Gayla Webb v. Jason I. Stuart

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

GAYLA WEBB

APPELLANT

V.

JASON I. STUART APPELLEE

CA05-500

November 16, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[DR-03-133]

HON. JIM D. SPEARS,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Gayla Webb appeals the order of the Sebastian County Circuit Court entered January 10, 2005, finding that a material change in circumstances had occurred since the entry of an order establishing paternity on June 3, 2003, and awarding custody of her child, D.W., to Jason Stuart. Gayla argues on appeal that the trial court erred in finding a material change in circumstances and, in the alternative, that if the evidence was sufficient to find a material change in circumstances, the trial court's decision to grant custody to Jason Stuart was clearly erroneous. We affirm.

An order of the court dated June 3, 2003, established that Jason Stuart was the father of D.W.; required that Jason pay child support; and gave legal custody of D.W. to Gayla with visitation rights vested in Jason. Thereafter, Jason's income changed, and the Office of Child

Support Enforcement filed a motion to modify support. Jason then filed a motion to modify the previous order asking for custody of D.W. and child support from Gayla. After conducting hearings on the matter, the trial judge issued a letter opinion finding that there had been a material change in circumstances since the original order to warrant placing the child in Jason's custody. The trial court relied heavily on Gayla's instability with regard to residence, choice of companionship, drug use, and continued residence with an alcoholic.

At hearings on the matter, Jason Stuart testified that he was concerned about D.W.'s welfare because Gayla did not have a permanent residence. Jason testified that Gayla had moved six times since the custody order was entered in June 2003. He also stated that he was concerned because Gayla and D.W. were currently living with her stepfather who drank alcohol excessively. Jason testified that he was living at his brother's house, that he had lived there for eight months, that the house had three bedrooms and one bathroom, and that, other than he and D.W., the only other person living there was his brother. He stated that he was employed by Security Check and had been working there for nine months. He stated that his employer was aware of his situation and understood that he would need time off to care for D.W. Jason stated that he enjoyed his visits with D.W. and had asked for additional visitation several times. He stated that he drank alcohol occasionally and that he regularly took D.W. to church. Jason also asserted that he was the primary caregiver when it came to taking D.W. to the doctor, that Gayla had not taken D.W. to the doctor once, and that he had done so at least thirteen times.

Jason's brother, Christopher Stuart, testified regarding Jason's suitability as a custodial parent. Chris stated that he allowed Jason to live in his home, that Jason paid rent and utilities, and that he had no plans to evict his brother. He declared that Jason was a great father. Chris testified that his job at the Fort Smith Athletic Club was flexible and allowedhim to be available to help with D.W. Chris stated that on several occasions when he and Jason returned D.W. to Gayla, D.W. was distraught and upset to have to leave his father, a condition that had progressively gotten worse.

Debra Calhoun, Jason's mother, testified that she was willing to assist Jason in raising D.W. She stated that she was close with Jason and Chris; that Jason was a nurturing, caring custodian; and that Chris would be an exceptional caregiver to assist when Jason was unavailable. She stated that Jason told her that he had used and sold drugs in the past, but she stated that he has since gotten his life in order.

Bryan Picco testified that he knew both Jason and Gayla. He stated that he had witnessed Gayla smoke methamphetamine in August 2003 while D.W. was in the next room. He stated that at the time he was also a drug user and was often "strung out." He stated that he had since "lost everything" and stopped using drugs about nine months prior. He also admitted that he had smoked marijuana with Jason when the two were in high school.

Gayla Webb testified that she and D.W. lived with her stepfather. She conceded that she had moved several times since the custody order had been entered, but she argued that Jason had also moved. She explained that at the time the custody order was entered, she lived in an apartment complex where she was an assistant manager for a few months but that she had been fired for missing work. Since that time, she had moved five more times, residing mostly with family members. She stated that she and D.W. then moved in with her stepfather and slept together in a large room at his house. She stated that at the present time, she was unemployed and had decided to raise her child "full-time" and rely on her family for financial security. She conceded that Jason usually took D.W. to the doctor but explained that he did so because Jason's father worked at a doctor's office and because she did not have a vehicle. She stated that her stepfather was drinking too much alcohol when he was going through adivorce from her mother but that he now only drank occasionally. Gayla admitted that she had used methamphetamine at a friend's house, as described by Bryan Picco, but she denied that D.W. was present at the time. She stated that she and Jason had done cocaine before D.W. was born and that she had smoked marijuana.

Gayla's stepfather, Earl Willet, testified that he was willing to support Gayla so she did not have to work. He admitted that he had a problem with drinking alcohol excessively when he was going through a divorce but that he now only drank alcohol "a little bit." He stated that he drank alcohol three to four times a week, usually three beers during the week to help him sleep and a six-pack on Friday nights.

For her first point on appeal, Gayla argues that the trial court erred in finding a material change in circumstances had occurred since the order establishing paternity on June 3, 2003, to warrant a change in custody. Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree will be in the best interests of the children. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). In order to avoid re-litigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order. Id. The only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the court or were not known by the court at the time the original custody order was entered. Id. The party seeking modification of the custody order has the burden of showing a material change in circumstances. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). A custodial parent's use of drugs is aproper factor for the court to consider when determining the best interest of the child. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).

In child-custody cases, we review the evidence de novo, but we will not reverse the findings of the court 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). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). There are no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). A finding is 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. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

We are satisfied that there was enough evidence presented at the hearings in this case to support a finding that a material change in circumstances had occurred since the paternity order that granted Gayla custody of D.W. Gayla herself testified that she had used drugs after the custody order had been entered. Bryan Picco-a witness the trial court found credible-testified that Gayla used methamphetamine while D.W. was present. Additionally, Gayla admitted that she had moved six times within the two years and was presently living with her stepfather, an admitted alcoholic. The trial judge had the opportunity to witness each person in court, and based on the facts presented in this case, it was not clearly erroneous for him to find Jason had proven a change in circumstances to warrant modification of the custody order.

Additionally, Gayla argues that even if there was a material change in circumstances, the trial court erred in finding that it was in the child's best interest to switch custody from Gayla Webb to Jason Stuart. However, based upon the same evidence presented to support a modification of the custody order-Gayla's drug use, her residential instability, and her lack of stable employment-coupled with testimony from Jason, his brother, and his mother that he had stable employment, a steady residence, and support from his family and employer to raise his child, we are satisfied that it was not clearly erroneous for the trial judge to grant custody in favor of Jason.

Affirmed.

Glover and Neal, JJ., agree.