Jared W. Price v. Nichole Soto

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION III

JARED W. PRICE

APPELLANT

V.

NICHOLE SOTO

APPELLEE

CA 00-125

November 1, 2000

APPEAL FROM THE SEBASTIAN COUNTY CHANCERY COURT,

FORT SMITH DISTRICT [E-98-441-1]

HONORABLE NORMAN

WILKINSON, CHANCELLOR

AFFIRMED

This is a child custody case. Appellant, Jared (Bill) Price, is the father; appellee, Nichole Soto, is the mother; and Haley Larae Price is the child. Haley was born on December 29, 1995. Appellee maintained primary physical custody of the child even after the parties went their separate ways, and a judgment of paternity was entered on July 15, 1998. On March 29, 1999, appellant filed a motion to modify custody. Appellee countered with a motion that, among other things, sought to confirm her right to custody of the child. Following a hearing, the chancellor denied appellant's motion and ordered that custody remain with appellee. For his sole point of appeal, appellant contends that the chancellor's finding that it was in Haley's best interest to remain in her mother's custody was clearly erroneous. We disagree and affirm.

The July 6, 1999, order in this case provided in pertinent part:

[Appellant's] Motion for Change of Custody is denied. And [appellee's] Motion for Permanent Custody is granted. The custody of the parties' child, Haley Larae Price, born 29 December 1995 is confirmed in the [appellee] mother; custody having previously been awarded to her in this Court's Decree of Paternity of 15 July 1998. The Court is convinced that the custody should remain with the mother in that every witness testified, even the father's witnesses, the mother has done a good job of raising the parties' child. It is noteworthy that the father and the paternal grandmother also testified that Haley's mother gave her good care in raising her.

After the hearing, the chancellor gave more details explaining his rationale for deciding that custody should remain with appellee:

The first question to be answered is, has there been any change of circumstances since the last time that we were in Court and there have been any number of changes in circumstances. I really don't think there is any need for me to list them all. And the question is, well, it is in Haley's best interest for custody to be awarded to which parent and I have determined from all the testimony presented that the custody of Haley will be with the mother and let me tell you one reason that I am making that decision is that to a person, every witness that testified, even the witnesses that were really here to testify against the mother basically had to admit that Nichole had done a good job of raising Haley and that has played a big part in my decision. Even Darlene [appellant's fiancée] testified that Nichole had done a good job of raising Haley. Jared testified to that. Jared's mother testified that up until lately, and Ms. Wells as well. I would not have had any hesitation in placing custody of Haley with Jared. I think she would have been well cared for and done just fine. It is just that it is a very difficult and close case; but based on all that I've heard, I believe that Haley's best interest will be served by custody being awarded to the mother.

Chancery cases are tried de novo on appeal. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). We will not disturb a chancellor's findings unless they are clearly against the preponderance of the evidence. Id. 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. 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. 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. Id.

Moreover, custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Id. 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. Id.

Here, the chancellor found, and the parties do not dispute, that a material change in circumstances had occurred. Consequently, the focus of the appeal is whether the chancellor was clearly erroneous in concluding that it was in the child's best interest for custody to remain with the mother, appellee. We note at the outset that the chancellor was faced with a situation in which neither party had been a model parent. A summary of the pertinent testimony presented at the hearing follows.

Andrea Lanette Meadows, a former neighbor and friend of both parties, testified that she met the parties when Haley was twelve days old; that they moved in with her family approximately two weeks later; that they stayed for approximately six months; that she kept Haley while appellee went to high school and appellant went to work; that she was concerned about the parties' parenting because they were so young and "didn't know what they were doing"; and that she remained in contact with them after they split up in April or May 1997, although she saw appellant more than appellee because he had the car and worked with herhusband. She testified about prior drug use by both parties. Moreover, she told about a video tape she discovered among appellee's personal effects that showed a party at her house in which people were smoking marijuana. The video tape was introduced as an exhibit. Meadows expressed her opinion that Haley would be better off with appellant because he had more family support than appellee. However, she also testified that one time appellant hit appellee on Valentine's Day, and that between appellee and appellant, appellee was the best care giver. She stated that appellee had "done a pretty good job of raising Haley so far"; that Haley got along well with appellee's boyfriend, Bobby; that appellee was a "neat freak"; and that appellee "was not happy" with people using drugs around her apartment.

Susan Wells, appellant's aunt, testified that she has had a lot of contact with appellant and his fiancée, Darlene, since he moved back to California in June 1998; that she has seen them interact with Haley; that appellant and Darlene have stayed at her mother's house because she has some health problems and they have been helping out; that Haley has her own bedroom there; that in the year appellant has been in California, she has observed that he has not been involved in any kind of drug use; and that she has not even seen him drink a beer.

Sharon Price, appellant's mother, testified that appellant and Darlene lived in her house when they first came to California; that he began working at Carpet Corral and has worked steadily; that when appellee returned from West Virginia things were tough for her, and Sharon asked if Haley could come to California to visit; that appellee agreed, and appellant and Darlene went to pick her up; that she has observed them interact with Haley andnothing has caused her concern; that appellant is a good father; that her family would be their support if appellant needed help; that she has been concerned by Haley's fear of police and "sexual innuendoes" from Haley; that she was aware of appellant's prior drug use, has kept a watchful eye, and has not seen any evidence whatsoever of drug activity by appellant and Darlene. She also testified that appellee "did a pretty good job" caring for Haley.

Darlene Kortz, appellant's fiancée, testified that they planned to marry on March 31, 2000; that when she and appellant picked Haley up in December 1998, appellee's apartment was very dirty, and had very little furniture and a mattress on the floor; that after they brought Haley to California, they learned appellee had been arrested and was in jail; that appellant and Haley have a "great relationship"; that they have daily communications with the extended family and get together with them. She described Haley's activities with her and described the pre-school she would like for her to attend. She denied ever selling drugs, maintaining that her former husband was selling drugs out of their house and that was one of the main reasons for their breakup. She said that she had not used illegal drugs since they had been in California; that she has not seen any evidence that appellant has, either; and that neither of them drink alcohol.

Appellant testified about the kinds of things he and Haley do together. He acknowledged that appellee had the child until December 1998 and that appellee "did do a pretty good job of raising the child," that the child came to him in good shape, and that the child loves her mother.

Appellee testified about her work history and her second child. She also testified that appellant was getting more and more abusive toward her when she left him; and that after they separated, he did not come over and care for Haley. She explained that she was arrested on January 21, 1999; that Haley was in California with appellant at that time; that a couple of her brother's friends were going to Little Rock to see her brother and asked her to come; that there were marijuana and papers in the car, but she didn't know it; that they were pulled over for speeding and the marijuana was found; that she was in the back seat; that she was arrested; and that she was in jail for forty-five days. On cross-examination, she recounted her history of past drug use and changing residences; and she denied that Haley had seen her and Bobby having sexual relations.

Ray Drouillard, appellee's stepfather, testified that appellee has been the primary caregiver since Haley's birth; that appellant did not do much with respect to the child; that appellant is impatient, uncaring, and hot tempered; that appellant has "hollered at" Haley; and that in his opinion appellee is the better person to raise Haley.

Glenda Drouillard, appellee's mother, testified that she saw appellant shake the child one time when Haley was six months old and crying; that there was a problem with appellant physically abusing appellee; and that the couple often argued because appellee did not want appellant spending money on marijuana.

Our review of the evidence presented in this case reinforces our long-held position that there are 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. Moreover,we are not left with a definite and firm conviction that the chancellor made a mistake in this case. We therefore affirm.

Affirmed.

Koonce and Griffen, JJ., agree.