Riley v. Riley

873 S.W.2d 564, 45 Ark. App. 167, 1994 Ark. App. LEXIS 170

• Court: Court of Appeals of Arkansas
• Decided: March 30, 1994
• Docket: CA 93-864
• Status: Published

Opinions

John B. Robbins, Judge.

Appellant Kimberly Riley (Alley) appeals from the chancellor’s decision granting Kenny Riley’s petition for a change of custody. The parties in this case were divorced by decree in January of 1992, wherein by agreement Kimberly Riley was granted primary custody of the parties’ two children. For reversal, Mrs. Alley contends that the chancellor erred in finding a change in circumstances which would warrant changing custody of the minor children from their mother to their father. Based on our de novo review of the record, we cannot agree with appellant’s argument and affirm the chancellor’s order.

At the hearing on Mr. Riley’s petition for change of custody, he testified that his former wife, Mrs. Alley, had taken the two children and moved to North Carolina in early January 1993. A short time before this occurred he questioned Mrs. Alley about rumors that she might be leaving town, which she denied. Mr. Riley testified that he went to pick up the children for his weekend visitation and Mrs. Alley failed to appear with the children. Evidence showed that Mr. Riley contacted James Allen, who was living with Mrs. Alley and her new husband, and learned that Mrs. Alley had taken the children and moved away. Allen failed to inform Mr. Riley of Mrs. Alley’s whereabouts even though Allen had this information. Mr. Riley finally found out where Mrs. Alley had moved by contacting the local court.

Testimony presented in this case showed that Mr. Riley maintained close ties with his children before they were taken from the state. He testified that he exercised his visitation rights on a regular basis and often took the children to visit their grandparents, as well as great grandparents, aunts and uncles, and great aunts and uncles. Mr. Riley had no visitation or contact with his children between the time Mrs. Alley moved away in early January, and the time of the hearing. Upon questioning by the court, Mrs. Alley acknowledged that she had returned to the state on two separate occasions but did not bring the children for their father to visit on either occasion.

Mr. Riley testified that he remarried on January 1, 1993, to Angela. He testified that the children enjoyed being with Angela during visitation and his daughter especially enjoyed her company. Angela Riley testified that she loved her new husband’s children and that she wanted to help him rear them if he was awarded custody. Mr. Riley testified that he was employed by the Arkansas Highway Department and had been so'employed for approximately five (5) years. He testified that he had plenty of room in his home for the children and had a large yard in which they could play.

Testimony presented on behalf of Mrs. Alley showed that she also had remarried and was living with the children and her new husband, Cory Alley, in Mooresville, North Carolina. Evidence presented showed that Mr. Alley’s family resided in the Mooresville area and that his family treated the children well. She testified that she moved to North Carolina so her new husband could find better paying employment. She also testified that she was currently working in a convenience store and was earning six dollars per hour. Evidence showed that Mrs. Alley and her new husband could now afford to rent a new mobile home in which to reside and that the children had a large yard in which to play. On cross-examination, Mrs. Alley admitted that she left Arkansas in a rush and that she left her new address with the circuit clerk so she could receive her child support checks from Mr. Riley. She testified that she did not try to contact her former husband after leaving the state nor when she returned in February to pick up the remainder of their belongings. Evidence showed that she was only in Huntsville during her quick trip in February from eleven o’clock one evening until approximately five o’clock the next morning.

On appeal, Mrs. Alley contends that the chancellor erred in finding such a change in circumstances existed as would warrant changing custody of the children. There is a two-step process through which a court must proceed in deciding a petition for change of custody. First, the chancellor must determine whether there has been a significant change in the circumstances of the parties since the most recent custody decree. We observed in Anderson v. Anderson, 43 Ark. App. 194, 197, 863 S.W.2d 325, 327 (1993), that “[a] change in custody cannot be made without showing a change in circumstances from those existing at the time the original order was made as the original decree constitutes a final adjudication of the issue.” If the chancellor finds that a significant change in circumstances has occurred, the court must then decide custody placement with the primary consideration being the best interest of the children. Anderson v. Anderson, supra; Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990); Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986).

Mrs. Alley does not actually argue that there has not been a significant change in circumstances. The evidence clearly showed several significant changes in circumstances, including Mr. Riley’s remarriage, Mrs. Alley’s remarriage, and Mrs. Alley’s removal of the children several hundred miles from Madison County, Arkansas, where the children’s father and extended family reside. Mrs. Alley’s argument is that under these changed circumstances the court erred in concluding that it was now in the best interest of the children to be in their father’s custody.

Upon a de novo review of chancery cases, we do not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Riddle v. Riddle, 28 Ark. App. 344, 755 S.W.2d 513 (1989). Chancellors in child custody cases must utilize to the fullest extent their superior position, ability, and opportunity to observe the parties to decide what is in the best interest of the children. Id. Since the question of the preponderance of the evidence turns largely upon the credibility of the witnesses, we must defer to the superior position of the chancellor. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). Child custody awards are not made or changed to award or punish either party. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986).

The chancellor specifically found “that there has been a substantial change in circumstances in the interest of the children.” He further stated, “I’m not punishing [Mrs. Alley], but in the interest of the children, I find that they have substantial roots here in Huntsville, Arkansas.” Evidence indicated the children had close family ties and family support in Arkansas. After careful consideration of the evidence in this case, we cannot say that the chancellor’s decision was clearly against a preponderance of the evidence or clearly erroneous.

The dissenting opinion suggests that we are departing from our recent decision in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). The short answer to this is that the holding in Staab has no relevance in a change of custody case. In Staab we set forth standards which a chancellor should consider when deciding a request by a custodial parent to relocate with a minor child outside the jurisdiction of the court. There was no petition by the non-custodial parent for a change of custody involved in Staab. The sole issue was whether the custodial parent’s petition to move from Arkansas with the minor child should be granted.

Here, the non-custodial parent is seeking a change of custody of his minor children. The issue is not what is in the best interest of the family unit consisting of the custodial mother and the minor children. Once the court found that there had been significant changes in the circumstances of the parties and children, the chancellor was required to address the sole issue of determining the best interests of the children, not the children and their mother, and not the children and their father. It is a completely different issue from that presented by a petition for removal of a minor child from the jurisdiction of the court.

Affirmed.

Mayfield and Cooper, JJ., dissent.