Randy Eugene Kuykendall v. Kylan Summer Kuykendall

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CA 00-493

February 14, 2001

RANDY EUGENE KUYKENDALL APPEAL FROM PIKE COUNTY

APPELLANT CHANCERY COURT

VS.

HONORABLE HAMILTON H. SINGLETON,

CHANCELLOR

KYLAN SUMMER KUYKENDALL

APPELLEE AFFIRMED

Randy Kuykendall appeals from an order denying his request for a change of custody and granting his former wife, Summer Kuykendall, permission to move with their child out of the state. Appellant challenges both decisions in this appeal. We affirm.

Prior to the parties' marriage, appellee lived with her mother in Houston, Texas. She met appellant when she was fourteen years old while visiting her grandmother in Antoine, Arkansas, over the summer. Appellee became pregnant with appellant's child, and they were married. However, they were soon divorced on November 30,1995. Appellee was awarded custody of their child, a son, and she remained in the Antoine area living with her grandmother.

On June 25, 1996, appellant petitioned the court for a change of custody. At the hearing held on December 11, 1996, appellant offered evidence of changed circumstances that appellee was using marijuana and that both she and her grandmother had entertained male guests overnight in the presence of the child. At the conclusion of appellant's case, the chancellor granted appellee's motion for a directed verdict. Appellant successfully appealed that ruling. In an unpublished opinion dated February 25, 1998, we held that the chancellor was required to view the evidence in the light most favorable to appellant when considering the motion for a directed verdict and that appellant had put on testimony that, if believed, was sufficient to establish a prima facie showing of a material change in circumstances. We reversed and remanded for proceedings consistent with our opinion.

After our remand, the case sat idle until August 3, 1998, when appellee filed a petition seeking permission to move with the child to Houston, Texas. In response, appellant filed another motion for a change of custody, and all issues were set for a hearing on March 18, 1999. At the hearing, the parties agreed that the transcript from the first hearing held on December 11, 1996, would be admitted as a joint exhibit for the court's consideration and that, consis tent with the order of remand, appellee was to go forward with hercase opposing the motion for a change of custody. However, to avoid confusion, it was agreed that appellant would first put on evidence in support of his most recent motion for a change of custody and that appellee would then put on evidence in her defense and then go forward with evidence to support her motion to remove the child from the state. At the conclusion of the hearing, appellee agreed to undergo drug testing, specifically for the use of cocaine. The chancellor held the case in abeyance for this to be accomplished. He received the results of the testing at a hearing on July 29, 1999. The test taken from a hair sample of appellee procured by appellant produced a positive result for cocaine; a similar test appellee obtained on her own showed a negative result. With all of the evidence before him, the chancellor denied appellant's request for a change of custody and allowed appellee to move with the child from the state.

Appellant first argues that the chancellor erred in denying his motion for a change of custody. As a preliminary matter, he argues that our opinion in the previous appeal is the "law of the case" and that the chancellor was bound by our conclusion that evidence of overnight, male guests and marijuana usage was sufficient to justify a change in custody. Appellant misconstrues our opinion. We did not hold in the first appeal that this evidence mandated a change in custody. We held only that appellant had offered enough proof to withstand a motion for a directed verdict. While we held it waserror to have directed a verdict, we left it to the chancellor on remand to make a final decision on the issue of custody.

Appellant further argues that the chancellor's ruling denying his motion for a change in custody is clearly erroneous. A material change in circumstances must be shown before a court may modify an order regarding child custody. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999). The party seeking modification has the burden of showing such a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). On appeal from a chancery court case, we consider the evidence de novo, and will reverse the chancellor's findings of fact only if they are clearly contrary to the preponderance of the evidence. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor, especially so in those cases involving custody. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving children. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

For reversal, appellant relies on evidence he presented to support his allegations that appellee used marijuana and cocaine and that she and her grandmother had male guests spend the night. Thechancellor, however, was not persuaded by this proof. In his letter opinion, the chancellor specifically stated that he did not believe the testimony and evidence appellant offered concerning appellee's drug usage or the allegations concerning overnight, male guests. The chancellor also doubted the authenticity of the drug test of appellee submitted by appellant based on strong evidence that the sample had been deliberately contaminated. The chancellor found that appellant had failed in his burden of showing any material change in circumstances. We are unable to say that his finding is clearly erroneous. In her testimony, appellee admitted that she had tried marijuana in the past, but she said that she did not currently use it. She also denied that she had ever used cocaine, and she offered the results of a drug test that yielded a negative finding for that substance. Appellee further denied that her former boyfriend had spent the night. Appellee's grandmother also denied that her gentleman-friend had ever stayed the night when the child was at home. The chancellor was in a superior position to determine the credibility of the witnesses's testimony. It is clear that he resolved that issue in appellee's favor.

Appellant also argues that the trial court erred in permitting the appellee to move to Houston, Texas. We have identified five factors that a chancellor should consider when deciding whether to allow a custodial parent to move to a distant location. These factors include: (1) the prospective advantages of the move interms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). Also, before these factors can be consid ered, the custodial parent has the threshold burden to show some real advantage to herself and the child in the move. Hickmon v. Hickmon, 70 Ark. App. 438, ___ S.W.3d ___ (2000).

Here the appellee was a young woman when she became pregnant and married, leaving her mother's home in Houston. Since the divorce, she graduated from high school a semester early and immediately entered a community college on a full scholarship. She graduated with a technical degree as a mortician in May of 1998. Since then, she worked as a cashier until the store closed, but she has been unable to find employment as an apprentice at a mortuary. Appellee explained that, in order to become a licensed mortician,she must complete a twelve-month apprenticeship, embalm fifty bodies, work fifty funerals, and pass a national board exam. She testified that she had searched but had not been able to secure an apprenticeship in the area. She said, however, that she did not pursue an opening in Mena, Arkansas, because she and the child would have been there alone, and she would not have had someone to care for the child should she be called to work in the middle of the night. Appellee testified that she had a job waiting for her at a mortuary in the Houston area near NASA, where she would live with her mother, her mother's husband of two years, and her sister. She also testified that she planned on furthering her education in pharmacology once she got her feet on the ground. Appellee said that she would do whatever was necessary to ensure that appellant receives visitation.

Appellee further testified that she takes prescription medication for anxiety brought on by appellant's harassment of her. She related several instances of violence and threatening behavior on appellant's part, told of appellant's constant surveillance of her, and recalled that appellant had kidnapped the child one afternoon. Because of her fears, visitation exchanges take place at the local police station.

On the other hand, appellant has also graduated from college. He has remarried and has another child. He has a good job earning a decent living, lives in a comfortable home, and has a closerelationship with his son. Appellant's extended family live in the area, and his parents spend time with the child.

Although appellant argues that the chancellor failed to properly analyze the factors that go into making this decision, we cannot say that this is so. As shown by his letter opinion, the chancellor carefully weighed the evidence in relation to the factors and decided that the move would be in both appellee and the child's best interest and that the visitation schedule could be altered to protect appellant's relationship with his child. We also find no fault with the chancellor's additional finding that "[d]istance will be beneficial to the parties." There is nothing in the Staab v. Hurst, supra, decision that indicates that the enumerated factors were intended to be exclusive so as to preclude a chancellor from considering the particular facts and circumstances of any given case that might have a bearing on the decision.

Affirmed.

Hart and Baker, JJ., agree.