Diana Louise Jones (Davidson) v. Charles David Jones

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA01-567

MARCH 20, 2002

DIANA LOUISE JONES (DAVIDSON) APPEAL FROM THE WASHINGTON

APPELLANT COUNTY CHANCERY COURT v. [J-99-1059, E-91-764]

CHARLES DAVID JONES HONORABLE STACEY ZIMMERMAN, APPELLEE CHANCELLOR AFFIRMED

The parties in this child custody case were divorced in 1991. Appellant Diana Jones was awarded custody of the parties' two minor children, Kaylan and Kylie. In 1992, due to appellant's drug use, custody was switched to appellee Charles David Jones. On August 3, 1999, appellant filed a Family in Need of Services (FINS) petition seeking permanent custody of the children in the Washington County Chancery Court Juvenile Division (Juvenile Court). During this time, appellee was facing possible incarceration due to the violation of the terms of his probation and also undergoing drug rehabilitation. On August 16, 1999, appellant filed a petition for modification and for temporary order in the Washington County Chancery Court (Chancery Court). In the August 16 petition, appellant sought temporary custody of the children pending resolution of appellee's probation violation. If appellee was incarcerated appellant sought permanent custody. In an August 1999 order, the chancery court awarded appellant temporary custody of the children and ordered that temporary custody should remain in appellant until the hearing in juvenile court.

On August 30, 1999, the juvenile court rendered an order finding that the children were a family in need of services, continuing the chancery court's award of temporary custody to appellant, and withholding further adjudication until a later date. The chancery case was transferred to juvenile court on September 17, 1999. After several hearings, the juvenile court ordered that custody of the children would remain with appellee and granted appellant two extra nights a week visitation provided she moved to Northwest Arkansas. From that decision comes this appeal.

For reversal, appellant contends that the court erred when it refused to modify custody when there was a material change in circumstances and it was in the best interest of the children that custody be awarded to her. We affirm.

The principles governing the modification of custody are well settled. When modifying custodial orders, the primary consideration is the best interest and welfare of the child and all other considerations are secondary. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either one of them. Id. In determining matters of child custody, a chancellor has broad discretion, which will not be disturbed unless manifestly abused. Id. The original decree is a final adjudication that one parent or theother was a proper person to have care and custody of the child and before that order can be changed there must be proof of material facts which were unknown to the court at that time or that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). The burden of proving such a change is on the party seeking the modification. Id.

Although this court reviews chancery cases de novo, we will not disturb the findings of the chancellor unless they are clearly against a preponderance of the evidence. Campbell v. Campbell, 63 Ark. App. 136, 975 S.W.2d 869 (1998). Since 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 so in those cases involving custody. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). In those cases a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest. Fitzpatrick v. Fitzpatrick, supra. 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 minor children. Watts v. Watts, supra.

The evidence at the hearings revealed that both parties are recovering addicts and that they both attend Alcoholics Anonymous and Narcotics Anonymous. Appellant has been sober five years; whereas, appellee has been sober seven months. At the time, appellant lived in Locus Grove, Oklahoma, however, she planned on returning to Northwest Arkansas upon completing her nursing studies.

Appellant testified that she felt that she could offer the children consistency, assistance with their schoolwork, and better medical care. During her testimony, appellant admitted spanking Kylie; however, she denied leaving a bruise. Appellant also stated that since returning to live with appellee, the children's grades have fallen.

Appellee testified that he has had permanent custody of the children since 1992. During his testimony, appellee made the following assertions: (1) appellant deserted the children four years ago; (2) appellant spanked Kylie with a belt and the spanking left a bruise; and (3) appellant frequently yelled at the children. Appellee admitted that in the past he abused methamphetamine. He testified that he used at home, but tried not to use in front of the children. Appellee further testified that in the past he worked late hours and therefore was unable to get the children to school on time. During his testimony, appellee stated that the children's grades were currently low because they failed to turn in their assignments. He also believed that the schools in Oklahoma were behind those in Arkansas; thus, the children's grades were better while in Oklahoma because they were relearning skills that were taught in Arkansas.

