*1 Bird, Strоud, J., agree. C.J., WALKER Walker TORRES Wayne Lesly 02-1381 118 S.W.3d CA
Court Arkansas Appeals III Divisions and IV 24, 2003 delivered September Opinion *2 Ladd, for Walters, & Dianna Hewitt Verkamp, by: appel- Hamby lant.
One brief only.
Layton Walker Roaf, Wayne appeals for a trial court’s order his motion denying minor child from Walker Lesly appellee, reversal, Torres, there was a him. For Walker that because argues circumstances that warranted a of custody, him of the minor child. the trial erred in failing grant We reversе and remand. 1999, and Torres was were divorced granted parties child, Marcus, then three Walker years age. $130 in the amount of two ordered to child every pay 2000, filed a
weeks. On Walker petition contempt August citation, had denied him visitation and had that Torres asserting failed to him with a number to contact the child. provide phone He Torres failed also asserted that to maintain proper wholesome environment for Marcus with a living by cohabiting member of the sex without the benefit marriage opposite a convicted felon to Marcus. Torres denied the allowing babysit and filed a in which she contempt counterpetition contempt, had failed correct amount of child alleged pay The trial court denied both motions for support. contempt wholesome, ordеred that Torres Marcus with a provide drugfree environment. Torres was from non- prohibited having male visitors when family Marcus was stay overnight present was ordered to Walker with her current provide num- telephone bers. On March Walker filed a petition seeking pay *3 time, a over of arrearages child-support period that asserting
Torres was in for to allow him visitation contempt refusing court order. later pursuant Walker amended his previous a of petition minor request change custody child based on a material of circumstances and the child’s best change interests. The trial court found Torres in for contempt withholding
visitation but refused to because she impose punishment allowed Walker additional visitation in lieu of the he had days missed. the trial court found that Walker had although his deсree, situation since the time improved of the divorce a of circumstances did not exist that required thus, the court denied custody; Walker’s From petition. that order comes this appeal.
The standard of
review
appellate
governing custody
cases,
modifications is well settled. In
child-custody
primary
consideration is the
involved;
welfare and best interests of the child
all other
Dixon,
considerations are
Eaton v.
69 Ark.
secondary.
9,
138
Parker,
that a mistake has been made. Smith v.
firm conviction
Because the
Ark.
In whether a is determining custody warranted, determine whether there has must first in circumstances of the since the been a material change parties Remick, Ark. most recent order. Word custody modifiable, in order S.W.3d 422 While (2001). always for the children and to discour stability continuity promote issues, of the same our courts a more age repeated litigation require standard than initial mоdification for rigid Vo, determinations. supra.
Walker that the trial court erred in deter- argues appeal that a material of circumstances did not exist to mining warrant a In of this argument, contends that Torres’s lack of and retalia- hostility, cooperation, tion him as exhibited her visitation consti- against withholding tuted a of circumstances supporting Further, he asserts that Torres’s immorality promiscuity evident from her admission that she lived with a to whom she man was not married but who was the father of her child. younger Walker also Torres’s failure to remain argues fully employed with her loss of a to contact her along job lying failing *4 demonstrated her and failure to maintain employer irresponsibility home for Marcus. Walker contends that the trial Finally, stable have should considered his circumstances and changеd found that the of the evidence constituted a material totality in the circumstances. 15, 2002,
At a held on Walker testified that hearing August he had remarried and first was following contempt hearing classes at that his college taking night. explained accrued when he and his new arrearages jobs changed employer failed to withhold He fur- immediately child-support payments. $50 ther claimed that he offеred to Torres an extra month pay per until the due amount toward but that arrearages past paid, after Torres insisted on full Walker contacted his attor- payment, $50 and continued to toward the Walker also ney pay arrearage. him informed of her current that Torres had not stated kept and that she denied him the court-ordered number telephone visitation March 2002. February, January, wоuld result in the After that a of custody noting school, that a different Walker testified the child child attending was familiar with the new school system, having gone children his at the school and own gymnasium played many Also, that from that Walker stated both his wife age neighborhood. his mother teach at that school. Walker also noted that he the child but that offered to for Torres pay participate sports, has fаiled to enroll the child in a Walker stated program. that he had noticed a in the child’s behavior and had heard the child use obscene on a of occasions. language couple Petrucci, teacher,
Nicki the child’s acknowl- kindergarten that Marcus was the school edged a briefly suspended during year of behavioral the use of couple problems, including profanity, and that that Marcus he heard the words from Torres’s reported Fiowever, Aaron Richardson. she further boyfriend, testified that his behavior was not unusual and that he had tested at or consid- above in all level areas the end of the erably grade Petrucci by year. incidents, also stated that after one of the Torres met with her and the course of action and principal regarding disciplinary Torres was оf Marcus’s education. cooperative keeping top Torres testified that Marcus had attendance at school for perfect three almost semesters and that he had missed four only days school the entire year. Torres testified that she was with her currently living parents but that the situation was Torres further stated only temporary. since last she had left one hearing job during notice, difficult hаd left another without pregnancy, and had job been dismissed the National Guard. Torres was involuntarily terminated from another untruthful about the yet job being reason for one of her absences. Torres also admitted that she was Richardson, not married to Aaron that he was the father of her child, Luke, occasions, and that on several she and Marcus younger at Richardson’s residence where Marcus spent night slept on the floor on a or couch. Torres’s sister testified that Richardson had assaulted her in the of Marcus. presence
