Sheri Lynn Cromwell Collins v. Alton Tarrant Cromwell, Jr.

Not Designated for Publication

Arkansas Court of Appeals

Josephine Linker Hart, Judge

SHERI LYNN CROMWELL COLLINS

APPELLANT

V.

ALTON TARRANT CROMWELL, JR.

APPELLEE

NO. CA-01-301

October 24, 2001

APPEAL FROM THE CHANCERY COURT OF WHITE COUNTY

[NO. E-97-123-1ST]

HONORABLE JIM HANNAH,

CHANCERY JUDGE

AFFIRMED

Sheri Lynn Cromwell Collins appeals a post-divorce order that modified the prior award of custody by placing physical custody of the parties' two minor children with appellee. For reversal, appellant argues that there was insufficient evidence to support the chancellor's award of physical custody of the children to appellee. We disagree and affirm.

On June 11, 1997, the parties were divorced, and the decree granted the parties joint custody of their children, Aaron, age 5, and Chandler, age 1. However, physical custody of the children was placed with appellant, and appellee was required to pay child support. On February 28, 2000, appellee sought a change of custody.

Following a hearing on appellee's petition, the court entered a temporary order modifying the physical custody of the children by placing the older son, Aaron, with appellee and leaving four-year old Chandler with appellant. In the temporary order, the court withheld the final decision on custody, visitation, and child support, appointed RickMiller attorney-ad-litem for the children, and required counseling for the parties. The court entered a final order on December 21, 2000, after receiving reports from the psychologist, Dr. Jack Thomas, and the attorney-ad-litem, Rick Miller. The order continued the joint custody, but modified the physical custody by placing primary care of the children with appellee. The chancellor determined that such a finding was in Aaron's and Chandler's best interests. From that order comes this appeal.

I. Standard of review

On review of this chancery matter except for issues not argued1, "the whole case is open for review; therefore, all issues raised in the court below are before us for decision, and a de novo review on appeal in chancery involves determination of both fact questions and legal issues." Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000) (citing Bradford v. Bradford, 34 Ark. App. 247, 248, 808 S.W.2d 794, 795 (1991)). We will affirm the chancellor's findings unless the findings are clearly erroneous. See Ark. R. Civ. P. 52(a); see also Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 224, 998 S.W.2d 1, 3 (1999).

II. Material change in circumstances

Appellant argues that the chancellor erred by finding that the evidence was sufficient

to establish a change of circumstances, especially regarding the younger son, Chandler. This argument is based, in part, on the principle that the party seeking modification has the burden of showing a material change in circumstances. Hepp v. Hepp, 61 Ark. App. 240, 252, 968 S.W.2d 62, 69 (1998).

In support of her argument that there was no material change in circumstances, appellant asserts that the living conditions of the children were the same at the time the chancellor granted the divorce and at the time the final modification order was entered. Appellant notes that both parties have the same jobs, that Chandler was spending the same amount of time in daycare, and the testimony of her father, who opposed her having custody, was the same at both hearings. Appellant acknowledged that while she was recuperating after she was seriously injured in an automobile accident in July of 1999, the younger child, Chandler, spent more of his time with appellee.

In response to appellee's testimony asserting that appellant had not been very involved in Aaron's extra-curricular activities, appellant admits her failure to attend sporting events. However, she excused her lack of involvement by claiming that appellee failed to provide her with a schedule of the sporting events coupled with her inability to attend the functions as a result of the injuries from the accident. She asserts that she attended his school activities; however, Ms. Johnson, Aaron's teacher, stated that she only had one conference with appellant, which was initiated by the teacher. According to appellant, when her work schedule changed during Aaron's second school year, she felt it was best to allow Aaron to stay with appellee at night where he would be in familiar surroundings, near hisschool, and close to his friends rather than staying with her at night where he would be required to leave home before 7:00 a.m. each day.··²

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²·· It is well-settled law that there must have been a change in circumstances from the time the original order was made until the chancellor made a final adjudication. Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983). While we agree with appellant that the employment of the parties, the amount of time the younger child spends in daycare, and the testimony of appellant's father did not significantly change from the time of the original decree, we recognize that other circumstances surrounding the children did change.

Several circumstances have in fact changed since the time of the original decree; for example, the older child has resided primarily with appellee. Also, the younger child, Chandler, spent a significant amount of time with appellee after he and appellant2 were involved in a serious car accident which left appellant with major injuries. Further, after the temporary order, appellant limited visitation of the father with the younger son, which resulted in a separation of the two children. Although remarriage by the non-custodial parent alone is not a basis for a change of custody, it is important to note that appellant, as the primary physical custodian of the children, has remarried since the time of the decree. Prior to her remarriage, appellant introduced her boyfriend into her household and into the lives of both children, particularly Chandler, who, subsequent to the filing of the petition to modify, had only limited contact with appellee and his older brother.

Appellant denied allowing her boyfriend, Sammie Collins to spend the night with her while the children were present prior to their marriage. However, she admitted that he stayed in the home and cared for her while she was recovering from the injuries following the accident. According to her testimony, he may have stayed a fourth of the time at her home. Appellant later married Collins and he moved into the home with her and the younger child, Chandler.

