Billy Joe Rylant v. Monica Hicks

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BILLY JOE RYLANT

APPELLANT

V.

MONICA HICKS

APPELLEE

CA 04-298

October 27, 2004

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

[NO. E-97-128]

HONORABLE LARRY BARNETT BOLING, JUDGE

AFFIRMED

Terry Crabtree, Judge

This is a child-custody case. Appellant, Billy Joe Rylant, contends that the trial court erred in finding that he had failed to prove a material change in circumstances to justify a change of custody and that the trial court erred in denying his motion for a new trial. We affirm.

On November 26, 1993, appellant and appellee, Monica Hicks (then McClain), had a son. Though they never married, they lived together during the child's early years. Appellant's paternity of the child was formally established by a court order entered in March 1997. The order incorporated the parties' agreement to share joint custody of the child, whereby appellant was to have physical custody of the child during the school year, while appellee was to have custody during the summer months.

In August 2001, the court granted appellee's motion for sole custody of the child. At that time, appellee had been married for two years to her present husband, Joey Hicks, and appellant was married for the fourth time to his current wife, Donna. Appellee and her husband were living in Monette, while appellant and his wife lived nearby in Paragould. Although appellee had used drugsin the past, the primary reason custody was changed was appellant's continued use of recreational drugs.

In March 2003, appellant filed the present motion for a change of custody. This action was prompted by appellee's impending move from Monette to North Little Rock, and immediate relief was requested to prohibit the move before the end of the school year. An agreed order was entered that appellee would remain in Monette until school recessed.

A number of things were brought out at the hearing held on July 30, 2003. There was testimony that appellant was in the habit of driving too fast; that his wife Donna abused pain medication, which she denied and said the medication was prescribed because of a series of oral surgeries; that the child was disrespectful to appellee after visits with appellant; and that there was a lack of discipline when the child was in appellant's care. The child has asthma and cannot tolerate cigarette smoking. Appellant and his wife both smoke, but they testified that their smoking was confined to their bedroom and office and that the child's room was equipped with an air purifier. There was testimony that appellant, without benefit of court order, had reduced his child support payments from $98 to $75 a week, such that the matter had been turned over to the child support enforcement unit.

There was further testimony that appellee's teen-age brother and her mother lived with appellee's family for several months, which required the child to give up his bedroom and sleep on the couch. Appellee's brother was said to have some sort of unspecified mental or emotional problem, and there was testimony that the brother was mean to the child. Appellant and his witnesses were also critical of appellee's decision to leave Monette two months before school finished and just before the child was to take standardized tests. On the other hand, there was testimony that appellee and her husband attended church regularly and that Mr. Hicks had been a deacon at their church.

These matters aside, the focus of the hearing centered upon the alleged changed circumstances of appellee's relocation, the child's preference to remain with appellant, and appellant's current drug-free status. On those issues, there was testimony that appellee, her husband, their four-month-old daughter, and the child were living with appellee's sister in North Little Rock. The situation was said to be temporary, as they were looking to buy a home in the Park Hill area where the child would attend school. Appellee's husband is a plumber, whose previous job paid well but required him to travel. He had most recently been working in South Haven, Mississippi, and had only been able to come home on weekends. That project had ended, however, and to remain employed with that company, he would have had to work in Arizona or at a location on the east coast. Mr. Hicks has two children from a previous marriage for whom he owes support, and with the added financial constraints from the birth of his and appellee's daughter, he applied for and obtained a job in Little Rock, that did not involve travel, at a higher rate of pay than he could earn in the Jonesboro area. He left the family in February to begin work at the new job. He said that the decision to relocate was difficult but that it was one that he believed was necessary to make ends meet. Appellee, who had worked as a certified nursing assistant, had plans to go to nursing school when the baby grew older.

By all accounts, appellant and the child are close. Appellant has exercised regular visitation, which included one night a week, and he attended the child's baseball and basketball games when his schedule at work permitted. Appellant lives in a five-bedroom home with a game room, a sizeable fenced yard, and a pool. The child's room was specially furnished with NASCAR decorations. He has his own computer and a go-cart. They hunt and fish at the home of appellant's parents, who also spend time with the child and attend school functions and athletic events.

The trial judge visited with the nine-year-old boy, on the record, but outside the presence of the parties and the attorneys. He told the judge that he wished to remain with appellant in Paragould, where he would attend the same school that he had gone to prior to 2001, when he was in appellant's custody. Appellee and her husband testified that the child had expressed to them the desire not to move to North Little Rock, but they said that he had mixed feelings and had not made a big deal about it. They said that he had made friends and was not unhappy.

