Rita Ainsworth v. Paul Ainsworth

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RITA AINSWORTH

APPELLANT

V.

PAUL AINSWORTH

APPELLEE

CA05-85

September 14, 2005

APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT

[NO. E2001-293-5]

HON. LARRY CHANDLER,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

This is an appeal from an order in which appellee Paul Ainsworth was awarded custody of the parties' minor child. Appellant Rita Ainsworth alleges that the trial court erred in the following respects: (1) improperly holding the hearing on the merits of appellee's motion for change of custody such as to deprive her of due process; (2) finding that a material change in circumstances had occurred that supported a change of custody of the child to appellee; (3) erroneously considering and/or failing to properly consider certain evidence when determining that it was in the child's best interest to grant the change of custody. We affirm.

The parties were married on July 6, 1979, and lived together until they separated on June 17, 2001. During the marriage, two children were born to the parties, a daughter whose date of birth was September 2, 1982, and a son whose date of birth was April 19, 1994; however, only the custody of the minor son was at issue in this case. Appellee filed for

divorce on August 24, 2001, citing general indignities. A hearing was held on the petition for divorce, and the trial court entered a divorce decree on September 21, 2001, that incorporated the parties' mutually agreed upon property settlement agreement. As part of that agreement, appellant was awarded custody of the parties' son.

On June 25, 2003, appellee filed a motion to modify the decree requesting, primarily, a change in custody, and appellant responded on July 14, 2003. Appellant then moved for a continuance on March 26, 2004, based on the recent hiring of a new attorney and outstanding discovery issues, and she requested that a future hearing date be decided upon by the agreement of the parties. The trial court granted the motion, over appellee's objection, on April 8, 2004.

On August 5, 2004, appellee filed a motion for emergency temporary custody of the parties' son based on appellant's August 3, 2004 incarceration for failing to pay hot-check charges. The motion requested that appellee be granted temporary custody until a final hearing was held on the matter. The hearing on appellee's motion was set, but then continued after a discussion between the parties' respective attorneys, and then reset for September 10, 2004. On that date, appellant's attorney was informed, in chambers, that the hearing was to be on the merits of appellee's original motion for a change of custody due to the fact that appellant was no longer incarcerated. The full hearing proceeded despite objection from appellant's attorney. The trial court entered its order changing custody to appellee on October 4, 2004, and appellant filed a motion for reconsideration on October 29, 2004, as well as a notice of appeal on November 1, 2004. Appellee responded to the motion for reconsideration on November 10, 2004. Appellant's motion for reconsideration was denied on November 24, 2004.

Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Alphin v. Alphin, __ Ark. App. __, __ S.W.3d __ (Feb. 23, 2005). Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. Id. The burden of proving such a change is on the party seeking the modification. Id. The primary consideration is the best interest and welfare of the child, and all other considerations are secondary. Id. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Id.

In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the trial court unless it is shown that they are clearly erroneous. See Alphin, supra. A finding is clearly erroneous, 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. Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Id.

I. September 10, 2004 Hearing on the Merits

Appellant argues that the trial court erred in holding a hearing on the merits of appellee's original motion on September 10, 2004, rather than on the subsequent emergency motion for temporary custody. She contends that the matter had been continued so that she could obtain complete discovery responses from appellee and that those discovery issues had not been resolved by the time of the hearing. She states that the new hearing on the merits of the petition for change of custody was to be set for a date agreed upon by the parties and claims that she never agreed to September 10, 2004. Finally, she maintains that she did not have notice that the hearing was to be on the merits, and as such, her due process rights were denied because the hearing moved forward without appellee having provided the requested discovery.

There is nothing in the record that reflects an objection by appellant to the September 10, 2004 date, and further, nothing indicates that she was less than prepared for the hearing. She had witnesses present who testified, as well as exhibits that she introduced into evidence. Additionally, appellant presents no evidence to support her allegation that appellee had not complied with her discovery requests by the time the hearing occurred. Appellant fails to set out what other witnesses she might have called, what other documents she might have introduced, and what specific prejudice was caused by proceeding with the hearing on the merits. Appellant has failed to present us with enough evidence to reverse on this point.

Finally, appellee asserts that appellant's motion for reconsideration should not even be reviewed as part of this case because she failed to file a notice of appeal that covered the order denying the motion for reconsideration. The order changing custody was entered on October 4, 2004. The motion for reconsideration was filed on October 29, 2004, which alleged all the arguments now raised on appeal. The notice of appeal was filed on November 1, 2004, specifically covering only the original change of custody order. Finally, the order denying the motion for reconsideration was filed November 24, 2004, and no amended notice of appeal was filed with respect to that ruling.

