Kristie Munoz Williams v. Homer Munoz
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
KAREN R. BAKER, JUDGE
DIVISION I
CA06-01099
KRISTIE MUNOZ WILLIAMS
JUNE 27, 2007
APPELLANT
v.
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[E-98-1126-6]
HOMER MUNOZ
HONORABLE MARK LINDSAY, JUDGE
APPELLEE
AFFIRMED
Appellant Kristie Munoz Williams appeals the Washington County court’s change of
custody of the parties’ minor children to appellee Homer Munoz. She asserts three points of error:
(1) The trial court erred in finding that there was sufficient evidence to warrant a change of custody
where the only issue proven at trial was that Ms. Williams had previously violated the court’s nocohabitation clause, but where that issue was moot at the time of trial inasmuch as Ms. Williams had
not cohabited with anyone other than her children in the seven-month period preceding trial of this
matter and where there was no evidence whatsoever adduced that the cohabitation had adversely
affected the parties’ children; (2) The trial court erred in modifying custody where the trial court,
contrary to Arkansas law, divested Ms. Williams of custody as a means of punishing her for
violation of the court’s no-cohabitation orders; (3) The trial court erred in changing custody without
addressing what, if any, detrimental effect Ms. Williams’s violation of the no-cohabitation clause
had caused the children and without addressing why it was in the children’s best interests to be
placed in the appellee’s custody.
Appellant’s argument and appellee’s response focus upon the trial court’s finding and
statement in its order that it found that a material change in circumstances warranted transfer of
primary custody of the parties’ minor children based upon appellant’s violation of the provision in
the court order that required that neither party shall cohabit with or have overnight guests of the
opposite gender in the presence of the minor children. Appellant’s challenge to the trial court’s
finding is based in part on the following statement by the trial court:
Because I believe that is the type of lack of morality that the Arkansas cases have talked
about, and that’s based on my perceptions of her, as well as, the testimony today, I believe
it is in the children’s best interest to live with their father.
Appellant is correct that violations of a trial court’s orders do not compel a change of
custody. See Powell v. Marshall, 88 Ark. App. 257, 197 S.W.3d 24 (2004)(citing Carver v. May,
81 Ark. App. 292, 101 S.W.3d 256 (2003)). However, our de novo review of the record in this case
leads us to conclude that appellant’s characterization of the evidence relied upon by the trial court
is incomplete.
Although appellant argues that the only issue proven at trial was that appellant had
previously violated the co-habitation order, the evidence also established that appellant chose to
release an order of protection from a man with whom she had cohabited and then resumed cohabitation with him in her home with the children. Testimony at trial established that one of the men
with whom appellant had cohabited had battered her leaving her visibly bruised and swollen for
weeks with at least one fractured facial bone and other injuries. Despite her initial request for an
order of protection, appellant dismissed the protective order, borrowed money to bail her attacker
out of jail, and her batterer returned to appellant’s home and resided with her and her children in
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her home for a period of time.
Under these facts, we are not left with a firm conviction that the trial court erred in its
decision to change custody. In child-custody cases, we review the evidence de novo, but we do not
reverse the findings of the court unless it is shown that they are clearly contrary to the
preponderance of the evidence. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (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.
The severity of the assault upon appellant, her abandonment of a protective order, and her
decision to reintroduce the attacker into her home with her children and expose her children to her
attacker by voluntarily resuming co-habitation with him are acceptable facts for the trial court to
consider in determining whether a material change of circumstances warranted a change of custody
in the best interests of the children. Accordingly, we find no error and affirm.
Affirmed.
GLOVER and MILLER, JJ., agree.
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