Stone v. Steed

Tammy Chambers STONE v. Keith STEED

CA 95-977                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered May 29, 1996


1.   Evidence -- misdemeanor convictions used to show moral
     character of parent -- testimony concerning moral character
     relevant to determination of best interest of child. -- Where
     testimony concerning misdemeanor convictions of "non-party"
     individuals was used neither for impeachment purposes nor
     against a person on trial for criminal conduct, but was
     instead used as evidence relating to the moral character of a
     parent, the testimony was relevant to the best interest of the
     child and the issue of parental custody; the evidence of
     misdemeanor convictions reflected on appellant's morality in
     allowing persons of questionable reputation and character to
     be around her child; such information was relevant in deciding
     the best interest of the child and who should have custody;
     the chancellor did not abuse his discretion in allowing the
     testimony.

2.   Parent & child -- change of custody -- material change in
     circumstances must be shown. -- A material change in
     circumstances must be shown before a court can modify an order
     regarding child custody; the party seeking modification has
     the burden of showing such a change; the primary consideration
     is the welfare and best interest of the child; all other
     considerations are secondary; custody awards are not made or
     changed to gratify the desires of either parent or to reward
     or punish either of them.

3.   Appeal & error -- review of chancery cases de novo --
     appellate court defers to superior position of chancellor,
     especially in custody cases. -- Although chancery cases are
     reviewed de novo, the chancellor's findings will not be
     disturbed unless clearly against the preponderance of the
     evidence; because the question of the preponderance of the
     evidence turns largely on the credibility of witnesses, the
     appellate court defers to the superior position of the
     chancellor, especially in those cases involving custody.  

4.   Parent & child -- chancellor correctly found material change
     in circumstances which warranted change in custody --
     chancellor's decision not clearly against preponderance of
     evidence. -- Where there was testimony from several witnesses,
     including the appellant's own sister, that the child had been
     exposed to drug use, that convicted drug users often visited
     appellant's home, and that appellant's new husband had
     previous convictions for drugs, and based on the chancellor's
     assessment of credibility of the witnesses, the chancellor
     correctly found that a material change in circumstances had
     occurred which warranted a change in custody; the chancellor's
     decision that it was in the child's best interest for appellee
     to have custody was not clearly against a preponderance of the
     evidence.


     Appeal from Hempstead Chancery Court; Jim Hudson, Judge;
affirmed.
     Dowd, Harrelson, Moore & Giles, by:  Gene Harrelson, for
appellant.
     Wilson, Walker & Short, by:  Charles M. Walker, for appellee.

     John B. Robbins, Judge.*ADVREP*CA3*              DIVISION III









TAMMY CHAMBERS STONE
                     APPELLANT

V.


KEITH STEED
                      APPELLEE



CA 95-977

                                                     MAY 29, 1996


APPEAL FROM THE HEMPSTEAD
COUNTY CHANCERY COURT,
[EJ91 71-2]

HONORABLE JIM HUDSON,
CHANCERY JUDGE

AFFIRMED




                     John B. Robbins, Judge.



