*1 194 if the could per- shows that even hospital
The evidence the money did not have the appellant pay formed the test the did there was not evidence that present any test. The appellant the urine in the area which could have facility performed another test. of assistance offered to finding
The trial court’s level Officer Smith was reasonable under the circum- appellant by evidence. We hold that stances and was amply supported with Ark. actions constituted substantial compliance officer’s 1991). 5-65-204(e) Code Ann. (Supp. § Affirmed. C.J., J., agree. Mayfield,
Jennings,
v. Robin Annette
Richard Franklin ANDERSON
(Prault)
ANDERSON
CA
Court Arkansas Appeals Banc
En October 1993 Opinion delivered *2 Michael Knollmeyer, for appellant. Garnett,
Richard for appellee. Mayfield, Melvin Judge. This is an from the appeal chancellor’s order denying appellant’s for a petition change Richard
Appellant Franklin Anderson and Robin appellee Annette (Prault) Anderson were divorced on March of the Custody parties’ minor child Tamara born 3, 1989, February was awarded to the 27, 1992, On appellee. May the appellant filed a motion for change of custody alleging Tamara had been in Calva, of Brenda her custody maternal grandmother, since 1991 and May that is appellee mentally financially 30, 1992, unstable. On September the chancellor which, entered a decree other among things, continued custody with the appellee and ordered husband, and her appellee present Prault, Mr. to attend counseling.
Appellant argues first that the chancellor’s decision is against the preponderance of the evidence and is errone- ous. He the choice says was between awarding to a custody man father, who was an excellent and awarding to a woman who had lived a life that was children, unsuitable for the of raising and who would not be a suitable person she continued to live as she had in the past.
At the on hearing motion appellant’s change there was sons, evidence that two parties’ who were not but who live with the appellant, in the divorce
mentioned house is nice and that the adjusted; appellant’s and well happy him; and that he clean; that Tamara loves job; he has a stable drug current or alcohol problems. has no three children that the had appellee There was also evidence Tamara, little contact very that she maintained in addition to Tamara, children, had given up guardianship with her other suicide, job, could not hold a to commit had twice attempted nature, was emotionally somewhat violent had a promiscuous, unstable, to a man who had assaulted his former and was married visitation with and who had been awarded supervised wife his own child. *3 worker, Bunton,
But, a licensed clinical social Barbara found the home of and study appellee testified she had done a no concerns and that she had adequate environment physical and Mr. Prault. On Tamara with the appellee about placing Bunton testified she was not aware that cross-examination Ms. 1991, in that he degree battery Mr. Prault was convicted of third that suicide in the near or past, appellee had to commit attempted After some reviewing to commit suicide. had also attempted records, suicide Ms. Bunton testified that both confidential court that, be reactive “just gestures, depression,” to gestures appeared — with his wife and frustration over following a divorce with her “big and hers after a blowout” visitation problems — counseling were order family mother and that if the court to Tamara with them. she would have no about qualms placing Moreover, Calva, showed that Brenda appel- the evidence mother, over Tamara because Mrs. guardianship lee’s obtained care for obtaining was concerned about medical Tamara. Calva it was of their to the but agreed guardianship, part Appellee became able to take care of agreement that when appellee Tamara, before the Shortly filing Mrs. Calva would return her. the filed a to set petition motion for in change custody, appellee the the continued until guardianship aside the but guardianship, to hearing change custody. on the motion the chancellor during testimony we note that Finally, stated: in of of this child March 1991. granted custody
[S]he time, her mother husband at the in her her family, Nobody to tell this Court else came forward her sister or anybody or or danger child was in deal and that this that this was a bad risk. at — much
Now,
I’ve listened to so
law
for me to
says
with
kind of get boggled
mind is
beginning
that
today
my
changed,
have
I
to know how the circumstances
it. want
so,
is since March
significant
how
it
listening
to stuff back
I have
been
really
patient
eight
and even seven and
years ago
twelve and fourteen
since
things
changed
I want to know how
ago.
years
14,1991,
from
and I’m
to restrict
going
everybody
March
forward to that.
day
showing
in
cannot be made without
change
A
in
from those
at the time the
change
existing
a
circumstances
final
order was made as the
decree constitutes a
original
original
Carter,
242, 719
of the issue. Carter v.
19 Ark.
adjudication
App.
(1986).
awarding
S.W.2d 704
consideration
primary
of children is the welfare and best interests of the children
Scherm,
involved; other considerations are
Scherm v.
secondary.
