Terry W. Baker v. Deborah L. Baker Stringer

ca01-937

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISIONS II & III

CA 01-937

May 8, 2002

TERRY W. BAKER

APPELLANT APPEAL FROM WASHINGTON COUNTY

CHANCERY COURT

VS.

HONORABLE JOHN MARK LINDSAY

CHANCELLOR

DEBORAH L. BAKER STRINGER

APPELLEE AFFIRMED

Terry Baker appeals from an order denying his petition to change custody. For reversal, Mr. Baker contends that the chancellor erred in stating that the initial custody determination was a "permanent" decision; that the denial of his petition was clearly against the preponderance of the evidence; and that the chancellor erred in awarding attorney's fees to his former wife, the appellee. We find no error and affirm.

In the parties' 1992 divorce, appellee was awarded custody of their two children, Jennifer and Chris, then ages four and two, respectively. Appellant petitioned for a change in custody in December 2000 when the children were twelve and ten years old. In the intervening years, appellee had remarried her first husband, Damon Stringer, with whom she had had a daughter, Lori, who is now eighteen. Appellee and her husband have also had another child, Nicholas, age three. Appellee, her husband, and the four children live in a home outside of Fayetteville. Appellant has also remarried, and he currently lives in Tulsa, Oklahoma, where he has family, including his mother who lives across the street from him.

In his motion to change custody, appellant alleged that Mr. Stringer was physically and verbally abusive to the children and to appellee and that his children had witnessed Mr. Stringer attack Lori. Appellant also alleged that appellee and Mr. Stringer were planning to move to New York and that the move there was not in the children's best interest. By the time of the hearing, the Stringers no longer had plans to move out of state. After hearing the evidence, the chancellor found that the claims of abuse were exaggerated and that appellant had failed to show a sufficient change in circumstances to warrant modification of the original decree.

In custody cases the primary consideration is the best interest and welfare of the children. All other considerations are secondary. Eaton v. Dixon, 69 Ark. 29, 9 S.W.3d 535 (2000). Custody awards are not made or changed to punish, reward, or to gratify the desires of either parent. Hollinger v. Hollinger, 65 Ark. App. 100, 986 S.W.2d 105 (1999). Although the chancery court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the children. Before that order can be changed, there must be proof of material facts that were unknown to the court at that time, or proof that the conditions have so materially changed that the best interests of the children require modification. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). The burden of proving such a change is on the party seeking the modification. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999). The reasons for requiring more stringent standards for modification than for initial determina tions of custody are to promote stability and continuity in the lives of children and to discourage repeated litigation of the same issues. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001).

Appellant's first argument is that the chancellor misunder stood these principles because he referred to the initial custody determination as being "permanent." We do not agree that thechancellor's remarks display any misunderstanding of the governing law. As distinguished from temporary custody awards, the word "permanent" is frequently used to describe custody decisions, either initial ones or those upon modification, with the caveat that any custody determination is subject to being altered upon a showing that there has been a material change in circumstances affecting the best interest of the children. The chancellor's comments, viewed in context, reflect the proper understanding that custody awards are not immutable decisions. The chancellor's statement that the initial custody decision was intended to be permanent was an attempt to correct appellant's view which he had imparted to the children that the children could choose which parent they wanted to live with once they reached the age of twelve. The chancellor clearly stated that the initial custody determination could be changed if there were any material changes in circumstances, and ultimately, the chancellor found that appellant had failed to offer sufficient proof of changed circumstances to override the initial custody award. We find no error on this point.

Appellant's primary argument is that the chancellor erred in denying his petition for modification. On appeal, chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact made by the chancellor unless it is clearly against thepreponderance of the evidence. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). Special deference is given to a chancel lor's findings in child-custody cases because of the chancellor's superior ability to determine witness credibility, to evaluate their testimony, and to decide the best interest of the children. See Hobbs v. Hobbs, 75 Ark. App. 186, 55 S.W.3d 331(2001).

