Tom Willis v. Anna Willis Shermer

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 02-178

October 9, 2002

TOM WILLIS

APPELLANT APPEAL FROM POPE COUNTY

CIRCUIT COURT

VS.

HONORABLE RICHARD E. GARDNER

CIRCUIT JUDGE

ANNA WILLIS SHERMER

APPELLEE REVERSED AND REMANDED

Tom Willis appeals from an order denying his petition for a change of custody. For reversal, he contends that the trial court erred in finding that he had failed to present sufficient evidence of a material change in circumstances, and he argues that a change of custody is in the child's best interest. We agree that a material change in circumstances was shown and reverse and remand. Appellant Tom Willis and appellee Anna Willis Shermer were married for fourteen years before they divorced in 1996. They had four children. In the decree, the parties were granted joint custody of the children with physical custody of two of them beingplaced with appellant, while appellee had physical custody of the other two children. At the time appellant filed the petition to change custody in May 2001, both parties had remarried, and only two children were still minors. Jason, age fifteen, lived with appellant, and Phillip, age eleven, lived with appellee. At issue in this case is custody of Phillip. In his petition, appellant alleged as changed circumstances appellee's remarriage and the use of drugs by appellee and her husband in the home.

At the hearing, appellant introduced into evidence two letters written by appellee's husband, Jon Shermer. The first, a fax sent to appellant's attorney dated July 18, 2001, said:

Jennifer, I smoked marijuana with Kathy Shankle. She purchased it for us. We tried to smoke it away from the children, but I imagine they realized we were smoking. Anna is innocent. If I must, I will not live with my wife.

The second letter was written to another attorney on August 19, 2001, and said:

Gentlemen: It has come to my attention re cently that Samantha Shankle went to RPD a few months ago to report that I had offered her marijuana. I would like everyone to know the truth about that day.

Kathy Shankle occasionally came to my apart ment to smoke marijuana. I was broke and hadn't purchased any in a long time so Kathy paid for it or I wouldn't have had any.

Kathy is Samantha's mama. Samantha walked into the apartment one afternoon and I was smoking some marijuana. Kathy was also. I did not know Samantha well. I think I had met her once. I did know she was over 18. No children were on the premises. As is the custom if everyone is having a beer and some one walks in the room, it is polite to offer that person a beer. I recall extending my arm toward Samantha and her politely saying no thank you. I think I did ask her if she ever smoked and she said no. That was all there was to that.

In her testimony, appellee admitted that she and her husband occasionally smoked marijuana when Phillip was present in the home, but she said that she smoked in the home only after Phillip had gone to bed. She also testified that she sometimes drinks alcohol to excess.

Phillip testified that he had sometimes seen his mother and her husband smoking when he had gone into the room to ask a question. He said he did not know what they were smoking but that he guessed it was marijuana. Jason testified that he had seen marijuana in a bowl and had seen a pipe, and a "bong" at appellee's home. He said that he had also seen appellee's husband smoking marijuana, but he said that he had never seen him smoking in Phillip's presence.

In deciding a petition for a change of custody, the trial judge must first determine whether there has been a material change in circumstances since the most recent custody order. Turner v.Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). If a material change has occurred, the trial judge must then determine custodial placement with the primary consideration being the child's best interest. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). Although our review is de novo, the trial judge's findings will not be disturbed unless they are clearly against the preponderance of the evidence. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the trial judge, especially in those cases involving child custody. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). A finding is clearly against the preponderance of the evidence when the reviewing court is left with the definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Here, the trial court's order states that appellant had failed to show a material change in circumstances. We cannot agree. This is not a case where the outcome is dependent on the credibility of the witnesses. The evidence was undisputed that appellee and her husband used marijuana in the home when the children were there. We hold that this constitutes a material change in circumstances, such that the trial judge was obliged to decide which custodial placement was in the child's best interest. See Ford v. Ford, 347Ark. 485, 65 S.W.3d 432 (2002); Stone v. Steed, supra. The trial judge made no best-interest determination. On de novo review, when we can plainly see where the equities lie, we can enter the order that should have been entered, or we may decline to do so if justice will be better served by a remand. McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999). We consider it appropriate to remand this issue for the trial judge's consideration, since he is in a far superior position to make that determination.

Reversed and remanded.

Hart and Griffen, JJ., agree.