     This is an appeal from a decision of the Hempstead County
Chancery Court, which awarded appellee Keith Steed custody of the
parties' minor child, Kelsey.  Appellant Tammy Chambers Stone
contends on appeal that the chancellor erred in allowing into
evidence testimony concerning misdemeanor convictions of "non-
party" individuals to show their bad character or reputation. 
Appellant also contends that the chancellor's finding that a
material change in circumstances occurred which justified a change
of custody was against the preponderance of the evidence.  We find
no errors and affirm.
     On March 4, 1991, a paternity complaint was filed by the
Arkansas Department of Human Services Child Support Enforcement
Unit which alleged that appellee Keith Steed was Kelsey's father. 
In February 1992, a judgment of paternity was entered finding that
the appellee was the father of Kelsey and awarded him liberal
visitation.  The evidence showed that appellee exercised his
visitation on a regular basis and paid child support.
     On May 1, 1995, appellee filed a petition to change custody in
which he alleged a change in circumstances which necessitated that
he be awarded custody.  The petition included an affidavit from
Cindy White, appellant's sister, in which it was alleged that
Kelsey's health and welfare was being endangered because of the
activities of appellant and Randal Stone, the man with whom she was
living.  Appellant married Stone twelve days prior to the hearing. 
On June 12, 1995, the chancellor found a material change in
circumstances had occurred and that it was in Kelsey's best
interest that custody be awarded to the appellee, her biological
father.  From that decision comes this appeal.
     Appellant first contends on appeal that the chancellor erred
in allowing testimony concerning misdemeanor convictions of "non-
party" individuals to show their bad character or reputation. 
At the hearing before the trial court the appellee introduced
testimony from the Hempstead County Municipal Court Clerk, Jo Ann
Lively, that certain individuals who had been seen "hanging out" at
the appellant's house had prior misdemeanor convictions.  Appellant
objected and the court ruled as follows:
          The reputation for being a law-abiding character
     perhaps.  The Court having weighed the probative value on
     the issue of whether unwholesome or improper influences
     are present or have been present in the home finds that
     the probative value of these misdemeanors or uncharged
     conduct outweighs any prejudice to the individuals who
     are admittedly not on trial or being charged with
     criminal conduct.  The objection is overruled.
After the chancellor overruled appellant's objection, Ms. Lively
testified about two misdemeanor convictions that appellant's new
husband had received: possession of a controlled substance and
harassment.  Ms. Lively also testified that another person, who
frequented appellant's residence, had been convicted of assault in
the second degree.  Appellant stipulated that Charles Bomar, who
also had been seen at her residence, had been found guilty of two
counts of possession of a controlled substance (marijuana) with
intent to deliver and had served time in the penitentiary.
     Proof presented on behalf of the appellee included testimony
that certain individuals had been seen in the appellant's home
smoking marijuana while the child was present.  Appellee presented
this testimony to show that certain individuals who frequented the
appellant's home had bad character and reputations, and that it was
not in the child's best interest to be around such individuals. 
     As the trial court correctly ruled, the misdemeanor
convictions were neither used for impeachment purposes nor against
a person on trial for criminal conduct.  The persons found guilty
of the misdemeanors were not on trial and were not even called as
witnesses.  Consequently, the prejudice, against which the rules of
evidence seek to protect, was not present.  The exceptions to the
general rule of character evidence, set out in Ark. R. Evid. 404(1)
and (2), have been held inapplicable to civil cases.  Brown v.
Conway, 300 Ark. 567, 781 S.W.2d 12 (1989).  The court in Brown
went on to state that the use "of the words `accused' and
`prosecution' means that these two exceptions should be applied
only in criminal cases."  In James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989), we found that evidence concerning the moral
character of a parent is relevant to the best interest of the child
and the issue of parental custody.  The evidence of misdemeanor
convictions reflected on appellant's morality in allowing persons
of questionable reputation and character to be around her child. 
Such information was relevant in deciding the best interest of the
child and who should have custody.  The chancellor did not abuse
his discretion in allowing the testimony.
     The appellant secondly contends that the chancellor's finding
that a material change in circumstances had occurred which
justified a change in custody was against a preponderance of the
evidence.  Appellant argues that she could spend more time with
the child because both the appellee and his present wife work. 
She also alleges that the accusations of her drug use and the bad
reputations of individuals "hanging around" her home were unfounded
in the evidence.  She contends that the evidence was insufficient
to show a change in circumstances which would justify a change in
custody.
     We have stated many times that a material change in
circumstances must be shown before a court can modify an order
regarding child custody, and the party seeking modification has the
burden of showing such a change.  Jones v. Jones, 51 Ark. App. 24,
907 S.W.2d 745 (1995).  As in all custody cases, the primary
consideration is the welfare and best interest of the child; all
other considerations are secondary.  Hoing v. Hoing, 28 Ark. App.
340, 775 S.W.2d 81 (1989).  Custody awards are not made or changed
to gratify the desires of either parent, or to reward or punish
either of them.  Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989).  Although we review chancery cases de novo, the
chancellor's findings will not be disturbed unless clearly against
the preponderance of the evidence.  Id.  Since the question of the
preponderance of the evidence turns largely on the credibility of
witnesses, the appellate court defers to the superior position of
the chancellor, especially so in those cases involving custody. 
Hoing v. Hoing, supra.
     Appellee Keith Steed testified that he has exercised his
visitation with Kelsey on a regular basis.  Appellee is married and
has one child with his current wife, Terry, who also has three
children from a previous marriage.  Appellee and Terry testified
that the child would be well cared for in their home and that they
had plenty of space for her.
     Appellee testified that he became concerned for the child's
welfare when appellant began living with Randal Stone, her current
husband.  Appellee testified, without objection, that when
he returned the child after visitation he observed individuals at
appellant's home who had been arrested for marijuana use and other
strangers whose identity was unknown to him.  Appellee testified
that, just prior to filing the petition in question, he was
returning the child and observed appellant to be "wasted."  He
testified that appellant was covered in mud, had a scar between her
eyes, never spoke to the child, and never even raised her head to
acknowledge their presence.  Appellee testified that he believed
that appellant was "wasted" and "high on something."  Appellee also
testified, without objection, that appellant's husband, Randal
Stone, had pulled a gun on the appellant and put it to her head
while the child was present.
     Appellant's husband, Randal Stone, testified that he had had
many problems with appellant's mother.  He testified that he had
been convicted of several crimes in which the appellant's mother
was the victim, including assault and criminal mischief.  Mr. Stone
admitted that he had previously been convicted of possession of a
controlled substance and had "smoked a little pot" in the past. 
Mr. Stone also admitted that several individuals, whose previous
convictions were testified to, had been to his home where the child
in question was residing.  Mr. Stone denied ever having pulled a
gun or knife on the appellant.
     Cindy White, appellant's sister, testified on behalf of
appellee.  She testified that Mr. Stone had beaten the appellant
and she was concerned for the child's welfare.  Ms. White testified
that she had personally observed Mr. Stone use marijuana several
times at his home when both the appellant and the child were
present.  She went on to testify that she observed several people
at the appellant's home who had reputations for being "dopeheads." 
The municipal court clerk testified that several of the people
Ms. White had seen in appellant's home had previous misdemeanor
convictions.