Our supreme court in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), determined that the remarriage of Dr. Jones, the non-custodial parent, did not constitute a material change in circumstances. However, in Hamilton v. Barrett, 337 Ark. 460, 467, 989 S.W.2d 520, 524 (1999), the supreme court stated, "the holding in Jones was not intended to prohibit the chancellor from ever considering the event of a non-custodial parent's remarriage as a change of circumstances affecting the best interests of the children." Also, this court has held that a custody determination should not be solely based on keeping siblings together. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000). However, these cases do not suggest that the factors discussed in those cases should not be considered by a trial court when determining whether a change of circumstances has occurred when viewing the entire circumstances surrounding the care and custody of the children in a post-divorce hearing. In this case, it was the custodial parent who remarried. There was not merely one event which triggered the change in circumstances; rather there were several events that occurred, which included the remarriage of the custodial parent, separation of siblings immediately following the divorce, and a major accident resulting in appellant's need for appellee toprovide more care for the children. When all of these factors are viewed together, we cannot say that the chancellor erred by finding that a material change in circumstances had occurred since the entry of the divorce decree.

III. Best interests of the children

Appellant argues that sufficient evidence did not exist to support the chancellor's finding that it was in the best interests of the children to be in the primary custody of appellee. Even though her argument encompasses both children, appellant focuses primarily on the best interests of her younger son, Chandler, and she essentially concedes that the evidence supports the chancellor's change of custody for Aaron. In child custody cases, the primary consideration is the welfare and best interests of the children involved; all other considerations are secondary. Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995). The proof clearly shows that Aaron has lived with appellee for practically the entire time since the parties were divorced. According to appellee, Aaron had spent 972 out of 1,014 nights with him. The evidence establishes that appellee is the parent most involved in Aaron's life from the time of the divorce until the final hearing. We note that appellee's involvement with his older son includes everything from walking him to school to attending all of his soccer and basketball games; thus, he has demonstrated that he is willing to participate in his children's lives. We cannot say the chancellor's ruling that it is in Aaron's best interests to live with his father, the appellee, was clearly erroneous.

The chancellor correctly determined that it was also in the best interests of Chandler for the appellee to have custody. According to appellee he was the "prime parentalcaregiver." He testified that appellant did not take a weekend visit with Chandler for thirty-two consecutive weekends from May 27, 1997, until January 9, 1998, and, thereafter, he had Chandler almost every weekend until the petition to change custody was filed. Additionally, appellee had Chandler on Wednesday nights prior to the filing of the petition. Appellee's weekend visits almost always included Sunday nights, and appellee would take Chandler to daycare on Monday mornings. After the petition to change custody was filed, appellee was no longer allowed Wednesday night and weekend visitations on a regular schedule. Likewise, in her testimony, appellant admits that after the temporary order was entered, Chandler did not spend spring break with his dad and brother as scheduled, and that she had given orders for Chandler's grandparents (her mother and father) to leave when they were visiting with the youngster at daycare.

Appellant also argues that "perhaps, because there was more likely a change regarding Aaron, the Court wanted to keep the brothers together and therefore, removed Chandler from the mother also" and "to do so was clearly erroneous." For this point, appellant relies on Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000). In Atkinson, this court stated that

the awarding of child custody based solely on the presumption that siblings should be kept together is contrary to Act 278 of 1979, which is codified at Ark. Code Ann. §9-13-101(a) (Supp. 1999), and states:

In an action for divorce, the award of custody of the children of the marriage shall be made without regard to the sex of the parent, but solely in accordance with the welfare and best interests of the children.

Id. at 20. The evidence does not support appellant's contention. The temporary order didgive appellant primary custody of the younger son. However, testimony established that after the divorce Chandler was spending more and more time with his father, the appellee, prior to the filing of the petition to change custody. Following the filing of the petition, appellant abruptly changed the visitation schedule and failed to effect an arrangement that allowed the children to be in the company of each other as they had been from the time of the divorce.

The chancellor in this case was well-acquainted with the parties. He had presided over previous matters involving both appellant and appellee. Thus, he was in the best position to determine the best interests of the minor children. This court has held that a heavy burden is placed on the chancellor in child-custody cases to fully utilize his or her powers of perception in observing the parties, their testimony, and the child's best interests. We give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child's best interests. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000). Thus, we do not substitute our judgment for that of the chancellor.

After reviewing reports from the psychologist3 and the attorney ad litem as well as hearing the testimony of both parties, grandparents, and other witnesses, the chancellor made a finding that it was in the best interests of the children for appellee to have custody. Basedon our standard of review, we cannot say that the chancellor's determination to grant physical custody of both boys to appellee was clearly erroneous. We affirm.

Affirmed.

Stroud, C.J., and Jennings, J., agree.

1 See Country Gentlemen, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978).

2 Appellant's testimony in the record states that both boys were air-lifted to a hospital in Little Rock.

3 The report states in part, "In observing Chandler (4 year old) with his mother, it is obvious that a very strong bond/attachment/security exists between him and his mother. He is very spontaneously affectionate towards her and I personally believe it would be devastating for this child to be separated from his mother. In observing Aaron with his father, Mr. Cromwell, it also seems that a strong bond/attachment/security exists between them."