Turner v. Benson

Karen (Benson) TURNER v. Paul BENSON

CA 97-359                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered October 15, 1997


1.   Parent & child -- change of custody -- considerations. -- In deciding
     whether a change of custody is warranted, a chancellor must
     first determine whether there has been a material change in
     the circumstances of the parties since the most recent custody
     decree; if a material change has occurred, the chancellor
     determines custodial placement with the primary consideration
     being the best interest of the child.

2.   Appeal & error -- review of chancery cases -- deference to chancellor
     greater in child-custody cases. --  Although chancery cases are
     reviewed de novo on appeal, the appellate court will not
     disturb a chancellorþs findings unless they are clearly
     erroneous or clearly against the preponderance of the
     evidence; a finding is clearly erroneous when, although there
     is evidence to support it, the reviewing court on the entire
     evidence is left with the definite and firm conviction that a
     mistake has been committed; since the question turns largely
     upon the credibility and demeanor of witnesses, the appellate
     court defers to the superior position of the chancellor to
     make such determinations; the deference to be accorded to the
     chancellor is even greater in cases involving child custody.

3.   Parent & child -- change of custody -- findings upheld. -- Where 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 childþs
     best interest, the appellate court could not say that her
     findings regarding the change of custody were erroneous.

4.   Parent & child -- change of custody -- child's preference not binding on
     court -- no abuse of discretion. -- Although the preference of the
     child is a factor to be considered when making a custody
     determination, the chancellor has the discretion to decline to
     give weight to the childþs preference, and it is not binding
     upon the court; the appellate court could not say that the
     chancellor abused that discretion in the present case.

5.   Parent & child -- award of custody -- effect on noncustodial parent's
     responsibility. -- An award of custody to one parent does not
     lessen the noncustodial parentþs responsibility to the child,
     nor does it affect his right as a parent to provide guidance
     and to participate in decisions affecting the welfare of the
     children.

6.   Parent & child -- change of custody -- one parent alienating child from
     other is important factor. -- Whether one parent is alienating a
     child from the other is an important factor to be considered
     in change-of-custody cases because a caring relationship with
     both parents is essential to a healthy upbringing; here, the
     testimony of several witnesses left the chancellor with the
     clear impression that the child was happy during visitation
     with appellee but was uncomfortable in expressing his
     enjoyment when he returned to appellant; this type of
     alienation, knowing or otherwise, can hardly be said to be in
     the best interest of the child.

7.   Parent & child -- change of custody -- no evidence of punishment
     presented. -- Where appellant argued that the chancellor must
     have changed custody solely to punish appellant but pointed
     only to statements made by the chancellor regarding the
     inappropriateness of allowing the child to choose which name
     he should use at such a young age, the appellate court
     concluded that while the chancellor did have a strong opinion
     concerning the way appellant dealt with the situation, her
     statements were well intentioned and warranted, and no
     evidence of punishment was presented.


     Appeal from Pulaski Chancery Court; Robin Mays, Chancellor;
affirmed.
     Dodds, Kidd, Ryan & Moore, by:  Judson C. Kidd, for appellant.
     Atkinson Law Firm, by: Rita B. Atkinson and Richard W.
Atkinson, for appellee.

     Terry Crabtree, Judge.
     The parties in this case were divorced in May of 1992 and
custody of their two minor children, Christal and Ben, was awarded
to appellant, Karen Turner.  Since their divorce, both appellant
and appellee have remarried, and Christal has reached majority.  In
November of 1995, appellee sought custody of Ben, who was 13 years
old at the time.  After a hearing on August 1, 1996, the chancellor
awarded custody to appellee.  Appellant contends that the order
changing custody was clearly against the preponderance of the
evidence.  We disagree and affirm.
     In deciding whether a change of custody is warranted, a
chancellor must first determine whether there has been a material
change in the circumstances of the parties since the most recent
custody decree.  Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800
(1996).  If a material change has occurred, the chancellor
determines custodial placement with the primary consideration being
the best interest of the child.  Riley v. Riley, 45 Ark. App. 165,
873 S.W.2d 564 (1994).  
     Although chancery cases are reviewed de novo on appeal, we
will not disturb a chancellorþs findings unless they are clearly
erroneous or clearly against the preponderance of the evidence. 
Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996).  A finding
is clearly erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed. 
Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).  Since the
question turns largely upon the credibility and demeanor of
witnesses, this court defers to the superior position of the
chancellor to make such determinations.  Schwarz, supra.  The
deference to be accorded to the chancellor is even greater in cases
involving child custody.
       In those cases a heavier burden is placed on the
       chancellor to utilize to the fullest extent all of
       his powers of perception in evaluating the
       witnesses, their testimony, and the childþs best
       interest.  We have often stated that we know of no
       cases in which the superior position, ability, and
       opportunity of the chancellor to observe the parties
       carry as great a weight as those involving child
       custody.  (Citations omitted.)