     The chancellor made his ruling in part as follows:
     Clearly, if the testimony presented by Mr. Steed's side
     of the case is believable there are material changes
     and material concerns that require, or certainly suggest,
     custody should change, and I do find that those
     witnesses, including but not exclusively Ms. White,
     were very believable, and I do believe them.  Really,
     on a case like this, largely it turns on credibility
     or believability.  I do believe that there were
     circumstances, including marijuana use, in at least
     close enough proximity to the child to put her at risk
     of physical harm while people were intoxicated, and
     certainly, the example of what society really finds to
     be criminal behavior.  It's wrong.  There are other
     concerns, and this record is complete.  Custody will
     transfer to Mr. Steed.  I believe certainly full, and
     for the child's benefit liberal visitation should be
     afforded, but with some structures, and those would be
     that none of the named felons, or the named felon or
     those identified as having broken the law in front of, in
     the household should be allowed to be around the child
     during periods of visitation, with the exception of
     Mr. Stone.
     Based on the chancellor's assessment of credibility and the
evidence before him, we believe the chancellor correctly found that
a material change in circumstances had occurred which warranted a
change in custody.  We do not believe the chancellor's decision
that it was in the child's best interest for appellee to have
custody was clearly against a preponderance of the evidence.
     Affirmed.
     Rogers and Neal, JJ., agree.