thelma Young stated that she has visited Rychel at her home and that it is not very clean. She stated that Londyn's appearance and hygiene were not real good. Thelma Young stated that she had called the Department of Human Services to report Rychel for her mistreatment of Londyn. She also stated that Rychel had used drugs in the past eighteen months and that she had seen her under the influence of drugs.

The judge entered an order on October 19, 1999, denying Rychel's motion for change of custody because Rychel had not offered proof of a change of circumstances and because Nikki's best interest would be served by remaining in the custody of Rosemary. Rychel brings this appeal. We affirm.

We review chancery cases de novo, but we do not reverse the findings of the chancellor unless they are clearly contrary to the preponderance of the evidence. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000); Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). In making our review, we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child's best interest. Friedrich v. Bevis, supra; Hamilton v. Barrett, supra; Presley v. Presley, supra. The primary consideration in a change-of-custody suit is the welfare and best interest of the child. Friedrich v. Bevis, supra; Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999).

Rychel argues that, as the natural mother of Nikki, she has a fundamental right to have custody of her daughter absent a showing that she is an unfit mother. It is true that, as between a parent and grandparent, the law awards custody to the parent unless he is incompetent or unfit to have custody of the child. Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979). However, in the case at bar, we agree with the chancellor that Rychel was seeking a change of custody, and thus had to prove that a change of circumstances had occurred, rather than Rosemary proving that Rychel is an incompetent or unfit parent.

In Jones v. Strauser, supra, the court held that when a parent enters into an agreement with a grandparent for the grandparent to have custody of his child, the parental preference is not thereby forfeited forever, but its effect is so diminished that the parent bears the burden of showing a change of circumstances. See also In Re Guardianship of Markham v. Buck, 32 Ark. App. 46, 795 S.W.2d 931 (1990). This court has also held that the rights of parents are not proprietary and are subject to their related duty to care for and protect the child, and the law secures their preferential rights only so long as they discharge their obligations. In Re Guardianship of Markham v. Buck, supra.

This case is very similar to Jones v. Strauser, supra. Although in the case at bar, there was no express agreement between Rychel and Rosemary for Rosemary to have custody of Nikki, Rychel waited several years before taking any action to reacquire custody of Nikki. Rychel testified,

The reason why I waited so long from 1994 to 1999 to try to get Nikki back is because I had a lot of troubles. I had money troubles and troubles with my first marriage. But I am straight now and on both of my feet now and I can fully take care of her.

....

Nikki is now six and half [sic] years old. She was going on two years old in January 1995 when the Court awarded custody of Nikki to Rosemary. I made no effort to come back to this court until now to try to reclaim custody of Nikki or to try to get the Court to give any visitation. I do [sic] not do so until Randy filed a petition to change Nikki's name from Young to Williams.

Because Rychel acquiesced in Rosemary William's custody of Nikki for several years before taking any steps to reacquire custody, acting then only after Randy Williams sought to have Nikki's surname changed to Williams, we believe that as in Jones v. Strauser, supra, Rychel's parental preference has been so diminished that she had the burden of proving a change of circumstances as a prerequisite to reacquiring Nikki's custody.

In deciding whether a change of custody has occurred, a chancellor must first determine whether there has been a material change in circumstances of the parties since the most recent custody decree. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). If a material change of circumstances has occurred, the chancellor must then decide custodial placement. Turner v. Benson, supra. The party seeking the modification has the burden ofshowing such a change of circumstances. Presley v. Presley, supra.

Using the standard of review established by Jones v. Strauser, and based upon the facts before us, we cannot say that the chancellor erred in finding that a material change of circumstances had not occurred. Rosemary Williams had exercised custody of Nikki for most of Nikki's life. Also, there is clear evidence that Rychel took little interest in, and provided little support, care, supervision, or protection of Nikki. It was not until Randy filed a petition stating that Nikki had been in the full-time care, custody and control of Rosemary and asking that Nikki's surname be changed from Young to Williams, that Rychel sought a change of custody.

Even if Rychel had proven that a change of circumstances had occurred, she would then have the burden of proving that it would be in the best interest of Nikki to be placed in her custody. Friedrich v. Bevis, supra; Swadley v. Krugler, supra. It is fundamental that the primary consideration in child-custody cases is the welfare and best interest of the children involved. Friedrich v. Bevis, supra. And, we also affirm the chancellor's decision that it is in the best interest of Nikki to remain with her grandmother. Nikki has lived with her grandmother for most of her life with her grandmother acting as the parental figure. Further, she has shown her a stable environment and has remained active in her school activities. There was also conflicting evidence. While testimony was presented that Rychel realized she had made some mistakes and was trying to resolve them, there was also testimony that Rychel's daughter Londyn appeared dirty and had poor hygiene. In addition, testimony was presented that Rychel had used drugs in the past eighteen months before the hearing.

For Rychel's second point on appeal, she argues that the court erred by engaging in improper ex parte communications and the case should be transferred from the Sebastian County Chancery Court to the Crawford County Chancery Court. However, we do not consider this point because Rychel did not argue this point at any time below during the proceedings. This court does not consider arguments made for the first time on appeal. Johnston v. Curtis, 70 Ark. App. 195, 16 S.W.3d 283 (2000).

Even if we reached the merits of Rychel's argument, we cannot say that she was prejudiced by the ex parte communication with Randy and Rosemary. Rychel was ordered to pay child support to Rosemary and in November 1995, she was ordered to appear and show cause why she should not be held in contempt for failing to pay child support. It was not until this appeal that she objected to the ex parte order.

Affirmed.

Griffen and Neal, JJ., agree.