Denise Faucher v. Lon G. Bitzer

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

DENISE FAUCHER,

APPELLANT

V.

LON G. BITZER,

APPELLEE

CA01-526

MARCH 20, 2002

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT,

NO. ECN94-3830,

HON. ELLEN BRANTLEY, CHANCELLOR AND PROBATE JUDGE

AFFIRMED

Appellant Denise Faucher has appealed the decision by the Pulaski County Chancery Court that changed custody from appellant to appellee, Lon Bitzer, upon a finding that Faucher had intentionally or unintentionally alienated the children from their father. Faucher contends on appeal that: (1) the evidence was insufficient to support a finding that the strained relationship between the children and their father is a result of her actions; (2) the chancellor erred in changing custody absent evidence of a change of circumstances; (3) the chancellor erred in punishing her for her actions; (4) the finding that she emotionally abused the children is clearly erroneous. Based on our de novo review of the record, we do not agree with Faucher's contentions, and we affirm.

Faucher and Bitzer were divorced in 1995. The parties had three children during their marriage, Bethanie, Caemeron, and Bonneigh. In addition, Faucher had a daughter, Brittany,previous to the marriage, whom Bitzer adopted. Faucher was awarded custody of the four Bitzer children in the original divorce decree. Since their divorce, Bitzer has remarried. In 1997, Bitzer filed a motion for change of custody, which was denied. Bitzer then filed another motion for change of custody in April 1999. On August 4, 2000, the court found that the appellant, Denise Faucher, intentionally or unintentionally alienated the children from their father, Lon Bitzer, and granted full custody to Bitzer.

Standard of Review

Chancery cases are tried de novo on appeal. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). We will affirm the chancellor's findings unless the findings are clearly erroneous or clearly against the preponderance of the evidence. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998). Because 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 in those cases involving child custody. Eaton v. Dixon, supra.

Parental Alienation

In Bitzer's petition for change of custody, he alleged that Faucher had interfered with his visitation with their children and had essentially caused his relationship with his children to suffer through her attempts to alienate him. We have held that 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. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).

Dr. Paul DeYoub, a court-appointed psychologist, evaluated the parties, and his reports were admitted into evidence. Dr. DeYoub reported that "Denise Faucher is not an innocent victim and has been involved in a long history of obstruction and alienation of the children from their father." The report further stated that "[parental alienation] is a chronic insidious problem that usually does not go away. People don't stop doing this." In his testimony, Dr. DeYoub stated the following about the typical parental alienation situation:

In other cases that I have seen, when custody is changed, these children usually do very well with the father or the mother that there has been so-called alienation from because it's not real. Their angry feelings toward that parent are not real. They are not based on anything but incidents that have been sort of fabricated or embellished. Then when custody is changed or when they have an opportunity to have a relationship with that person, they usually do very well and have a positive relationship.

Another psychologist, Dr. Glenn Lowitz, became the mediator/counselor for the parties and the children in December 1999. Dr. Lowitz testified that he could not find anything in Dr. DeYoub's conclusions with which he disagreed. Dr. Lowitz further stated that "[t]here's very little else [other than a change of full custody] that hasn't been done that I can think of."

In making her custodial determination, the chancellor relied on testimony of Dr. Paul DeYoub, Dr. Warren Seiler, Dr. Glenn Lowitz, and the recommendation of the attorney ad litem. The chancellor was in a superior position to judge the credibility and demeanor of themany witnesses at the hearing. See Turner v. Benson, supra. We are not convinced that the chancellor's findings are clearly contrary to the preponderance of the evidence. Changed Conditions

Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification of the decree will be in the best interests of the children. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). The only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Id.

The children did not begin to have problems with their father and did not refuse to see him until after the original custody order was entered. The relationship between Bitzer and his children had become so strained that Bitzer's oldest daughter, Brittany, started calling him by his first name, refusing to call him "Dad" as she had in the past. The psychologists' testimony demonstrates a growing concern for the children's emotional health due to the stress of the relationship with their father; the psychologists' testimony, along with that of the attorney ad litem, supported the conclusion that the children needed to spend more time with their father in order to preserve the relationship. Taken together, this constitutes evidence that circumstances had changed sufficiently for the chancellor to consider whether the best interests of the children would be served by a change of custody to their father. See id.

The chancellor held that Faucher had intentionally or unintentionally alienated the children from their father, which frustrated his role as a parent and his relationship with the children. The alienation of the children from their father was clearly a circumstance that could not have been considered by the chancellor when the original custody order was entered. We believe that this change in circumstances was sufficient for the chancellor to consider whether a change in custody was in the best interests of the children.

Custody Award as Punishment

Faucher contends that the chancellor changed custody to punish her for two different events. Following a hearing in August, the children went to live with their father but continued to attend the Holy Souls School. Faucher was very involved at the school; she went to Friday mass there and occasionally acted as the playground monitor. Because the Bitzers were unable to pick up the children when school let out, the children attended after-school care. Nancy Wilson, the director of the after-school program, testified that Bethanie, eleven years old, would become upset and ask to call her mother in the afternoons. Faucher would respond by visiting her at the after-school program and then leaving before Bitzer arrived. Although Bitzer did not complain about these visits, the attorney ad litem did not find this to be healthy. Faucher explains that she was merely responding to her daughter's cry for comfort. However, the chancellor found this to be an example of Faucher's interference and her attempts to sabotage the children's relationship with their father.

Faucher also contends she is being punished for the filing of three separate child abuse reports against Bitzer and his wife with the Arkansas Department of Human Services(ADHS). However, the record does not reflect that those reports were made by her. The first report was made in 1997, and the second was made in 1998 by unidentified persons. The third report was made by Lourdes Martin, an attorney, when Bethanie sustained a bruise and showed it to a friend. All three reports were determined by ADHS to be "unfounded."

Although these events described by Faucher were taken into account by the chancellor in determining the best interests of the children, there is no proof that the change of custody award was based solely on Faucher's actions. From our review of the record, it appears that the chancellor based her decision on the desire to preserve the children's relationship with their father, not to punish their mother. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We have often recognized that there is no case in which greater deference should be given to the chancellor's position, ability, and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Id.

Emotional Abuse

Faucher also contends that the finding that she emotionally abused the children is clearly erroneous. To the contrary, the chancellor's findings are well supported in the record. Dr. Seiler testified that the children had not been "free to openly recognize, acknowledge, express their love for, receive love from their father as long as their mother is either physically or emotionally present to them," and that the children had not "been able to benefit from a relationship with the father." There was evidence that Faucher had been taking the children to different physicians and psychologists, in effect, "shopping" forsomeone who would express the viewpoint for which she was looking . There was also evidence that Faucher had been interfering with Bitzer's visitation rights by scheduling activities for the children that conflicted with his regular visitation schedule. We find no error in the chancellor's conclusion that Faucher had emotionally abused her children.

In essence, the chancellor found that Faucher's actions had been harmful to the children and their relationship with their father. Under the circumstances, we cannot say that the chancellor's finding that it was in the best interests of the children to award custody to Bitzer was clearly against the preponderance of the evidence.

Affirmed.

Griffen and Baker, JJ., agree.