Lori Franziska Mast Jones v. Michael Dale Mast

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION III

LORI FRANZISKA MAST JONES

APPELLANT

V.

MICHAEL DALE MAST

APPELLEE

CA02-117

December 4, 2002

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. 1999-1041]

HONORABLE MICHAEL H. MASHBURN, CIRCUIT JUDGE

AFFIRMED

Appellant, Lori Jones, appeals from the trial court's change of custody of her three minor children from her to appellee, Michael Mast, her former husband. Appellant first argues that because of appellee's own alleged misconduct, he was barred by the clean-hands doctrine from asserting that there had been a material change in circumstances sufficient to warrant a change of custody. Second, she argues that the court erred in finding that it was in the minor children's best interest for custody to be transferred to appellee. We affirm.

Appellant and appellee were divorced on July 21, 1999, and by agreement, appellant took custody of the parties' one biological child and appellant's three children that had been adopted by appellee. On June 19, 2001, appellant filed a petition for modification, requesting that appellee's child-support obligations be increased because appellee's income had substantially increased. Appellee counterpetitioned on June 27, 2001, contending that there had been a material change in circumstances warranting a change of custody of thethree

children who were still minors. He stated that appellant, in the presence of the children, had cohabitated with a man, David Jones, to whom she was not married. Appellee further stated that the oldest adopted child, Ashlee, who was born on April 26, 1983, had reached the age of majority and had graduated from high school. However, prior to her attaining the age of majority, appellant had allowed Ashlee's boyfriend, Tyler Mothershed, to live in the same household as appellant and the children and occupy the same bedroom as Ashlee, all in the presence of the other children. Appellant responded to the counterpetiton by denying appellee's allegations.

On July 6, 2001, a hearing was held at which the court temporarily ordered that custody of the minor children be transferred to appellee. After a hearing on October 4, 2001, the court issued a final order, finding that, for approximately two years and in the presence of and same household as the minor children, appellant had cohabited and maintained a sexual relationship with a man to whom she was not married. The court further found that while appellant and Jones had married three days prior to the hearing on the temporary order, the marriage was at least in part for the purpose of preparing for the hearing and that the marriage did not overcome the bad judgment demonstrated by appellant. The court also found that when Ashlee was a minor and residing in the same household as appellant, Ashlee was allowed to reside in the household with Tyler, that at the age of sixteen she carried on a sexual relationship with him, and that this relationship was facilitated by appellant's indifference. The court also noted that when the minor children were residing with appellant, their school performance was poor as a result of appellant's failings. By contrast,after the children were placed with appellee, he had some success in his effort to assist the children with their studies. The court further concluded that even though Ashlee had alleged that appellee had sexually abused her nine years ago, her testimony was not credible.

In his conclusions of law, the judge held that there had been a material change of circumstances and that it was in the best interest of the three minor children to transfer custody to appellee. The court further held that appellant had failed to prove the affirmative defense of unclean hands raised by her at the hearing.

As previously stated, appellant raises two issues on appeal. She first argues that because of appellee's own alleged misconduct, he was barred by the clean-hands doctrine from asserting that there had been a substantial change in circumstances sufficient to warrant a change of custody. Appellant notes that in May 2000, after appellee's marriage to a another woman, appellee offered to allow appellant and the children to move into a residence he owned. Appellant accepted the proposal, and she, the children, Jones, and Tyler moved into appellee's house. While appellee testified that he did not extend an invitation to Jones to live in the residence and did not like Jones being present, he did not return to court to have Jones excluded from the residence. Jones continued to live in appellee's home with appellant for the next six months. In September 2000, Ashlee and Tyler, who were by that time involved in a sexual relationship, began to share a bedroom.

In November 2000 and following his divorce from the other woman, appellee asked appellant to vacate the residence so that he might return to the residence, and appellant complied. Ashlee and Tyler, however, remained in the residence with appellee. The coupleshared a bedroom and slept in the same bed, and appellee permitted them to continue this arrangement after he returned to the home. During this time, appellee was receiving visitation with the three other children on alternating weeks.

Appellant argues that because appellee failed to end Ashlee's and Tyler's relationship upon his return to the residence, he is equally culpable in permitting and facilitating the relationship. Thus, she contends that, under the clean-hands doctrine, he should not be allowed to argue that a material change of circumstances has occurred.

