ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DODSON CHRISTIAN

APPELLANT

v.

JOYE CHRISTIAN TRIMBLE APPELLEE

DIVISION IV

CA02-1151

June 18, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. DV-99-1249]

HONORABLE ELLEN BRANTLEY, CIRCUIT JUDGE

REVERSED AND REMANDED

Dodson Christian appeals the trial court's denial of his motion for change of custody. On appeal, Dodson argues 1) that the trial court's decision to allow appellee, Joye Christian Trimble, a drug addict, to retain custody of the parties' minor child is clearly against the preponderance of the evidence, and 2) that the trial court abused its discretion in refusing to change custody after Joye failed to follow its directives regarding drug rehabilitation. We agree that the trial court erred and reverse and remand.

The facts relevant to our review are as follows. The parties' 1999 consent divorce decree provided for joint custody of W.C., but primary physical custody was awarded to Joye. At the time the divorce decree was entered, Joye was in recovery for drug use and had been hospitalized in1998 for her ongoing addiction. Dodson filed a motion for a change of custody on July 23, 2001, while Joye was being treated as a voluntary inpatient for drug addiction at Bridgeway Hospital. A physical examination given upon admission to Bridgeway on July 15, 2001, revealed track marks on both of Joye's arms. Bridgeway's admission records also noted that Joye admitted to the use of crack cocaine, crystal methamphetamine, and alcohol on several occasions since the divorce. The records further indicated that Joye checked herself out of Bridgeway against medical advice three days after admission. Joye's testimony, which is confirmed by the Bridgeway records, mentions the cost of the program as the motivating factor in checking herself out. During Joye's three days in Bridgeway, her father removed her belongings from her apartment and moved her into the family home. Joye and W.C. continue to share one of the bedrooms in her parents' two bedroom townhouse in the Pleasant Valley area of Little Rock.

In the November 2001 hearing on the motion to change custody, Joye presented testimony that she participated in a program that consisted of daily AA meetings, completion of a twelve week program offered by Interphase of Arkansas (she had completed six of the twelve weeks at the time of the November hearing), followed by a three-month after-care program monitored with periodic urine tests and individual sessions. She also testified that she was taking drug tests twice a week and that she was seeing Dr. Warren Seiler once a week for treatment of depression.

The proceedings were continued until December 17, 2001, in order to allow Joye's expert, Dr. Seiler, to testify. After his testimony was given, the trial court entered an order that increased Dodson's overnight visitation by one night in a two-week period, but otherwise left custody as set in the divorce decree. The order further provided that Dodson's allegations had been proved to the satisfaction of the court, but that custody would remain as it was until the court conducted a review hearing, which would allow Joye time to complete the rehabilitation program she outlined to thecourt in the November hearing, and to demonstrate that she could remain drug-free for longer than the four months between July, when she initiated treatment at Bridgeway, and the November and December hearings.

At the review hearing on May 19, 2002, the evidence indicated that Joye had completed the twelve-week program two days after the December 2001 hearing, but did not attend any after-care program because Interphase did not offer one, and did not submit to any further drug testing until February when she received the trial court's order from the December hearing. Joye's actions during the period between the December 2001 hearing and the review hearing were disputed. Dodson maintained at the review hearing and that she also argues on appeal that Joye was not credible, and that she was not drug-free during this period, and also missed a substantial amount of work during this time. After reviewing all the evidence, the court denied Dodson's motion to change custody, but awarded Dodson one additional overnight visitation every two weeks, ordered Joye to continue with AA meetings, and to submit to drug testing twice a month. Dodson appeals from this order.

The standard of review in child custody cases is well-settled. In such cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). Afinding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). See Ark. Code Ann. § 9-13-101(a).

It is likewise 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. Campbell v. Campbell, 336 Ark. 379, 384, 985 S.W.2d 724, 727 (1999); 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. Id. 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. Id.; Jones v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996); Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954). 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.

During the parties' marriage, they used drugs and consumed alcohol. At the time the parties executed the consent divorce decree, Joye was in treatment for drug and alcohol abuse, having been hospitalized for this condition less than 18 months earlier. It is undisputed that both parties have continued to drink alcohol since the divorce, and it is undisputed that Joye has continued to use drugs since the divorce, was 40 years of age, and had had a drug addiction for over six years. However, the trial court found that there was no suggestion Dodson was now involved with drugs or had ever been an addict or alcoholic or unable to manage due to substance abuse as had Joye.

At the time the parties agreed that Joye would be the primary physical custodian of W.C., she was addicted to drugs and alcohol and had sought treatment for her addictions, and again sought treatment at the time of the motion and the hearings for change of custody. The evidence surrounding Joye's relapses according to her testimony is as follows: she relapsed the month after the divorce was final, January 2000; got "back with the program", then relapsed again in the summer of 2000; recovered and then relapsed in 2001 at which point she voluntarily checked herself into Bridgeway Hospital in July 2001. Joye denied that her frequent absences from her job at Stephens, Inc., were due to drug usage, and testified that since August 2001, she had not used drugs and had only had one glass of wine. From August 2001 through December 2001, she participated in a drug rehabilitation program with Interphase, and in addition, was actively involved in her AA program, as well as attending psychotherapy sessions with Dr. Seiler. She finished the Interphase program in December 2001. However, when Joye completed the Interphase program shortly after the trial court allowed her to continue custody pending a final review hearing, she discontinued the biweekly drug testing and also elected to cut back on her AA meetings in an attempt to become "less dependent on the program."