At the hearing in March 2001, Gannalyn Morris, the school counselor at Chris's elementary school, testified that Chris had always been a quiet boy, a little sad, passive, and sometimes frightened. She said that he had also been consistently tardy and absent from school. Currently in the fifth grade, Chris had already missed nineteen days of school and had been tardy twelve times. The year before he had been absent thirty-three days. In the third grade he missed twenty-three days. He missed sixteen and a half days in the second grade and nineteen and a half days in the first grade. Ms. Morris also testified that Chris had been picked up late for school on a number of occasions. She said, however, that Chris was a bright child who maintained grades of A's and B's. Ms. Morris spoke with Chris once, and he told her that he was concerned about his mother because his step-father had beaten her and had given her a black eye. Chris told her that Lori had been jerked around by the hair a lot. He also said that he was frightened of his step-father and that he stayed in his room. Ms. Morris testified that she asked him if he had experienced any abuse, and she said that Chris did not want to talk about that, saying that he was more concerned about his mother. He said that the beatings of his mother had gone on a long time. He also told her that his step-father "won't hardly touch us because our daddy will get on to him."

Jennifer, who had just turned thirteen and was in the seventh grade, testified that she preferred to live with her father because she does not like the way she is treated at home. She said that she was ready to leave immediately and begin school in Tulsa. She said that she stays in her room to avoid her step-father and that they do not engage in recreational activities as a family. Jennifer also testified that on a camping trip the previous summer, her step-father had slapped her across the face for walking into the camper wearing her shoes. She said that only she, her step-father, and her mother were present and that her mother had seen this but had not done anything about it. She testified that he had also slapped her face two years earlier because she had broken a collector plate when she was running through the house. Jennifer also said that he had slapped her face while riding in the car once because she talked after being told to be quiet. She said that her step-father had also slapped Chris and Lori for talking while riding in the car. Jennifer testified that her step-father hadalso raised his hand as if to hit her mother because she was complaining about his pumping the brakes when a semi-truck was following closely behind. She also testified that she had seen her step-father slap and push her mother on the frequent occasions when they argued about bills. Jennifer stated that her step-father had pulled Chris by the ear for leaving a door open and that Chris had cried. She also spoke of two incidents when her step-father had disciplined Lori. She said that he had spanked Lori with a belt, leaving bruises, about six months ago because Lori had not folded clothes. She testified that the year before he had pushed Lori into the wall, wrestled her to the floor, and slapped at her for walking on the carpet with muddy shoes. Jennifer also testified that her step-father had called her a "f'n bitch" for using the bathroom in the camper when she was told not to use that toilet during the day. She said that he yells at her and tells her to "get her ass downstairs" to fold clothes. She also said that her step-father had accused her of being a liar over an incident that she got into trouble about at school. Jennifer further testified that her mother had told her that the things she was saying were not true and that her mother had also told her that Nicholas might be taken away if the judge thought it was bad enough. She said that her mother had not told her what to say on the witness stand.

Chris also testified at the hearing. He said that he did not like where he was living because his step-father was "mean and abusive." He said that his step-father called them "cusswords," like "asshole." He testified that his step-father had recently grabbed him by the ear and pulled him into the bonus room because he had left the door open. He said that it hurt and that he had cried. He said that his step-father had hit him in the face a few months ago on a trip to Waldo, Arkansas. Chris said that he saw his step-father spank Lori with a belt for not folding clothes and that Lori had bruises all over her legs afterwards. Chris said that another time his step-father had pushed Lori into the wall causing her to fall and that he slapped at her. He said that he and Jennifer were scared and crying and that they had locked themselves in the bathroom. Chris further testified that his father had told him that he and Jennifer could come live with him when Jennifer turned twelve years old. He also said that he had told his mother that she has had him all of his life and that now it was daddy's turn.

Damon Stringer, appellee's husband, testified that he worked at Edward Jones as an investment representative and that he had been married to appellee for eight years. He said that over that time he had spanked Jennifer and Chris only once. Mr. Stringer said that he had paddled Jennifer the time she broke the plate. Hetestified that he had grabbed Chris by the ear. He said that Chris had been asked to close the door of the bonus room but that Chris continually left it open, and that he had taken Chris by the ear and led him to the room to close the door. He said that he did not use force and that Chris did not cry until after Chris had returned to his room. Mr. Stringer testified that he had not slapped any of the children's faces while traveling in the car, and he said that he had not raised his hand toward appellee the time the truck was following too closely. He denied that he was abusive to his wife, but he admitted that they sometimes argued over bills. He testified that he had not slapped Jennifer's cheek on the camping trip. He said that he had told her not to wear shoes in the camper but that she had done so just after he had swept. He said that he cuffed her on the back of the head with the back of his hand. Mr. Stringer also testified that he had not called Jennifer a foul name when she used the camper toilet. He said that everyone had been asked to use the campsite facilities during the day because the camper toilet had a limited capacity. He said that he had gotten on to her for using it, but that he had not cussed at her. Mr. Stringer did say that he used the word "asshole" once in reference to Chris. He said that the children had been instructed not to snack in the carpeted area of the house and that he had told Chris "to get his asshole in the kitchen" when Chris had broughtfood in a carpeted room. Mr. Stringer also admitted that he had accused Jennifer of lying about an incident at school because her version of events did not match what he had been told by the assistant principal. He also said that he had accused Jennifer of lying about an allegation she had made that he left bruises on appellee twice a week. Mr. Stringer also stated that he had spanked Lori on two occasions. He said that two or three years ago he had spanked her for walking on the carpet with dirty feet. He said that they were all coming into the house, which was newly built and surrounded by red clay, and that he had told everyone to remove their shoes. He said that Lori did not take her shoes off, that he grabbed her, that she resisted, and that he took her to the ground and held her there, and spanked her. He said that he had also spanked her a couple of years ago for disobeying his request to fold clothes. He said that he had twice asked her to fold the clothes and that Lori had just sat there and then told him to go fold the clothes. He said that he asked her to come to his bedroom, that she refused, and that he got his belt and spanked her on the legs. He said that this spanking left reddish marks on her legs.