Arkansas Rule of Appellate Procedure--Civil 4(b) provides:

(b)(1) A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment, decree, or order. A Party who seeks to also appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with Rule 3(e). No additional fees will be required for filing an amended notice of appeal.

(Emphasis added.) Appellant does not appeal from the denial of her motion for reconsideration. The notice of appeal states expressly that she appeals from the trial court's order in favor of appellee entered on or about October 1, 2004, resulting in the change of custody of their child. Arkansas Rule of Appellate Procedure--Civil 4(b) provides that a notice filed before disposition of a post-trial motion "is effective to appeal the underlying judgment, decree, or order." Accordingly, it was not necessary for appellant also to have amended her notice of appeal in order to perfect this appeal from an underlying order.

II. Material Change in Circumstances Supporting Change of Custody

Appellant next contends that none of the trial court's specific considerations listed in the order changing custody constituted a material change in circumstances required to warrant a change in custody. In Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999), this court held that certain factors, when examined in the aggregate, may support a custody modification where each factor, if examined in isolation, would not. In the case at bar, there are factors that, when examined in the aggregate, amount to a material change in circumstances. These include appellant's: (1) seven changes in residence since the parties' divorce, some of which occurred when she owed rent and/or utilities at the previous residences; (2) multiple changes in employment during the three-year period in question, at least three of which were voluntary; (3) two subsequent marriages to two other men since the parties' divorce, details of each raising issues of questionable reputation and character; (4) admitted "dating" relationships with approximately a dozen men, other than her two subsequent marriages, since the parties' divorce; (5) arrest, conviction, fine, and eventual incarceration in August 2004 for non-payment of those fines associated with writing seven hot checks; (6) violent behavior in front of the parties' minor son and other family members. In sum, we conclude that the trial court was presented with facts demonstrating a material change in circumstances, arising since the prior order of custody. Thus, the trial court's decision with respect to this issue was not clearly erroneous.

III. Consideration of Certain Evidence in Determining the Best Interest of the Child

Appellant contends that during the hearing the trial court erroneously considered and, in some instances failed to give proper consideration to, certain evidence when determining that it was in the child's best interest to grant the change of custody. Appellant asserts that, while the trial court commented that it was impressed by the fact that appellee had lived in the same home for twenty-five years, he in fact admitted on cross examination that he had lived in a different town at one point in the past few years. Accordingly, she argues that the court's order was based on at least one incorrect finding of fact. Appellee contradicts her claim, stating that he testified that he had lived at his address for twenty-five years, and as such, the trial court's finding is supported. Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. Id.

Appellant also claims that there was unrefuted testimony that, when the child returned from appellee's house, he had extensive behavioral problems for some time, which indicated that something was occurring there that was not in his best interest. The child testified that appellee called him foul names and wanted him to call his stepmother "Mama" against his wishes. The child also testified that his stepsisters hit him and aggravated him, but appellee failed to stop the behavior. There was also an issue regarding the child sleeping in the same bed with his older stepsister who engaged in some questionable activities, evidence of which was excluded by the trial court. She asserts that there were questions regarding the girl's sexual behavior that were not properly considered by the trial court. Appellant points out that problems with step-siblings is a factor to be considered on a request for a change of custody. See Aaron v. Aaron, 228 Ark. 27, 305 S.W.2d 550 (1957).

Finally, appellant raises various safety issues related to their son, which are factors to be considered when determining the best interest of the child. See Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). There is conflicting evidence regarding appellee letting the child ride a four-wheeler alone and without a helmet. Appellant also questions appellee letting the child use the lawn mower and cites to firearm accidents because appellee has never required the child to attend a gun-safety course.

Appellant refers to the trial court's acknowledgment that the child wanted to stay with her, which is important when determining custody. See Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). Yet the trial court held that the child's desire and the facts that he was doing well in school and was not deprived of any of his basic needs were overridden by the previously discussed material changes in circumstances. Appellant made numerous allegations against appellee both at the trial court level and in her argument on appeal. However, these matters were properly before the trial court, along with the previously discussed evidence related to appellant's lifestyle and behavior, and we recognize the trial court's superior position to judge credibility in matters relating to child custody. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). Evidence concerning the moral character of a parent is relevant to the best interest of the child and to the issue of parental custody. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). This court has held that allowing persons with criminal convictions to be in the presence of one's children reflects on the parent's morality in allowing persons of questionable reputation and character to be around his child. Id. Given our deference to the trial court's position, we cannot say that its decision was clearly erroneous.

Affirmed.

Neal and Baker, JJ., agree.