ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

BRENDA HOLDEN

APPELLANT

V.

BOBBY MANNING

APPELLEE

CA02-351

December 4, 2002

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

E-2000-641

HON. EDWIN A. KEATON, JUDGE

AFFIRMED

This is an appeal of the trial court's order granting appellee's petition for change of custody of the parties' minor son. Appellant raises one point on appeal, that the change in circumstances set forth by the trial court was insufficient to justify a change in custody. We affirm.

Appellant Brenda Holden and appellee Bobby Manning had a son, who was born out of wedlock on April 10, 1996. On July 25, 2000, appellee filed a petition asking the court to find that he is the natural father of the child and to grant him sole custody. Appellant admitted that appellee should be found to be the father, but denied that he should be granted custody. By an order entered September 21, 2000, the trial court found that appellee was the father and that appellant was the proper person to have custody of the child, with appellee having set visitation. The court also ordered that appellee pay child support and maintain health insurance for the child.

On September 11, 2001, appellee filed a petition for change of custody, alleging that appellant had constantly refused appellee visitation. He further alleged that there had been a material change of circumstances to warrant a change of custody and that it would be in the child'sbest interest for custody to be awarded to him. A hearing took place on December 7, 2001. At the conclusion of the hearing, the court found that appellant was playing "mind games" with the child and putting the child through "emotional trips." The court found that appellant's actions were a sufficient change of circumstances to warrant a change of custody and that it would be in the child's best interest to live with appellee.

In deciding a petition for a change of custody, the trial judge must first determine whether there has been a material change in circumstances since the most recent custody order. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). If a material change has occurred, the judge must then determine custodial placement with the primary consideration being the child's best interest. Id. Although our review is de novo, the trial judge's findings will not be disturbed unless they are clearly against the preponderance of the evidence. Id. Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the trial judge, especially in those cases involving child custody. Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000). A finding is clearly against the preponderance of the evidence when the reviewing court is left with the definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

Appellee testified that appellant makes the child upset. For example, appellee stated that he had problems exercising his court-ordered visitation. On one occasion when he went to pick up his son for a scheduled weekend, appellant told him that the child was going with her sister. Appellee stated that appellant was fussing, crying, and arguing, as usual, and making the child upset. Appellee asked his son where he wanted to go, and he responded that he did not know. Appellee told him that he would not get in trouble if he wanted to go to his aunt's house. To prevent his son from becoming more upset, appellee let him go to his aunt's and told her that he would pick him upat the football game. When appellee went to pick him up, appellant had already picked him up.

Appellee also testified that appellant causes problems when his son is with him. He explained that she calls her son, and when he gets off the phone he starts crying. Appellant does not want her son to stay at appellee's sister's house with his cousins; she thinks that when appellee has visitation, her son should only spend time with his father. He stated that appellant calls at his sister's house and gets his son upset. On one occasion when appellee and his son were going to Oklahoma, appellee recorded appellant's conversation with the child, wherein she said, "[T]ell your daddy to bring you home because he's not gonna take care of you, he's not gonna feed you . . . they don't feed you up there, you don't want your stomach hurting, they're gonna starve you. And you're not gonna see your daddy once you get there, he's gonna drop you off over at his brother's house and he's not gonna spend any time with you . . and if you don't have him bring you home I'm going to make Randall my son." The child was upset by the phone call and hung up the phone on her and started crying.

Sharon Harris, appellee's sister, stated that on several occasions appellant called her house and upset the child. She indicated that after his mother calls, his whole attitude changes; he becomes sad, starts to cry, and tells his aunt that he does not want to go home.

Appellant, on the other hand, stated that she has called Harris's house to talk to her son and explained that he gets upset because he does not want to leave. She elaborated that her son is upset because his father left him at his aunt's and has not picked him up. Appellant testified that her son acts like a "wild animal" when he comes home from visitation because he did not spend time with appellee. She explained that she has a problem with her son "coming home acting silly, throwing these tantrums because he doesn't have enough time with his daddy and he stays out too late on week nights." Appellant testified that she asks appellee to bring her son home around 6:00 on weeknights and that she calls when it is getting late and her son needs to get ready for bed.

In regard to a phone conversation with her son where she mentioned her nephew, Randall, appellant explained that she had talked with her son about going to the movies before he went to his father's house, and he still wanted to go to his father's and not to the movies. She testified that once he was at appellee's, she called him to make sure and told him that she was supposed to take him to the movies and that appellee was not going to take him. She then told him "Well, I guess I'll have to take Randall." She claimed that she did not make the statement about taking Randall with the intention of hurting her son; she did not think he cared because he wanted to stay with his dad. She elaborated that once he is with his dad, he wants to stay there.

At the conclusion of the evidence, the court made the previously mentioned factual finding that appellant was playing "mind games" with the child. The court referred to the conversation that appellee overheard, in which appellant told her son that if he went with his father, he would be dropped off with his uncle who would not feed him, and that if he did not come home she would make Randall her son. The court emphasized testimony that when appellant calls the child when he is with his father or aunt, he becomes upset. The court mentioned the movie incident where appellant had talked with the child about the movie before he went to his father's and then called him at his father's to talk about it again. And, when the child again said he did not want to go, she dropped a "bomb" on him by saying, "Well, I guess I'll have to take Randall." The court found this to be consistent with the conversation that appellee heard where appellant told the child that she would make Randall her son. The court recognized that appellant contends that the child acts up when he returns home because he did not spend enough time with his father, but found that the evidence supports that the child enjoys being with his father and his aunt and cousins.

Based on the "mind games" or "emotional trips" by appellant, the trial court found asufficient change in circumstances to warrant a change in custody. The court further found that it would be in the child's best interests to be with his father based on the appellant's behavior, the attachment the child has with the appellee, and the time appellee has to spend with the child.

Appellant contends that the two isolated phone incidents do not amount to a material change in circumstances to justify a change in custody from the mother who has taken care of the child for the past five years. She argues that calling Harris's house to say that she is on her way to pick her son up to get him ready for bed, even if it upsets him, is not a mind game.

Although the judge primarily relied on the two specific phone incidents in deciding that appellant was playing mind games with the child, there was testimony by both appellee and Harris that appellant's calls upsetting the child were persistent and ongoing. Although appellant explained that the child becomes upset because he does not want to go home and go to bed or because he has not seen appellee, she acknowledged at least one of the specific phone incidents. As stated previously, because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the trial judge, especially in those cases involving child custody. Eaton, supra. Based on our de novo review, we hold that the trial court's findings are not clearly against the preponderance of the evidence.

Affirmed.

Robbins and Baker, JJ., agree.