Mr. Stringer also testified that appellant telephones the children two to eight times a day and that appellant had provided them with cell phones. He said that appellant calls them when theyare on trips or visiting relatives, and that appellant will call around to relatives to find out where they are if he does not know their whereabouts. He testified that he is not a perfect step-father, but that they come to him for help with homework, that he hugs them and tells them that he loves them. He said that the children do not act afraid of him, except when they do something wrong and he is talking to them about it.

Pastor Danny Borrell, from appellant's church, testified that he had known appellant for twenty-seven years and that he had known the children from the time they were born. He said that appellant is a loving father who cares about and wants to be around his children. He testified that the children seem to be happy with their father.

Appellant testified that he had been married to his wife Bessie for five years and works as an aircraft controller for American Airlines. He visits with the children every other weekend, holidays, spring break, and six weeks in the summer. At his home there were few rules, but the children were required to keep their rooms straight and to rinse their dishes and place them in the sink. He said that he usually returns the children on Sundays at around 10:00 p.m. based on an agreement he had with appellee to return them at that time. He said that seven of Chris's nineteen absences that year were attributable to theirstaying over with him on Sundays to go to the orthodontist in Tulsa on Monday. He said that he experiences no behavioral problems with the children and that they are respectful. If there is a need for discipline, he said that he talks with them, which is usually enough, but that he might take something away from them if necessary. Appellant testified that he has talked to his children every day since the divorce and that the children depend on him to call. He said that he might call several times if he does not reach them with the first call. He said that he does not call when they are on vacation, that the children called him collect once when they were on a trip to Colorado, and that he has called them on visits to relatives, but not repeatedly. He testified that he bought them cell phones so that they could call someone when they are left at school or become sick. Appellant testified that he had filed the petition because of what the children told him went on in appellee's home, because the children seem fearful of Mr. Stringer, and because they do not want to return home from visitation. He said that he believed what the children had told him and that he was afraid for them. Appellant said that he had heard Mr. Stringer yelling at the children while he was talking to them on the phone. He believed that he should have custody because the children trust him and can tell him anything without being yelled at or beaten. Appellant testified that the children had asked him repeatedly tofile a custody petition. He said that they had heard at school that they could live with him when they are twelve, and he said that he told them that they probably could. He believed that Mr. Stringer had killed the children's rabbits and that their deaths coincided with the filing of his custody petition.

Donna Baker, appellant's mother, testified that she sees the children all weekend long during their visits and that she picks them up for visits and looks after them if either appellant or his wife are working. She also said that she accompanies appellant when he takes them home. Ms. Baker testified that they play miniature golf with the children, ride bikes, go to the mall, and attend movies on their visits. She said that the children love to be with their father and that they get along well with appellant's wife. She testified that she speaks with the children by phone every day and that, if they are busy or unavailable, she will call until she talks to them. She said that she calls often because she is concerned about them and wants to make sure they are alright. She said that, once during a phone call, she overheard Mr. Stringer yell at Jennifer to fold the clothes or he would "beat her ass off."