At the interim and final hearings, the trial court noted the seriousness of Joye's addiction, stating that she was not comfortable with the short length of time that had passed since Joye had sought treatment. The trial court stated that it needed to "keep her under the gun" in order for her to remain sober and continued the hearing for several months. Despite Joye's testimony at the final hearing that she had discontinued drug tests for two months shortly after the December 2001hearing, and resumed the tests only after receiving the trial court's order in February 2002 that noted that she was to be tested twice weekly, the court left custody with Joye. She tested negative for drugs twice in February, twice in March, and six times during April and early May leading up to the May 19, 2002, final hearing.

In making its ruling, the trial court noted that, as between the two parties, Dodson had minimal problems that did not impact his ability to care for his son, while Joye had "very, very serious problems," and predicted that it was likely that the child would eventually be cared for "on a more significant basis" by his father. The trial court expressed confidence that Dodson would learn if Joye relapsed and would take appropriate action. The court stated:

The history has been that if she uses drugs or alcohol she is not able to maintain. I don't assess her as the type kind of person who can drink and maintain. In the past, whenever she has gotten into the use of these, she can't go to work, she just can't maintain, she has car wrecks and other things, so I think your client will find out.

. . .

But at the same time I am not all sure that Mrs. Trimble and with the consultation of her family, made the best selection of how to deal with her addiction. I think they chose Interphase because it was cheap. And then it didn't have the aftercare. But I think this is not an area to penny pinch and that you to find the best program for person with a serious addiction problem, then you have to do it, follow up and pay for it. I would feel a great deal better if she had an after-care program that I expected her to have. I just believe those programs have a better success rate on a lack of relapse than other ones do. I cannot say how much is enough meetings to go to. I think she needs to take seriously the program and the importance of sticking to it and the difficulties of her remaining alcohol and drug free for a long period of time.

. . .

I do feel she has been a loving mother to her child and from what I can tell it is a close bond and one that needs to be encouraged and would be difficult to encourage in the absence of continuing custody with her. But at the same time I am concerned she has a problem that is going to be a life time challenge and struggle. I want to be sure I have made myself pretty clear that I have gone about as far I'm going to go. I think the child has been put in some difficult situations in the past. I hope they have been less traumatic because of his age but given that there is a responsible loving parent with a close bond to the child. While I want to be patient and encouraging I can't let a child to be put at risk. So I am going to continue custody with her with the same arrangements that was started the last time. I think Mr. Phillips' client knows where the courthouse is and hope there will never be an occasion that will bring us back. If there is I want to make sure that these findings are in the record so if there is another judge who would hear this matter they would understand and know the kind of history and just how I viewed it.

The only restriction I am putting on her is she should continue with AA, her visits with Dr. Seiler as he believes appropriate. I still want drug testing at least two times a month with that to be reported. I just don't think that is too much to ask.

I mean if someone misses a drug test without an excellent excuse I tend to look at it as being someone who has something to hide. That's just common sense. If you're snowed in at home and you can't get out for six days, that's one thing. But if you choose not to go I am generally going to assume you wouldn't go because it would have reflected something you didn't want us to see.

It certainly would have been nice for us to have known the Interphase program was going to end two days after court. It was certainly not at all what I recall from her testimony. The Interphase and it wasn't what I recall from them either. They came up and sat up and sat here and said there was going to be more to it. I also remember them saying that if she messes up they were going to call me. I've told you, I believe if she relapses you'll learn, and if she does, that'll be it.

Upon our de novo review, we find that there has been a material change in circumstances since the original order vested physical custody in Joye, who has persisted with a serious drug problem over the course of her custody of the minor child, and admitted to several relapses resulting in hospitalization at the time the motion for change of custody was filed. Her addiction involved alcohol, methamphetamine, and crack cocaine, and she had track marks on her arms at the time she was hospitalized in July 2001. Despite the obvious severity and long-standing nature of her problem, she left the hospital after only several days and against medical advice, and ended regular follow-up care and drug testing just days after the second hearing in December 2001. The trial court stated that Joye demonstrated a "lack of candor" in her testimony, her parents demonstrated a "lack of candor or insight" about her problems, and the trial judge expressed reservations about Joye's prospects for rehabilitation. In sum, these developments constitute a material change incircumstances and allow a determination of custody to be made between competing parents solely on the basis of the best interest of the child. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). Of course, there is no way for this court to know what has transpired in the year since the custody determination was made, or whether the trial court's prediction about Joye's prospects has come to pass. However, based on the record before us, we hold that it was in the child's best interest for custody to be placed with Dodson and that the trial court's decision allowing custody to remain with Joye under the circumstances presented was clearly erroneous. We reverse and remand with directions that the trial court award custody to Dodson and make such further orders as the custody award may require.

Reversed and remanded.

Hart and Bird, JJ., agree.