Carver v. May

101 S.W.3d 256, 81 Ark. App. 292, 2003 Ark. App. LEXIS 219
CourtCourt of Appeals of Arkansas
DecidedMarch 19, 2003
DocketCA 02-685
StatusPublished
Cited by44 cases

This text of 101 S.W.3d 256 (Carver v. May) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carver v. May, 101 S.W.3d 256, 81 Ark. App. 292, 2003 Ark. App. LEXIS 219 (Ark. Ct. App. 2003).

Opinion

Karen R. Baker, Judge.

Appellant, Mary Dawn May Carver, appeals from an order of the Sebastian County Circuit Court changing custody of the parties’ minor children to appellee, Paul Jared May, the children’s father. She argues on appeal that the trial court erred when it granted appellee’s petition to modify custody and placed custody with appellee. She further asserts that there was no material change of circumstances from the decree filed December 8, 2000, granting her initial custody of the parties’ two preschool-aged daughters, and that it was not in the best interests of the children to change custody. We affirm.

The parties were divorced in December 8, 2000. There were two children born of the marriage, H.M., born May 24, 1997, and A.M., born December 12, 1998. Appellant was awarded custody of the two minor children because she was the primary caretaker of the children, and as specifically stated in the divorce decree, because “the extreme animosity of [appellee] and his family toward [appellant] would be prohibitive to [appellant] having a continued relationship with the minor children should the Court award custody to [appellee].” In the decree, appellant was granted permission to move with the children to her home state of Washington. Appellee was granted standard visitation in Arkansas for Christmas and summer vacations. All other visitation was to be in Washington. Appellee was also ordered to pay child support of $68 a week and to provide appellant with her share of the 1999 income-tax refund of $1,574.

On December 12, 2000, less than one month after the divorce decree had been filed, appellee was refused his first visitation by appellant. Appellant testified that she was attempting at that point to postpone visitation until the attorneys and the court could be involved because the children were only allowed to go to Arkansas twice a year, and they had already been to Arkansas twice prior to the divorce. On May 15, 2001, appellee filed a motion for extension of summer visitation, requesting three full months of summer visitation. On May 30, 2001, appellee filed a petition to modify custody alleging that appellant would not agree to the three-month summer visitation and that appellant was interfering with phone visitation. Appellant responded with a letter agreeing to give appellee more summer visitation, but less than three months. On June 6, 2001, appellant filed a motion for contempt, alleging that appellee had failed to pay his child support, was in, arrears, and that appellee had failed to provide her with the money from the income-tax return.

Appellee next attempted to exercise visitation in June 2001. He drove to Washington, where he was surrounded by police and drug agents as he stepped out of his hotel. The incident was the result of an anonymous tip generated by appellant, her mother, and a third person. The officers searched appellee and his vehicle. The search proved fruitless, and he was allowed to resume his visitation with his children. On June 27, 2001, appellee filed a motion for contempt alleging that appellant had caused him to be searched by drug officers for drugs upon his arrival in Washington for visitation. At the conclusion of the summer visitation, appellant arrived at appellee’s home in Greenwood, Arkansas, with a sheriffs deputy who proceeded to search the children’s luggage. The search revealed nothing. Shordy after their return to Washington, following appellee’s summer visitation, appellant made allegations of sexual abuse of the children by appellee. The resulting investigation was closed as unsubstantiated and on November 13, 2001, appellee filed a motion alleging that appellant falsely accused him of molesting his children. Despite the results of the investigation, on December 11, 2001, appellant filed a petition and affidavit for a protective order in Washington based upon the same allegations of sexual abuse. In December 2001, appellee once again made the trip to Washington to exercise his Christmas visitation. When he arrived at the appellant’s home, he was served with a protection order prohibiting him from contacting the children and notice of a hearing in twelve days. Appellee remained in a hotel in Washington for the twelve days until the hearing. Following the hearing regarding the protection order, appellee was allowed four hours of visitation with the children, which was supervised by appellant at her home.

At the conclusion of the hearing in Arkansas on appellee’s petition to modify custody, the trial court found that there had been a material change of circumstances and that it was now in the best interest of the children that custody be placed with the father. This appeal followed.

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. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). 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. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). 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. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). 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).

The principles governing the modification of custodial orders are well-settled and require no citation. 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. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001) (citing Watts v. Watts, supra.)

Appellee asserts that appellant has become so combative, uncooperative, and hostile concerning his parental rights that a substantial change in circumstances has occurred. Appellee contends that it was appellant’s goal to make visitation so miserable and expensive that appellee would give up his parental rights. There is a two-step process through which a court must proceed in deciding a petition for change of custody. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994).

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Bluebook (online)
101 S.W.3d 256, 81 Ark. App. 292, 2003 Ark. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carver-v-may-arkctapp-2003.