Rosemary Conville v. John D. Conville

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISIONS II

CA00-524

DECEMBER 20, 2000

ROSEMARY CONVILLE AN APPEAL FROM THE FAULKNER COUNTY CIRCUIT

APPELLANT COURT [E-96-476]

v.

JOHN D. CONVILLE HONORABLE KAREN

BAKER, CHANCERY JUDGE

APPELLEE

AFFIRMED

Appellant Rosemary Conville brings this appeal from an order of the Faulkner County Chancery Court, which granted appellee's petition for change of custody of the parties' child, who was five and one-half years old at the time of the final hearing. On appeal, appellant argues that the trial court erred: 1) in changing custody based upon predictions of future conduct and effects, rather than on present material changed circumstances; 2) in changing custody based upon life-long personality traits; 3) in changing custody out of a desire to punish her, rather than because the change was in the best interest of the child.

The parties were married May 15, 1993, and divorced in June of 1997. Pursuant to the divorce decree filed June 10, 1997, appellant was awarded custody of the parties' child, Kayce, and appellee was granted reasonable visitation. Shortly thereafter, appellant filed an affidavit and request form for a misdemeanor warrant alleging that on November 29, 1997, appellee "hit [her] leg" with his van during a visitation exchange. Appellant stated that the incident occurred after she disagreed with appellee when he told her that he was going out of town and would be leaving Kayce in the care of his daughter, Toni, who appellant did not feel was trustworthy enough to care for Kayce. The affidavit listed other alleged problems appellant had with appellee during his visitation with Kayce since the divorce, including an allegation of possible sexual abuse by appellee after a visitation weekend. On December 15, 1997, appellee filed a petition for emergency relief, wherein he stated that appellant had denied him visitation during a weekend in December and that appellant was attempting to deny him Christmas visitation with Kayce. Attached to the petition was a letter written by appellant stating that she was withholding visitation until a contempt hearing could be held. The trial court granted the order for emergency relief and ordered that a hearing be held December 17, 1997. Following the hearing, appellee was allowed Christmas visitation with Kayce and appellant was allowed to contact Kayce at a reasonable time during the visitation.

On February 6, 1998, appellee filed a petition for contempt alleging that since the December 17, 1997, hearing, appellant had mailed letters to numerous persons associated with appellee containing comments designed to embarrass appellant. The petition also stated that the letters included transcribed copies of alleged telephone conversations between the parties prior to the divorce. On that same date, appellee filed a motion for change of custody alleging that "[appellant] belittles the [appellee] in the presence of the parties' minor childin an effort to destroy the [appellee's] relationship with his daughter" and that appellant does not provide an appropriate environment for Kayce. Subsequently, appellee filed a motion requesting the trial court to immediately order a complete psychological evaluation of both parties by a psychologist or psychiatrist so that the results could be available to both parties' counsel prior to the final hearing.

At a two-day hearing held July 14 and 27, 1999, on appellee's petition for change of custody, several witnesses testified on behalf of both parties. Dr. Paul Deyoub, a clinical psychologist hired by Continuum of Services at the Human Development Center, conducted a psychological evaluation of the parties and Kayce, and his reports were admitted into evidence. Of critical importance were Dr. Deyoub assessment of the parties:

