Hepp v. Hepp

• Decision Date: 15 April 1998
• Docket Number: No. CA,CA
• Citation: Hepp v. Hepp, 968 S.W.2d 62, 61 Ark.App. 240 (Ark. App. 1998)
• Parties: Jimmy O. HEPP, Appellant, v. Debbie Lee HEPP (Byrum), Appellee. 97-1082.
• Court: Arkansas Court of Appeals

Page 62

968 S.W.2d 62

61 Ark.App. 240

Jimmy O. HEPP, Appellant, v.Debbie Lee HEPP (Byrum), Appellee.

No. CA 97-1082.

Court of Appeals of ArkansasDivisions II and III.

April 15, 1998.

John Bynum, Russellville, for Appellant.

Doug Skelton, Russellville, for Appellee.

ROGERS, Judge.

Appealing from an order denying his motion for a change of custody, appellant contends that the chancellor's decision is clearly against the preponderance of the evidence.We disagree and affirm.

Appellant, Jimmy Hepp, and appelleeDebbie Byrum, were divorced in September of 1991 when their daughter, Cassandra, was twenty months old.Custody of the child was contested, and the court placed her in the care of appellee.Appellant later petitioned for a change of custody.By order of December 11, 1995, the chancellor denied that petition.The order provided, however, that a change of custody would be forthcoming if appellee associated with or had the child in the presence of a man named Johnny Lee Boggs.The appellant filed another petition for a change of custody in March of 1997.As grounds for this motion, appellant alleged that appellee had constantly been with Mr Boggs, that she was drinking excessively, and that she was failing to properly care for the child.After a hearing on May 28, 1997, the chancellor denied the motion.This appeal followed.

In deciding this case, we are guided by the following principles.As in all custody cases, the primary consideration is the welfare and best interest of the child involved; all other considerations are secondary.Fitzpatrick v. Fitzpatrick, 29 Ark.App. 38, 776 S.W.2d 836(1989).It is well settled that, although this court reviews chancery cases de novo on the record, the chancellor's findings will not be disturbed unless clearly against the preponderance of the evidence.Bennett v. Hollowell, 31 Ark.App. 209, 792 S.W.2d 338(1990).Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor, especially so in those cases involving custody.Stone v. Steed, 54 Ark.App. 11, 923 S.W.2d 282(1996).Repeatedly our courts have recognized that there are no cases in which the superior position, ability, and unique opportunity to view the parties carry as great a weight as those involving minor children.Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398(1993).

The first witness called by appellant was Rigmor Mereness, appellee's supervisor at the health department in Russellville.She testified that appellee worked for $5 an hour as a health-care aide who provides services to persons in their homes.She said that appellee had a good record of service and that she had heard of no complaints having been registered against her by her clients.She stated that appellee had asked for additional hours of work but that none were available.

The child, Cassandra, age seven and in the first grade, responded to questioning as follows.She said that she lives in a trailer with her mother and that she likes it.She testified that she sleeps with her mother and that she sleeps on a pallet on the floor when her mother is sick.Cassandra said that her Aunt Joyce had lived in the trailer for three weeks and that her half-sister, Nakita, also lived there.She said that her mother gets her up in the mornings for school and that she would either eat breakfast at home or at school.She said that she usually ate breakfast at school because her mother gets up too early.Cassandra testified that she preferred to live with her father in that she felt safer with him because he does not leave her alone like her mother does.She said that her mother drinks beer once a week.She stated that being drunk means acting screwed up or weird and said that her mother did not get drunk every week, but that she was once drunk for two weeks.She said that she stays away from her mother when she is drinking because her mother might get rowdy.She also said that her mother has friends over when she is drinking and that they fight.She said that her mother fought with Nakita's dad and Brent, but she corrected herself to say that Brent was Nakita's father.When asked about Uncle Terry being one of those friends, she had no response.When prompted, Cassandra said that she liked it when Uncle Terry came over but that she was scared when he drinks.She testified that marijuana was something that you smoke and that her mother smokes marijuana in front of her.She said that her mother had done that only one time, that she had never done it recently, and that her mother had smoked marijuana two weeks ago.She testified that her mother rolled it up in a little box of paper, licked it, and used "plier things" to smoke it.Cassandra was asked to demonstrate this process for the chancellor but the record does not reflect what the demonstration entailed.She said that her mother acts strange when she smokes marijuana.She said that she is never scared when she is with her father and that she sees him one time a week.She said that she had seen her mother so drunk that she could not stand up and that it scared her.She said that her father helps her with her homework and that he gives her $2 when she makes good grades.She said that she sleeps in her own bed when she is with her father.She said that her father picks her up from school, that he buys clothes for her a lot, and that she goes to him when she needs something.She stated that she spends the night sometimes with her mother's boyfriend, Thomas, who lives in a shed.She said that she sleeps on a pallet when he and her mother are together and that they drink and smoke marijuana.