Milum v. Milum, 49 Ark. App. 3, 5, 894 S.W.2d 611, 612 (1995); see
Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989).
     In his petition, appellee alleged that appellant had begun
using her husbandþs surname (Turner) as Benþs surname, that she had
consistently interfered with appelleeþs visitation schedule, and
that she had made derogatory statements about appellee in Benþs
presence.  Appellee pointed to the chancellorþs prior admonishments
that Christal and Ben needed healthy relationships with both
parents and argued that the above actions harmed his relationship
with Ben.  
     Several witnesses testified on behalf of both parties at the
hearing.  Appellee and others testified to the good relationship he
had with Ben and the animosity that Christal had developed toward
him.  Dr. DeYoub, a court appointed psychologist, evaluated the
parties and the children, and his reports were admitted into
evidence.  Of critical importance were his remarks regarding the
relationship between appellee and Christal: 
       She did not make a single statement about Mr.
       Benson.  I found the interview with her to be quite
       chilling.  She rejects her father without the
       slightest display of emotion.
       þ.
       
       What happened to Christal is a serious matter,
       because that relationship is gone with her dad and
       time and maturity will only determine if she will
       ever change.  The threat that Ben will do the same
       is a real one.

Dr. DeYoub indicated that a change of custody was a viable option,
and that the court could do so immediately or wait to determine
whether matters were otherwise resolved.  Dr. DeYoubþs report
stated that if the problems persisted, appellee should gain custody
of Ben.  He also opined that if custody were changed immediately,
Benþs relationship with appellant would remain strong, and his
relationship with appellee would strengthen.  
     Dr. Tanner, a counselor hired by appellant, testified that Ben
had a strained relationship with and feared appellee.  Dr. Tanner
recommended that custody remain unchanged.
     Although appellant raises only one point on appeal, five
points of argument are made thereunder.  Two of these arguments are
challenges to the chancellorþs consideration of the evidence. 
First, appellant contends that the change of custody was not
warranted in light of appelleeþs testimony that he and Ben enjoyed
a good relationship.  Second, appellant argues that Dr. DeYoub, the
attorney ad litem, and Dr. Tanner unanimously recommended that Ben
stay with appellant. This particular statement is not completely
accurate.  As stated, Dr. DeYoubþs opinion was that a change of
custody was an option.  The ad litem did not testify at trial, but
did submit a letter in support of appellantþs motion to reconsider. 
However, no hearing was held on the motion.  Only Dr. Tanner, who,
as the chancellor recognized, was hired by appellant, recommended
that custody not be disturbed. 
     The chancellor was in a superior position to judge the
credibility and demeanor of the many witnesses at the hearing, and
in doing so she utilized to the fullest extent all of her powers of
perception in evaluating the witnesses, their testimony, and the
childþs best interest, Milum, supra, and we cannot say that her
findings were erroneous.
     Appellant also contends that Dr. DeYoubþs report clearly
reflected a desire on Benþs part to live with appellant, and that
the chancellor erred in not considering this preference.  While the
preference of the child is a factor to be considered when making a
custody determination, Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986), the chancellor has the discretion to decline to
give weight to the childþs preference, and it is not binding upon
the court.  Malone v. Malone, 4 Ark. App. 366, 631 S.W.2d 318
(1982).  We cannot say that the chancellor abused that discretion
in the present case.
     Appellantþs fourth contention is that the chancellor erred in
changing custody when the evidence showed that the good
relationship between Ben and appellee had not been adversely
affected.  The chancellor stated that her concerns stemmed from
appelleeþs poor relationship with Christal and the fear that Benþs
relationship with appellee would suffer the same fate if custody
were not changed.  
     Appellant was admonished three years prior to the custody
hearing that she was alienating Ben from appellee.  An award of
custody to one parent does not lessen the noncustodial parentþs
responsibility to the child, nor does it affect his right as a
parent to provide guidance and to participate in decisions
affecting the welfare of the children.  Clark v. Reiss, 38 Ark.
App. 150, 831 S.W.2d 622 (1992); see Provin v. Provin, 264 Ark.
551, 572 S.W.2d 853 (1978).  Whether one parent is alienating a
child from the other is an important factor to be considered in
change-of-custody cases, for, just as the chancellor noted below,
a caring relationship with both parents is essential to a healthy
upbringing.  The testimony of several witnesses left the chancellor
with the clear impression that Ben was happy during visitation with
appellee, but was uncomfortable in expressing his enjoyment when he
returned to appellant.  Former spouses are often hostile to one
another, and it is unfortunate when their children are forced to
bear the brunt of this bitterness.  This type of alienation,
knowingly or otherwise, can hardly be said to be in the best
interest of the child.  Riley, supra. 
     Lastly, appellant argues that since there was evidence of a
good relationship between Ben and appellee, the chancellor must
have changed custody solely to punish appellant. Appellant points
only to statements made by the court regarding the
inappropriateness of allowing Ben to choose which name he should
use at such a young age.  It is important to note that while the
chancellor did have a strong opinion as to the way appellant dealt
with the situation, her statements, as abstracted by the parties,
were well intentioned and warranted.  No evidence of punishment was
presented.
     The chancellor made a difficult decision based on extensive
and varied testimony. Because she was in a better position to
determine the credibility of witnesses and the best interests of
the child, and because her findings are supported by the evidence,
we affirm.  
     Robbins, C.J., and Meads, J., agree.