I do not think [appellee] John Conville ever sexually abused Kayce. These were false allegations and I think they were suggested and coached by the mother. The mother still believes them to be true, even though Kayce made no such disclosure to me and the evaluation of John Conville did not suggest that he would sexually abuse his daughter. Making false allegations of sexual abuse could well be considered a form of child abuse. Kayce directly acknowledged to me that her mother tells her negative things about her father and the child, even said "she tells me all about it." She said the words that were negative about her father, but I saw no affect [sic] and her emotional state seemed to be receptive to spending time with her dad. Rosemary Conville was difficult to interview and I found her reasoning to be somewhat suspect. Everyone around her has problems and she assigns no responsibility to herself. Her children, her husband's children, the police, social services, and the courts are all at fault. She has taken all of her emotional needs and placed them on one child, since she has alienated everyone else. She clings to Kayce as her only emotional support. It is now she and Kayce against the world. Everyone else is wrong and she and her daughter are the victims. Rosemary Conville believes this and has no insight that others might see it differently. She steadfastly maintains that John sexually abused Kayce and I think she could make these allegations again. She wants to control every aspect of Kayce's visitation and she thinks that she should have control over Kayce's experience at the father's home. John Conville is not seeking custody in my opinion to be vindictive or to win something against Rosemary. He never filed custody for the other three children in his first marriage and he is reluctantly doing this at the present time. His wife, Faye, also is realistic about the challenge ahead should her husband have custody. Both of them seem to be motivated for genuine concern about Kayce, since it appears they both would prefer an adequate home environment with the mother. I do not see any evidence that Rosemary Conville is going to change or has any insight into this matter. I think she will continue poisoning Kayce against her father and I recommend that the court consider a change of custody to the biological father. I realize the court may wish to consider other remedies, but my opinion is that the mother is engaged in a relentless campaign against the father and has already been successful to some extent in poisoning this child's mind.

Ms. Lesa Doan, a certified social worker hired by appellant, disagreed with Dr. Deyoub's recommendation. Instead, she recommended that it would be inappropriate to change custody from appellant to appellee and stated that Kayce is a happy, energetic child whose mother [appellant] only wants appellee's visitations to be healthy and productive for Kayce. Ms. Doan referred appellant and Kayce to Ms. Linda VanBlaricom, a psychological examiner. Ms. VanBlaricom's report indicated that Kayce's evaluation profile suggested that "[Kayce] was possibly more disturbed than appearances would indicate" and that appellant's profile indicated that "[appellant] is unwilling to admit even minor faults." However, Ms. Van Blaricom reported that "given that she [Kayce] is five years old, female,[sic] and has been with Rosemary Conville for most of her life, she probably has a better chance of achieving emotional security if she stays with Rosemary."

Appellant testified that she has two older daughters in addition to Kayce and that she has lived in the Memphis area in September of 1997. She testified that Kayce has been attending a Christian child care center and has been involved in gymnastics and other sporting activities. Appellant testified that in December of 1997 and January of 1998, she wrote several derogatory letters to persons who were acquainted with appellee, but denied that the letters were an attempt to harass appellee. Appellant testified that along with the letters she sent to persons who were employed with appellee, she included transcripts of telephone conversations appellee left on her answering machine, and that appellee admitted that he left the messages in the final divorce. Appellant stated that she deeply regretted sending the letters, but stated that she was frustrated and hurt due to things that had occurred to her, including the telephone calls made to her by appellee. Appellant denied that she made any disparaging remarks in front of Kayce regarding appellee and denied that she told Kayce that appellee had hit appellant with the van. Appellant further disagreed with Dr. Deyoub's recommendations and stated that Dr. Deyoub's evaluation of Kayce was immediately following an incident where appellee would not allow Kayce to take her Barbie Jeep, that he had purchased, back to Memphis. Appellant stated that Kayce's comments to Dr. Deyoub must have stemmed from that incident.

Appellee and his wife, Faye Conville, testified that appellant had been repeatedly late in exchanging Kayce for visitation and that, during those times, Kayce was shy and reluctantto show affection when they picked her up for visitation. They testified, however, that Kayce would change her demeanor once appellant left. Appellee testified that Kayce had begun to tell him that he was "mean" and that he was going to leave Faye and Faye's two minor children. Appellee denied that he attempted to run over appellant during a visitation exchange and further denied having sexually abused Kayce. Appellee testified that Kayce constantly told him that there were better things to do in Memphis, Tennessee and that he felt that a then four-year-old should not have been able to think of such things to say. Appellee admitted that he was not a perfect person, but stated that there was nothing to prevent him from being a good caregiver to Kayce. Appellee testified that he had decided when Kayce was born, that he would be a better father to her than he was with his three adult children. He believed that he could provide a more stable and normal life for Kayce and stated that Kayce is happy when she is with his family.