Christiana Ossom, a child welfare specialist with Oklahoma Department of Human Services, testified that she evaluated Kaylan and Kylie to determine their well-being and their adjustment at school and at home. Ossom testified that she met with the children three times and appellant once; however, she did not meet with appellee. Ossom stated that she was not concerned about the children's academic performance. She believed appellant was a good mother and recommended that the children be placed with appellant.

Sammye Pierce, Kaylan's seventh grade English teacher in Oklahoma, testified that Kaylan eventually had a 95% average in her class. Pierce also testified that Kaylan only missed three days during the semester. Whereas, Elizabeth Brown, Kylie's fourth grade teacher, testified that Kylie only missed one day of class. Brown also testified that Kylie told her she wanted to live with appellant.

Mary Carr, Kaylan's sixth grade teacher, testified that Kaylan was absent approximately twenty-eight days that year. Louise Sager, Kylie's third-grade teacher, testified that Kylie was tardy forty-six times that year. Sager also testified that during the year Kylie's grades deteriorated.

Traci Jones, appellee's probation officer, testified that appellee was convicted for possession of methamphetamine and was placed on probation for three years. Jones also testified that appellee failed to meet with him or comply with his court-ordered drug treatment, so the State filed a petition to revoke his probation. Jones further testified that when he visited appellee's home in April of 1999, he found appellee's home in disarray and unkempt, and that the children were there. Jones stated that, at the time of the trial, appellee had paid all fees and court costs.

Kandace Carr testified that she investigates allegations of child abuse for the Arkansas Department of Human Services. She also testified that in the summer of 1999, she investigated appellee. She took pictures of the home; however, she did not go inside because appellee was incarcerated. Carr testified that the outside of the home caused her some concern because there was a dog inside, the windows were broken, there was anexposed sewer, and clutter around the front and back doors. Carr further testified that she interviewed Kaylan on August 5, 1999. During the interview, Kaylan told her that due to the condition of the house, they had been living with his grandfather. Carr also interviewed Kylie. Kylie informed her that they were trying to move, so clothes and toys were on the floor of the house. Kylie also stated that there were dirty dishes in the sink and on the counter, and the floor was nasty. Kylie further stated that the home had roaches and ants. Carr further testified that she visited appellee while he was incarcerated. During the visit, appellee stated that his home was filthy because they were in the process of moving. Appellee also told Carr that he did not want the children staying there so he sent them to stay with others. Carr testified that she found environmental neglect and that she had not visited appellee's current home.

Harold Jones, appellee's father, testified that appellee's current home is perfectly maintained. He stated that he found appellee's former home inappropriate, and because the home belonged to him, he had appellee arrested.

Suzanne Peterson of the Benton County Department of Human Services (DHS) testified that she engaged in the monitoring of appellee's home. After conducting eight to nine unannounced visits, Peterson found appellee's current home stable, safe, and clean. Peterson stated that she had no concerns about appellee having custody of the children.

In her ruling the chancellor stated the following "So I find that, although there have been circumstances that have changed since 1998, the bottom line is we have drug addiction [sic] going on, and it keeps going on whether it's by [appellant] or [appellee]." Despitethis finding of a change in circumstances, the chancellor found that it would be in the children's best interest for custody to remain with appellee. In making her decision, the chancellor gave deference to the fact that DHS had visited appellee's home several times and found nothing amiss.

We also note that when appellant first instigated the custody proceedings, she initially wanted permanent custody, however at one of the numerous hearings she stated the following during her testimony:

I've given a lot of thought about what would be in the best interest of the children. And when we were here in early March, I had requested exclusive custody. I thought about it a lot, the children really need both parents. I would like to have joint custody. The children would be living here in Washington County in Fayetteville.

* * * * * * * * * *

I'm going to move over here where I can be with them and be a part of their lives. I agree that the children live in Washington County as long as their dad's here so they can be near their dad and I could be near them. (Crying) The best arrangement where the children would be where they could spend equal time at both residences. [sic]

The chancellor agreed that the children needed both parents; therefore, she granted appellant increased visitation. Based on our review of the record and giving due deference to the chancellor's superior position, we cannot conclude that the chancellor's decision was clearly against the preponderance of the evidence.

Affirm.

Hart and Jennings, JJ., agree.