The clean-hands doctrine bars relief to those guilty of improper conduct in the matter as to which they seek relief. Reid v. Reid, 57 Ark. App. 289, 292-93, 944 S.W.2d 559, 561 (1997). Whether the parties are within the application of the doctrine is primarily a question of fact. Word v. Remick, 75 Ark. App. 390, 396, 58 S.W.3d 422, 426 (2001). It is within the court's discretion to determine whether the interests of equity and justice require application of the doctrine. Reid, 57 Ark. App. at 293, 944 S.W.2d at 561.

Appellee testified that when he first learned that Ashlee and Tyler were living in the same residence, he contacted appellant and objected to the relationship. After he returned to his residence in November 2000, Ashlee, who was seventeen, and Tyler, who was eighteen, were sharing a bedroom and sleeping together in the basement of the residence. He asserted that he resorted to a subterfuge to compel Tyler to leave by asking him to pay rent, that his concern was that throwing Tyler out of the residence would provoke Ashlee to leave as well, and that he "inherited a bad situation." In April of 2001, he asked Tyler to leave the residence and asked Ashlee to stay. Ashlee, however, moved to appellant'sresidence. Tyler also returned to appellant's residence, and Ashlee and Tyler continued their relationship until appellant asked Tyler to leave after the temporary hearing in July. As the court was in the better position to determine the facts regarding appellee's failure to act more quickly and weigh the competing interests, for instance, the family dynamics that were in play, we cannot say that the judge abused his discretion in declining to apply the clean-hands doctrine to bar relief to appellee.

Appellant further argues that the court erred in finding that it was in the minor children's best interest for custody to be transferred to appellee. Among other arguments, she argues that cohabitation, standing alone, should not dictate a change of custody, and further, that there was no evidence that her lifestyle adversely affected the children. Additionally, she argues that the court should not have wholly discredited Ashlee's testimony that appellee had sexually abused her nine years earlier.

Our standard of review in change-of-custody cases is well settled:

The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. 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 child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification.

The role of the appellate court in appeals from modification of custody orders is also well settled. We review chancery cases de novo on the record, but the chancellor's findings will not be disturbed unless clearly against the preponderance of the evidence. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we defer to the superior position of thechancellor. Because a chancellor charged with deciding a question of child custody must utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest, there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as much weight as in those involving child custody. Our deference to the chancellor is correspondingly greater in such cases.

Word v. Remick, 75 Ark. App. at 393-94, 58 S.W.3d at 424-25 (citations omitted).

We conclude that, in view of the evidence presented, the court did not clearly err in concluding that the children's best interest would be served by transferring custody to appellee. It is uncontroverted that, in the presence of her children, appellant lived with a man who was not her spouse. "Arkansas courts have never condoned a parent's promiscuous conduct or lifestyle when such conduct has been in the presence of the children," and "we have approved changes in custody where the custodial parent has been involved in illicit sexual relationships." Thigpen v. Carpenter, 21 Ark. App. 194, 197, 730 S.W.2d 510, 512 (1987). Moreover, it has never been necessary to prove that illicit sexual conduct on the part of the custodial parent is detrimental to the children; Arkansas courts have presumed that it is. Thigpen, 21 Ark. App. at 198, 730 S.W.2d at 513. Furthermore, it is uncontroverted that, in the presence of the other children and while Ashlee was herself a child, appellant allowed Ashlee to maintain a sexual relationship with a man who was not Ashlee's spouse. Thus, appellant not only subjected her minor children to her relationship with Jones which she, not appellee, instigated, but also, through her indifference, subjected the minor children to Ashlee's relationship with Tyler, a situation appellant never made an effort to end until after the court's temporary order was entered. Considering appellant'sculpability in the creation of these two relationships alone leads this court to conclude that the trial court did not clearly err in finding that it was in the best interest of the children to modify the original custody arrangement. Thus, we do not address the court's other findings and appellant's other arguments on this point.

We, however, will address appellant's argument that Ashlee's testimony regarding the alleged sexual abuse should have been given more weight. As previously noted, the appellate court defers to the superior position of the trial court in the determination of the credibility of the witnesses. Ashlee's allegations of sexual abuse by appellee were not divulged to the court until after the temporary hearing and custody of her siblings was placed with appellee. Meanwhile, appellant took no action regarding the accusations and allowed appellee unfettered access to Ashlee and the other children both before and after the divorce. We can only conclude that appellant, as did the court, determined that Ashlee's accusations were made without a factual basis. Thus, the trial court did not clearly err, and we consequently affirm.

Affirmed.

Stroud, C.J., and Roaf, J., agree.