Moreover,
(1984).
12 Ark.
In cases child a heavier burden is cast involving the chancellor to utilize to the fullest extent his all of upon witnesses, evaluating their powers perception and the child’s best interest. This no testimony court has such We know of no case in which the opportunity. superior and of the chancellor to position, ability opportunity observe the as as one parties carry great weight involving minor children.
3 Ark. at 273. App. case,
After careful consideration of the record in this we chancellor was say clearly against cannot that the decision a of the evidence or erroneous. preponderance
198 argues basing also the chancellor erred in not
Appellant decision on the best interest of the child. He contends the court did child, decision on not base its the best interest of the but rather give to one last chance to be a mother. We do sought appellee not agree. At the the hearing judge conclusion of the trial stated — do,
“the hardest can is to decide thing any judge who is what be in would the best interest of a child when more than one party wants of a child.” He said he has do “to what’s in the best interest of the child within the best of The my ability.” chancellor stated that Tamara deserves to know her mother and he is to going give the the chance to Tamara the appellee give nurture and the deserves, needs, and love Tamara and is upbringing entitled to. judge also noted that the and both have appellant appellee bad, had “a He stormy past.” said the had admitted to appellant drug habits in the he to past, although be an excellent appears judge father now. The also said he was and requiring appellee her present husband to seek and he wanted counseling a report from the counseling center three months. every
We cannot the trial did not consider say judge the child’s best interest or that his decision in that regard clearly erroneous.
Affirmed.
Jennings, C.J., Robbins, JJ., Pittman dissent. Mauzy Pittman, Judge, I John dissenting. respectfully dissent. I disagreement have no with Judge Robbins’ dissenting I write to opinion. address factors pertaining the best interest of the child.
The original decree is a final adjudication that one or parent the other was a to have care and proper person of the child and before that order can be changed there must be proof that conditions have so as to warrant materially changed modification or of material facts which proof were unknown to the court at the Watts, 777; time. Watts v. 17 Ark. App. S.W.2d see *5 194, v. 21 Ark. Thigpen Carpenter, 730 S.W.2d App. There would to be no appear disagreement on the of the part trial court or the members of this court that met the appellant Watts, so, above standard. Watts v. Even modification supra. any court child. The of the in the best interest also be must custody of best in the child’s what is to determine of factors variety looks to a health and age, gender, the of each parent; moral fitness interest: child; the the toward child; of each parent the attitude of the child; the the the and between parents relationship psychological child’s need the health of the parties; and mental physical and with relationship parents in her and continuity stability would be family relationship child’s social or whether the siblings; than the other rather having custody one disrupted by parent and the child as the between relationship parents the parent; and strength and the by conduct past revealed the parents’ reasonable to have the custody; the desire parents’ of sincerity and and a guidance affection of a child parents’ preferences education, are these any. Clearly, examples religious continued exhaustive, in every nor will each be applicable not intended to be more than weigh heavily some factors litigation, case. In custody others; times, will make the influence aggregate at cases, decide mechanically While such factors do not difference. to look for. do tell counsel and trial courts what they criteria are to the specifics When the applicable applied case, chancellor’s are findings this I believe that the and that of the evidence against preponderance been with her father. child should have placed in this dissent. Robbins, J., join and Jennings, C.J., I Robbins, dissent Judge, dissenting. B. respectfully John believe that the of this court because I from the prevailing opinion it is in the best interest of overwhelmingly proves evidence to be in her father’s this minor child placed decision in child acknowledge While I that a chancellor’s deference, to considerable there matters is entitled should, reverse the trial court’s when we and may, occasions this is one of those occasions. decision. I submit that Anderson, a of this action is Tamara object The the two child. The at trial proof portrayed three- year-old father, Richard in contrast. very competing parents sharp Alvin, Texas, and resides has stable employment Richard, sons, age three lived for His thirty years. where he has 4, Sean, lived with age always age Christopher, *6 200
him. Richard is his son from a prior marriage. Christopher Sean were born of his marriage to appellee, Robin Prault. These doing children are well in a nearby school and attend church each weekend. Mr. Anderson’s mother is available and him helps with his sons. He his spends time with his sons when he is not at work. Tamara has a close very with these relationship brothers. Ms. Prault stipulated at trial that Mr. Anderson is “doing a good job raising boys.” chancellor also found “I have absolutely no doubt that Mr. Anderson is an excellent father.” mother,
Ms. Prault’s Calva, sister, Mrs. and her Kim Randall, appeared at the hearing and testified for Mr. Anderson. Both testified about Ms. Prault’s emotionally Her instability. mother testified that divorce, soon after the parties’ Ms. Prault voluntarily placed Tamara with her and agreed to Mrs. Calva’s as appointment guardian of Tamara’s person. Until Ms. Prault married William November, 1991, Prault she visited Tamara infrequently, and then only for a few minutes at a time. She visited more often after her remarriage but only kept Tamara on overnight two occasions. She further stated that Ms. Prault frequently changed jobs, and since June 1990 she has had at least eight different jobs. She stated that Ms. Prault often throws “fits” regard without to who is present, sometimes in the presence of Tamara. She testified that Ms. Prault drinks frequently and causes scenes when she is drunk. She and her husband have fought in front of Tamara. Mrs. Calva refused to let Ms. Prault take Tamara in her car on one occasion because she had drunk too much to be driving. Ms. Prault had a son to her prior marriage to Mr. Anderson. This son is now ten years of She age. does not visit nor maintain communication with the child and seldom has contact with her two sons who are in Mr. Anderson’s Ms. Prault attempted suicide on February 1992.
