Hamilton v. Barrett

• Decision Date: 13 May 1999
• Docket Number: No. 98-1536,98-1536
• Citation: 989 S.W.2d 520,337 Ark. 460
• Parties: Phyllis Karen (Barrett) HAMILTON, Appellant, v. Randall Ray BARRETT, Appellee.
• Court: Arkansas Supreme Court

Page 520

989 S.W.2d 520

337 Ark. 460

Phyllis Karen (Barrett) HAMILTON, Appellant, v. Randall Ray BARRETT, Appellee.

No. 98-1536.

Supreme Court of Arkansas.

May 13, 1999.

George M. Callahan, Hot Springs, Benny M. Tucker, Arkadelphia, for Appellant.

J. Skylar Tapp, Hot Springs, for Appellee.

DONALD L. CORBIN, Justice.

This is a child-custody case. Appellant Phyllis Karen Hamilton (Karen) appeals the judgment of the Montgomery County Chancery Court awarding custody of the parties' two minor children to her ex-husband, Appellee Randall Ray Barrett (Randy). In an unpublished opinion, the Arkansas Court of Appeals affirmed the chancellor's ruling. See Barrett v. Barrett, CA 97-1132, (Ark.App. December 9, 1998). We granted Appellant's petition to review that decision, which was rendered by a tie vote, pursuant to Ark. Sup.Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999). For the reasons set forth below, we affirm the chancellor's decision.

The record reflects that Randy and Karen were married on June 5, 1982. Two children were born of the marriage: Michael, born on August 19, 1986, and Randi Michelle, born on July 11, 1989. Randy is president of the Mount Ida School Board, and Karen is an art teacher in the same school system. The parties separated on or about June 22, 1993, and a divorce decree was entered on September 26, 1994. Incorporated into the decree was the parties' child-custody and property-settlement agreement, which provided that the parties would have joint custody of the children, with Karen being the primary custodian of the children. Randy agreed to pay child support in the amount of $120 per week, in accordance with the Family Support Chart. The custody and settlement agreement also prohibited both parents from having members of the opposite sex, to whom they were not married, stay overnight in their homes during any visitation or custodial periods.

Randy married Jennifer Gossett on December 31, 1994, and they had a child on September 24, 1996. Karen married Jody Hamilton on November 10, 1996. On August 1, 1995, Randy filed a petition for specification of visitation rights and reduction in child support. That petition was never ruled upon by the chancellor. Randy filed an amended petition on August 29, 1996, this time requesting a change of custody, and alternatively for a reduction in child support. The amended petition reflected in part that since the divorce decree was entered, there have been several substantial changes in circumstances, including Randy's remarriage, the birth of a child from his remarriage, changes in Randy's income and cattle operation, and an oral agreement reached by the parties for joint custody that Randy had maintained since the end of the 1996 school year. Karen denied that there had been any material change in the parties' circumstances since the divorce.

During the hearing below, evidence was presented that was of a favorable nature to both parents. For example, several witnesses, including neighbors, the elementary school principal, teachers, and in-laws, testified that both Karen and Randy appeared to be good parents. There was also testimony that both parents were particularly interested in the children's performance at school, and that both frequently participated in the children's extracurricular activities. The evidence also showed that both Michael and Randi Michelle were bright, well-adjusted children who performed well at school. The chancellor found that both Randy and Karen were very responsible, good parents; that both had good, but different, discipline skills; and that both did a good job at enforcing each other's prior discipline decisions.

Much of the remaining evidence concerned Karen's relationships with men, particularly her actions in permitting male guests to stay overnight while the children were present, in direct violation of the parties' custody and settlement agreement. Gary Breashears testified that he had a relationship with Karen, which began around August or September 1993, during Karen and Randy's separation, and continued until November 1995. He stated that on one occasion in November 1995, he spent the night with Karen in her home while the children were present. On two other occasions, he, Karen, and the children had gone on overnight trips. During a trip to Alabama, which lasted several days, the four of them shared a motel room. Although he initially claimed that he had slept on the couch, he later admitted that there was no couch in the motel room. He then stated that he was not sure whether he and Karen had slept in one bed while the children slept in the other bed. In any event, he stated that Karen had not expressed a problem with the sleeping arrangements. Breashears also described a camping trip, during which he, Karen, and the children slept in tents. He admitted that he and Karen had slept together on that trip.

Jody Hamilton testified that he began dating Karen in October 1995. He stated that he had a sexual relationship with Karen between October and December 1995, while she was still dating Breashears. He indicated that between December 1995 to November 10, 1996, the date he and Karen were married, he spent the night at Karen's home on numerous occasions. He admitted that the children had been present on some of those occasions. Indeed, he stated that the children had seen him in bed with their mother. Although he conceded that their actions were inappropriate, he justified them on the basis that they only occurred after he and Karen had decided to get married.

Karen admitted engaging in conduct that violated the custody and settlement agreement. Although she denied having ever slept with Breashears in her home while the children were present, she admitted that she had done so with Hamilton, prior to their marriage. Like Hamilton, Karen stated that she felt such conduct was appropriate because they were about to be married, and the children knew of their plan to wed. In contrast to this testimony, there was no evidence that Randy had violated the parties' agreement by having female guests overnight at his home when the children were in his care.

At the conclusion of the hearing, the chancellor awarded Randy care and custody of the two minor children, with Karen being granted liberal visitation. The chancellor made no specific findings of fact on the issue of material changes in circumstances; however, in response to Karen's directed-verdict motion, the chancellor found that Randy had presented evidence of a material change in circumstances. Specifically, the chancellor concluded that two events, Karen's marriage to Hamilton and a child being born to Randy and Jennifer, satisfied the requirement that a substantial change of circumstances existed.

In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the chancellor is even greater in cases involving child custody, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Anderson v. Anderson, 18 Ark.App. 284, 715 S.W.2d 218 (1986). Where the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

Our law is well settled that...