Presley v. Presley

989 S.W.2d 938, 66 Ark. App. 316, 1999 Ark. App. LEXIS 357

• Court: Court of Appeals of Arkansas
• Decided: May 19, 1999
• Docket: CA 98-954
• Status: Published

Opinions

Judith Rogers, Judge.

This is an appeal from an order denying appellant’s request for a change of custody of the parties’ minor children from appellee. On appeal, appellant argues that the chancellor erred in failing to find a significant change of circumstances warranting a change in custody of the parties’ minor children. We disagree and affirm.

The record reveals that the parties were married on November 29, 1986. Three children were born during the marriage. On August 22, 1996, the parties divorced. Appellant was awarded custody of the children. On April 2, 1997, appellee filed a petition for change of custody asserting a significant change in circumstances because appellant had overnight visits with a person of the opposite sex. After a hearing, which is not abstracted, appellee was awarded custody of the children. There was no appeal from that May 7, 1997, decision. Approximately two months later, appellee filed a motion to increase child support and a motion for contempt because appellant had failed to pay support. Appellant counterclaimed for a change of custody. On April 9, 1998, the chancellor denied appellant’s request for a change of custody, and granted the request for an increase in support. Appellant has appealed the chancellor’s ruling denying the change of custody, but does not challenge the increase in child support.

On appeal, appellant argues that the chancellor erred in finding no material change of circumstance since the last hearing. Appellant contends that in the previous order of May 7, 1997, the chancellor found that overnight unmarried guests of the opposite sex in the presence of the children was a basis for a change of custody. Thus, appellant argues that law of the case should apply as a basis for a change of custody because appellee admitted to overnight visits with a woman in the presence of the children.

It does not appear from the abstract that appellant raised the defense of law of the case below before the chancellor. It has been held that the law-of-the-case defense cannot be raised for the first time on appeal. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). Because the chancellor was not presented with an argument on this point concerning the law of the case, and made no ruling on it, the issue is barred. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). We also decline, due to lack of citation to authority or convincing argument, to address appellant’s argument. See Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997).¹

Appellant also argues that the chancellor erred in not awarding her custody of the children because the facts in this case satisfy the best-interest test required for a change of custody. We disagree.

In chancery cases, we review the evidence de novo, but we do not reverse the findings of the chancellor 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); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In child-custody cases, we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child’s best interest. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995). In custody cases, the primary consideration is the welfare and best interest of the children involved; other considerations are secondary. Id. A material change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody, and the party seeking modification has the burden of showing such a change in circumstances. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998).

Here, the chancellor found:

Based upon the testimony I’ve heard today, there have been some changes of circumstances. Mr. Presley is now married. During the period of time since the last hearing until today, he did some things that his parents didn’t approve of and that I don’t approve it; that is, staying the night with his intended without benefit of clergy. That’s been rectified.

Mrs. Presley has made, some very encouraging changes in her lifestyle. There’s no proof that she is hanging around some of the people and engaged in some of the activities that the Court found so objectionable the last time you all were here before me. The most important thing in care of children is stability, and the children will not become yo-yo’s, ping-pong balls pounding back and forth. I have not heard anything that has convinced me that there has been a sufficient change of circumstances on the 'part of either party to warrant any type of change of custody so the previous order of the court will remain in full force and effect.

And I’m going to say to Mrs. Presley that what I am doing today is in no way critical of what you have accomplished over the last — since the last time that we were here. Because I think it has been commendable, and there was room — a vast room for improvement, and you have improved. But this isn’t a situation where it’s a D.H.S. case where children are removed and you do A, B, C, and D, and the children come back. I looked at the total picture to the total stability of the family and made a judgment based upon that. And it would be more detrimental, I believe, to make a change and change the children’s residence once again, within a little over a year, after all of the upheaval they have been through going through a divorce to start with, which is the fault of each of you. So that is what I have done, and that is the reason I have done it.

The record indicates that it had been only two months since appellee was awarded custody of the children when appellant filed for a change of custody. The record also reveals that the children had changed homes twice in less than a two-year period. The chancellor found that the most important factor, in considering the best interest of the children, was stability so that the children would not become yo-yos between the parents. The chancellor also recognized that there had been some changed circumstances on both sides, but he did not find them sufficient to warrant a change in custody. After reviewing this record and giving great deference to the superior position of the chancellor, we cannot say that the chancellor’s decision was clearly against the preponderance of the evidence. There is no case where we defer as much to the chancellor’s superior ability to view the witnesses and weigh the evidence.

Affirmed.

Robbins, C.J., Pittman, Stroud, and Crabtree, JJ., agree. Hart, J., dissents.

1 We do have serious reservations whether law of the case even applies in chancery cases involving custody determinations because the polestar consideration is the best interest of the child, and circumstances are continually changing.