Anderson v. Anderson

• Decision Date: 10 September 1986
• Docket Number: No. CA,CA
• Citation: Anderson v. Anderson, 715 S.W.2d 218, 18 Ark.App. 284 (Ark. App. 1986)
• Parties: Henry William ANDERSON, Appellant, v. Kathryn Suzanne ANDERSON, Appellee. 86-67.
• Court: Arkansas Court of Appeals

Page 218

715 S.W.2d 218

18 Ark.App. 284

Henry William ANDERSON, Appellant, v.Kathryn Suzanne ANDERSON, Appellee.

No. CA 86-67.

Court of Appeals of Arkansas Division II.

Sept. 10, 1986.

Wilson, Engstom, Corum & Dudley by Wm. R. Wilson, Jr., Little Rock, for appellant.

David Rees, Jonesboro, for appellee.

CORBIN, Judge.

Appellant, Henry William Anderson, Jr., appeals a decision of the Craighead County Chancery Court refusing to grant his petition for a change of custody of his minor son from appellee, Kathryn Suzanne Anderson(Beightol), to appellant.We affirm.

Custody of the minor son, Will Anderson, then age 5, was awarded to appellee upon the entry of a decree of divorce in April 1982, subject to appellant's right to visitation.Appellant filed his petition for change of custody on March 13, 1985, and the matter was heard by the chancellor on July 2, July 30, and August 16, 1985.On November 13, 1985, an order was entered denying appellant's request for a change of custody.

Appellant first contends that the trial court erred in failing to give adequate consideration to the minor son's preference to live with his father.

While a child's preference is not binding upon the court, Malone v. Malone, 4 Ark.App. 366, 631 S.W.2d 318(1982), it is certainly to be considered along with all other factors when the court makes a custody determination.Watson v. Watson, 271 Ark. 294, 608 S.W.2d 44(Ark.App.1980).We stated in Watson, supra, that the supreme court had approved the practice of considering the wishes of children, some of them quite young, with respect to custodial preference.However, we noted there that we had found no case denying the chancellor the discretion to decline to give weight to such testimony.Contrary to appellant's argument, it is evident that the chancellor in the instant case carefully considered the evidence presented on behalf of the parties.It is even more clear that the chancellor gave due consideration to the minor son's preference to live with appellant as reflected by the chancellor's letter exhibit of November 13, 1985, to wit:

Having given a great deal of thought to all the facts and circumstances which weigh on the court's decision as to what would be in the best interest of the nine year old boy whose custody is the issue in this case, I have concluded that Will should remain in the care and custody of his mother.In arriving at this conclusion, I attempted, as best I could, to look at every plus and minus on both sides, and in effect, considered and decided the matter as though it was an original award, as well as whether there had been a significant change in circumstances which would dictate a change in custody.I obviously reached the same result in both instances.

....

... As indicated by the testimony, it will be a difficult and trying time for Will, in view of his testimony as to where he wanted to live.I gave Will's expressed preference much thought, weighing the relative effect that a denial of his wishes might have on his mental well-being.Fortunately, Will has an existing family unit, and a sound relationship with Kayla, both of which were very important, not only to Will but to the Court.With the continued attention to the potential problem indicated, I have no doubt but that Will will continue the steady improvement he has shown.I might also make a note that there was also testimony regarding potential problems if custody of Will was changed and he had new adjustments to make.

We cannot conclude the chancellor did not accord the son's preference proper weight and, therefore, find no merit to this contention.

Appellant's next three arguments for reversal concern findings by the chancellor which appellant contends are clearly erroneous or clearly against the preponderance of the evidence.He alleges that appellee's meretricious relationship constituted a sufficient change of circumstances justifying a change of custody and that appellee's subsequent marriage did not temper her reprehensible conduct.Appellant also alleges error in the trial court's finding that it was in the best interest of Will to remain with appellee.

The principles governing the modification of custodial orders are well settled and require no citation.In all such cases the primary consideration is the best interest and welfare of the child and all other considerations are secondary.Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them.In determining matters of child custody, a chancellor has broad discretion, which will not be disturbed unless manifestly abused.The burden of proving a subsequent material change of circumstances justifying a change of custody is on the party seeking the modification.Sweat v. Sweat, 9 Ark.App. 326, 659 S.W.2d 516(1983).

It is also well settled that, although this court reviews chancery cases de novo on the record, the findings of a chancellor will not be disturbed unless clearly against a preponderance of the evidence.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.ARCP Rule 52(a);Callaway v. Callaway, 8 Ark.App. 129, 648 S.W.2d 520(1983).This deference to the chancellor is even greater in cases involving child custody.In those cases a heavier burden is placed on the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony, and the child's best interest.We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving minor children.Calhoun v. Calhoun, 3 Ark.App. 270, 625 S.W.2d 545(1981).

The evidence adduced established that in November of 1984, appellee allowed Rick Beightol to move into the home shared by her with her minor son Will and her fifteen-year old daughter by a previous marriage, Kayla.This living arrangement existed until March of 1985 when appellee and Rick Beightol were married.Appellant alleged in his petition for change of primary custody which was filed in March of 1985 that this living arrangement as well as appellee's disparaging remarks about appellant in the presence of the parties' child constituted a material change of circumstances justifying a change of custody.

The chancellor in the instant case stated in his letter opinion as follows:

The conduct of Mrs. Beightol in permitting her now-husband to share her bed in the children's home, reprehensible as it may have been, was certainly tempered by their subsequent marriage.Mr. Beightol, from the testimony, was shown to be an active participant in rearing both Kayla and Will, and both expressed their love for him.

The supreme court and this court have never condoned a parent's promiscuous conduct or lifestyle when such conduct has been in the presence of the child.Ketron v. Ketron, 15 Ark.App. 325, 692 S.W.2d 261(1985).Although our courts have never condoned such conduct, we have always recognized a distinction between human weakness leading to isolated acts of indiscretion, which do not necessarily adversely affect the interest of a child, and that moral breakdown leading to promiscuity and depravity, which render one unfit to have custody of a minor.Watts v. Watts, 17 Ark.App. 253, 707 S.W.2d 777(1986), citingHarris v. Gillihan, 226 Ark. 19, 287 S.W.2d 569(1956), andBlain v. Blain, 205 Ark. 346, 168 S.W.2d 807(1943).

Appellee testified that she discussed the matter of Rick Beightol moving into the home with her children prior to Thanksgiving and that she felt at that time it was a good decision.Appellee's daughter told appellee that she loved and respected Rick and Will told appellee that he hoped they would marry because he thought Rick would make a good stepfather and that he wanted to be a "Beightol."Appellee further testified that her children's feelings in this regard as well as their concern over another failure in marriage led her to make the decision to allow Rick to move in.Appellee stated that she and Rick had already planned to marry when appellant filed his petition for change of custody.However, appellee testified that she would never do anything to jeopardize her custody of Will and admitted that "I...