Campbell v. Campbell

• Decision Date: 18 February 1999
• Docket Number: No. 98-1288,98-1288
• Citation: Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (Ark. 1999)
• Parties: Michael Scott CAMPBELL, Appellant, v. Bonnie CAMPBELL, Appellee.
• Court: Arkansas Supreme Court

Page 724

985 S.W.2d 724

336 Ark. 379

Michael Scott CAMPBELL, Appellant, v.Bonnie CAMPBELL, Appellee.

No. 98-1288.

Supreme Court of Arkansas.

Feb. 18, 1999.

Michael Scott Campbell, Fayetteville, pro se.

Susan M. Johnson, Van Buren, for Appellee.

TOM GLAZE, Justice.

This custody case commenced when the parties were divorced in 1993.Michael Scott Campbell(hereafter Scott) was awarded custody of Natasha Nicole and Michael Scott(hereafter Michael), and Bonnie was given visitation and ordered to pay child support.Both parties were prohibited from having guests of the opposite sex overnight when the children were present.In 1996, Bonnie filed a motion alleging that a change of circumstances had occurred that warranted placement of the children with her, and after a two-day hearing, the chancellor agreed.Scott appealed the chancellor's decision to the court of appeals, which by a 3-3 decision affirmed the chancellor.Campbell v. Campbell, 63 Ark.App. 136, 975 S.W.2d 869(1998).

Scott petitioned for review, citing the court's recent decision of Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767(1996), and arguing the court of appeals' prevailing opinion failed to follow the Jones holding by allowing the chancellor to modify his original custody order by basing his modification only on changes that had taken place in the life of the noncustodial parent, Bonnie.We granted Scott's petition because of the court of appeals' divided vote and the obvious need to develop further the law adopted by this court in Jones.

The court of appeals' prevailing opinion reflects the relevant circumstances that have occurred in the Campbells's lives since their divorce, and commences by describing Bonnie's serious mental depression resulting from the parties' divorce and their first custody fight when Scott was awarded the children.SeeCampbell, 63 Ark.App. at 140, 975 S.W.2d at 871.We need not repeat those facts in detail again, but will allude to them as necessary when discussing applicable law in reaching our decision.Suffice it to say at this point, we believe the court of appeals' recitation of the facts is correct.In summary, everyone can agree that Bonnie's mental and personal welfare has improved to some degree since the parties' divorce in 1993, and while the children appear to be suffering from some amount of emotional anxiety, they are happy and doing well in school and have no apparent physical problems.The parties and their separate witnesses opined that Scott and Bonnie each possessed a loving relationship with Nicole and Michael.Nicole and Michael were ages ten and eight years old when Bonnie filed this litigation in 1996.

The evidence presented showed that both parents have violated the court's original order prohibiting them from having overnight guests of the opposite sex when the children were present.Furthermore, while the chancellor spent little or no time discussing Scott's and Bonnie's personal differences and the acrimonious conduct between them, the record reflects they both continue to treat each other contemptuously even when they are in the presence of the children.

At the conclusion of the two-day hearing, the chancellor made the following findings upon which he entered an order transferring custody to Bonnie:

[T]he court is convinced because of Michael's desire to be with his mother that his best interest will be served by placing his custody with her.While the court believes Nicole's best interest would not be harmed if she were left in the custody of her father, the court believes it is in the best interest of both children not to be separated.

* * *

In summary, this little boy wants and needs his mother, for whatever reason, and the court is convinced that for the court to thwart this desire would be emotionally damaging, if not devastating, to the child.

* * *

In regard to whether circumstances have changed since the last custody decision, there is no question that they have.Mrs. Campbell has a good job, she appears to be emotionally stable unlike before, and she is in an apparent stable relationship with a man, David Garner, notwithstanding the fact that the court has misgivings about this out of wedlock relationship.(Emphasis added.)

In his appeal before the court of appeals, Scott emphasized the chancellor's foregoing findings and argued the chancellor had erroneously shifted the burden of proof to him, though he was the custodial parent.Scott premised his argument on our Jones decision, wherein this court adopted the majority rule that a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody.Id. at 490, 931 S.W.2d at 770.The court of appeals, in its prevailing opinion, rejected Scott's argument by distinguishing the Jones case as follows:

We do not read the Jones case to say that changes in the life of the noncustodial parent are never pertinent in determining whether a significant change of circumstances has occurred, but that they were insufficient under the facts of that case to modify custody.In the instant case, unlike Jones, the chancellor did not shift the burden of proof to the custodial parent.

Although the chancellor here cited only changes in appellee's life as the basis for the change of custody, we find from our de novo review of the record that there was other evidence of changed circumstances and that appellee met her burden of proof.Dr. Barling [who interviewed the children at the chancellor's request] stated that he was concerned about the emotional health of both children.He testified that Michael feared that his father would learn what the boy told the psychologist and that he exhibited unusual behavior by crying and climbing into the psychologist's lap.He opined that Michael was in obvious emotional distress and that Nicole's coping method of isolation could cause later problems.The chancellor, after interviewing the children, found Michael to be a tearful, stressed, almost frightened little boy with an overwhelming desire to be with his mother.There was also evidence that appellant[Scott] had been arrested for disorderly conduct in front of the children after pouring beer on a former girlfriend.Taken together, this constitutes evidence that circumstances of the children's living with their father had changed sufficiently for the chancellor to consider whether the best interests of the children would be served by a change of custody to their mother.

Id. at 146, 975 S.W.2d at 874.

Arkansas law is well settled that a judicial award of custody will not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree will be in the best interests of the children.Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140(1973).In order to avoid relitigation of factual issues already decided, courts will usually restrict evidence in a modification proceeding to facts arising since the prior order.The only other time a change is permissible is when there is a showing of facts affecting the best interests of the children that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.Jones, 326 Ark. at 491, 931 S.W.2d at 772;Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402(1954)(stating that it is well settled that a decree fixing the custody of a child is final on conditions then existing and should not later be changed unless there are altered conditions since the decree was rendered or there were material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child).The party seeking modification of the custody order has the burden of showing a material change in circumstances.Jones, 326 Ark. at 491, 931 S.W.2d at 772.

Here, as pointed out by the court of appeals, the chancellor's expressed findings dealt only with Bonnie's change in circumstances since the parties' 1993 decree which, under Jones, would be insufficient to warrant transfer of custody to her.Nonetheless, the court of appeals by de novo review considered other testimony that it believed was sufficient to support the chancellor's transfer of custody to Bonnie.This court's holding in Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933(1988), supports such a review.

In Stamps, the chancellor failed to make a finding of fact about a change in circumstances, but under its de novo review of the record, the court related evidence from which the chancellor could have found a change in circumstances after the initial decree.Those circumstances were described as follows:

It includes testimony that the appellant[mother] screamed and yelled at the appellee[stepfather] in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant's use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to live with appellee, and when told she had to go home with appellant, she suffered stomach problems.

Based on the circumstances above, the Stamps court upheld the chancellor's decision to change custody.

The situation and circumstances in the instant case are in stark contrast to the ones listed by this court in Stamps.In the present case, and as mentioned earlier, the chancellor specifically found that he believed Nicole's best interests would not be harmed if she were left in her father's custody, but because Michael had a strong desire to live with his mother, the chancellor would not separate the children.Although it was appropriate for the chancellor to consider...