In its order the motion for denying custody, trial court found that while Torres had withheld visitation from had, *5 Walker and March she the during to February prior than “more made with additional visitation.” In hearing, up ruling bench, the the trial on the from court stated that there would be “no mind” that the child shоuld question my live with if the court were first but determining custody, of circumstances on Walker’s did not part “count.” The court further observed that Torres had a child without benefit of a stable home or stable had bounced marriage, truthful to not been with her and was job, fromjob employers, fired and was The trial court continuing get quitting jobs. further stated that “had Torres not continued to do changed” that, the same while he did not disbelieve that things violent incident and occurred with to Torres’s profanity regard there had not been a of circumstance boyfriend, sufficient to change custody. order,
In his written the trial court stated: this matter was for an determination of original [I]f based the facts and information upon would presented However, with the defendant father. this is on a Motion placed and the defendant Change Custody is to shоw a obligated material of circumstances as to the care of the occurring child and it is in the best interest of child to change custody. defendant has his situation since the [Appellant] certainly improved divorce, home, has remarried and is purchasing seeking himself with additional education. improve Notwithstanding same, the mother plaintiff has been active in the education of the child аnd has with the complied school officialsand teachers. The child is at or above the educational levels the child should be. The court would will hope plaintiff try gain stability try make a choice for her future and her situation. However improve is not such proof to constitute a material in circum- stances....
In a recent this court addressed issue of a opinion, in circumstances based upon major change circumstances on the of the noncustodial part parent coupled a minor in the circumstances custodial In parent. Mason 2003), (May this court affirmed the decision of the trial court to change custody based on “radical and in the noncustodial positive change” par- ent’s circumstances with “evidence of a further decline in coupled custodial dismal circumstances.” parent’s] already [the *6 case, Walker,
In the as the noncustodial present parent, has made a in his circumstances. presented positive remarried, classes, had and that he was business testimony taking the time of the decree. a home since original purchased Torres had violated the decree Walker further testified that by visitation, him with a him to denying failing provide phone child, a whole number to contact the and to by failing maintain some, environment for the child. The evidence stable living with her established that Torres was temporarily residing parents had left a under and that she number of adverse circumstances jobs decree. had an since the time of Torres also original ongoing with a man who was not a influence on the relationship positive child, minor and trial court did not discredit the expressly the adverse nature of his influence. In testimony concerning Barrett, Hamilton v. (1999), noted that a court noncustodial supreme parent’s remarriage that can be considered the trial court in matter determining Thus, there has been a in circumstances. the trial whether was not correct in did Walker’s stating changes positive Moreover, Mason, the trial court here not “сount.” as supra, that there “no in his mind that it would be in stated question” interest be awarded How the child’s best for Walker to ever, are unmindful has since we not over now year passed and was held and circumstances can do custody hearing we reverse and remand to allow the trial Accordingly, change. court to conduct such further as proceedings may necessary, the circumstances of this сase in of our decision in consider light from in which was rendered after order supra, appealed the instant case. and remanded.
Reversed Bird
Stroud, Pittman, C.J., JJ., agree. dissent. Baker, JJ.,
Hart I dissent from the
R. Baker, Judge, dissenting. because it contradicts all majority’s directly pre- opinion stated the cedent in that the trial court in this case incorrectly order, the trial court law. In from the bench and in the written ruling stated must be in order to what correcdy grant change proven bench, stated in relevant from part: hand,
We’ve on the other got a man who is now in a stable home, home, able to marriage, a stable provide not good living child, doesn’t have parents, another that I’m aware of— with said, else. Like I somebody he’s He’s grown. going school. He’s to better himself. And trying we have someone who’s on unem- ployment fired and continuing gеt quit jobs. I don’t
Unfortunately,
get make that determination. That deter-
*7
mination was made when this divorce was finalized. The standard I
have to show is that there
been
has
a material
of circum-
change
circumstance, Walker,
stance. The material
of
Mr.
change
is not on
counts,
your
I’m
part
for
although
you what
commending
you
have done and how
It’s
you’ve grown.
got
of
change
circumstance on the
of
custodial
part
and I
parent,
guess what
I’m
is that
cоmplaining
there has been no
of
change
circumstance.