Appellee testified that her husband had not pushed her or hit her leaving bruises, but she did say that appellant had slapped her once five years ago but that the children did not know about it. She said that her husband did not physically abuse the children, that he disciplines them but does not hurt them. She testified that she had not heard her husband call the children bad names. She said that her husband had not slapped the children's faces in the car but had swatted at their legs because they were fighting. She said that he had not raised his hand to strike her when the truck was behind them. Appellee testified that she did not see the incident where Jennifer claimed that her husband had slapped her face for wearing shoes in the camper, but she said that Jennifer had come to her afterwards and told her that she had been popped on the back of the head. With regard to Lori and the incident where she tracked clay onto the carpet, appellee said that her husband did not repeatedly hit Lori as the children had said. When Lori was spanked for not folding clothes, she said that Lori was being defiant and "smartalecky" but that the spanking had left welts and light bruising. Appellee testified that Jennifer had been saying since she was five years old that her father had told her that she could choose to live with him when she turns twelve. She said that Jennifer's testimony was an exaggeration and that the allegations of abuse had been manufactured because of what they had been told about being able to decide for themselves where they want to live at age twelve, and because appellant wanted custody of the children. She believed that the children wanted to live withappellant because they were allowed to stay up late and because they are constantly entertained during visits, as opposed to the day-to-day life they spend with her. She felt that she should retain custody because the children do not live in an abusive home, and because it was not a good influence on the children to be coaxed to make false accusations. She said she was also concerned because appellant had discussed with her on at least four occasions that he and his wife might get a divorce.

Appellee further testified that appellant calls the children frequently, as many as four times on a good day and eight times on other days. She said that he calls them whenever they are out of town and that, if he does not know where they are, there will be a large number of beeps on the caller ID from either him or his mother. She also testified that appellant routinely returns the children late, and she said that she did not agree for the children to be returned at 10:00. She said that Chris was sometimes late for school because Lori takes him and she might be running late. She said he might be picked up late because of a miscommunication as to who was to pick him up. Chris was once picked up late because Lori had been in a wreck. She testified that he had missed school some on Mondays and Thursdays because of orthodontist appointments and that he had been sick with ear infections. The year before he had missed school because he had his tonsils removedand because of the flu. She said that he was never absent or tardy just because she did not feel like taking him to school.

Michael Paskewitz, the children's cousin, testified that he witnessed the camping incident involving Jennifer, and he said that Mr. Stringer had tapped her on the back of the head, not slapped her on the cheek. He said that Jennifer rolled her eyes and stalked away. He did not think the tap hurt her. He also testified that Jennifer and Chris do not appear to be afraid of Mr. Stringer.

Lori also testified. She said that the time she was spanked for walking on the carpet with dirty shoes occurred two years ago. She said that the time she was spanked for not folding clothes happened four years ago. Lori testified that Jennifer and Chris do not act as if they are scared of her father and that she had not seen him strike them or call them foul names. Lori said that she saw the incident that occurred during the camping trip and that her father had popped Jennifer on the back of the head. She also said that she had not ever seen her father hit or push their mother. She said that she did not feel that the children were living in a situation where they ought to be moved for their own well-being. She testified that Jennifer and Chris had told her that they wanted to live with their father and that they did not want their mother to take it personally.

Jennifer was recalled to the witness stand. She testified that her father had told them that they could live with him when she was twelve but that he did not tell them that they had to come live with him.

Suzanne Killion testified that she was a nurse and a co-worker of appellee's and that she had never seen any bruises on appellee. Gene Mitchell, appellee's pastor, testified that he had never seen the children act as if they were uncomfortable around Mr. Stringer. In addition, Melanie Ferguson, appellee's sister; Sue Aldridge, appellee's mother; Angie Henry, Mr. Stringer's sister; and Mark Hitt, a friend of the Stringers; all testified that they had never seen Mr. Stringer mistreat the children or call them names and that the children did not appear to be afraid of him. Mr. Hitt further testified that he had been looking after the Stringer's animals over Christmas and that he was responsible for letting the rabbits get out and that they were killed by the dogs.

After considering the testimony, we cannot conclude that the chancellor's decision is clearly against the preponderance of the evidence. The chancellor found that the evidence did not support appellant's claim that the children were being raised in a hostile environment where Mr. Stringer was physically abusive and in the habit of directing foul language at the children. Much of the testimony was in conflict, and on this record the chancellor couldfind that the children's perceptions of events were blown out of proportion and were colored by appellant's pervasive influence and the notion that the children could decide with whom they wanted to live. The chancellor did find that, under the circumstances, it would not be appropriate for Mr. Stringer to continue to discipline the children, and he directed that all future discipline be administered by appellee. The chancellor's finding that no material change in circumstances was shown is not clearly errone ous.

