Rodney McNair v. Melinda A. McNair Johnson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

RODNEY McNAIR

APPELLANT

V.

MELINDA A. McNAIR JOHNSON

APPELLEE

CA01-496

February 20, 2002

APPEAL FROM THE WHITE COUNTY CHANCERY COURT

E-97-573

HON. DARRELL HICKMAN, JUDGE

AFFIRMED

This is an appeal from the chancery court's decision to grant appellee's petition for change of custody. Appellant contends that there was insufficient evidence to change physical custody of the children to appellee. We affirm.

Appellant Rodney McNair and appellee Melinda A. McNair Johnson were married on April 6, 1987. Three children were born of the marriage, Eric (DOB 03/24/88), Shana (DOB 05/31/90), and Tyler (DOB 01/09/95). The parties were subsequently divorced on November 5, 1997. The decree provided for joint custody of the children, with Rodney having physical custody. It also stated that Melinda was to have visitation and that the parties were to have shared parenting as much as possible.

On September 21, 1998, Melinda filed a petition for change of custody, alleging that a change of circumstances existed and that it was in the best interest of the children to reside with her. After a hearing, the chancery court denied and dismissed Melinda's petition and ordered that joint custody continue with Rodney having physical custody by an order filed February 19, 1999. TheFebruary 19 order further provided that both parties were to follow all medical requirements and advice from medical personnel regarding the minor children, provide regular medical and dental examinations for the children beginning immediately, and work together on visitation. Previous orders of the court not in conflict with the February 19 order were to remain in effect.

On May 19, 2000, an agreed order was entered modifying visitation because Melinda's husband had military assignments in the Azores beginning in August 2000 and continuing through June 2002. Subsequently, Melinda filed a second petition for change of custody on November 15, 2000, again alleging a change of circumstances and that a change of custody would be in the best interest of the children. Melinda also asked that Rodney be held in contempt because he refused to see that the children received proper medical care necessary for their well-being. A hearing on the petition was held on January 16, 2001.

In support of her petition, Melinda testified that she lives in the Azores with her husband Jonathan Johnson, who is in the Air Force, and their two-year old child. She stated that Eric's grades were poor and that he was not maximizing his potential; she thought that she could help him improve his grades. She claimed that Eric needed braces, but Rodney had not cooperated with this need. Melinda testified that she had spoken to Rodney several times about taking him to get braces because she was unable to do so on her weekend visits with the children, but that Rodney did not show an interest in having Eric fitted with braces and did not feel Eric needed them.

Melinda also testified that Shana, who was ten years old at the time of the hearing, has a bed-wetting problem and an emotional problem. When Melinda was returning to the Azores in August 2000 after her summer visit, Rodney promised that he would take Shana for an ultrasound in regard to the bed-wetting problem, but he never did. With respect to the alleged change of circumstances, Melinda mentioned Eric's poor grades and Shana's bed-wetting and emotionalproblems, along with the facts that her financial situation has improved, she is married to a wonderful man, and she lives in the Azores. She stated that she could make a difference in Eric's schoolwork and Shana's emotional and bed-wetting problems.

Rodney McNair is a ranch manager and lives on the ranch in a six-bedroom home with his wife Melissa (whom he married two years before the hearing), her two daughters (Jessica age 12 and Jennifer age 14), and his children. He acknowledged that the court ordered him in 1999 to follow all medical requirements and advice of medical personnel regarding the children, and to provide regular medical and dental exams. Rodney further testified that Shana has a bed-wetting problem, which he and Melissa address by having her help change the sheets and rewarding her when she does not wet the bed. He stated that he has not ignored Shana's bed-wetting problem and that a doctor has told him that it is not a physical problem. He claimed that when Melinda wanted to take Shana for the ultrasound, he agreed but told Melinda what the doctor had told him. He testified that Melinda told him that the ultrasound revealed that one of Shana's kidneys was slightly longer and narrower than the other. He attributes her problem to being a sound sleeper, as opposed to a psychological problem.

