Willard Bud Brown v. Chasity L. Brown

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-24

December 8, 2004

WILLARD BUD BROWN AN APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

APPELLANT [DR99-224]

v.

CHASITY L. BROWN HONORABLE MICHAEL MEDLOCK, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant Willard Brown appeals from an order of the Crawford County Circuit Court denying his motion for a change of custody of the parties' minor child from appellee Chasity Brown to him. On appeal, he asserts that the trial court erred in finding that a material change in circumstances had not occurred. We affirm.

The parties were divorced sometime in 1998/1999 and appellee was awarded custody of their son, Willard Clyde, born April 3, 1998. Following appellee's December 2001 arrest for drug possession, appellant filed an emergency petition for temporary custody. An emergency hearing was held December 18, 2001. During the hearing, both parties underwent drug testing. Appellant tested negative and appellee tested positive for THC. As a result, the court entered an order awarding appellant temporary custody and ordered appellee to undergo drug testing for ninety days.

On April 2, 2003, the parties returned to court. Appellant sought a permanent change of custody, and appellee sought to have Willard returned to her custody.

At the hearing, appellee testified that, prior to marrying appellant, she was married toKent Little and that since the parties' divorce she had remarried Little. She said that she and Little are the parents of a son, age eleven, and a daughter, age nine. Appellee stated that Willard gets along with his half-siblings and shares a room with his half-brother. She also said that she was the primary-care giver of her children with Little.

Appellee testified that, per the court's order, she had undergone drug testing. She explained that her results were negative in January, February, and April. She further explained that the lab had lost her March results. Appellee said that she underwent a subsequent test in August in which the results were also negative. She stated that her husband did not use drugs and that she no longer associated with people who use drugs.

Appellee also testified that she was unemployed but received social-security disability benefits. During her testimony, appellee said she was diagnosed with "schizo-effective disorder." She said she was currently taking prescription medication. Appellee testified that she likes to spend money when depressed and, as a result, her husband is the guardian of her finances. She said that her husband also reminds her to take her medication.

Appellee stated that, since the parties' divorce, appellant had accused her of mistreating Willard and that he had made "at least thirty" accusations to the Department of Human Services. She admitted spanking Willard when he threw a rock through the garage window, but denied physically or mentally abusing Willard. She also stated that, since their divorce, appellant had made harassing phone calls and threatened her with physical harm. She said that appellant had threatened to burn down her house and cut her brake lines. Appellee also said that on January 10, 2003, appellant said, "I will kill you first before you see your son again."

During her testimony, appellee asserted that appellant refused to allow her to speak to Willard over the telephone and would not tell her where Willard was enrolled in pre-school. She also asserted that appellant used illegal drugs and had tried to manufacture methamphetamine. Appellee believed that appellant suffered from a mental disability. She was also concerned because appellant does not associate with other people, friends, or family.

Appellant testified that he also has two adult daughters. He said that, in the past, he was arrested twice for possession of marijuana. He admitted to past marijuana, cocaine, and methamphetamine use. Appellant said that he was prescribed medication for depression but no longer needs it. He testified that he receives disability benefits because of mental retardation. However, he later read a letter stating that he received social-security disability benefits because he suffers from "dysthymic disorder." Appellant said that he also earns money by rebuilding pallets used in the trucking business. He denied having a socialization problem. He did not believe that his condition affected his parenting skills.

Appellant testified that he had purchased his home using Willard's college fund. He believed that this would have greater value than allowing the funds to remain in the bank. He said that the home sits next to a railroad track and that a seven-foot ditch separates his yard from the track. Appellant testified that the neighborhood kids often play in his yard, but that he does not allow them inside his house. He said that he does not answer the phone between five and eight because that was when appellee called. Appellant testified that, at that time, he allows Willard to answer the phone because he does not want to talk to appellee. Appellant denied interfering with appellee's visitation. He also denied threatening and harassing appellee. However, he did admit to making three reports of suspected child abuse to the Department of Human Services. He alleged that, during Christmas, Willard had belt marks all over him. Appellant testified that every weekend he calls the sheriff's office and has a deputy drive to appellee's home to check on Willard. He did not believe that this behavior was excessive.

Appellant said that he takes Willard to the doctor every three months for a check-up whether he needs one or not. He said that he also has Willard see a psychologist once a month because he "believe[d] mental health [was] important," and thought it helped Willard deal with his surroundings.

Cindy Dunker, an investigator with the Department of Human Services, testified that she met with appellant and Willard in December 2002, after appellant had called the hotline. She said that she tried to make contact with appellee but never received a response. Dunker testified that, because she was unable to contact appellee, she was unable to investigate the matter and did not make a finding.

The trial court found that appellant had "failed to meet his burden [of] showing a material change of circumstances that would justify a permanent change of custody to him." The trial court further found that it was in the best interest of the child that custody be returned to appellee. It is from that decision that appellant now brings this appeal.

In child-custody cases, we review the evidence de novo, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Id. We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Id. A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2001). The trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, the court must then determine who should have custody with the sole consideration being the best interest of the child. Id. The party seeking modification of the custody order has the burden of showing a material change in circumstances. Mason v. Mason, supra.

Appellant argues that the trial court erred when it failed to find that a material change in circumstances had occurred. Appellee's drug use and arrest were a material change in circumstances. However, based upon appellant's "animosity and dislike" of appellee, his constant harassment of appellee, and his misuse of law enforcement and DHS, the trial court ruled that it would be in the child's best interest if he were returned to appellee's custody. The best interest of the child trumps all other considerations. See Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). Affirmed.

Stroud, C.J., and Gladwin, J., agree.