Mr. wife, Prault’s Hathcoat, former Dana testified that she and Mr. Prault have a three-year-old daughter whom Prault was ordered to but pay support does not. His visitation rights, though exercised, not are restricted to be supervised at mother’s home. When Ms. Hathcoat eight and one-half months pregnant Mr. Prault put a around rope neck, her threatened her with a bottle opener, pulled head, hair from her and forced her to the ground, for which he was convicted of third degree battery. Mr. Prault also suicide on attempted July because the was unrebutted foregoing proof of the All *7 Ms. Prault’s court granted concluded when the was hearing Anderson’s case. the close of Mr. a directed verdict at motion for bench, the chancellor from the announcing ruling While these observations: made serious, about put-
I have some serious reservations Prault. You’ve had three back with Ms. ting you, this child children, of them either given up other and you’ve — see them is not stellar. efforts at to your trying or Prault continue to live as they
If Ms. Prault and if Mr. not suitable they’re parents, have lived in the then past, be at all to raise this child. You surely would not suitable in multi- that. You cannot live recognize recklessly should work, emotional out- not able to relationships, being ple burst, in the best interest of a thing that sort of cannot be child a child is to that. exposed Robin has had a life and a stormy stormy [Prault] and I’m reluctant to allow this child to go past very, very her, going grant and be raised but I’m to to by Robin, and I to do it for several reasons. going got
She’s these other children that she has allowed to Granted, one, be taken off. she doesn’t know probably — is, where or but she’s to find that out I’m they going sure. Two down in Texas that she’s not made very many see, five, efforts to and one of them is two go only years older than that little Doesn’t have a And girl. mama. that’s not very exemplary.
But that doesn’t mean that cannot reestablish you a It doesn’t mean ever to relationship. you’re probably going — get but it means that it doesn’t mean that custody, you can’t reestablish a And that little relationship. girl deserves to know her brothers and needs to know her brothers. Not two, three,
just not just but four. She’s got four brothers. Two by you and Mr. one Mr. Anderson with lady this and one by you lives down in Florida somewhere.
So, I’m going give an you one opportunity, last to become a opportunity, mother and to give her the nurture and the love and the that she upbringing deserves and needs and is entitled to.
While the chancellor correctly articulated the issue before him, i.e., “what would be child,” in the best interest of [the] court’s explanation of why being with Ms. placed Prault would only have been if Ms. applicable Prault and a non- parent had been vying Schuh v. Roberson 302 Ark. *8 305, 788 S.W.2d (1990). Ms. Prault’s parental right to or her custody, fitness for is not custody, the issue. As as pitiable be, Ms. Prault may child, the focus must be on the without regard to Ms. Prault’s welfare and some for her hope rehabilitation. The is, issue chancellor, as stated what is in the best interest of child, i.e., this as between Mr. Prault, Anderson and Ms. which of two, these with the sole consideration being the best interest of the child, should have custody. Based upon the evidence before the court, to conclude that it is in the child’s best interest to be placed Prault, with Ms. rather than Mr. is clearly against the preponderance of the evidence. I would reverse and remand to the trial court.
Jennings, C.J., Pittman, J., join.