Appellant finally contends that the chancellor erred in awarding appellee an attorney's fee. He argues that he brought the petition in good faith and out of concern for his children and that he should not be punished bringing his concerns to the court's attention.

Chancery courts have the inherent power to award attorney's fees in a domestic relations proceeding. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). Such an award of fees lies within the sound discretion of the chancellor. Winans v. Winans, 55 Ark. App. 272, 934 S.W.2d 546 (1996). In the absence of a clear abuse of discretion, we will not disturb the chancellor's decision on appeal. Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989). Here, the chancellor stated that he would consider a fee request because he had found that there was no basis for a change ofcustody. We do not regard that as an improper consideration and find no abuse of the chancellor's discretion.

Affirmed.

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

Crabtree, and Roaf, JJ., dissent.

Terry Crabtree, Judge, dissenting. I disagree with the majority opinion and would hold that the trial court's denial of the petition for modification of custody was clearly erroneous. In chancery cases, the appellate court reviews the evidence de novo but does 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). The appellate court gives due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). A heavier burden is placed on a chancellor in child-custody cases to utilize, to the fullest extent, all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interests. Freshour v. West, 61 Ark. App. 60, 962 S.W.2d 840 (1998). A material change of circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody. Thompson v. Thompson, supra. The party seeking modification has the burden of showingsuch a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999).

The chancellor in this case made specific findings regarding credibility, and I have no quarrel with those findings. However, there are sufficient undisputed facts that support a finding that appellant met his burden of proving a change of circumstances and that support a finding that it is in the children's best interest that custody be vested with appellant. These factors are that the children desire to live with appellant; that appellee's husband inappropriately disciplines the children; that the family unit consisting of appellee, the children, and the children's stepfather needs counseling; and that Chris has been consistently absent and tardy from school. While each of these factors alone may not support a change of custody, in my opinion, when considered as a whole they are more than sufficient to warrant a change of custody.

The chancellor stressed to the parties that the original custody order should be considered permanent and that the children were not free to choose their custodian at a certain age. The chancellor also found that the children exaggerated the allegations of abuse. However, if the children are willing to go to such lengths to obtain a change in custody, what is the motivating factor behind their desire? Perhaps it is the fact that their stepfather and appellee call the children liars and on at least one

occasion Mr. Stringer called Chris an as*****; or perhaps it is because the stepfather used inappropriate forms of discipline. Whatever the reason, I would consider the children's desire to live with their father as a significant factor in changing custody from appellee to appellant.

The chancellor found that the stepfather, Mr. Stringer, used inappropriate forms of punishment, and in its order, prohibited Mr. Stringer from disciplining the children in the future. This is a clear indication that the trial court did not trust Mr. Stringer to perform a basic function in the parenting process. I find this to be another factor that weighs heavily in favor of appellant rather than appellee.

Mr. Stringer testified that he thought that he, appellee, and the children needed family counseling. The record supports Mr. Stringer's testimony, especially in light of his relationship with the children and the discipline that he used. The trial court also recognized that some problems existed. In its remarks from the bench, the trial judge stated:

Ms. Baker has got to have a chance to try to assimilate this family again. And the court is not going to allow an unlim ited amount of phone calls [from appellant] because I believe that would interfere with an attempt to repair the damage that has been done between Ms. Baker and her children and her present husband.

Perhaps counseling would help the family with the damage that has been done. Mr. Stringer's admission that the family is in need of counseling is another factor that weighs heavily in favor of appellant.

The last factor that I consider weighing in favor of a change of custody is Chris's poor school attendance. The majority discusses Chris's consistent and excessive tardiness and absentee ism from school. Appellee offers numerous excuses for this chronic problem. She points to orthodontist appointments, illnesses, and miscommunications among other things to justify her failure to ensure Chris's presence at school. I might find these excuses credible if Chris's school attendance was affected for just one year, but that is certainly not the case here. Chris's school attendance is poor year after year. I can only assume that it will continue in this manner.

The majority notes that in spite of his poor school atten dance, Chris has maintained good grades. I suggest that success in academics cannot be the sole indicator of whether Chris is receiving a good education. A child's education includes more than academics. Education is a life experience, which includes social, cultural, emotional, and physical components. Without being present at school, a child misses a significant part of hiseducation. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court stated:

Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the impor tance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

Id. at 493. In effect, appellee is denying Chris the opportunity of a full educational experience. Therefore, appellee is failing in her responsibilities as the custodial parent.

Based upon the undisputed facts that I have discussed, I would reverse the trial court and grant appellant custody of the minor children.

Roaf, J., joins.