He testified that he took the children to the eye doctor in September 2000 because they needed eye exams before they started school; he denied taking them because his lawyer told him to do so. He stated that Eric may need braces, but that he had not taken him to the orthodontist because Melinda took him during her summer visit. He stated that Eric could not be fitted for braces until all his baby teeth had fallen out, which had not occurred. He also testified that all three children had dental appointments in December that were canceled because of the ice storm, but that they were rescheduled for the week of the hearing.

Appellee also presented the testimony of Nancy Wood, a fifth and sixth-grade teacher at WittSprings Elementary, and Mae Myrick, the K-12 principal of the Witt Springs School District. Wood testified that Shana is good student and makes good grades. According to Wood, Shana appears to be a healthy, happy, normal ten year old, who is polite, well mannered, and talkative. Myrick testified that Eric was a seventh grader at her school. She stated that Eric was in detention twenty-four times for misbehavior such as chewing gum, talking out of turn, and not turning in homework; however, she did not think his time in detention was excessive. Myrick also testified that Eric had a D in math, and Bs and Cs in his other courses. She stated that Eric was intelligent and that she did not think he was operating at his potential in math. She classified Eric as a happy, healthy, normal seventh grader, who acts appropriately with his teachers and peers.

After Melinda rested her case, Rodney called Glenda Hendrix, superintendent of the Witt Springs School District. She stated that she has seen Eric and Shana everyday for three years and has not noticed any problems. Three other witnesses, Nancy Docekal, Carl Taylor, and Jerry Arter, all testified that the children were nice children and that Rodney is a good father who takes care of his children. Appellant also testified again.

At the conclusion of the hearing, the chancellor ruled as follows:

This is the second hearing of custody. There may have been one more before that. The last one was about a year ago, where the Court entered an order with joint custody, with physical custody in the father, and then the parties had a change in May, and they had an agreed joint motion where that would remain the same except there would be some visitation because the mother was going to the Azores with her husband.

Now, the rule is, as you know, that there has [to be] a substantial change. The thing that has distressed me during this hearing is I believe that the boy and girl are in trouble in this home, and what I have to say, of course, I only say because I have to do what is in the best interest of these children, and I think it is in the best interest of these children that they go with their mother. Now, I say this because I don't believe that the atmosphere is good there, has been good with their stepmother or their stepsisters, and I think it's going to get worse, because it has been pretty obvious from the beginning that the girl is in serious trouble.

I know, Mr. McNair, that you would do everything in your power to see that this girlmakes it as a person, and with her lying and her bed-wetting and her problem with her step-mother and step-sisters, I don't believe she's got a chance. I don't believe she's got a chance. I had thought maybe with some counseling, and I think the boy is in trouble too. I think he is reaching the age where there is going to be some rebellion. I think their mother has a stable atmosphere and can give them the thing that they most need now, and I know you have done everything you can as a father, and I commend you for it, but I think at this point events are moving beyond your control. . . .

The order was entered January 18, 2001, and provided only that there has been a substantial change of circumstances and that it was in the best interest of the minor children that previous orders of the court be modified and that physical custody of the children be with the appellee.

Appellant argues that there was insufficient evidence to change physical custody of the children to appellee. In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). A finding is clearly erroneous 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). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Hamilton, supra. 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. Id. For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the children. Hollinger, supra. The party seeking modification of a child-custody order has the burden of showing a material change in circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

In this case, the chancellor failed to make specific findings of changed circumstances, butinstead merely indicated that Shana and Eric are in trouble and that their mother can provide them with a more stable environment. However, where the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a material change in circumstances. Hamilton, supra. Based on our de novo review, we conclude that there was sufficient evidence from which the chancellor could have found that Rodney's response or lack thereof to Shana's bed-wetting problem and Eric's need for braces to be a material change of circumstances to warrant a modification of physical custody. There is clearly a conflict between the parties' testimony regarding these issues; however, we give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Hamilton, supra. In addition, Melinda is currently married, has a stable home environment, and is able to care for her children. While a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody, Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999), Melinda's current situation is certainly a factor to be considered in determining whether a change of physical custody is in the best interest of the children. Because there is sufficient evidence to demonstrate a material change of circumstances warranting a change of physical custody to Melinda Johnson and that the change is in the best interest of the children, we cannot say that the chancellor's decision to change physical custody is clearly erroneous.

Affirmed.

Stroud,C.J., and Pittman, J., agree.