Dawn N. Conlin v. Christopher Mark Goss

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CA02-553

NOVEMBER 13, 2002

DAWN N. CONLIN AN APPEAL FROM THE WHITE APPELLANT COUNTY CIRCUIT COURT

v. [E-2000-905]

CHRISTOPHER MARK GOSS HONORABLE DARRELL HICKMAN,

APPELLEE JUDGE

AFFIRMED

Appellant, Dawn Goss Conlin, appeals from an order of the White County Circuit Court placing custody of her sons, Jordan and Logan, with Christopher Goss, the appellee. She asserts that the court's order modifying the original custody order and awarding custody to the appellee was clearly erroneous. We affirm.

The parties were divorced in December 2000. They were awarded joint custody of their two minor children, an eight-year-old boy and a four-year-old boy, with appellant having physical custody. In August 2001, appellant decided to move to Texas. The parties agreed that appellant would have physical custody of the four-year-old and appellee would have physical custody of the eight-year-old. The parties also agreed that appellee would no longer pay child support.

Appellee remarried in September 2001, and appellant remarried in November 2001. Prior to her remarriage, appellant returned to Arkansas in October 2001 with the intention of staying in Arkansas; however, she later changed her mind, and on October 26, 2001, she returned to Texas with both children. On October 29, 2001, appellee filed a motion seeking custody of the parties' children. Appellant filed a counter-claim seeking additional child support.

A hearing was held on January 22, 2002. At the hearing, appellant testified that she married Mike Conlin on November 23, 2001. She denied having marital problems. Appellant admitted that Conlin's ex-wife resides in a mobile home on their property. Appellant also admitted that prior to moving into the mobile home, Conlin's ex-wife resided in their home. Appellant stated that she and the children lived upstairs, with the children sharing a bedroom, and Conlin and his ex-wife lived downstairs. Appellant denied allegations that she, Conlin, and his ex-wife all slept in the same bed.

Appellant also testified that she works as a hairdresser. She stated that she goes to work after dropping the children off at school and that upon picking them up from school in the afternoon, they skate in the alley beside the salon while she works. Appellant asserted that appellee does not provide the children with any structure or discipline. She also asserted that appellee's mother is the one who cares for the children. Appellant admitted that she talked to her aunt, Jo Carol Johnson, on several occasions; however, she denied stating to her aunt that she was moving back to Arkansas. She also denied telling her aunt that Conlin and his ex-wife continued to share a bed.

Michael Conlin, appellant's husband, testified that he gets along with appellant's children and that they call him "Daddy." He stated that the children never asked why his ex-wife continued to live in the house. Conlin admitted that he has a criminal record for felony theft. He also admitted that after the children had repeatedly asked him to take them hunting, he took the children to the woods behind the house, gave them an unloaded .22 rifle and instructed them to call him if they spotted anything.

Appellant's aunt, Jo Carol Johnson, also testified. Johnson stated that during October 2001, she received several phone calls from appellant in which appellant stated she wanted to return to Arkansas. Johnson testified that in one phone call, appellant indicated that Conlin had asked her to leave. Johnson also stated that appellant had told her Conlin and his ex-wife shared a bed.

Appellee testified that he works as a meat cutter in his family's business. He stated that he works from 8:00 to 4:30, but when his eight-year-old child was with him, he would work from 8:30 to 4:30 or 5:00, because he would take the child to school prior to going to work. Appellee also stated that the months of August, September, and October are one of his busy seasons and that he has to go to work at 6:00, so his mother or wife would take the child to school. After school, the child attended after-care. Appellee admitted that his mother often helps him with the children. He stated that if he were awarded custody, his mother would continue to assist him. Appellee also admitted that the parties had an agreement that he could stop paying support since he would have custody of the eight-year-old.

The court found that there had been a substantial change in circumstances since the parties' divorce and that it would be in the best interest of the children for them to be placed in appellee's custody. The court awarded appellant visitation rights and ordered her to pay child support. This appeal followed.

Appellant asserts that the court's decision was clearly erroneous. She specifically argues that (1) appellee failed to show a material change in circumstances; (2) the court erroneously shifted the burden of proof; and (3) the court sought to punish her. Child custody cases are chancery in nature; we review such cases de novo on the record. See Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). We will not reverse the findings of the court unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). In child custody cases, we give special deference to the superior position of the court to evaluate the witnesses, their testimony, and the child's best interest. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). In custody cases, the primary consideration is the welfare and best interest of the children involved; other considerations are secondary. Id.

It is well settled that a judicial award of custody should not be modified unless there is proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires modification. See Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001); Word v. Remick, supra. The burden of proving a material change is on the party seeking the modification. Word v. Remick, supra. Where the court fails to make findings of fact about a change in circumstances, this court, under its de novo review, maynonetheless conclude that there was sufficient evidence from which the court could have found a change in circumstances. Hamilton v. Barrett, supra.

In its order, the court cited several reason that warranted a change of custody. The court specifically found that (1) the living arrangements at Conlin's home were not innocent; (2) appellant's conduct was not stable nor was her relationship with Conlin stable; (3) appellant's home was not a stable environment for raising children; (4) appellant had put her interest above that of her children; (5) appellee and his family offered the more stable home and best environment for the children; and (6) the children should remain together. Thus there was sufficient evidence establishing a change in circumstances.

Appellant also asserts that the court erroneously shifted the burden of proof to her by requiring that she show her current marriage is stable. A review of the record reveals that the burden of proof was not shifted to appellant. Furthermore, the court did not require appellant to prove her marriage was successful. The court simply stated that it found that appellant and her husband were not credible. In matters of credibility, we defer to the superior position of the court to view and judge the credibility of the witnesses. See Hamilton v. Barrett, supra.

In her last argument, appellant asserts that the court sought to punish her by awarding appellee custody. Here, there was enough evidence to justify awarding custody to appellee. The evidence reveals that the court did not find that either parent deserved an award for parent of the year, but upon weighing the evidence, the court found that it was in the best interest of the children to award custody to appellee.

We conclude that there was sufficient evidence establishing a change in circumstancesand that a modification of custody would be in the best interest of the children. We thus affirm the court's decision awarding custody to appellee.

Affirmed.

Pittman and Griffen, JJ., agree.