She hasn’t
changed
continues to do the same
of
type
thing.
hand,
And on the other
while I don’t think where Marcus is living
Marcus,
is the best
place
he’s not
from it.
suffering
She is
interested in his education. She
goes
parent/teacher confer-
—
know,
ences. She takes care of the child. You
he’s
he’s much
better than some of them I see come
hеre. He
through
seems like a
—
him,
very well-adjusted
man. In
young
talking
he has
he
know,
loves both of
much.
you very
You
he has no complaints.
But what I’m
is there’s to be no
saying
of
because
custody,
there’s not been that
circumstance sufficient.
The trial
rule,
court’s ruling
articulates the
as our
correctly
court
held,
has
stated and
supreme
clearly
that when
repeatedly
seeking
has the
burden of
petitioner
а material
showing
circumstances
has occurred since the
initial award of
In
issue,
this
threshold
determining
of circumstances of the
noncustodial
is not sufficient
parent
Butts,
justify
620, 626,
v.
modifying
343 Ark.
custody. Lloyd
37
S.W.3d
607
see also
(2001);
v.
Campbell
336 Ark.
Campbell,
379, v.
(1999);
328 Ark.
Jones,
940
Jones
S.W.2d 881 (1997).
case,
In this
far from
the law as the
misstating
majority
asserts, the trial court’s
echoed the
ruling actually
Lloyd,
where the
rule,
supreme
recognized
applicable
stating:
credit,
have rectified
they
noncustodial parents’]
Certainly
[the
lives,
made were acknowledged
changesthey
their
positive
However,
court has also
....
our
trial court’s findings
by
of circumstances
rule that
majority
adopted
to justify modifying
noncustodial parent
is not sufficient
625-26,
Butts,
S.W.3d at 607 (emphasis
Ark at
Lloyd
original).
issue
circumvent this threshold
attempts
majority
Mason,
citing based on trial court that a may chаnge custody for the proposition circum- the noncustodial parent’s “radical and change” positive of a further decline with “evidence stances coupled [the In circumstances.” dismal already custodial parent’s] circum- found that the custodial parent’s specifically that had dismal existence had deteriorated from already stances determina- at the time that thе initial disturbed found that there were no made and further good prospects tion was the custodial children if remained with the welfare of the they in this the trial court’s We upheld parent.1 circumstance, know of no cases in the standard that we repeating *8 to observe which the ability, opportunity superior position, children. as those as involving the carry great weight parties Watts, 253, v. 17 Ark. 707 S.W.2d Mason, Watts App. citing supra, (1986). 177 Here, case. to this The in Mason has no holding application was no found that there change
the trial court specifically situation, and further found of the custodial circumstances parent’s care. child had not suffered while in the custodial that the parent’s the noncus- notes that while the Additionally, majority’s opinion in his circumstances” “has made change todial positive parent classes, and to take business purchasing remarrying, signing up home, the fails to cite any authority proposition opinion acts are sufficient to a modification that these Barrett, 460, on Hamilton v. 337 Ark. 989 The reliance majority’s the court in is even more since 520 (1999) perplexing S.W.2d 1 joined majority holding in because the in that case rested on Mason, I premise circumstances could be a material slight even a decline in the custodial parent’s did not circumstances were so “dismal.” Thus when the custodian’s initial circum in fact be a material in the custodial that there must parent’s requirement relitigated. can before an initial award stances custody 144
Hamilton
stated that “the
in
specifically
merely
Jones
underscores the rule that
in circumstances of the noncus
changes
todial
a сlaim of
life
parent,
because of
including
improved
were not alone sufficient to
an
remarriage,
order of
modify
Hamilton,
467,
524,
Ark.
at
989 S.W.2d at
custody.”
see also
v. Middleton,
7,
Middleton
83 Ark.
The trial court in Hamilton had failed to make a specific
circumstances;
of a material
however,
finding
in re-
mo'tion,
mother’s
sponse
directed-verdict
con-
cluded that the mother’s
and the birth of a child
marriage
born to
the father in his
satisfied the
of a
remarriage
substan-
requirement
tial
The
court held that
change.
where the trial
supreme
“fails to make
circumstances,
of fact about a
findings
[the
review,
under
de
appellate
its
novo
nonetheless con-
may
court]
clude that there was sufficient evidence from which the [trial
could
Hamilton,
have found a
in circumstances.”
court]
Ark. at
Nothing
of the noncustodial
that a
circumstances
parent
standard
in this
not sufficient to
modifying
justify
does not indicate
law.
record
case did not misstate
failed to
trial court
erred in
finding
that the
clearly
appellant
the custodial
of circumstance on the
parent
a change
part
prove
do not reverse a trial court’s
does not so hold.2 We
the majority
unless it is
circumstances
regarding
clearly
finding
Vo,
Hart, J., joins.
Lisa BAKER DAVES Tommy J.
CA 03-136
Court of of Arkansas Appeals III IV
Divisions 1, 2003 delivered October Opinion majority’s what action It is to discern from they expect opinion impossible applying take on since in order to reach a different result our remand, trial court to findings of have find his fact to be Mason the trial would own clearly previous erroneous.