Appellant volunteered to be tested for drugs. Urinalysis and hair-follicle testing revealed negative results for the presence of illegal drugs. There was testimony that a negative result on the hair-follicle test showed that appellant had not used drugs in the past ninety days. Appellee, her husband, and her mother testified that they had smelled marijuana on appellant at various times in the past. They claimed that appellant's hair was cut much shorter than usual at the time the hair-sample was taken.

The trial court issued a letter opinion explaining its decision to deny the motion for a change of custody. Referring to the holding in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), the trial court observed that the relocation of the custodial parent and the child was not, by itself, a material change in circumstances. The court found that, although the move would reduce the amount of visitation that appellant and his parents had previously enjoyed, alternative visitation schedules were available such that their relationships with the child would not be adversely affected. The trial court noted that a child's wishes and attitudes are an appropriate, but not a controlling consideration, see Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003), and the court was not persuaded by the child's preference to live with appellant because the child had trouble articulating his reasons other than to say that he had more fun with appellant. Finally, with respect to the negative drug tests, the court noted that changes in circumstances of the non-custodial parent are not alone sufficient to modify an order of custody, citing Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). An order was entered incorporating the decision on September 12, 2003.

In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree will be in the best interest of the child. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). For a court to change custody of a child, it must first determine that a material change in circumstances has transpired from the time of the decree, and, then, determine that a change in custody is in the best interest of the child. Calhoun v. Calhoun, 84 Ark.App. 158, 138 S.W.3d 689 (2003). While custody is always modifiable, in order to promote stability and continuity for the child and to discourage repeated litigation of the same issues, our courts require a more rigid standard for custody modification than for initial custody determinations. Walker v. Torres, supra. The party seeking the modification has the burden of showing a material change of circumstances sufficient to warrant a change of custody. Middleton v. Middleton, supra.

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, supra. 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. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).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. Middleton v. Middleton, supra. 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. Mason v. Mason, supra.

Appellant is aware that the circumstances he relies upon, taken individually, do not generally constitute material changes in circumstances that justify a change in custody. He argues that, in this case, a sufficient change in circumstances is shown when they are considered together in the aggregate. We disagree.

In Hollinger v. Hollinger, supra, this court did hold that the combined effect of the existing circumstances constituted a material change of circumstances, even though the circumstances would not have been considered sufficiently material had they stood alone. Those circumstances included a marked deterioration of the relationship between the custodial parent and two of her daughters. In Mason v. Mason, supra, while recognizing that changed circumstances in the life of the non-custodial parent are not alone sufficient to modify an order of custody, we found that the overall circumstances had materially changed where improvements made in the life of the non-custodial parent coincided with a decline in the custodial parent's "already dismal circumstances." The trial court in this instance, from its superior vantage point, did not find that the changed circumstances presented in this case were substantial enough to merit modification. Our question is whether that decision is clearly against the preponderance of the evidence. We are unable to say with conviction that a mistake has been made, and we affirm on this point. We also cannot say that the child's best interests would be served by changing custody.

Appellant's second issue concerns the denial of his new-trial motion. We cannot address this issue because the notice of appeal was not timely. The record shows that the trial court entered its order denying the motion for a change of custody on September 12, 2003. Within ten days, appellant timely filed his motion for a new trial on September 22. Ark. R. Civ. P. 59(b). By rule, that motion was deemed denied in thirty days on October 22. Ark. R. App. P. 4(b)(1). Appellant filed a notice of appeal on October 14 from the September 12 order, which was effective to appeal from that order. Ark. R. App. P. 4 (b)(2). However, in order to appeal from the denial of the motion for a new trial, appellant was required to file an amended notice of appeal within thirty days of the motion's denial, which fell on November 21. Appellant did not file an amended notice of appeal until January 12, 2004. Although that was within thirty days of the order entered by the trial court on December 11 denying the motion, the motion was deemed denied on October 22, and the trial court did not have jurisdiction to act beyond that date. McCoy v. Moore, 338 Ark. 740, 1 S.W.3d 11 (1999). Because appellant failed to file a timely notice of appeal from the deemed-denial of his new-trial motion, we cannot consider the merits of the argument raised on appeal. Id.

Affirmed.

Bird and Roaf, JJ., agree.