Jerry D. Stephens, Jr. v. Tina L. Stephens Marsh

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

JERRY D. STEPHENS, JR.

APPELLANT

v.

TINA L. STEPHENS MARSH

APPELLEE

CA01-537

October 3, 2001

APPEAL FROM THE WHITE COUNTY CHANCERY COURT,

[E-97-955-1ST]

HON. DARRELL HICKMAN, CHANCELLOR

AFFIRMED

Jerry D. Stephens, Jr. appeals from the chancellor's order changing custody of the parties' minor child from joint custody to sole custody in appellee, Tina L. Stephens Marsh. On appeal, Stephens argues that there was insufficient evidence to find that it was in the child's best interest to be placed with Marsh. We affirm.

Stephens and Marsh were married in 1996 and divorced in 1998 when their son, who was born prior to the marriage, was two years old. They agreed to joint physical custody of the child, alternating custody on a weekly basis. Marsh, who lives in Searcy, filed a petition for sole custody in October 2000, in which she claimed that the child should attend the Searcy public schools' Head Start program rather than the school in Pangburn, where Stephens lived. Marsh further alleged thatStephens would not cooperate with her and refused to take the child to the Searcy school. Stephens filed a counterclaim asking that he be awarded sole custody if the court found a change in circumstances. At the hearing for change of custody, the parties appeared and testified on their own behalf. The witnesses who testified on behalf of Stephens were Kirby Martin, a family friend; Vivian Doty, a youth case manager; Shelia Reynolds, Stephens' sister; and Carolyn Stephens, Stephens' mother. Gloria Ward, a family friend; Patsy May, Marsh's mother; and Kevin Marsh, Marsh's husband, testified on behalf of Marsh. After the hearing, the chancellor awarded custody to Marsh.

On appeal, Stephens argues that the chancellor's findings are clearly contrary to the preponderance of the evidence, and that there was insufficient evidence to find that it was in the best interests of the child to be placed with Marsh. Stephens contends that with regard to the criteria of moral fitness, stability, and love and affection for the child, the evidence weighed in his favor.

In chancery cases, we review the evidence de novo, but we do not reverse the findings of the

chancellor unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). In child custody cases, we give special deference to the superior position of the chancellor to evaluate and judge the credibility of the witnesses. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 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 children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 724 (1999). The party seeking a modification of custody has the burden of showing a material change in circumstances. Thompson, supra. Joint or equally divided custody of children is not favored unless the circumstances clearly warrant such action. Id. "The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is improper where cooperation between the parents is lacking." Id.at 92.

In this case, the parties were unable to agree on the child's schooling or whether he shared his father's learning disability, dyslexia, and consequently had a need for special instruction. Clearly, the parties in the case are at such odds that they are unable to cooperate with each other in sharing physical custody of their child. Indeed, Stephens does not argue that there was insufficient evidence to warrant a change in custody, but contends only that custody should have been placed with him. He asserts that Marsh has had a number of changes in both her residence and place of employment since the divorce, that she lived with her present husband for several months before they were married while the child was in her custody, and suggests that a letter she wrote to her son when she left him with Stephens for a brief time prior to the divorce reflects her lack of love and affection for the child. In contrast, Stephens points out that he has held the same job and lived in the same residence, his mother's home, since the divorce, and that he engaged in a number of outdoor activities with his son such as hunting, camping, attending stock car races, and caring for animals. However, at the time of the custody hearing, Marsh had remarried, and she and her husband were buying a home. Further, Marsh was very attentive to the child's educational needs and testified that the family attended church on a regular basis.

The chancellor was in the best position to observe the parties and weigh their testimony. In ruling from the bench, the chancellor stated:

I have no doubt that the conflict that exists between these two families is causing harm to the child, and I have no alternative but to give custody to one...but I'm going to give custody to the mother, and the reason I am is because I'm very impressed with her attitude.... I think she has a stable home, a good location, and I think they will cooperate more with the Stephens' than the Stephens' would with them if the roles were reversed....

The chancellor further stated that "the morality is about a wash," because the parties had also lived together and had the child prior to marriage, and that the mother "has established a stable home" that would be best for the child, and that Stephens would still get to do all the things he needed to do as a father during his visitations. Based on our de novo review, still we cannot say that the trial court was clearly erroneous in finding that it was in the child's best interests to be placed with the mother.

Affirmed.

Robbins and Baker, JJ., agree.