Brenda G. Romo v. Joel R. Romo

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

BRENDA G. ROMO

APPELLANT

V.

JOEL R. ROMO

APPELLEE

CA 00-957

May 30, 2001

APPEAL FROM THE SEBASTIAN

COUNTY CHANCERY COURT,

[E-96-1461(I)]

HONORABLE NORMAN

WILKINSON,CHANCERY JUDGE

AFFIRMED

This is a one-brief case involving modification of child visitation. Appellant, Brenda Romo, appeals from the chancellor's ruling that allows the parties' two children to have unsupervised visitation with their father in Georgia. We affirm.

The parties were divorced on February 28, 1997. Custody of the two minor children, Daniel Douglas Romo, born March 31, 1995, and Jessica Rachel Romo, born September 20, 1996, was awarded to appellant, Brenda, subject to supervised visitation by the appellee, Joel, in the presence of Brenda. At the time of the divorce/custody proceedings, appellee was charged with offenses involving child sexual molestation in Louisiana concerning his niece, Nicole, who is his brother's daughter. According to appellee, he was subsequently

acquitted of those charges following a jury trial. Appellee acknowledged that appellant had nothing to do with those charges being brought against him.

On August 17, 1998, following his acquittal, appellee moved for a modification of the custody and visitation order. It became clear from the proceedings before the court that he did not seek a change of custody, but rather only a change in visitation. A hearing on the motion was held April 5, 2000, and the niece, Nicole, testified about the alleged sexual abuse she encountered from appellee. Following the testimony, the chancellor stated in pertinent part:

I heard Nicole's testimony and it is very alarming and disturbing. You heard testimony from Mr. Romo's son that he has raised him and another brother since 1988 and things have gone well and you heard testimony from Mr. Romo's wife that things are going well. You've got testimony on both sides of that issue. Based on the incident in 1996, I don't think there is any question that even though the jury in Louisiana acquitted Mr. Romo, one result of that whole incident is that he has not had any meaningful relationship with these two young kids for almost four years. That seems to be one effect of the charge being brought in Louisiana and that was the precipitating factor of Mrs. Romo filing for divorce and then we know what the visitation has been since then and it has been very little. Ms. Romo, you need to encourage the children to talk to their father on the phone and develop, it will be best for the children if they can develop a good relationship with Mr. Romo. I am going to direct that the phase-in visitation take place during the month of April. That is, it took place two days ago and I hope that Mr. Romo will be here for a few more days. He has got his wife and one of his older sons here and so long as they are here, I am going to direct that Ms. Romo cooperate with this phase-in visitation. I will leave it up to her if it is supervised or unsupervised. When people live so far apart, what I have to do on visitation is, there are fewer visitation periods and you try to make them longer and so my thinking is to let Mr. Romo take the children to his home in Georgia for one week in May, June, July and August. That will take the place of the every other weekend and Wednesday nights.

. . . .

I am hopeful that Mr. Romo and Mrs. Romo can make some arrangements for some phase-in visitation. It may be that there is absolutely no cooperation there. I can't make people cooperate. I just can't do it. It is clear to me that Mr. Romo is not ever going to have any real meaningful visitation so long as it is supervised. These people don't get along. So, they have had two days and hopefully they will have some more. Ms. Romo will have the rest of the month to encourage the children to look forward to their visit and talk on the phone with Mr. Romo.

(Emphasis added.) The amended order that sets out the modified visitation does not specifically address a "change of circumstances" or "the best interests of the children."

Appellant raises two points of appeal: 1) the chancery court erred when it changed the original decree of supervised visitation of the parties' two minor children by the defendant at the plaintiff's home in Fort Smith, Arkansas, to unsupervised visitation in the State of Georgia without determining what was in the best interest of the children; and 2) the chancery court erred when it modified the original decree of supervised visitation of the parties' two minor children by the defendant at the plaintiff's home in Fort Smith, Arkansas, to unsupervised visitation in the State of Georgia without finding that there had been a material change in circumstances to warrant the modification. These two points can best be discussed together.

Modification of visitation rights is not permitted unless there is a sufficient change in circumstances pertinent to visitation. Leonard v. Stidham, 59 Ark. App. 5, 952 S.W.2d 189 (1997). The party seeking the modification has the burden below to show a material change of circumstances sufficient to warrant a change in visitation. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order topromote stability and continuity for the children and to discourage repeated litigation of the same issues. Id. In Harris v. Tarvin, 246 Ark. 690, 692, 439 S.W.2d 653, 655 (1969), our supreme court stated:

Another of appellant's points is that the modification of visitation rights is not permitted unless there is sufficient change in circumstances to warrant change of custody. With that argument we cannot agree. Visitation rights may be modified upon a proper showing that it is a change to which the petitioning parent is reasonably entitled because of changed circumstances pertinent to visitation; and also, that the welfare and best interest of the child dictate a change.

The moving party also has the burden of showing that the modification is in the best interest of the children. Stellpflug, supra. We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000). In reviewing a chancery court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. This deference to the chancellor is even greater in cases involving child custody, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). Cases involving child visitation also involve similar greater deference to the chancellor.

Here, with respect to changed circumstances, we find that even though the chancellor did not use the magic words nor discuss in detail the change in circumstances, appellee's acquittal of the sexual molestation charges in Louisiana and his relocation to Ft. Bening,Georgia, constituted sufficient changes in circumstances pertinent to visitation for the chancellor to modify the visitation.

With respect to the best interests of the children, the chancellor stated from the bench: "[I]t will be best for the children if they can develop a good relationship with Mr. Romo [appellee]. . . . It is clear to me that Mr. Romo is not ever going to have any real meaningful visitation so long as it is supervised." Giving due deference to the chancellor's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony, we cannot say that he was clearly erroneous in modifying the visitation.

Affirmed.

Hart and Crabtree, JJ., agree.