Nathan Scott McCall v. Cathy McCall

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION IV

NATHAN SCOTT MCCALL

APPELLANT

V.

CATHY MCCALL

APPELLEE

CA01-561

November 28, 2001

APPEAL FROM THE SALINE COUNTY CHANCERY COURT

E95-1214-3

HON. GARY M. ARNOLD, JUDGE

AFFIRMED

This is a one-brief appeal from an order denying appellant's petition to change custody. He contends that the trial court abused its discretion in not changing the custody of his two youngest children and in finding that it was in their best interests to remain with appellee. We affirm.

Appellee Cathy McCall and appellant Scott McCall were married on August 18, 1978. On December 7, 1995, appellee filed a complaint seeking a divorce and custody of their three children. A divorce decree was entered on July 7, 1997, with the custody issue be reserved for a later date. After a November 23, 1998, hearing, a final order of custody was entered on January 29, 1999, wherein the trial court granted custody of Nathan McCall to appellant and granted appellee custody of Cristin and Les McCall. On December 10, 1999, appellant filed a petition for change of custody, seeking custody of Cristin and Les. Appellant alleged that, since the last order, there had been a material change in circumstances and that a change in custody would be in the best interests of the children.

A hearing was held on October 4, 2000, and the trial court denied the petition, finding thatit would not be in the best interests of the children to change custody. In its bench ruling, the court noted the following facts: that both Drs. Seiler and Paul, who met with the children, agree that all three children are well adjusted, possess a good self-image, and make good grades in school; that Dr. Paul noted that Cristin and Les want to see more of their father; that Dr. Seiler stated that the children want easy access to both parents. Considering this testimony, the trial court expressed that a change of custody would not resolve those issues. While the chancellor recognized that Cristin and Les expressed a desire to live with their father, he stated that they did not indicate a viable reason for this desire. The trial court found that the children were doing very well and that the problem was the parents and that a change of custody could not correct that problem, but would only punish one parent. Although the trial court did not grant the petition for the change of custody, it modified visitation to add an alternating Wednesday night visitation, where all three children would spend time with appellee or appellant. From that decision, comes this appeal.

In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. 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 interests of the children. Id.

The primary consideration in child-custody cases is the welfare and best interests of the children; all other considerations are secondary. Hamilton v. Barrett, supra. An award of custody should not be changed unless it is shown that there are changed conditions that demonstrate a modification of the decree is in the best interests of the children, or that material facts affecting thebest interests of the children were unknown to the chancellor at the time of the decree. Id. Courts generally impose more stringent standards for modification of custody than initial determinations of custody. Id. Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986).

In his brief, appellant alleges the following as material changes in circumstances since the last custody order: (1) appellee's alienation of Nathan; (2) appellee's alienation of Nathan causing injury to Cristin and Les; (3) Cristin and Les would be injured if they do not spend more time with their father; (4) Cristin and Les's desire to live with their father. The trial court did not find that a material change in circumstances existed and concluded that it was in the best interests of the children for custody to stay the same. Based on the testimony presented at the hearing, we cannot say that the chancellor's finding was clearly erroneous.

At the hearing, Dr. Warren Seiler, a child psychiatrist, testified that he met with appellant and all three children in August and September 2000; Dr. Nicholas Paul , a child psychologist, testified that he met with appellee, Les, and Cristin twelve times since May 30, 2000. Both doctors agreed that the children were delightful and intelligent. Dr. Seiler expressed that the children needed easy access to both parents; that Nathan (sixteen years old) feels as though he has been cut off from his mother and maternal grandparents, and that Cristin (twelve years old) and Les (ten years old) miss Nathan and feel badly when they see him being hurt by their mother. Dr. Seiler did not opine that custody should be reversed, but only that the children should have free and easy access to both parents. He did note, however, that a change of custody should be granted if that was the only way Les and Cristin might have access to their father.

Dr. Paul testified that appellee was a good and concerned parent who interacted well with Les and Cristin and provided a good home for the children. Like Dr. Seiler, Dr. Paul stated that thechildren wanted to see more of their father. He indicated that early on, both Les and Cristin stated that they wanted to live with their father, but their answers as to why were vague. Their answers were that they have lived with their mother long enough and it was time to live with their father and that they felt safer at their father's home in a "generic sense." He also found that the children appeared happy in their current living arrangement.

Cristin and Les both testified that they wanted to live with their father because they feel more comfortable with him and can talk to him more easily. However, they did not indicate that they were unhappy living with their mother or that their mother does not take care of them, and they both testified that nothing has changed since the last custody hearing. Their main concern seems to be their mother's alienation of Nathan.

Nathan also testified that his mother has alienated him since he chose to live with his father and that her attitude towards him is hurtful, but he expressed a desire to rebuild his relationship with his mother. Appellee also testified that she feels badly about her relationship with Nathan, but she wanted to rebuild it. Appellant testified that Cristin and Les are excited and relieved when they are with him, and that they fear their mother will treat them as she does Nathan. Appellant argues in his brief that appellee is not a fit parent because of her desire to keep Cristin and Les from their father. However, there was no testimony at the hearing that appellee was not a fit parent. In fact, appellant testified that appellee provides for the children's basic needs.

Based on the testimony presented to the trial court, we cannot say that the chancellor's decision was clearly erroneous.

Affirmed.

Hart and Baker, JJ., agree.