During her testimony at the hearing, Kayce stated that she doesn't like staying at appellee's home very often because she "doesn't get out very much." Kayce testified, however, that she does have fun when she visits appellee and that appellee's new wife and family are nice to her. Kayce stated that she never heard appellant say anything "mean" about appellee and that she thinks appellant is nice to her. Kayce did state that, on one occasion, appellant told her that appellee and Faye threw her belongings in appellant's car because appellant was late in picking her up from visitation.

At the conclusion of the hearing, the trial court stated that it believed that Kayce had been told inappropriate things and that even though Dr. Deyoub's recommendation was thestrongest it had ever read from a professional, it felt that Dr. Deyoub was an unbiased expert. The court recognized that this case is a difficult one and that Kayce is very happy in her environment with appellant. However, the trial court found that after reviewing all of the evidence and testimony, it was of the opinion that appellee's home would be more emotionally stable than appellant's home. The trial court found that the previous allegations of abuse made by appellant were false and that appellant continued to make to the allegations after Christmas of 1997. The trial court found that Kayce easily relates events that she does not remember and that considering the credibility of the witnesses, it felt that it would be in the best interest of Kayce to grant appellee's motion to change custody. The trial court further found that there had been a "constant consistent effort" to alienate Kayce on appellant's part and that the alienation by appellant was not likely to change. Consequently, the trial court awarded appellant the same visitation schedule that was previously prescribed to appellee.

On appeal, appellant first argues that the trial court erred in changing custody based on predictions of future conduct and effects, rather than on present material changed circumstances. Specifically, appellant contends that the trial court changed custody of Kayce based upon the predictions of Dr. Deyoub that she might make false allegations of sexual abuse against appellee at some time in the future.

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. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938(1999). In child-custody cases, the appellate court gives special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child's best interest. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998).

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). The party seeking a modification of an order regarding child custody has the burden of showing a material change in circumstances. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). There must be a showing of facts affecting the child's best interest that were not presented to or known by the trial court at the time the original order was entered. Fitzgerald, supra. Factors a trial court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).

In this case, although the trial court found Dr. Deyoub's opinion more credible than the opinions of the other experts, it also recognized appellant's current conduct in determining whether there was a significant change in circumstances which would warrant a change in custody to appellee. There was evidence presented that appellant sent letters to local newspapers and numerous people associated with appellee, describing personalinformation of appellee and allegations of the misdeeds of appellee. The trial court also noted that inappropriate statements had been made to Kayce and that Kayce, herself, made statements regarding appellee's alleged conduct "which [Kayce] had no personal knowledge." Based on the evidence presented, we cannot say that the trial court erred in finding that a significant change in circumstances affecting the best interest of the child occurred to grant custody of the child to appellee.

Appellant next argues that the trial court erred in changing custody to appellee based upon her lifelong personality traits. We do not agree. In its findings, the trial court focused not on appellant's personality traits, but on her conduct that flowed from her personality traits. Indeed, the trial court noted that "there has been a consistent effort to alienate Kayce. I'm not sure that this was a conscious effort on the mother's part, but I think it has been ongoing and is not likely to change." Because the chancellor was in a superior position to judge the credibility and demeanor of the many witnesses at the custody hearing and utilized to the fullest extent all of her powers of perception in evaluating the witnesses, their testimony, and the child's best interest, Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997), we cannot say that the trial court erred in awarding custody to the appellee.

Finally, appellant argues that the trial court changed custody out of a desire to punish her, rather than changing custody based upon the best interest of the child. Appellant points out that in one of the letters she wrote during her heated turmoil with appellee, she disparaged the Chancery Court of Faulkner County, which included the chancellor who presided over this case. We note, however, that there is nothing in the record to support appellant's argument that the change in custody was a tool used by the trial court to punish her. Furthermore, the trial court specifically stated that the change of custody was based upon the best interest of the child. For these reasons, we find no error.

Affirmed.

Pittman and Jennings, JJ., agree.