Dee Anne Nuckols v. Larry Don Miles

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DEE ANNE NUCKOLS

APPELLANT

V.

LARRY DON MILES

APPELLEE

CA04-658

November 10, 2004

APPEAL FROM THE DREW COUNTY CIRCUIT COURT

[NO. E-01-207-2]

HON. ROBERT C. VITTITOW,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The parties to this child custody case were divorced in September 2002 by a decree that awarded custody of their infant child to appellant. Appellee subsequently filed a petition alleging that there had been a material change of circumstances and that it would be in the child's best interest to modify the award so as to grant him full custody. After a hearing, the trial judge granted the petition and awarded custody of the child to appellee. On appeal, appellant argues that the trial court erred in finding that there had been a material change in circumstances and that a change of custody was in the child's best interest. We affirm.

The principles governing the modification of custodial orders were succinctly set out in Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001), as follows:

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 the chancellor. 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.

Id. at 393-94, 58 S.W.3d at 424-25 (internal citations omitted).

In the present case, there was evidence that appellant was enrolled in the University of Arkansas at Fayetteville at the time of the original custody award, and that she was, at that time, focused on and actively pursuing her goals of obtaining a bachelor's degree in marketing and obtaining employment in that field. However, appellant's testimony in the present proceeding indicates that she has lost focus on her former goals and has become considerably less stable and responsible. Appellant stated that her social calendar had been quite active since the divorce; she admitted to taking scores of overnight trips since the divorce and to engaging in illegal drug use during some of these trips. She further stated that

alcohol was involved in most of the trips that she takes, and that it was not uncommon for her to drink to intoxication once or twice a week. She was unable to recall where the child had been during most of these trips.

Appellant also admitted that, during this same period, her grades at the University of Arkansas had deteriorated to the point where she had been academically dismissed by the University. At the time of her dismissal, appellant's cumulative grade-point average was 1.59. Her grade-point average for the Spring 2003 semester was 0.53. Although appellant, age 23, has obtained part-time employment as a telemarketer, she is largely dependant on her parents for financial support and has no concrete plans for achieving financial independence. We think that, on this record, the trial judge could properly find that appellant has become increasingly unstable and irresponsible since the divorce to such an extent as to interfere with her ability to act as custodian for the child, and that this constituted a material change of circumstances warranting a change of custody. In contrast, the evidence tended to show that appellee was considerably more stable, being regularly employed working in the family farming business. Although appellee's lack of knowledge of the details of his financial affairs is not indicative of the highest degree of maturity, we think that this is to be distinguished from the increasingly irresponsible and unstable behavior engaged in by appellant, and that the trial judge could therefore properly find that a change of custody to appellee was in the child's best interest.

Affirmed.

Hart and Vaught, JJ., agree.