On cross-examination, Cassandra testified that the only reason she could think of for wanting to live with her father was because he makes her feel safe because he does not leave her alone.She said that her mother leaves her alone for three or four minutes when she goes to the grocery store.She said that her mother tells her and Nakita to lock the door and stay inside while she is gone.She said that her mother had not left her alone any other time.She related that she spends one day a week with her father, on Sundays, and that she spends weekends at her grandparent's home.She said that her father had worked at Tile Stiles for twelve years and that she had seen Johnny Boggs there, who had come to see her grandfather.She said that Boggs was a friend of her father's family now and that she likes him.She further testified that she had seen Boggs beat her mother and that she had seen her grandfather pay him money one or two times, but that he did not work at Tile Stiles.She said she was excited about her father's apartment that he had had for one day, and she agreed that it had a nice swimming pool.Cassandra testified that after school she had playtime, cartoontime, then bathtime and bedtime.She said that her mother had snacks for her after school and that her mother either cooked every night or got something for dinner, like pizza.She said that she makes good grades in school, all A's.She testified that her sister had a bedroom in the trailer and that she had a room of her own that was now a playroom.She said that she does not sleep there because it is full of toys.She also said that she slept with her grandmother on weekends.She said that there was another bedroom but that it had all of her grandmother's "grave stuff" in it, saying that it had belonged to an uncle who had died when she was three years old.She testified that she had seen her mother drunk one time since they had moved into the trailer and that her mother had once been drunk for two weeks.She said that her father helped her with her homework but that he did not come over on school nights.She said he helped her with her spelling words on Sundays.She said that her father picks her up from school every Friday, but that sometimes her grandparents picked her up.She said that her grandmother had been picking her up for a long time and that her father had picked her up three times.

On redirect examination, she testified that she had seen Mr. Boggs three times at the tile business and that she had seen her mother drinking not many times, or three or four times.

Johnny Lee Boggs then testified on behalf of the appellant.Boggs stated that he was disabled from a back injury that had resulted from a car accident in 1975 and that he had been receiving disability benefits since July of 1996.He testified that he had met appellee in 1991, that they had dated and had once been engaged.He said that he was aware of the December 1995 order which forbade him from associating with appellee.He testified that appellee did not stay away from him.He said that they began seeing each other on the sly in February of 1996 and that their relationship continued until April of 1997.He said that appellee had been drinking consistently since 1991, that she drank most every weekend that they were together, and that, as far as he knew, she did not attend AA meetings.Boggs testified that he took his ring back from appellee in April because of an incident that had occurred on March 6.He said that appellee came to his home that Thursday, got drunk, and remained that way for two and a half days.Boggs stated that appellee was so drunk that night that she could not speak and that he was afraid that she might die.He said that he tried to get her to check on the children and that he finally got her to do so at around 11:30 that night.He drove her to the trailer, and they found that the children were not there.He said that she left his house on Saturday and that Cassandra was with her grandparents over the weekend, while Nakita stayed with appellee's sister.Boggs further testified that appellee would visit him during the week and would sometimes get off work by telling her employer that one of the children was sick.He said that ...