Hollinger v. Hollinger

986 S.W.2d 105, 65 Ark. App. 110, 1999 Ark. App. LEXIS 87
CourtCourt of Appeals of Arkansas
DecidedFebruary 17, 1999
DocketCA 98-402
StatusPublished
Cited by50 cases

This text of 986 S.W.2d 105 (Hollinger v. Hollinger) 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
Hollinger v. Hollinger, 986 S.W.2d 105, 65 Ark. App. 110, 1999 Ark. App. LEXIS 87 (Ark. Ct. App. 1999).

Opinions

John B. Robbins, Chief Judge.

Appellant Teresa Lynn Hollinger appeals the decision of the Drew County chancellor changing the custody of their four daughters to their father, appellee Walter Henry “Hank” Hollinger. Her points on appeal are that (1) the chancellor erred in determining that a material change in circumstances had occurred, and (2) the chancellor erred in finding that the best interest of the children was to be in the custody of their father. We disagree and affirm.

Chancery cases are tried de novo on appeal. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). We will not disturb a chancellor’s findings unless they are clearly against the preponderance of the evidence. Stone v. Sneed, 54 Ark. App. 11, 923 S.W.2d 282 (1996). Since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). We know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries as great a weight as those cases involving children. Id. A finding is clearly erroneous or 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. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). We have no such firm conviction in this case.

Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). The original decree is a final adjudication that one parent or the other was the proper person to have care and custody of the children. Id. Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. White v. Taylor, 19 Ark. App. 104, 717 S.W.2d 497 (1986). For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, he must then determine who should have custody with the sole consideration being the best interest of the children. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). We find that there were material changes in circumstances, and the subsequent redetermination of the best interest of the children was not clearly erroneous.

A recitation of the proceedings and facts is necessary for a full understanding of this case. The parties resided in Monticello prior to their divorce. Their children had never lived anywhere but Monticello. After the parties’ divorce on December 20, 1990, appellant had custody of their children and the parties and girls continued to live in Monticello. The girls’ ages ranged from two to eight years at that time. After she completed college, appellant took a job at Axciom in Conway and moved her four girls there in 1994. Appellee acquiesced in this move because he felt the mother continued to be the better custodian at that time. Contemporaneously with the move to Conway, appellee was going through a second divorce and was severely depressed.

In Conway, the girls were active in school, the older girls assisted their mother in caring for younger siblings, and they all had household chores. Beginning around January 1997, the eldest daughter complained to her father that her mother was abusive to the girls. She wanted to move back to Monticello and did not like Conway. Appellee was informed by a neighbor of appellant that the girls might be abused by their mother, physically or verbally, and DHS had been contacted by the neighbor due to this suspected abuse.1

Fearing for the safety of his children, appellee filed an emergency motion for custody in February 1997; it was granted by an ex parte order. The girls moved back to Monticello with their father, his new wife, and her two children. In March 1997, a return hearing was held on the matter, and the chancellor ordered that temporary custody remain with the father until the final decision, and he ordered the parties to undergo mental evaluations. Following a final hearing on July 29, 1997, the chancellor issued a letter opinion setting forth his conclusions. The chancellor noted two changes in circumstances: appellant’s move to Conway in 1994, and appellee’s subsequent remarriage and establishing a home in Monticello. He made no mention of any other material change of circumstances. Based upon the two enumerated changes in circumstances since the 1990 divorce, he determined that due to the girls’ relocation to Monticello and their “well rounded happiness” there since the return, in addition to the particularly acrimonious relationship of the eldest daughter and the mother, it would be in their best interest to switch custody to the father. This appeal resulted. We find that the chancellor was not clearly erroneous.

We begin with the statement that on appeal of a chancery decision we review the case de novo, and if the chancellor’s decision can be sustained on grounds other than those he made, we will affirm. O’Neal v. Ellison, 266 Ark. 702, 587 S.W.2d 580 (1979); Pharris v. Vanderpool, 230 Ark. 233, 266 S.W.2d 702 (1959); Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (Ark. App. 1980). With that said, we find that the chancellor may have misapplied what may constitute a material change in circumstances in this case — the marriage of the father and the move of the mother. However, upon de novo review, we find that there was a material change in circumstances when each of those facts are combined with (1) the substantial passage of time between the original decree and the modification, (2) the decidedly strained relationship existing between the daughters, especially the eldest, and the mother, and (3) the clear preference of the girls to five with their father in their hometown. This permitted a reopening of a best-interests inquiry.

We are cognizant that in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the supreme court held that the remarriage of the father, standing alone, was not enough to support a change in circumstances because he was aware of his impending new marriage at the time of the divorce when he gave custody to his ex-wife. Such was not the case here. Appellee was not contemplating this current marriage at the time of the original decree when custody was given to the mother. Those particular facts are not the same as are before us today.

Further, we agree that appellant’s move to Conway from Monticello, seeking betterment of her employment, standing alone, cannot be the basis of a material change in circumstances.

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Bluebook (online)
986 S.W.2d 105, 65 Ark. App. 110, 1999 Ark. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollinger-v-hollinger-arkctapp-1999.